Specific performance is now to be conferred the status of a general rule rather than an exception, subject to a limited set of grounds embedded within Section 11(2), 14 and 16 of the act. Found many here but have many more unanswered ones . The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Which Court has jurisdiction to try Excise Offences? Basically this entire concept of specific performance arises from the fact that a contract exists.The statutory definition of a contract is that it is an agreement enforceable by law. ( Log Out /  proof of readiness and willingness or performance. Question no.6 :- What are the defences avialbale to the defendant in suit for specific performance  of contract? The Q&A format is superb for a person uninitiated in law like me. However, section 12(1) is an exception to the general rule. The party on whom this contractual obligation rests must not fails to discharge such obligation. (Sec.14 (1) (d)), no specific performance would be ordered for contracts for personal work or service, ‘Equity’ will insist on the principle of mutuality, The person against whom the relief is claimed may take plea by way of defence under law relating to contract. A mere reading of Article 54 of the Limitation Act would show that if the date is fixed for performance of the agreement, then non-compliance with the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. Explanation. “24. Specific performance is equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed by contract to do. 4. Question no.13 :- Can Legal representative enforce specific performance of contract? [6] Statement of Objects and Reasons of Amending Act 18 of 2018.—The Specific Relief Act, 1963 was enacted to define and amend the law relating to certain kinds of specific relief. Can Court make an order under section 151 CPc directing the plaintiff to file an undertaking that he will pay some amount directed by the court to the defendant as damages if he fails in the suit? Section 10 (b) provides that “except as otherwise provided in this Chapter, the specific performance of any con­tract may, in the discretion of the Court, be enforced – (b) when the act agreed to be done is such that compensation in money for its non-perfor­mance would not afford adequate relief. Mar 17, 2016 @ 02:42:37, Good column. In the General Clauses Act exphasis is laid on honesty. There shall be status quo till then, A helpful write-up for a litigation practioner.thank you, very helpful information Thank u very much. 30:- Can Karta Alienate of joint family property? Sorry, your blog cannot share posts by email. Briefly, the proposed provision [see End Note 1], like the overall intent of the Bill, seeks to make specific performance a rule, rather than an exception. Question no. 9. Specific Relief Act 1963 Complete Act - Bare Act: State: Central Government: Year: 1963: Act Info: Preamble1 - SPECIFIC RELIEF ACT, 1963. ( AIR1967AP63,  Vuppalapati Butchiraju and Anr’s case), Question no. The right of the karta of a Hindu Joint Family, in this regard, is almost unquestioned. In a suit for specific performance of contract for sale of immovable property containing a stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. Question no.8 :- What does discretion and power of court mean? but not guaranteed, to be correct, complete, or up to date. The views expressed are not the personal views of EBC Publishing Pvt. Whether the Magistrate Court or the Court of Session. 23: Liquidation of damages not a bar to specific performance: 24: Bar of suit for compensation for breach after dismissal of suit for specific performance. Specific performance means enforcement of exact terms of the contract. Specific Performance and 'Replevin' The term replevin -- commonly referred to as "claim and delivery" -- refers to a legal action in which actual property (not its monetary value) must be transferred to the plaintiff in a dispute. Section 12 of the Act corresponds to Sections 13 to 17 of the Act with certain modifications. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. Section 16(c)[8] of the Act makes it mandatory for the plaintiff to prove that he has already performed or was always ready and willing to perform the essential terms of the contract which were to be performed by him. Answer:-  In the case of Mahamed Mozaharal Ahad Vs. Mahamed Azimaddin Bhuinya, AIR1923Cal507, Held: As Lord Esher observed in Dixon v. Calcraft (1892) 1 Q.B. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. Background. I am also sufferer of ex parte decision of court as subsequent purchaser with no knowledge of court case. the owner of the suit property to another person and later he suffers a decree for specific performance of contract directing him to transfer the suit property to the plaintiff in term of contract. Therefore, the High Court rightly allowed the appeal holding them to be not a bona fide purchasers and directed decree for specific performance in pursuance of agreement to sell dated 6.5.1988. but not guaranteed, to be correct, complete, or up to date. by Act 18 of 2018, s 3, for section 10 (w.e.f. Sikandar v. K. Subramani[21],the  Supreme Court held that on failure to pray for and seek to declare that a termination was wrongful the further relief to perform the terminated agreement could not be granted: “37. While specific performance requires all parties to act within the terms of a contract, an injunction is the opposite. v. Nilkanth Dhondiba Chavan (Dead) by LRs and Anr. Bringing you the Best Analytical Legal News. It is settled by a long course of decisions of the Indian High Courts that the Court which passes a decree for specific performance retains control over the decree even after the decree has been passed. The Supreme Court has held that under Section 19(a) and (b) of the Specific Relief Act, 1963, specific performance of a contract can be enforced against either party thereto and any person claiming under him by a title arising subsequent to the contract, except a transferee for value, who has paid his money in good faith and without notice of the original contract. Section 10 of the Act as now amended[4] emphasises that specific performance is usually to be granted and denied only in circumstances as set out in Sections 11, 14 and 16 of the Act[5]. Answer:- In order to constitute a lis pendens the following elements must be present :-. of the act, as set out by the apex court in adhunik steel ltd. v. orissa manganese & minerals (p) ltd. : air2007sc2563 , the court need to consider all the facets of specific performance act and the civil procedure code, including order 38, rule 5, order 39, rules 1 and 2, order 40, rule 1 i.e. The term specific performance refers to literal performance of ones obligations under a contract. Question no.9 :- What are the circumstances in which the Court can exercise its discretion properly ? As observed by the Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sassoon[13]: “In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. 39. “When will the court refuses to grant specific performance of a contract”, suresh pardiker The expression “readiness and willingness” has been the subject-matter of interpretation in many cases even prior to its insertion in Section 16(c) of the Specific Relief Act, 1963. This can be treated as damaging of a document evidencing the contract, Only 1.9% of the total sales consideration was paid, Date of order be considered. ( Jala Anjaiah Vs. Ramisetty Anjaiah, MANU/AP/1014/2011). The case would thus be governed by the second category viz. (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or   made by him, in case his claim for specific performance is refused. The Supreme Court has in Hungerford Investment Trust Ltd. v. Haridas Mundhra[33] explained the power of the Court in the following terms: “22. For the act which requires continued supervision of the Court, no specific performance would be ordered. However, in my view it is still mandatory for the plaintiff to prove that he has already performed or was always ready and willing to perform the essential terms of the contract which were to be performed by him. The law will still provide and presume that breach of a contract in respect of moveables can be compensated and therefore refuse performance. Please advice regarding ex parte decree obtained in collusion between plaintiff and defendant to cheat the subsequent purchaser where plaintiff intentionally do not defend and plaintiff do not disclose that property is sold again and again. I am fighting a specific performance case (as a plaintiff) which is close to being decreed. Answer:- The object of Order 1, Rule 10, C.P.C. Jan 05, 2018 @ 06:55:58, The article was very helpful to me, but I want to know more about (3) Where the party suffering breach of contract has got the contract performed through a third party or by his own agency after giving notice under sub-section (1), he shall not be entitled to claim relief of specific performance against the party in breach. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. This principle was laid down in the following judgements: Gomathinayagam Pillai v. Palaniswami Nadar[12]. The Supreme Court has in para 12 of its judgment in  Aniglase Yohannan v. Ramlatha[11] held that: “12. “7. . Change ), You are commenting using your Facebook account. Question no. Hello.This article was really interesting, particularly since I was browsing for thoughts on this matter last Thursday. In the cross- examination, PW2 stated that he had not offered at any time to Boramma the amount and that he had not deposited any amount in court. (ii) He may apply to the Court (by motion in the action) for an order rescinding the contract. (2) No substituted performance of contract under sub-section (1) shall be undertaken unless the party who suffers such breach has given a notice in writing, of not less than thirty days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed by a third party or by his own agency: Provided that the party who suffers such breach shall not be entitled to recover the expenses and costs under sub-section (1) unless he has got the contract performed through a third party or by his own agency. This principle enables the Court to provide assistance to the successful Plaintiff even after the decree to effectuate complete satisfaction of the relief claimed and prevent it from being rendered useless. The following observations of the Privy Council are apposite: (Jamsetji case[18] , SCC OnLine PC). Specific performance is a unique remedy that may be available in some cases. I consider you made various good points in features also. the answers are good sir Specific performance vs injunction. The Supreme Court has in para 12 of its judgment in, It is not unusual that during the pendency of an action or even before in case a party to the contract creates third party rights then such persons claiming title from one of the contracting parties becomes a necessary party. “Truth never damages a cause that is just.” ― Mahatma Gandhi, by Author Y.Srinivasa Rao Judge Section 52 of the Penal Code emphasises due care and attention in relation to good faith. who should be a necessary party in a suit for performance. Injunctions are also sometimes based on breach of contract, and they come in … in Skinners’ Co. v. Knight (1891)2 Q.B. It is called "specific" because under this procedure, the plaintiff gets his relief in specific, rather than a general relief or damages or … Vs. Talari Vijayalakshmi, 2005(4)ALD130). “38. The Act inter alia covers most aspects pertaining to performance of contracts as also injunctive reliefs which can be granted and claimed. [ Prakash Chandra Vs. Narayan, AIR2012SC2826]. Though, with the amendment of the Specific Relief Act, 1963 by Act  18 of 2018, the expression “who fails to aver and prove” is substituted by the expression “who fails to prove” and the expression “must aver” stands substituted by the expression “must prove” but then, the position on all the material aspects remains the same that, specific performance of a contract cannot be enforced in favor to the person who fails to prove that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms of which, the performance has been prevented or waived by the other party.”, “30. Specific performance is a primary remedy for breach of contract available for the aggrieved party. Under this Rule, a person may be added as a party to the suit in the following two contingencies :- (i) When he ought to have been joined as plaintiff or defendant, and is not joined so, or (ii) When, without his presence, the questions in the suit cannot be completely decided. Change ), Create a free website or blog at WordPress.com. It is a special remedy that is awarded by the court when no other remedy (such as damages) … Specific performance is the legal concept that anyone who signs a contract is bound to the terms of the contract. 23: Liquidation of damages not a bar to specific performance: 24: Bar of suit for compensation for breach after dismissal of suit for specific performance. The Court is to grant relief on the basis of the conduct of the person seeking relief. Answer:- Smt. It is considered an equitable remedy and is used when traditional monetary damages do not suffice to resolve a legal dispute. Section 16(c) of the Specific Relief Act puts the burden on the plaintiff to prove that he had performed his part or will perform as agreed by both parties in the contract. The contents are intended, 27. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed. It encompasses the idea that all parties to a contract are bound by the exact terms stated in that contract and that there are remedies that a wronged party can pursue when someone is in breach of those terms. Thus, it is a kind of specific relief that comes under the Specific Relief Act, 1963. Ltd. disclaims all liability to any person for any loss or damage caused by errors or omissions, whether arising from negligence, accident or any Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. There is no mention of legal heirs in the contract and original defendants have expired since the signing of the contract. Specific performance is deemed an extraordinary remedy, awarded at the court’s discretion. 24. While examining the question as to how and in what manner, the plaintiff is required to prove his financial readiness so as to enable him to claim specific performance of the contract/agreement, the Privy Council in a leading case which arose from the Indian courts (Bombay) in Bank of India Ltd. v. Jamsetji A.H. Chinoy[17]  , approved the view taken by Chagla, Actg. a very very informative article i have read in net regarding this subject of specific relief act. The views expressed are not the personal views of EBC Publishing Pvt. Bank of India Ltd. v. Jamsetji A.H. Chinoy, 1949 SCC OnLine PC 81, [22] Section 22. It often happens that a contract is terminated and that fact gives rise to a cause of action to file a suit for performance. In the case of Smt. (Sec.9), Illegality or want of authority to enter into contract, If there exists no standard for ascertaining the actual damage caused by the non performance of the act which agreed to be done. Explained in simple, clear and lucid language, supported by judicial decisions to buttress the point. And, an agreement is a set of promises forming the consideration for each other. (Amendment in 2017) Here is the Amendment PDF. The specific Relief Act, 1877 clearly states in section 12, cases in which a party can claim performance of contract. Your email address will not be published. [7] Section 20. (ii)   the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction. Be it enacted by Parliament in the Fourteenth Year of the Republic of India as follows- * (STAR) wherever, means there has been a recent amendment. Notify me of follow-up comments by email. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is in innocent purchaser. Section 12 of the Act corresponds to Sections 13 to 17 of the Act with certain modifications. Section 12 of the Act corresponds to Sections 13 to 17 of the Act with certain modifications. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Interim bail to the terms of a Hindu joint family property, s 3, for 10... Amendment ) deemed an Extraordinary remedy, and in some cases or partly of a contract may be obtained.! Ѡrite a littlе comment tο support ʏoս, Mayur Agarwal and Sheetal Parkash the.! Reliefs of possession and partition and separate possession of the parties answer: What... Personal views of EBC Publishing Pvt facts of each case possession and partition and separate possession of whole! Court or the Court ( b ) thereof been uniform and three distinct lines thought! 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