Discretion versus Obligation: The Court's Power to Grant Specific Performance

The single most important structural change made by the 2018 Amendment was to turn specific performance from a discretionary equitable remedy into an enforceable statutory right. Where the court once asked whether it ought, in fairness, to grant the decree, it now asks only whether any statutory bar prevents it. This note traces the shift from may to shall, explains what discretion survives, and shows why the change matters in practice.

Figure: How specific performance moved from a discretionary equitable remedy to an enforceable right, and what discretion survives

1. The Old Position: A Discretionary Remedy

Under the unamended Act, the former Section 20 opened with the words that 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. Specific performance was the exception; damages were the ordinary remedy. Even on a fully proved and enforceable contract, the court could refuse the decree on equitable grounds such as hardship, the conduct of the plaintiff, or the unfairness of the bargain. The plaintiff had no right to specific performance; he had, at best, a claim to the court's favourable discretion.

2. The New Position: An Enforceable Right

The 2018 Amendment recast Section 10 to read that the court shall enforce specific performance of a contract, subject to Sections 11(2), 14 and 16. The old discretionary Section 20 was replaced altogether, its place taken by the new remedy of substituted performance. The effect is a reversal of the default: specific performance is now the rule, and damages the alternative. A plaintiff who proves an enforceable contract and clears the statutory conditions is entitled to the decree; the court can no longer withhold it merely because it prefers to award damages.

3. What Discretion Survives

The change removes open-ended discretion, not every judicial choice. The court still applies the fixed statutory bars of Section 14, still refuses relief where the plaintiff fails the conditions of Section 16, including readiness and willingness, and still decides whether to permit substituted performance under Section 20 or to award compensation under Section 21. What the court may no longer do is decline to enforce a proved, enforceable contract simply because, weighing the equities at large, it thinks damages would be the fairer course. The discretion that remains is structured by the statute, not free.

4. A Worked Example

Suppose A proves a valid, enforceable agreement to buy B's land, and shows that he was ready and willing throughout. Under the old law, B might still resist by urging that enforcement would work a hardship, and the court could, in its discretion, refuse the decree and leave A to damages. Under the new law, once A has proved the contract and cleared Sections 11(2), 14 and 16, the court shall enforce it; B cannot defeat the decree by a general appeal to hardship, but only by bringing the case within a specific statutory bar. The plaintiff's position has moved from hoping for the court's favour to holding an enforceable right.

5. Frequently Asked Questions

Q. How did the 2018 Amendment change the court's power?
A. It replaced the discretionary jurisdiction of the old Section 20 with the mandatory language of the recast Section 10: the court shall enforce specific performance, subject to Sections 11(2), 14 and 16.

Q. Is specific performance still discretionary?
A. Not in the old open-ended sense. It is now the general rule, enforceable as of right once the statutory conditions are met. What survives is structured discretion under the specific bars of Sections 14 and 16.

Q. Can a court now refuse specific performance on grounds of hardship alone?
A. No. It can refuse only by bringing the case within a statutory bar. A general appeal to hardship or fairness no longer defeats a proved, enforceable contract.

Q. Does the plaintiff still have to prove readiness and willingness?
A. Yes. Section 16(c) is untouched. The shift from discretion to obligation does not relieve the plaintiff of proving that he was and remained ready and willing to perform.