Specific Relief Final
Specific Relief Final
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B. Personal Services: Specific performance of personal services is generally not
enforceable by the court.
C. Continuous Supervision: Specific relief requiring continuous supervision may
not be feasible for the court to enforce.
D. Discretion of the Court: The court has the discretion to deny specific relief if it
deems it inappropriate or unjust in a particular case.
The provision provides that it is mandatory for the courts to enforce Specific
Performance of Contracts.
Section 10 states that the 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.
Section 12 - Specific performance of part of contract
This Section deals with the specific performance of part of a contract. It states
that-
(1) Except as otherwise hereinafter provided in this section, the court shall not direct
the specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the
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part which must be left unperformed be a only a small proportion to the whole in value
and admits of compensation in money, the court may, at the suit of either party, direct
the specific performance of so much of the contract as can be performed, and award
compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the
part which must be left unperformed either—
(b) does not admit of compensation in money; he is not entitled to obtain a decree for
specific performance; but the court may, at the suit of the other party, direct the party
in default to perform specifically so much of his part of the contract as he can perform,
if the other party—
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the
whole of the contract reduced by the consideration for the part which must be left
unperformed and, in a case, falling under clause (b) pays or has paid the consideration
for the whole of the contract without any abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of
the contract and all right to compensation, either for the deficiency or for the loss or
damage sustained by him through the default of the defendant.
(4) When a part of a contract which, taken by itself, can and ought to be specifically
performed, stands on a separate and independent footing from another part of the same
contract which cannot or ought not to be specifically performed, the court may direct
specific performance of the former part.
The clause (1) of Section 12 describes a general rule that court shall not grant specific
performance of a part of a contract.
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The clauses (2) to (4) of Section 12, however, are exceptions to the general rule.
In B. Santoshamma v. D. Sarala (2009, the Supreme Court held that the Court may,
under Section 12 of SRA direct the party in default to perform specifically, so much
of his part of the contract, as he can perform, provided the other party pays or has paid
the consideration for the whole of the contract, reduced by the consideration for the
part which must be left unperformed.
Exceptions to Specific Performance of Contracts
Section 10 of SRA mentions that provisions of Section 11(2), 14, 16 of the Act must
be considered before granting specific performance.
It states that -
(1) Except as otherwise provided in this Act, the specific performance of a contract
shall be enforced when the act agreed to be done is in the performance wholly or partly
of a trust.
(2) A contract made by a trustee over his powers or in breach of trust cannot be
enforced.
Limitation period for claiming relief under this provision is provided by Article 54 of
the Schedule (Periods of Limitation) under the Limitation Act, 1963 is three years
from the time fixed for completing the sale, or (where the title is accepted after the
time fixed for completion) the date of the acceptance.
Section 14 - Contracts not specifically enforceable
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duty which the court cannot supervise.
(c) a contract which is so dependent on the personal qualifications of the parties that
the court cannot enforce specific performance of its material terms.
(b) who has become incapable of performing, or violates any essential term of, the
contract that on his part remains to be performed, or acts in fraud of the contract, or
wilfully acts at variance with, or in subversion of, the relation intended to be
established by the contract; or
(c) who fails to prove that he has 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 terms the performance of which has been prevented or waived by the defendant.
(i) where a contract involves the payment of money, it is not essential for the plaintiff
to actually tender to the defendant or to deposit in court any money except when so
directed by the court;
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(ii) the plaintiff must prove performance of, or readiness and willingness to perform,
the contract according to its true construction.
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and they may be granted at any stage of a suit, and are regulated by
the Code of Civil Procedure, 1908.
The primary purpose of a temporary injunction is to prevent
irreparable harm or injustice during the course of litigation.
It serves as a balancing act between preserving the rights of the
parties and ensuring that justice is done.
o Prerequisites for Availing Temporary Injunction:
The plaintiff must establish a prima facie case in their favor.
The plaintiff must demonstrate that they will suffer irreparable
injury or harm if the injunction is not granted.
The court will weigh the balance of convenience.
This means considering whether it is more just and
convenient to grant the injunction or to deny it.
The court takes into account the interests of both
parties and the public interest in making this determination.
The plaintiff must show that there is no other adequate
remedy available. If monetary damages can adequately compensate
the plaintiff, the court may be less inclined to grant an injunction.
o Perpetual Injunction:
A perpetual injunction is a judicial order that permanently restrains
a person from performing or continuing a specific act that infringes
upon another's legal rights.
It is governed by Section 37(2) of the SRA and can only be granted
by a decree made after a full trial on the merits of the case.
o Key Characteristics of Perpetual Injunction:
They are rights in personam, not rights in rem.
They can be inherited if related to heritable and partible rights.
They bind the legal representatives of the parties involved.
Perpetual Injunction
Permanent Injunction:
o A permanent injunction is a court order that restrains a party from
engaging in certain conduct or compels them to perform specific acts.
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o It is considered a final and permanent remedy, distinct from preliminary
injunctions, which are issued on a temporary basis during the pendency of
a legal proceeding.
Section 38: Perpetual Injunction when Granted:
o Section 38 outlines the conditions under which perpetual injunctions may
be granted:
To prevent the breach of an obligation existing in the plaintiff's
favor, either expressly or by implication.
When the obligation arises from a contract, the court must follow
the rules in Chapter II of the Specific Relief Act.
When the defendant invades or threatens to invade the plaintiff's
right to or enjoyment of property, in cases where:
The defendant is a trustee of the property for the plaintiff.
There is no standard for ascertaining the actual damage
caused.
Monetary compensation would not provide adequate relief.
An injunction is necessary to prevent multiple judicial
proceedings.
o Prerequisites for Obtaining a Perpetual Injunction
To obtain a perpetual injunction, the following elements must be
present:
An existing obligation and its breach.
The legal right of the plaintiff and a corresponding duty of
the defendant.
Actual or threatened infringement of the plaintiff's right.
Inadequacy of monetary compensation as a remedy.
Section 39: Mandatory Injunction
o This section states that when, to prevent the breach of an obligation, it is
necessary to compel the performance of certain acts which the court is
capable of enforcing, the court may in its discretion grant an injunction to
prevent the breach complained of, and also to compel performance of the
requisite acts.
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Section 40: Damages in lieu of, or in addition to, Injunction
o This section states that a plaintiff may claim damages in addition to or in
lieu of injunctions.
The court has no authority to grant suo moto relief for damages to
the plaintiff.
The court may allow the plaintiff to amend the plaint at any time of
the proceedings.
The dismissal of a suit to prevent the breach of an obligation existing
in favor of the plaintiff shall bar his right to sue for damages for such
breach.
Section 41: Injunctions When Refused:
o There are certain conditions when an injunction can be refused as:
To restrain any person from prosecuting a judicial proceeding
pending at the institution of the suit in which the injunction is
sought, unless such restraint is necessary to prevent a multiplicity of
proceedings.
To restrain any person from instituting or prosecuting any
proceeding in a court not subordinate to that from which the
injunction is sought.
To restrain any person from applying to any legislative body.
To restrain any person from instituting or prosecuting any
proceeding in a criminal matter.
To prevent the breach of a contract the performance of which would
not be specifically enforced.
To prevent, on the grounds of nuisance, an act of which it is not
reasonably clear that it will be a nuisance.
To prevent a continuing breach in which the plaintiff has
acquiesced
When equally efficacious relief can certainly be obtained by any
other usual mode of proceeding except in case of breach of trust
If it would impede or delay the progress or completion of any
infrastructure project or interfere with the continued provision of
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relevant facility related thereto or services being the subject matter
of such project.
When the conduct of the plaintiff or his agents has been such as to
disentitle him to be the assistance of the court.
When the plaintiff has no personal interest in the matter.
Rectification of Instruments
Rectification means correction of an error in an instrument to give effect to the
real intention of the parties.
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Section 26 of SRA deals with the provision for rectification of instruments.
Section 26 - When instrument may be rectified —
(1) When, through fraud or a mutual mistake of the parties, a contract or
other instrument in writing not being the articles of association of a company
to which the Companies Act, 1956 applies does not express their real intention,
then—
(a) either party or his representative in interest may institute a suit to have
the instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument
is in issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition
to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified
under subsection (1), the court finds that the instrument, through fraud or
mistake, does not express the real intention of the parties, the court may, in
its discretion, direct rectification of the instrument so as to express that
intention, so far as this can be done without prejudice to rights acquired by third
persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming
rectification has so prayed in his pleading and the court thinks fit, may be
specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any
party under this section unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading,
the court shall, at any stage of the proceeding, allow him to amend the
pleading on such terms as may be just for including such claim.
Essentials to be Proved
There must be a mutual mistake or fraud.
That the instrument on that account did not truly express the intention of parties.
For mistake to act as a ground under Section 26 for relief must be mutual and
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not unilateral.
In the case of Nawab Begum v. A. H. Creet (1905), the Allahabad High Court
held that a mistake may either be of fact or of law although the court of equity
will not generally grant relief against a mistake of law, except where the mistake
results in an inequitable result.
Rescission of Contracts
The rescission is an equitable remedy and is dependent upon the discretion of
the court.
The Sections 27 to 30 of the SRA deal with the provision of rescission of contracts.
Section 27 - When rescission may be adjudged or refused
o (1) Any person interested in a contract may sue to have it rescinded, and
such rescission may be adjudged by the court in any of the following cases,
namely: — (a) where the contract is voidable or terminable by the
plaintiff;
o (b) where the contract is unlawful for causes not apparent on its face and
the defendant is more to blame than the plaintiff.
o (2) Notwithstanding anything contained in sub-section (1), the court may
refuse to rescind the contract—
o (a) where the plaintiff has expressly or impliedly ratified the contract; or
o (b) where, owing to the change of circumstances which has taken place
since the making of the contract not being due to any act of the defendant
himself, the parties cannot be substantially restored to the position in
which they stood when the contract was made; or
o (c) where third parties have, during the subsistence of the
contract, acquired rights in good faith without notice and for value; or
o (d) where only a part of the contract is sought to be rescinded and such a
part is not severable from the rest of the contract.
When rescission may be Allowed
The Court may allow rescission in the following cases:
Where the contract is voidable or terminable by the plaintiff.
Where the contract is unlawful for causes not apparent on its face and the
defendant is more to blame.
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Loss of Right of Rescission
The relief of rescission is based upon a voidable contract and every voidable
contract is valid till the contract is avoided.
Relief therefore can be sought till the time the contract is in a voidable state.
Section 30 - Court may require parties rescinding to do equity —
o On adjudging the rescission of a contract, the court may require the party
to whom such relief is granted to restore, so far as may be, any benefit
which he may have received from the other party and to make any
compensation to him which justice may require.
As it is commonly said that one who seeks equity must do equity, therefore while
decreeing rescission the court might direct not only payment of compensation
but can also order to restore the benefits received if any.
A party seeking specific relief may pray that specific relief is not be allowed and
the contract be rescinded instead.
Cancellation of Instruments
Cancellation of Instruments is provided from Section 31 to 33 of the Act.
Cancellation of instruments means the nullification of a written document which
is proof of a transaction between the parties that are part of the transaction.
If there is an instrument, which is void or voidable due to some reason and a party
to such an instrument has enough reasons to believe that the said instrument if not
cancelled may cause serious injury to him, then such a person can file a suit with
regards to the cancellation of such instrument.
Section 31 - When cancellation may be ordered -
o (1) Any person against whom a written instrument is void or voidable,
and who has reasonable apprehension that such instrument, if left
outstanding may cause him serious injury, may sue to have it adjudged void
or voidable; and the court may, in its discretion, so adjudge it and order
it to be delivered up and cancelled.
o (2) If the instrument has been registered under the Indian Registration
Act, 1908, the court shall also send a copy of its decree to the officer in
whose office the instrument has been so registered; and such officer shall
note on the copy of the instrument contained in his books the fact of its
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cancellation.
Who may Cancel the Instrument
Section 31 empowers the court to cancel the instrument and not any
administrative authority.
In Sri Lakha Granites v. Eklavya Singh (2011) the Rajasthan High Court has
held that it is not within the powers of the Registrar of Partnership firm to
declare that the partnership deed was null and void.
Partial Cancellation of Instruments
Cancellation of instruments can be done in the following ways according to Section 32 of
SRA.
Complete cancellation where the court decides to cancel the whole instrument.
Partial cancellation where only a part of the instrument is cancelled out.
Power to Require Benefit or Compensation
The provisions with regards to the power of the Court, to require restoration of
benefits received and fair compensation which are supposed to be made when an
instrument is cancelled are provided under Section 33 of the SRA.
The primary aim of this section lies in serving justice to the participants of a
particular instrument/contract in case such is cancelled by the court.
Declaratory Decrees
The declaratory decree is a means to provide relief to someone who is being denied rights
or titles to which he/she is entitled. The Specific Relief Act, 1963 (SRA) provides such
relief under Sections 34 and 35.
Section 34 - Discretion of Court as to Declaration of Status or Right
Any person entitled to any legal character, or to any right as to any property, may institute
a suit against any person denying, or interested to deny, his title to such character or right,
and the court may in its discretion make therein a declaration that he is so entitled, and the
plaintiff need not in such suit ask for any further relief.
Provided that no court shall make any such declaration where the plaintiff, being able to
seek further relief than a mere declaration of title, omits to do so.
Explanation —A trustee of property is a “person interested to deny” a title adverse to the
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title of someone who is not in existence, and for whom, if in existence, he would be a
trustee.
Points for Consideration:
It is a binding declaration under which the court declares some existing
rights in favour of the plaintiff and declaratory decree exists only when the plaintiff
is denied his right which he is entitled to.
This provision encourages the plaintiff to come forward to enjoy the rights to which
they are entitled and if any defendant denies providing any rights for which the
plaintiff is entitled, then it gives them the power to file the suit and get special
relief.
Requirements Relief of Declaratory Decree
The Plaintiff has to prove that the defendant has denied or is interested in denying
the character or title of the Plaintiff and the Plaintiff has to establish that there must
be some present danger to his interest.
In the State of M.P. v. Khan Bahadur Bhiwandiwala and Co. (1971) the court
observed that to obtain the relief of declaration the plaintiff must establish that -
o He at the time of the suit is entitled to any legal character or any right to any
property.
o The defendant had denied or was interested in denying the character or the
title of the plaintiff.
o The declaration asked for was a declaration under which the plaintiff was
entitled to legal character or to a right to property.
o The plaintiff was not in a position to claim further relief than a bare
declaration of his title. Since declaration is an equitable remedy, the court
still has discretion to grant or refuse relief depending on the circumstances
of each case.
Legal Character under Declaratory Decree
Legal character denotes character recognized by law.
It is attached to an individual’s legal status which shows one’s capacity for the title
or character.
In the case of Hiralal v. Gulab (1953), it was observed that a variety of status among
the natural person, can be referred under declaration e.g., sex, minority, rank, caste,
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tribe, profession, etc.
Person Entitled to a Right to Any Property
The courts have made a distinction between "right to property" and "a right in
property”.
It has been held that to claim a declaration the Plaintiff need not show a right in
property.
In the case of Tarak Chandra Das v. Anukul Chandra Mukherjee (1946), the court
held that a declaration might be sought regarding a contingent right, it was further
said that the Court had absolute discretion to refuse relief if considered the claim
to be too remote or the declaration, if given, would be ineffective.
Frame of Plaint
The plaint filed under Section 34 of the SRA must disclose:
o The title or the right claimed by the plaintiff.
o The circumstances under which the doubt arose over the right claimed.
o The prayer (A specific request for judgment, relief and/or damages at the
conclusion of a complaint or petition).
The right to any property mentioned under Section 34 of SRA must be a right that
existed at the date of the suit even if the enjoyment of such right is deferred e.g.
Right of a Reversioner.
When Suit for Declaration Does Not Lie
A suit for declaration would not lie in all cases, some of which are enumerated as
follows:
o A negative declaration cannot be allowed (E.g., A declaration that the
plaintiff did not infringe the trademark of the defendant).
o A suit for a declaration during the testator's lifetime that the will is invalid.
o No suit for declaration lies to set aside a succession certificate granted
under Act XXVII of 1860 (This act is replaced by the present-day
legislation – The Indian Succession Act, 1925).
o No one can ask for a declaration of a nonexistent right as in the case of
succession.
Limitation Period
The Articles that govern the Limitation Period for the suit under Section 34 of SRA
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are Articles 56, 57, 58 of the Limitation Act, 1963.
o Article 56: To declare the forgery of an instrument issued or registered
- Three years.
o Article 57: To obtain a declaration that an alleged adoption is invalid, or
never, in fact, took place - Three years.
o Article 58: To obtain any other declaration - Three years.
Section 35 - Effect of Declaration
A declaration made under this Chapter is binding only on the parties to the suit, persons
claiming through them respectively, and, where any of the parties are trustees, on the
persons for whom, if in existence at the date of the declaration, such parties would be
trustees.
The present provision lays down that the declaration made under Section 34 is
binding on:
o The parties to the suit.
o Persons claiming through them.
o Trustees, where any of the parties are trustees, on the persons for whom, if
in existence at the date of the declaration, such parties would be trustees.
Conclusion
Preventive relief, as provided under the Specific Relief Act, serves as a crucial legal
tool to protect people's rights before they are actually violated. Think of it as a shield
that stops someone from doing something wrong before they can do it, rather than
trying to fix things after the damage is done. The law recognizes that sometimes, just
giving money as compensation isn't enough - you need to stop the wrong action before
it happens:
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performance or prevent the breach of obligations.
• The Specific Relief Act, 1963, governs the granting of specific relief in civil cases.
• Specific relief can take the form of specific performance or injunctions.
• The scope of specific relief covers various areas, including contracts, property
disputes, trusts, torts, and intellectual property.
• However, there are limitations to the availability of specific relief, and its granting
is at the discretion of the court.
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