DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

NAME OF THE PROJECT TOPIC

Specific Performance of Contracts

SUBJECT

CONTRACTS

NAME OF THE FACULTY

Prof: Sunitha

NAME OF THE STUDENT

Kranthi Kiran. T

Regd No. 18LLB127

Sec: B

2nd Semester

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ACKNOWLEDGEMENT

I heart fully express my special thanks to my subject teacher Prof: Sunitha mam for giving me
the opportunity to do the project on the topic” Specifc performance of contracts. It helped me
to know many things and gain knowledge. I also thank her for guiding me throughout the project
and responding for my doubts regarding the project.

I would also like to thank my University ‘Damodaram Sanjivayya National Law University’ for
providing me with all the required materials for the completion of my project and I also came to
know many new things.

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 Table of Contents

ACKNOWLEDGEMENT……………………………………………….2

Table of Contents…………………………………………………….3

ABSTRACT…………………………………………………………….4

SYNOPSIS………………………………………………………………5-6

Meaning of Specific performance of contracts……………………..7-9

Specific performance of part of contract……………………………..10-13

When Specific Performance should not be Granted?.........................14

Contracts not specifically enforceable………………………………….14-18

Personal bars to relief……………………………………………………18-21

Discretion and powers of court…………………………………………21-22

Power to award compensation in certain cases………………………..22-24

Liquidation of Damages not a Bar to Specific Performance………….24

Case Laws…………………………………………………………………25-27

Conclusion…………………………………………………………………28

Bibliography……………………………………………………………….29

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ABSTRACT

Specific Performance is an equitable remedy within the regulation of contract, whereby a court
problems an order requiring a celebration to perform a selected relief act, such to finish particular
performance of the agreement. It is normally available in the sale of land, but in any other case is
not usually available if damages are the best opportunity. Specific overall performance is nearly
by no means available for contracts of private services, although overall performance may also
be ensured through the chance of complaints for contempt of court.

Specific overall performance is normally used in the form of injunctive alleviation regarding
confidential information or real belongings, at the same time as unique performance may be in
the form of any kind of pressured movement, it's also to finish a formerly mounted transaction,
consequently being the simplest treatment in protecting the expectation hobby of the harmless
party to a contract. It is usually the alternative of a prohibitory injunction, but there are
mandatory injunctions which have a similar effect to specific overall performance.

As with all equitable remedies, orders of unique overall performance are discretionary, So their
availability relies upon on its appropriateness in the circumstances. Such orders are granted when
damages aren't an good enough remedy and in some specific instances along with land

Section nine to 25 offers with specifc overall performance of contracts: Basic policies

1. Decree of specifc performance is discretionary relief.

2. There must be a legitimate agreement.

3. If damages are an adequate treatment, no specifc performance remedy is required.

Four. For the act which requires endured supervision of the courtroom, no specific overall
performance might be ordered.

5. No particular performance might be ordered for contracts for private carrier

6. Equity will insist on the precept of mutuality

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7. The individual towards whom the relief is declined may additionally take plea by way of
protection under law associated with settlement.

SYNOPSIS

Introduction
1
A settlement is an settlement upon enough consideration to do or no longer do a particular act.
The celebration on whom this contractual obligation rests must now not fails to discharge such
duty.

In case of his failure, the opposite birthday celebration will have a proper sue for overall
performance of the agreement. This is known as “Specifc overall performance” Section nine to
25 deals with specific performance of contracts.

The Law of Specific Relief in India have become within the beginning codified thru Specific
Relief Act, 1877. The provision of this enactment became taken into consideration by way of the
use of the Law Commission in its Ninth Report which became later modified by the prevailing
act of 1963. The Specific Relief Act, 1963 offers with the remedies granted at the discretion of
the court for the enforcement of man or woman civil rights. In case of breach of agreement, the
overall treatment to be had to the aggrieved birthday party is compensation or damages of loss
suffered. For this, a civil wholesome is filed in opposition to the accountable party who had
made the default in overall performance of its duty or responsibility as in keeping with the terms
of agreement below the statutory provision of Section seventy 3-seventy five of Indian Contract
Act 1872. However, sometimes pecuniary reimbursement does no longer fulfill the plaintiff so
he may ask for precise remedy. For instance if everybody unlawfully dispossess a person without
his consent having peaceful ownership over the belongings then precise comfort may
additionally additionally permit him to have the ownership of same assets instead of claiming
pecuniary repayment.

Objective of the study:

1
Taxmann, Law of Contract, pg 373

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The main objective of the study is to explain when specifc performance is performed. And when
specifc performance doesn’t need to be performed. It will be explained on detail with referring
case laws.

Scope of the study:

The study is limited to specifc performance of contract and specifc performance of part of the
contract and the reasons why it is executed.

Significance of the study:

The study helps in knowing the circumstances that causes specifc performance to get
implemented and when it wouldn’t need to be implemented.

Literature Review:

The researcher has taken information from various books, journals, articles, web sources, and
etc.

Research Questions:

1. When can specifc performance of a contract be enforced?

2. Who can obtain specifc performance of contract?
3. When specific performance doesn’t need to be performed?

Research Methodology:

The researcher is opting for doctrinal method of study.

Hypothesis:

 Specifc performance of settlement is enforceable while there exist no widespread for

ascertaining actual harm.
 When compensation of cash is not a comfort
 Specifc overall performance can’t be enforceable in contracts of determinable nature and
in which reimbursement acts as remedy and so on.

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Meaning of Specific performance of contracts
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Specific performance is equitable remedy given by means of the court docket in case of breach
of contract inside the form of a judgment that the defendant is to actually carry out the settlement
consistent with its phrases and prerequisites.

A contract, according to the Indian Contract Act, is an agreement enforceable by way of

regulation. From each contract there straight away and immediately consequences an obligation
on each of the contracting events toward the other to carry out such of the phrases of the
agreement as he has undertaken to carry out. And if the individual on whom this responsibility
rests, fails to discharge it, there outcomes in morality to the opposite party a proper at his
election either to insist at the real overall performance of the contract or to acquire delight for the
non-performance of it.

An obligation consists of each responsibility enforceable by law. Consequently, each time a man
comes underneath a liability to do or forbear from doing anything, he remains below a
obligation. This legal responsibility may be a effect of either a contract or tort. An duty to
forbear is a advantageous obligation commonly imposed with the aid of a settlement. This shape
of precise remedy is defined as “the particular overall performance of settlement”.

Defenses respecting suits for relief based on contract (Section 9)

Except as otherwise provided herein where any relief is claimed under this Chapter in respect of
a contract, the person against whom the reliefs claimed may plead by way of defense any ground
which is available to him under any law relating to contracts. Contracts which can be specifically
enforced.

Cases in which specific performance of contract enforceable (Section 10)

Except as otherwise supplied in this Chapter, the particular overall performance of any
agreement can also, inside the discretion of the court docket, be enforced

(a) When there exists no popular for ascertaining the actual harm caused by the non-overall
performance of the act agreed to be finished, or

2
Avtar Singh, Contracts& Specific Relief, pg. 359 (12th edn 2017).

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(b) When the act agreed to be finished in such that repayment in cash for its non-performance
would not afford adequate relief.

Explanation-Unless and until the opposite is proved, the court shall presume

(i) That the breach of a agreement to switch immovable assets cannot be effectively relieved via
reimbursement in cash; and

(ii) That the breach of a agreement to switch movable assets can be so relieved except in the
following instances:

(a) Where the property is not an normal article of trade or is of special cost or interest to the
plaintiff, or includes items which aren't without difficulty available in the marketplace;

(b) Where the assets is held by means of the defendant as the agent or trustee of the plaintiff.

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Existence of Valid Contract:

Sery in his Equitable Remedies" At p a hundred thirty five said that it is properly mounted that
commonly a plaintiff will not achieve acquiring an order of particular overall performance
except he is capable to reveal enough and certainly the existence of a contract this is valid and
enforceable at regulation on the time whilst the order is sought”.

In a case of specific overall performance it's far settled law that the jurisdiction to order unique
performance of a settlement is based on the lifestyles of a legitimate and enforceable contract.
Where a legitimate and enforceable settlement has no longer been made, particular performance
will not be ordered. The discretion of the courtroom might be there only if the contract is valid
and enforceable. It is therefore, vital first to see whether or not there has been a valid and
enforceable agreement and then to peer the nature and responsibility bobbing up out of it. The
contract being the foundation of duty the order of particular overall performance is to enforce
that duty.

It is essential to notice that unique performance being an equitable remedy, balance of equities
have also to be struck contemplating some of these applicable aspects of the matter inclusive of
the lapses which befell and parties respectively responsible therefor. Before decreeing precise
3
Taxmann, Law of Contract, pg. 375.

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overall performance, it is obligatory for courts to remember whether or not by using doing so any
unfair gain could end result for the plaintiff over the defendant, the quantity of worry that can be
prompted to the defendant and if it might render such enforcement inequitable, except taking into
the definitely of occasions of every case.

Cases in which specific performance of contracts connected with trusts enforceable

(Section 11)

(1) Except as otherwise provided in this Act, specific performance contract may, in the discretion
of the court, 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 in excess of his powers or in breach of trust cannot be
specifically enforced.

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Enforcement of Trustee's Duty

Trustee imposes a duty on the trustee and that may be enforced even by strangers to the
transactions. Duty may be even enforced by those who may not have been in existence at its date
but having an interest in the transaction. So, contract may be enforced at the instance of the
beneficiaries

Which Contract Executed by the Trustees cannot be Enforced

Section 11(2) specifically provides that following contract executed by the trustees cannot be
enforced:

(i) a contract made by a trustee in excess of his powers or

(ii) a contract in breach of trust cannot be specifically enforced

Specific performance of part of contract (Section 12)

(1) Except as otherwise hereinafter furnished in this segment, the courtroom shall now not direct
the precise performance of a part of a settlement.

4
Taxmann, Law of Contract, pg. 376.

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(2) Where a celebration to a agreement is unable to perform the whole of his part of it, however
the part which ought to be left unperformed be a simplest a small percentage to the complete in
value and admits of reimbursement in cash, the court docket may, at the suit of either party,
direct the specific performance of a lot of the agreement as can be done, and award
compensation in money for the deficiency.

(3) Where a party to a contract is not able to carry out the complete of his a part of it, and the
component which need to be left unperformed either

(a) forms a significant a part of the entire, though admitting compensation in cash; or

(b) does not admit of reimbursement in money,

he isn't entitled to attain a decree for precise overall performance; however thecourt may
additionally, on the suit of the other celebration, direct the birthday party in default to perform
particularly a lot of his a part of the settlement as he can perform, if the other celebration

(i)5In a case falling below clause (a) pays or has paid the agreed consideration for the entire of
the agreement decreased by using the attention for the element which must be left unperformed
and in a case falling beneath clause (b) pays or has paid the attention for the entire of the
settlement with none abatement and

(ii) in either case, relinquishes all claims to the performance remaining part of the settlement and
all proper to repayment both for the deficiency or for the loss or damages him via the default of
the defendant

four. When part of a settlement which taken by means of itself and ought to be especially
accomplished stands on a separate and independent footing from some other part of the identical
settlement which cannot or ought not be mainly carried out the court docket might also direct
particular overall performance of the former component.

5
Taxmann, Law of Contract, pg. 376.

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Explanation: For the functions of this segment, a celebration to a contract shall be deemed to be
not able to perform the entire of his a part of it if a portion of its concern be counted present on
the date of the contract has ceased to exist on the time of its overall performance.

Exception to the Rule that the Court shall not Direct the Specific Performance of a part of
a contract

There are three exceptions to the general rule that the court shall not direct the specific
performance of a part of a contract

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1. On the Request of Either Party if Considerable Part has been Performed

Where a party to a contract is unable to perform the whole of his part of it, but the 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.

2. On the Request of the person Who is not in Default

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 forms a considerable part of the whole, though admitting of
compensation in money, or does not admit of compensation in money then the person in default
is not entitled to obtain a decree for specific performance..

Discretion of the court to grant specific performance in certain cases

The court document has the discretion on the in shape filed by different celebration to direct the
party in default to perform particularly a lot of his element the settlement as he can perform in
the case the defaulting celebration to a contract is not able to perform the entire of his a part of it
and the part of the whole though admitting of compensation in cash however the other party pays
or has paid the agreed consideration for the entire of the contract decreased by way of the
attention for the element which need to be left unperformed The celebration now not in default
additionally has to relinquish all claims to the performance of the remaining part of the

6
Avtar Singh, Contracts& Specific Relief, pg. 357 (11th edn 2013).

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agreement and all proper to compensation either for the deficiency or for the loss harm sustained
by means of him thru the default of the defendant.

B) The courtroom also has the discretion on the healthy filed via different birthday celebration to
direct the birthday celebration in default to carry out particularly so much of his a part of the
agreement as he can carry out in case the part which ought to be left unperformed does not admit
of compensation in money however the other celebration can pay or has paid the attention for the
entire of the settlement without any abatement. In this situation additionally to acquire this
decree the birthday party not in default additionally has to relinquish all claims to the
performance of the closing a part of the contract and all right to reimbursement, either for the
deficiency or for the loss or harm sustained by using him through the default of the defendant.

3.If Unperformed Part is Separable from Performed Part

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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

Presumption that person in Default is Unable to perform contract if subject Matter Does
not exist

A party to a contract shall be deemed to be unable to perform the whole of his part of it if a
portion of its subject matter existing at the date of the contract has ceased to exist at the time of
its performance.

Rights of purchase or lessee against person with no title or Imperfect title (section 13)

Where a person contracts to sell or let certain immovable property having no title or only an
imperfect title, the purchaser or lessee has the following rights, namely:

(a)Feeding the Grant By Estoppel

7
Avtar Singh, Contracts& Specific Relief, pg. 365 (11th edn 2013).

12
if the vendor or lessor has subsequently to the contract acquired any interest in the property. The
purchaser or lessee may compelhim to make good the contract out of such interest

(b) To Compel the Vendor or Lessor to Acquire Concurrence

In which the concurrence of other individual is necessary for validating the name, and they're
sure to concur on the request of the vendor or lessor, the patron or lessee may also compel him
you bought such concurrence and while a conveyance by means of different humans is important
to validate the name and they are certain to deliver at the request of the vendor or lessor, the
consumer or lessee can also compel him you bought such conveyance.

(c) Where the Sold Property is encumbered by the Mortgage

Where the vendor professes to promote unencumbered belongings, but the belongings is
mortgaged for an amount no longer exceeding the purchase money then the client might also
compel him to redeem the loan and to reap a legitimate discharge from the mortgagee. He may
compel the seller to achieve conveyance from the mortgagee anyplace it is important.

(d) Right to a Return of Deposit

In which the vendor or lessor sues for unique performance of the settlement and the fit is
dismissed at the floor of his want of identify or imperfect identify, the defendant (the individual
with whom the settlement to sell or let has been entered) has a proper to a return of his deposit, if
any, with interest thereon, to his charges of the healthy.

(e) Right to Lien

The purchaser also has a right to lien for such deposit, interest and costs on the interest, if any, of
the vendor or lesser in the property which is the subject matter of the contract.

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When Specific Performance should not be Granted?

Spry in his Equitable Remedies explains that In the absence of special circumstances rendering
equitable relief appropriate the courts will not grant specific performance, if damages would
8
Taxmann, Law of Contract, pg. 380.

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leave the plaintiff in a favorable position in all material respects, it is now necessary to reassess
earlierdecisions in which damages have been held to be an adequate remedy.

It was further stated that "It has been held by courts of equity that specificperformance will not
be granted to a vendor, although he has established a good title on the balance of probabilities,
that title is sufficiently uncertain to be regarded as a doubtful title in the sense in which that term
is understood in the material authorities; for otherwise it might appear in subsequent proceedings
that a title that the purchaser has obtained a deficient and there might be no way in which he
could be properly compensated.

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Contracts not specifically enforceable (Section 14)

In Prakash Chandra v. Angadlaland Orsº, it turned into held that the normal rule is that particular
performance ought to be granted. It have to be denied best whilst equitable issues factor to its
refusal and the circumstances display that damages would represent an adequate relief.

This segment enumerates the exceptions to this trendy rule and defines the contracts which
cannot be specially enforced and they are:

(a) Where Compensation in Money is an Adequate Relief

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As per section 14(1)(a) a contract for the non-performance of which compensation in money is
an adequate relief cannot be specifically enforced.

(b) Contract containing minute details

As consistent with sec 14(1)(b) a contract which runs into such minute or numerous info or that's
so dependent on the personal qualification or volition of the parties, or in any other case from its
nature is such, that the courtroom can not be specially enforced.

(c) A contract which in its nature determinable

As per sec 14(1) C A contract which in its nature determinable cannot be specifically enforced.
E.g. a revocable lease.

9
Taxmann, Law of Contract, pg. 381.
10
Avtar Singh, Contracts& Specific Relief, pg. 369 (12th edn 2017).

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(d) Where the supervision by the Court is Difficult

As in step with sec 14(1)(d) a settlement the general overall performance of which entails the
general overall performance of a non-prevent duty which the courtroom docket cannot supervise
cannot be in particular enforced

(e) No Contract to refer gift or future versions to arbitration shall be particularly enforced

As in line with Sec 14(2), Save as supplied through the Arbitration Act, 1940 (10 of 1940), no
settlement to refer present or future differences to arbitration will be specially enforced.
Although the contract is not particularly enforceable however the existence of such agreement
shall bar the match if any Person who has made such settlement and has refused to carry out it. It
technique individual in default isn't entitled to document healthful in recognize of any challenge
which he has gotten smaller to consult the arbitration. No treatment can be supplied to the
character in default.

Exceptions to Clause (a), Clause (c) and Clause (d)

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There are 3 exceptions to clause (a), clause (c) and clause (d) of segment 14. The court may
additionally enforce particular performance in the following cases.

(A)Where the match for the enforcement of a settlement to execute a loan or provide some other
protection for securing the compensation of any loan which the borrower isn't always willing to
repay without delay if best a part of the loan has been superior the lender is inclined to increase
the remaining a part of the mortgage in terms of the settlement. The court may additionally put in
force the precise enforcement of a contract to take up and pay for any debentures of a agency.

(B)Where the fit is for the execution of the formal deed of partnership and the parties having
begun to hold at the commercial enterprise of the partnership. The court can also implement the
specific overall performance in which the events having commenced the acquisition of a
percentage of a accomplice in a company.

(C) Where the in shape is for the enforcement of a settlement for the development of any
building or the execution of some other paintings on land if the following situations are fulfilled.

11
Taxmann, Law of Contract, pg. 382.

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The building or different paintings is described within the agreement in terms sufficiently unique
to allow the courtroom to decide the exact nature of the constructing or the work.

The plaintiff has a substantial hobby in the performance of the agreement and the hobby is of
such a nature that compensation in cash for non-overall performance of the settlement uuis now
not an adequate relief; and

The defendant has, in pursuance of the agreement, received ownership of the complete or any a
part of the land on which the constructing is to be built or different work is to be executed.

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Persons for or against whom contracts may be specifically enforced who may obtain
specific performance (Sec 15)

Except or otherwise provided by this chapter, specific performance of a contract may be obtained
by

(a) The parties

Sec 15(a) provides that any party of the suit is entitled to obtain specifc performance of the
contract.

(b) Representative in Interest or the principal

Sec 15(b) provides that consultant in interest or the major of any birthday celebration
thereto is entitled to reap unique performance of the settlement. But if the gaining
knowledge of, ability, solvency, or any personal nice of such celebration is a material
ingredient inside the contract, or wherein the settlement provides that his interest shall
now not be assigned, his representative in hobby or his primary shall now not be entitled
to precise performance of settlement. In the subsequent cases the consultant in interest
can ask for specific overall performance.
(i)If such celebration whose learning, ability, solvency, or any private pleasant became
the cloth element has already accomplished his a part of the contract
(ii)If the opposite celebration has already consented t take the performance thereof by his
representative in hobby.

12
Specifc performance of contracts, blog pleaders ( April 3, 2019, 12:00 am), https://blog.ipleaders.in/specific-
performance-of-a-contract/.

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 (c) Person having beneficiary interest
Sec 15(c) offers that in which the contract is a agreement on marriage, or compromise of
dubious rights between contributors of the same circle of relatives, any person
beneficially entitled thereunder can also ask for unique performance.

(d) 13Remainderman

Sec 15(d) provides that where the contract has been entered into by a tenant for life in due
exercise of a power, the remainderman may ask for specific performance.

(e) A reversioner in possession

Sec 15(e) provides that a reversioner in ownership wherein the settlement is a covenant entered
into together with his predecessor in title and the reversioner is entitled to the gain of such
covenant can also ask for precise performance

(f) A Reversioner in Remainder

Sec 15(f) provides that a reversioner I the rest might also ask for specifc performance if the
settlement is this sort of covenant, and the reversioner is entitled to the advantage thereof and
will sustain cloth injury via purpose of its breach.

(g) Amalgamated Company

Sec 15(g) offers while a organisation has entered right into a settlement and finally will become
amalgamated with another business enterprise, the brand new agency which arises out of the
amalgamation may additionally ask for unique overall performance.

(h) Company

Sec 15(h) provides that once the promoters of a company have, earlier than its incorporation,
entered into a contract for the purposes of the enterprise, and such settlement is warranted by
way of the phrases of the incorporation, the corporation may additionally ask for specific overall

13
Taxmann, Law of Contract, pg. 384.

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performance if the business enterprise has typical the settlement and has communicated such
recognition to the alternative birthday party to the settlement.

Personal bars to relief (section16)

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Specifc overall performance of settlement cannot be enforced in favor of someone-

•Who might no longer be entitled to get better compensation for its breach?
•Who has come to be incapable of appearing, or violates any important time period of,
the agreement that on his part remains to be finished, or acts in fraud of the agreement, or
willfully acts at variance with, or in subversion of, the relation intended to be installed
through the agreement; or
Who fails to aver and prove that he has executed or has always been ready and inclined to
carry out the important phrases of the contract that are to be finished by way of him, aside
from terms of the overall performance of which has been prevented or waived by using
the defendant.
Explanation: For the functions of clause (c)-
(i)Where a contract includes the price of money, it is not essential for the plaintiff to
without a doubt tender to the defendant or to deposit in court docket any money besides
when so directed through the court;
(i)The plaintiff needs to aver performance of, or readiness and willingness to carry out,
the agreement according to its true construction.
Specific performance of a contract cannot be enforced in favor of the following man or
woman.

(a)The party would not be entitled to recover compensation for its breach

Specific performance of a contract cannot be enforced in favor of a person if the

circumstances are such that he would not be entitled to recover compensation for its breach.

(b) In favor of Guilty Party

The specific performance of a agreement cannot be enforced in want of the subsequent

humans additionally:
14
Taxmann, Law of Contract, pg. 385.

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 (i) Who has come to be incapable of appearing his art of the agreement?

(ii) who has violates any important term of he agreement that on his component stays to be
executed,

(i) A character who acts in fraud of the contract.

(ii) A man or woman who willfully acts at variance with, or in subversion of, the relation
supposed to be set up by way of the contract.

(c)The party who falls to prove readiness and willingness to perform the contract

Who fails to aver and 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 of
the performance of which has been prevented or waived by the defendant.

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Contract to sell or let property by one who has no title, not specifically enforceable
(section 17)

Sec 17(1)(a) provides that a contract to sell or let any immovable property cannot be specifically
Enforced in favor of a vendor or lessor who, knowing himself not to have any title to the
property, has contracted to sell or let the property. Sec 17(1)(b) also provides that a contract to
sell or let any immovable property cannot be specifically enforced in favor of a vendor who
entered into the contract believing that he had a good title to the property but cannot at the time
fixed by the parties or by the court for the compensation of the sale or letting, give the purchaser
or lessee a title free from reasonable doubt.

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Applicability to the movable property

Sec 17(2) provides that the provisions of subsection (1) shall also apply as far as may be, to
contracts for the sale or hire of movable property.

Non-enforcement except with variation (section 18)

15
Taxmann, Law of Contract, pg. 389.
16
Specifc performance of contracts, blog pleaders ( April 3, 2019, 12:00 am), https://blog.ipleaders.in/specific-
performance-of-a-contract/.

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Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets
up a variation, the plaintiff cannot obtain the performance sought

Exception:

The specific performance may be received by way of the plaintiff I the subsequent instances:

(a)Where by way of fraud, mistake of fact or misrepresentation, the written settlement of which
performance is sought is in its terms or effect exclusive from what the parties agreed to, or does
now not contain all the phrases agreed to between the events on the basis of which the defendant
entered into the contract;

(b)Where the object of the parties become to produce a certain prison result which the contract as
farmed isn't always calculated to produce;

(c)Where the parties have, ultimately to the execution of the agreement, numerous its phrases.

Relief against parties and persons claiming under them by subsequent title (sec 19)

Specific overall performance of a contract can be enforced in opposition to

(a) Either party thereto;

(b) Any other man or woman claiming below him through a title bobbing up sooner or later
to the agreement, besides a transferee for price who has paid his money in appropriate religion
and without observe of the unique settlement;

(c) Any individual claiming underneath a name which, though prior to the settlement and
acknowledged to the plaintiff, might have been displaced by means of the defendant;

(d) When an enterprise has entered right into a agreement and ultimately becomes
amalgamated with a another business enterprise, the new enterprise which arises out of the
amalgamation;

(e) When the promoters of a employer have, earlier than its incorporation, entered into a
contract for the motive of the corporation and such agreement is warranted through the terms of

20
the incorporation, the corporation: supplied that the business enterprise has widely wide-spread
the contract and communicated such reputation to different celebration to the contract.

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Discretion and powers of court (Section 20).

Discretion as to decreeing specific performance

(1) The jurisdiction to decree specific performance is discretionary and the court is not bound to
grant such relief merely because it is lawful to do so; but the discretion of the court is not
arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a
court of appeal.

(2) The following are cases in which the court may properly exercise discretion not to decree
specific performance :-(a) where the terms of the contract or the conduct of the parties at the time
of entering into the contract or the other circumstances under which the contract was entered into
are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the
defendant; or (b) where the performance of the contract would involve some hardship on the
defendant which he did not foresee, whereas its non-performance would involve no such
hardship on the plaintiff; or (c) where the defendant entered into the contract under
circumstances which though not rendering the contract voidable, makes it inequitable to enforce
specific performance.

Explanation I-Mere inadequacy of consideration, or the mere fact thatthe contract is onerous to
the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage
within the meaning of clause (a) or hardship within the meaning of clause (b)

Explanation 2-The question whether the performance of a contract would involve hardship on
the defendant within the meaning of clause (b) shall, except in cases where the hardship has
resulted from any act of the plaintiff subsequent to the contract, be determined with reference to
the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where
the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of
specific performance.
17
Taxmann, Law of Contract, pg. 390.

21
(4) The court shall not refuse to any party specific performance of contract merely on the ground
that the contract is not enforceable at the instance of the other party.

Discretionary Remedy shall be Granted if the Ends of Justice Requires so:

The grant of precise alleviation is, underneath sections 20 and 34 of the Specific Relief Act, 1963
in addition to underneath the Common Law, purely discretionary and can be refused wherein the
ends of justice do no longer require the comfort to be granted. The remedy has to be granted by
the Court in line with sound prison principles and ex debito justitiae

Severe Hardship may be a ground for refusing specific performance

Chitty on Contracts (twenty seventh edn; 1994, at p. 1296) states that Severe worry can be floor
for refusing unique overall performance although it effects from instances which stand up the
realization of the agreement, which affect the individual of the defendant rather than the
situation-be counted of the settlement, and for which the plaintiff is in no way responsible”

18
Power to award compensation in certain cases (Section 21)

1) In a in form for particular basic overall performance of a contract, the plaintiff also can
declare repayment for its breach, either in addition to, or in Substitution of, such universal
overall performance.

(2) If, on this form of match, the court docket makes a selection that specific overall performance
ought no longer to be granted, however that there's a settlement a few of the activities which has
been damaged via the defendant, and that the plaintiff is entitled to repayment for that breach, it
shall award him such repayment therefore.

(three) If in one of these healthy, the court docket comes to a decision that unique performance
ought to be granted, but that it isn't always enough to satisfy the justice of the case, and that some
repayment for breach of the agreement ought to additionally be made to the plaintiff, it shall
award him such repayment for that reason

18
Y. Srinivasa Rao, Law on Specific performance of contract, Articles on law (April 5, 2019, 5:00 pm),
https://articlesonlaw.wordpress.com/2013/10/22/law-on-specific-performance-of-contract/.

22
(4) In identifying the quantity of any reimbursement provided beneath this segment, the court
docket might be guided by the requirements laid out in phase seventy 3 of the Indian Contract
Act, 1872 (nine of 1872).

(five) No repayment can be supplied beneath this segment until the plaintiff has claimed such
compensation in his plaint:

Provided that in which the plaintiff has not claimed this type of repayment inside the plaint, the
court shall, at any level of the proceeding, permit him to amend the plaint on such terms as can
be without a doubt, for consisting of a declare for such repayment.

Explanation-The times that the settlement has emerge as incapable of specific performance does
now not forestall the courtroom docket from workout the jurisdiction conferred via this phase.

19
Power to grant relief for possession, partition, refund of earnest money, etc. (Section 22)

(1) Notwithstanding something to the opposite contained inside the Code of Civil Procedure,
1908 (five of 1908), any person suing for the specific performance of a agreement for the
transfer of immovable belongings May additionally in suitable case, ask for-

(a) Possession, or partition and separate possession of the property in addition to such overall
performance; or

(b) any other relief to which he may be entitled, consisting of the refund of any earnest cash
or deposit paid or (made through him) in case his claim for unique performance is refused.

(2) No comfort beneath clause (a) or clause (b) of sub-phase (1) shall granted by using the court
except it's been specifically claimed:

Provided that where the plaintiff has no longer claimed such a alleviation in the plaint, the
courtroom shall, at any degree of the intending, permit him to amend the plaint on such phrases
as may be just for inclusive of declare for such comfort.

(three) The energy of the court to grant remedy beneath clause (b) of sub-phase (i) shall be
without prejudice to its powers to award compensation under section 21.

19
Taxmann, Law of Contract, pg. 393.

23
Object

The item at the back of incorporating this provision is to avoid multiplicity of the court cases.
This phase gives that in place of submitting a couple of fits, a person submitting a in shape for
specific performance can also ask different relief like ownership and partition of the belongings
in the equal case. He might also ask for every other alleviation to which he can be entitled, which
include the refund of any earnest cash or deposit paid through him, in case his claim for precise
performance is refused. To get alleviation below this phase it's far essential to say alleviation
within the plaint otherwise it will now not be granted.

20
Liquidation of Damages not a Bar to Specific Performance (Section 23)

Section 23(1) presents that a settlement, in any other case proper to be in particular enforced,
may be so enforced, regardless of the reality that a sum be named in it as the quantity to be paid
in case of its breach and the celebration in default is willing identical, if the courtroom docket,
having regard to the terms of the settlement attending occasions, is satisfied that the sum end up
named handiest for the cause of securing overall performance of the settlement and not for the
purpose of giving to the birthday celebration in default an opportunity of paying cash in lieu of
specific overall performance. Section 23(2) presents that when enforcing specific performance
under this section, the courtroom docket shall now not additionally decree fee of the sum so
named in the agreement.

Bar of suit for compensation for breach after dismissal of suit for specific

Performance (Section 24)

This section offers that dismissal of a suit in shape for precise overall performance of a contract
or part thereof shall prohibits the plaintiff's file a next case to sue for reimbursement for the
breach of such contract or component, because the case may be. This segment handiest bar the
right to record a case to claim repayment for that settlement which performance has been in

20
Taxmann, Law of Contract, pg. 395.

24
particular refused and shall now not bar his proper to sue for another relief to which he can be
entitled, through reason of such breach.

Application of preceding sections, to certain awards and testamentary directions to execute

settlements (Section 25)

The provisions of this Chapter As to contracts shall apply to awards to which the Arbitration Act,
1940 (10 of 1940), does not apply and to directions in a will or codicil to execute a particular
settlement

21
Case Laws:

(i)In M/S Citadel Fine Pharmaceuticals v. M/S RamaniyamReal EstatesIt was held that it is
clear from Section 9 of the Specific Relief Act, 1963 that Section 55 of The Indian Contract Act,
1872 permits a defendant against whom fit for the unique overall performance has been filed to
elevate the defence underneath Section 55 of the Indian Contract Act

On a mixed reading of Section 9 of the Specific Relief Act and Section 55 of The Indian
Contracts Act it's miles clear that during this case the seller as a promisee, became inside its
proper to terminate the agreement via sending the letter dated 4th September, 1996 in terms of
Clause nine of the Contract while returning the improvement cash of Rs10,00,000 It is clear that
the plaintiff has no longer discharged its burden in the time special and isn't entitled to a specific
overall performance of the settlement.

(ii)In Sardar Singh v. Krishna Devi, It changed into held that Section 12 gives for particular
performance of a part of settlement. Sub-section (1) thereof postulates that except as otherwise
hereinafter furnished in the segment, the courtroom shall no longer direct the particular
performance of a part of a settlement. Sub-section (4) thereto envisages that once a part of the
contract which, taken by way of itself, can and have to be especially executed, stands on a
separate and independent footing from some other part of the same settlement which can not or
ought not to be specially executed the court can also direct precise performance of the former
part.

When specific performance should not be granted

21
Taxmann, Law of Contract, pg. 396.

25
(iii)In Sandhya Rani Sarkar v. Sudha Rani Debi and Orsit become held that the query
whether or not remedy of unique overall performance of the contract for the purchase of
immovable belongings ought to be granted or no longer continually relies upon on the data and
circumstances of every case and the Court might not furnish this kind of relief if it gives the
plaintiff an unfair benefit over the defendant.

(iv)In Her Highness Maharani Shanti Devi P. Gaikwad v. Savjibhai Hart Bai Patel and
Ors. Etc. it was held that clause (d) of sub-section (1) ofSection 14 of the Specific Relief Act,
1963 provides that a contract theperformance of which involves the performance of a continuous
dutywhich the Court cannot supervise, is not specifically enforceable. Havingregard to the nature
of the scheme and the facts and circumstances of thecase, to our mind it is clear that the
performance of the contract involves continuous supervision which is not possible for the court.

(v)In Indian Oil Corporation Ltd. V. Amristar Gas Service & Orsit was held that a contract
which is in its nature determinable cannot be enforced by the court.

22
(vi)In P.D'Souza v. Shondrilo Naidu, the Court observed that "It is indisputable that in a suit
for specific performance of contract the plaintiff must establish his readiness and willingness to
perform his part of contract. The question as a whether the onus was discharged by the plaintiff
or not will depend upon the facts and circumstance of each case. No straitjacket formula can be
laid down in this behalf.. The readiness and willingness on the part of the plaintiff to perform his
part of contract would also depend upon the question as to whether the defendant did everything
which was required of him to be done in terms of the agreement for sale

(vii)In Balkrishna v. BhagwanDas.It became held that the compliance with the require mentor
Section 16 (e) is obligatory and inside the absence of evidence of the same that the plaintiff has
been equipped and willing to carry out his a part of the agreement in shape cannot succeed. The
first requirement is that he needs to aver in plaint and thereafter show the ones averments made
in the plaint. The plaintiff's readiness and willingness need to be according with the terms of the
settlement. The readiness and willingness of the plaintiff to carry out the important a part of the
agreement might be required be tested by means of him from the organization of the fit till it's far
culminated into decree of the court

22
Taxmann, Law of Contract, pg. 397.

26
(viii)In Indian Bank v. K. Usha & Anr , It became held that the appellant transferee-company
which has emerged as an amalgamated enterprise due to the amalgamation with the earlier
enterprise would be susceptible to meet the contractual responsibilities Showing from the
agreement binding on the transferor-agency and those contractual duties that could have been
specifically enforced against the transferor. Organisation all through the force of the agreement
underneath Section 2(p) examine with section 18 (1) of the L D. Act might get transmitted and
foisted on the shoulders of the appellant transferee agency at the combined operation of Section
19(1)(d) of the Specific Relief Act and Section 2 of the Act. The 2nd rivalry consequently has to
be answered inside the poor, in favor of the respondents and towards appellant.

(ix)In Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others it was
reiterated that the decree for specific performance is in the discretion of the not be used
arbitrarily, the discretion should be exercised on sound principles of law capable of correction by
an appellate court. (Sec 20)

(x)In Sardar Singh v. Krishna Devi, It turned into held that segment 20(1) of the Specific
Relief Act, 1963 gives that the jurisdiction to decree unique performance is discretionary, and the
court isn't always certain to grant such relief, merely due to the fact it's miles lawful to
accomplish that; but the discretion of the court isn't arbitrary however sound and affordable,
guided by way of judicial concepts and capable of correction by using a court docket of appeal.
The supply of relief of unique performance is discretionary. The occasions laid out in Section 20
are handiest illustrative and now not exhaustive. The courtroom could think about the
circumstances in every case, the behavior of the parties and the respective interest below the
agreement.

(xi)K. Narendra v. Rivera Apartments (P) Ltd. It become held that Sec 21 of the Specific
Relief Act offers for award of repayment both in addition to or in substitution of such
performance. The rationalization appended to the Section expressly enacts that the court docket
is not precluded from exercise jurisdiction to award compensation even in a case wherein the
settlement has been rendered incapable of specific overall performance.

Conclusion:

27
The courts method to the doctrine of unique normal performance is extremely constrained and
there are numerous policies in location. These guidelines, are seeking to arbitrarily outline who
could be entitled to an order and who couldn't. Nonetheless, they forget about the very nature of
settlement regulation wherein, the parties are unfastened to contract on anything phrases that
they select however disadvantageous that can be. In this context unique usual performance as a
contractual remedy ought to be each removed or made greater notably to be had because the
modern-day approach is inherently unfair. What is certain is that the current role favours the
agreement breaker on the concept that they are capable of avoid a agreement that has come to be
greater expensive to perform than damages would price.

23
Contracts are frequently entered into at a time at the same time as a parties bargaining
electricity is high however subsequent modifications in commodity prices can rapid render a
agreement to be uneconomic to one of the events. In relation to manufacturing contracts the
courts are inclined to reserve unique standard typical performance at the idea that the work is
sufficiently unique and defined just so the court docket will be properly able to supervise an
order. It is however, submitted that manufacturing contracts are mainly volatile for the activities
as they're able to show screen many surprising troubles. It is debatable that the court docket can
consequently count on that the artwork can be completed to a completely unique widespread at a
very precise time, elements which might be deemed to be conditions to an order for unique
average overall performance being granted.This however, seems to be the primary place in
which precise ordinary normal performance is permitted notwithstanding a need for supervision.

Bibliography

1. Taxmann, Law of Contract.

2. Avtar Singh, Contracts& Specific Relief, (12th edn 2017).

23
Specific performance, law Teacher(April 6, 2019, 3:00 pm), https://www.lawteacher.net/example-essays/specific-
performance.php.

28
3. Avtar Singh, Contracts& Specific Relief, (11th edn 2013).

4. Y. Srinivasa Rao, Law on Specific performance of contract, Articles on law (April 5,

2019,5:00pm),https://articlesonlaw.wordpress.com/2013/10/22/law-on-specific-
performance-of-contract/.

5. Specific performance, law Teacher(April 6, 2019, 3:00 pm),

https://www.lawteacher.net/example-essays/specific-performance.php.

6. Specifc performance of contracts, blog pleaders ( April 3, 2019, 12:00 am),

https://blog.ipleaders.in/specific-performance-of-a-contract/.

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