CHANAKYA NATIONAL LAW UNIVERSITY

Patna

LAW F CONTRACTS

TOPIC – SPECIFIC RELIEF ACT- A CRITICAL STUDY

SUBMITTED TO :–

Dr. V.K. VIMAL

SUBMITTED BY :–

Name: MRINAL ARYAN

Roll No: 1220; Sem 2ND

Course:B.B.A. LLB.

ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have ever

faced. Though this project has been presented by me but there are many people

who remained in veil, who gave their all support and helped me to complete this

project.

First of all I am very grateful to my subject teacher Dr. V.K. VIMAL without the

help and kind support of whom the completion of the project would have been a

herculean task for me. He donated his valuable time from his busy schedule to help

me to complete this project and suggested me from where and how to collect

data. I am thankful for their aspiring guidance, invaluably constructive criticism

and friendly advice during the project work.

I am sincerely grateful to them for sharing their truthful and illuminating views on

a number to the project. I am very thankful to the librarian who provided me

several books on this topic which proved beneficial in completing this project.

Last but not the least, I am very much thankful to my parents and family, who

always stand aside me and helped me a lot in accessing all sorts of resources.

I thank all of them !

MRINAL ARYAN

R. No. : 1220 ; Sem: 2nd

B.B.A. LLB.

RESEARCH METHODOLOGY

In this project, the researcher has relied on the ‘Doctrinal Method’, which is

primarily based upon books, magazines and internet resources. The researcher has

made a comprehensive study of the available resources in order to arrive at the

conclusion.

TABLE OF CONTENTS

1. INTRODUCTION

2. IMPORTANCE OF SPECIFIC RELIEF ACT

3. PROVISIONS OF SPECIFIC RELIEF ACT

4. LOOP HOLES AND INEFFICIENCY OF SPECIFIC RELIEF ACT –

CRITICAL ANALYSIS

5. CONCLUSION

INTRODUCTION

The Specific Relief Act, 1963 is an Act of the Parliament of India which takes care

of a large number of remedial aspects of law. It came in the replacement of the

earlier Act of 1877. Protection of life and property cannot be assured by a simple

declaration of rights and duties. The enumeration of rights and duties must be

supplemented by legal devices which help the individual to enforce his rights.

Social redress must be provided to every person who is injured in the social

process. Basically, the mission of the Specific Act is to assure that whenever there

is a wrong there must be a remedy.

Remedies are generally provided by the branch of substantive law which defines

its rights and duties for its own purposes. The law of contract provides the remedy

of damages for breach of contract. Similarly the law of tort provides for recovery

in cases of tortuous wrongs. However, substantive laws can never afford to be

exhaustive in terms of their remedies and reliefs. Scope of the Act remains specific

to provide a network of relief. The Act does not confer any Rights on itself.

Specific relief is only provided for the violation of a legal right.

Thus we can say that :

1. Specific Reliefs Act is complimentary to provisions of Contract Act and

Transfer of Property Act, as the Act applies both to movable property and

immovable property.

2. The Act applies in cases where Court can order specific performance of a

contract or act. As per section 4, specific relief can be granted only for purpose of

enforcing individual civil rights and not for the mere purpose of enforcing a civil

law.

3. ‘Specific performance’ means Court will ask the party to perform his part of

agreement, instead of asking him to pay damages to other party.

IMPORTANCE OF SPECIFIC RELIEF ACT

Remedies under Specific Relief Act, 1963

• Recovery of possession of immoveable property

• Recovery of possession of moveable property

• Specific performance of contract

• Rectification of contract

• Rescission of contract

• Cancellation of an instrument

• Declaratory decree

• Injunctions 1

A. RECOVERING POSSESSION OF IMMOVABLE PROPERTY –

1. A person who is entitled to possession of a specific immovable property may

recover it in the manner provided in Code of Civil Procedure. (Section 5)

2. If any person is disposed without his consent, of immovable property otherwise

than by course of law, he can recover possession, even if any other title is set up in

such suit. Such suit shall be brought within 6 months.

3. No suit can be filed against Government for recovery of possession. [Section 6].

That is why it is termed as ‘possession is 9 points in law’.

1 http://www.lawnotes.in/Specific_Relief_Act,_1963

4. Even an unlawful possession of immovable property can be taken away only by

lawful means and not forcefully

B. RECOVERING POSSESSION OF SPECIFIC MOVABLE PROPERTY

a. A person who is entitled to possession of a specific movable property may

recover it in the manner provided in Code of Civil Procedure. (Section 7)

b. If any person is in possession or control of a specific movable property of which

he is not owner, he can be compelled to specifically deliver it to the person entitled

to immediate possession, in cases specified in section 6. Thus, if a person holding

the movable property is owner of goods, he cannot be compelled to deliver it to

other.

c. However, in other cases, he can be compelled to deliver it, even if other person

is not owner, as long as he is entitled to its immediate possession.

C. SPECIFIC PERFORMANCE OF CONTRACT

Specific performance of contract can be ordered, at discretion of Court, in

following cases –

(a) Where there exists no standard for ascertaining damage caused by the

nonperformance of act agreed to be done or

(b) When the act agreed to be done is such that compensation in money for

nonperformance will not give sufficient relief. [Section 10].

(c) Please note that as per explanation (ii) to section 10, breach of contract in

respect of movable property can be relieved (by paying damages) unless the

property is not an ordinary article of commerce or is of specific value or interest to

the tariff, or consists of goods which are not easily available in the market.

In other words, Court may order to deliver specific article only if it is special or

unique article, not available in market. In other cases, Court will order damages but

not order specific performance of contract.

(d) In case of immovable property, normally, specific performance will be ordered,

as such property is usually unique. - - Section 12(1) states that Court shall not

order performance of part of contract, except in cases specified in that section.

D. CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED –

Following contracts cannot specifically enforced –

(a) Where compensation is adequate relief

(b) Contract runs into such minute or numerous details or depends on personal

qualifications of parties or is such that Court cannot enforce specific performance

of its material terms

(c) Contract which in its nature is determinable

(d) Contract, performance of which involves a continuous duty, which Court

cannot supervise. [Section 14]. In other words, in case of movable articles or

contract of intricate nature, specific performance will normally not be ordered by

Court.

(e) Specific performance of contract of personal nature cannot be ordered.

E. DISCRETIONARY POWERS OF COURT

a. Jurisdiction of Court to decree specific performance is discretionary. Court will

not order specific performance merely because it is lawful to do so. [Section

20(1)].

b. Court will consider various aspects before issuing decree for specific

performance.

c. Court can grant compensation in lieu of even in addition to specific

performance. [Section 21].

F. OTHER CASES WHEN COURT CAN ORDER SPECIFIC PERFORMANCE

(a) Order rectification of instrument if it does not reflect real intention of parties.

This may happen through fraud or mutual mistake. [Section 26]

(b) Order rescission of contract (section 27)

(c) Cancellation of instrument by getting declared that it is void (section 31).2

G.SPECIFIC PERFORMANCE OF CONTRACTS

The base of almost all economic relations are made of contracts. Every profession

is contract bound. Property, whether owned by businesses or individuals are locked

up under contracts. For example, money in banks and other forms of investment

are contractually bound. As a result, contracts constitute modern wealth. They are

sacred per se. Moreover a particular contract is not an isolated transaction. Often it

is a link in the chain of several contracts. A failure at one place could cause serious

dislocation to economic and social life. Contracts, thus must be enforced. But

awarding compensation to an injured person is the only way that the law of

contract can enforce a contract. However, in many cases compensation fails to

serve the economic purpose of a contract. For example, a hospital is interested in

the fulfillment of its requirements and not in receiving compensation from a failed

supplier. Thus there was a need for a remedy which would compel a defaulting

contractor to actually perform his contract.3

H. RECTIFICATION AND CANCELLATION OF INSTRUMENTS AND

RESCISSION OF CONTRACTS

By law, many transactions are required to be in writing. Because of expediency,

many more transactions are put into writing. A written transaction is called an

instrument. An instrument is a result of negotiations. Sometimes, an instrument

may fail to express the intention of the involved parties. Rectification of such an

instrument may become necessary. Help towards parties who want to have their

2 http://lawjournaledition.blogspot.in/2012/07/specific-relief-act-1963-.html 3 http://lawyerslaw.org/the-specific-relief-act-1963/

documents (which are mistakenly executed) rectified, is provided in Chapter III of

the Specific Relief Act. Closely related with documents mistakenly executed, is the

category of documents which are at a later point found to be void or which become

void. These documents ought to be cancelled. Chapter V provides relief from such

kinds of documents. Also, there is a category of contracts which, for some reason

or the other (e.g. lack of free consent) can be deemed voidable by the party which

consent was not free. This party has the right to have the contract rescinded. Relief

by way of rescission is provided by Chapter IV of the Specific Relief Act.

I. PREVENTIVE RELIEF

There can be cases where the nature of the contract do not allow damages to likely

serve any purpose nor admit to specific performance. In such cases, the court may

have to restrain the party who threatens the breach, to the possible extent. For

example, a person undertakes a contract to sing at a particular place and also

undertakes not to sing anywhere else during the same period. In case the singer

threatens breach, the court cannot force him to sing. The positive side of the

bargain is not specifically enforceable. But the negative undertaking i.e. not to sing

elsewhere, can be enforced by restraining him from singing elsewhere. When he is

prevented from resorting to other openings, it may exert some pressure upon his

mind and he may be persuaded to go ahead with the performance of his contract.

This type of remedy is known as preventive relief. This is granted by issuing an

order known as injunction. Injunction is an order issued upon the party concerned

directing him/them to omit the performance of a particular duty or act. This is also

known as a mandatory injunction. Such relief is granted under the provisions of

Part III of the Act.4

J. DECLARATORY RELIEF

4 http://commonlaw-sandeep.blogspot.in/2012/01/specific-relief-act-1963-quick-summary.html

This is the final matter which is taken care of by the Specific Relief Act.

Sometimes it may happen, that a person who is entitled to some status or character

or has a right in some property but is being denied the enjoyment of his right by

other parties. Under Chapter VI of the Specific Relief Act, he is allowed to proceed

against any person who is denying or is interested in denying him his

right.Ushaben V. Bhagayalakshmi Chitra Mandir AIR [All India Reporter] Year of

Judgment-1978 Gujrat High Court Page No.-13. The plaintiffs sued the defendants

for a permanent injunction to restrain the exhibition of the “Jai Santoshi Maa” by

them. It was contended that the plaintiff’s feelings were hurt by the film as

goddesses Saraswati, Lakshmi and Parvati were shown as being jealous and were

ridiculed. It was held that the plaintiff’s failed to prove that the exhibition of the

said film was generally a nuisance. If only the religious sentiments of the plaintiffs

were hurt that did not amount to nuisance. The plaintiffs were free not to see the

movie again. Issue of injunction to restrain the defendants from exhibiting the film

was refused by the court.5

5 http://indiankanoon.org/doc/1671917/

PROVISIONS OF SPECIFIC RELIEF ACT

Part I: Preliminary

Section 1: Short title, extent and commencement

Section 2: Definitions

Section 3: Savings

Section 4: Specific relief to be granted only for enforcing individual civilrights

and not for enforcing penal laws

Part II: Specific Relief

Section 5: Recovery of specific immovable property

Section 6: Suit by person dispossessed of immovable property

Section 7: Recovery of specific movable property

Section 8: Liability of person in possession, not as owner, to deliver to persons

entitled to immediate possession

Chapter II: Specific Performance of Contracts

Section 9: Defences respecting suits for relief based on contract

Section 10: Cases in which specific performance of contract enforceable

Section 11: Cases in which specific performance of contracts connected with

trusts enforceable

Section 12: Specific performance of part of contract

Section 13: Rights of purchaser or lessee against person with no title or

imperfect title

Section 14: A Contract for marriage cannot be specifically be enforced.

Section 15: Who may obtain specific performance

Section 16: Personal bars to relief

Section 17: Contract to sell or let property by one who has no title, not

specifically enforceable

Section 18: Non-enforcement except with variation

Section 19: Relief against parties and persons claiming under them by

subsequent title

Section 20: Discretion as to decreeing specific performance

Section 21: Power to award compensation in certain cases

Section 22: Power to grant relief for possession, partition, refund of earnest

money, etc

Section 23: Liquidation of damages not a bar to specific performance

Section 24: Bar of suit for compensation for breach after dismissal of suit for

specific performance

Section 25: Application of preceding sections to certain awards and testamentary

directions to execute settlements

Section 26: When instrument may be rectified

Section 27: When rescission may be adjudged or refused

Section 28: Rescission in certain circumstances of contracts for the sale or lease

of immovable property, the specific performance of which has been decreed

Section 29: Alternative prayer for rescission in suit for specific performance

Section 30: Court may require parties rescinding to do equity

Section 31: When cancellation may be ordered

Section 32: What instruments may be partially cancelled

Section 33: Power to require benefit to be restored or compensation to be made

when instrument is cancelled or is succesfully resisted as being void or voidable

Section 34: Discretion of court as to declaration of status or right

Section 35: Effect of declaration

Part III: Preventive Relief

Chapter VII: Injunctions Generally

Section 36: Preventive relief how granted

Section 37: Temporary and perpetual injunctions

Chapter VIII: Perpetual Injunctions

Section 38: Perpetual injunction when granted

Section 39: Mandatory injunctions

Section 40: Damages in lieu of, or in addition to, injunction

Section 41: Injunction when refused

Section 42: Injunction to perform negative agreement

Section 43: [Repealed.]

Section 44: [Repealed.] 6

6 Bare Act – specific relief act

LOOP HOLES AND INEFFICIENCY OF SPECIFIC RELIEF ACT

Specific Reliefs Act is complimentary to provisions of Contract Act and Transfer

of Property Act, as the Act applies both to movable property and immovable

property. The Act applies in cases where Court can order specific performance of a

contract or act. As per section 4, specific relief can be granted only for purpose of

enforcing individual civil rights and not for the mere purpose of enforcing a civil

law.

It is very important to understand the meaning of Specific Performances over here,

‘Specific performance’ means Court will ask the party to perform his part of

agreement, instead of asking him to pay damages to other party. The Specific

Relief Act is has a number of advantages and benefits but it has flaws too. The

Specific Relief Act is concerned only with the enforcement of civil rights and not

penal laws which is its main incapability that it cannot punish the wrong doers.

The other main loop hole of Specific relief act is that it does not have power to

give injunction which means that is an equitable remedy in the form of a court

order that compels a party to do or refrain from specific acts. A party that fails to

comply with an injunction faces criminal or civil penalties, including possible

monetary sanctions and even imprisonment. They can also be charged with

contempt of court. which makes it incompetent to exercise its existing powers

which can be approved by the way of section 41.

Further when we compare this very act with the Civil Procedure Code 1908 , we

are able to criticize the Specific Relief Act 1963. We can say in other words that

CPC in a way fills the incompetency of this act.

Section 19 :- Suits for compensation for wrongs to person or movables.

Where a suit is for compensation for wrong done to the person or to movable

property, if the wrong was done within the local limits of the jurisdiction of one

Court and the defendant resides, or carries on business, or personally works for

gain, within the local limits of the jurisdiction of another Court, the suit may be

instituted at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in

Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may

sue A either in Calcutta or in Delhi.

Section 43 :-Execution of decrees passed by Civil Courts in places to which this

Code does not extend.

[Execution of decrees passed by Civil Courts in places to which this Code does not

extend.

Any decree passed by any Civil Court established in any part of India to which the

provisions of this Code do not extend, or by any Court established or continued by

the authority of the Central Government outside India, may, if it cannot be

executed within the jurisdiction of the Court by which it was passed, be executed

in the manner herein provided within the jurisdiction of any Court in the territories

to which this Code extends].

Section 62 :- Seizure of property in dwelling-house.

(1) No person executing any process under this Code directing or authorizing

seizure of movable property shall enter any dwelling-house after sunset and before

sunrise.

(2) No outer door of a dwelling-house shall be broken open unless such dwelling-

house is in the occupancy of the judgment-debtor and he refuses or in any way

prevents access thereto, but when the person executing any such process has duly

gained access to any dwelling-house, he may break open the door of any room in

which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who,

according to the customs of the country, does not appear in public, the person

executing the process shall give notice to such woman that she is at liberty to

withdraw; and, after allowing reasonable time for her to withdraw and giving her

reasonable facility for withdrawing, he may enter such room for the purpose of

seizing the property, using at the same time every precaution, consistent with these

provisions, to prevent its clandestine removal.

Section 65 :- Purchaser’s title.

Where immovable property is sold in execution of a decree and such sale has

become absolute, the property shall be deemed to have vested in the purchaser

from the time when the property is sold and not from the time when the sale

becomes absolute.

Section 88 :- Where interpleader suit may be reinstituted.

Where two or more persons claim adversely to one another the same debts, sum of

money or other property, movable or immovable, from another person, who claims

no interest therein other than for charges or costs and who is ready to pay or

deliver it to the rightful claimant such other person may institute a suit of

interpleader against all the claimants for the purpose of obtaining a decision as to

the person to whom the payment or delivery shall be made and of obtaining

indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can

properly be decided, no such suit of interpleader shall be instituted.

CONCLUSION

Thus through this project report the researcher has come to the conclusion that The

Specific Relief Act, 1963 was came into force on 1st March 1964. The Parliament

enacted the Act by repealing the Specific Relief Act, 1877. The Act is based on the

principle of equity and is used for granting specific relief for enforcing civil rights.

It has no application in enforcing penal laws. The Specific Relief Act, 1877

contained the principles of equity, justice and good conscience. The need for a new

statute suited for the new requirements lead to the enactment of the Act of 1963.

The Bill of the new Act was drafted on the basis of the 9th Report of the Law

Commission of India. From the preamble of the Act, it is clear that the Act was not

an exhaustive one. It only deals with certain kinds of specific reliefs and there are

other reliefs about which the Act was silent and are used by the courts.

The Act is a procedural law and provides a network of reliefs. The plaintiff, under

the Act gets his relief in specific. The reliefs contained in the Act include,

Recovery of Possession of Property,

Specific Performance of Contracts,

Rectification of Instruments,

Rescission of Contracts,

Cancellation of Instruments,

Declarative Relief, and

Preventive Reliefs ( Injunctions).

Sections 5 to 7 of the Act contained provisions regarding recovery of possession of

property. It include both immovable property (Section 5) and movable property

(Section 7). Any person having right of possession of the property can recover it by

the application of provisions of Code of Civil Procedure. Section 6 prevents a

person from possessing immovable property of another without his consent

otherwise than by due process of law, without considering the question of title. A

suit for recovery of such property under S.6 cannot be filed against the

Government.

Chapter II of the Act deals with the specific performance of contracts. This is an

equitable relief granted by the court to perform the contract when there is a breach

of the same. Court’s jurisdiction to grant specific performance is only discretionary

and Section 14 of the Act enumerated certain circumstances under which the suit

for specific performance will be rejected.

The provisions regarding rectification and cancellation of instruments and the

rescission of contract were incorporated in Chapter III, IV and V respectively. The

Act enable the parties to rectify the documents which are mistakenly executed. The

instruments in writing and written contracts can be rectified on the ground of fraud

and mutual mistake. Unilateral mistake is not a reason to seek rectification. The

Act prescribed no time limit for a suit for rectification. Sections 27 to 30 deals with

rescission of voidable and terminable contracts. This is opposite to the relief of

specific performance since it discharged a party from the obligations by avoiding

the contract. The relief is available to any interested person to the contract. The

remedy is available if the contract is voidable or terminable at the instance of the

plaintiff. Under section 31 of the Act, a person can sue for the cancellation of the

document when he had an apprehension of serious injury from it.

Declaratory reliefs are available through the decrees of the court. Sections 34 and

35 provided this relief under which a person can approach the court for declaring

his right or status over some property. The object of this relief is to prevent future

litigation. This remedy can be requested when there were doubts regarding right

over property. It can be sought against any person who denied or tried to deny the

right of the plaintiff.7

Another relief provided by the Act is preventive in nature. Preventive reliefs are

granted by the courts by way of issuing injunctions. Injunctions under Part III of

the Act (Chapter VII to end) prevents a person to do or not to do something.

Granting of such reliefs are within the discretion of the court. By virtue of Section

7 http://www.vakilno1.com/redlaws/redundant-laws.html

36 of the Act, there are temporary or interlocutory injunctions and perpetual

injunctions. Perpetual injunctions can be granted only after hearing both sides and

considering the merits of the case. Under Section 39, court can grant mandatory

injunctions to compel a person to do an act. It is issued to prevent the breach of an

obligation. A plaintiff can claim damages in the suit for both mandatory and

perpetual injunctions.

And finally the Specific Relief Act, 1963 was amended twice by the Act No. 52 of

1964 and Act No. 56 of 1974. The later repealed two of the provisions of the Act

viz, Sections 43 and 44.8

8 http://millercenter.org/president/fdroosevelt/speeches/speech-3304

BIBLIOGRAPHY

BOOKS :

The specific relief act , 1963

Bare Act

Civil Acts

Abhinav Mishra

The Law Of Contracts And Specific Relief Act

R.K Bangia

INTERNET :

https://anarchyindia.wordpress.com/tag/specific-relief-act/

http://www.vakilno1.com/redlaws/redundant-laws.html

http://lawyerslaw.org/the-specific-relief-act-1963/

http://commonlaw-sandeep.blogspot.in/2012/01/specific-relief-act-1963-quick-

summary.html