Specific performance is the remedy to that party of contract who suffers due to the breach of contract. Specific performance is an equitable relief, granted by the Court where pecuniary damages are not sufficient as relief to a party for failure to carry out the terms of the contract.
Specific Performance is ordered by Court to parties to perform as per the exact terms and conditions of the contract. To render justice and provide adequate relief by the way of specific performance a law has been codified, known as Specific Relief Act, 1963 which is to be considered as one of the branch of Indian Contract Act, 1872.
Chapter II of the Specific Relief Act, 1963 deals with Specific Performance of Contracts, which was recently amended in 2018. Section 10 of the Act after amendment emphasizes that specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16. Similarly, before the amendment of 2018 section 20 of the Act had provision for Discretion and Power of Court, but by the way of this amendment the discretionary jurisdiction of the court has been reduced in granting specific performance of contract.
However, even after the amendment, Court considers the well-settled criteria and principles while granting or denying specific performance such as under section 16 (2) of the Act. It says that the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction. In the case of Mehboob-ur-Rehman vs. Ahsanul Ghani, it was held that the expression “who fails to aver and prove” is substituted by the “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”.
The Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sassoon has observed that the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. Therefore, The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit; held in the case of Gomathinayagam Pillai vs. Palaniswami Nadar.
Further, Section 22 of the Act must also be considered while seeking the relief as it says that the plaintiff may ask for possession, or partition and separate possession of the property. However, it shall be granted only if it is specifically asked in the plaint. In Balasheb dayandeo Naik vs. Appasaheb Cattatraya Pawar AIR 2008 SC 1205 it was held that, in all the suits of specific performance, the plaintiff is entitled to seek alternative relief including refund of earnest money or deposit paid in the event the decree for specific performance cannot be granted for any reason.
Who may obtain Specific Performance:
As per Section 15 of the Act, the contract can be enforced only by a person who is party to a contract. If there is no contract at all, then the question of specific performance does not arise. In the case of S.M. Chetty vs. Raman AIR 1998, the suit was dismissed on the only ground that the plaintiff was not party to the contract and hence was not entitled to specific performance.
Contracts which may not be Specifically enforced:
Section 14 of the Act contains certain contracts that cannot be specifically enforced such as where compensation in monetary terms is an adequate relief, where a contract involves the performance of a continuous duty which the Court cannot supervise, where contract is of determinable nature and where contract runs into minutes or numerous detail.
The Specific Relief Act, 1963
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