Specific Relief Act (SRA)
Section 40 versus Section 21
Sections 40 and 21 are parallel provisions in different chapters of the Act. Each lets the court award money within a specific-relief suit, either in addition to the main relief or in substitution for it. Section 21 sits with specific performance and lets the court award compensation; Section 40 sits with the injunction and lets it award damages. This note explains each in its own right, compares them, and works through an example, drawing out how closely the two mirror each other.
Figure: Section 40 and Section 21 compared, from the main relief to the setting, and their parallel structure
1. Section 21 in Its Own Right
Section 21 lets the court award compensation in a suit for specific performance. Where the court decides that performance ought to be granted but is not enough to do justice, it may award compensation in addition; where it decides that performance ought not to be granted but there is a valid contract broken by the defendant, it may award compensation instead. The compensation must be claimed in the plaint (Section 21(5)), though the plaint may be amended to add the claim, and the measure is drawn from Section 73 of the Contract Act. Section 24 bars a fresh compensation suit after a dismissed performance suit.
2. Section 40 in Its Own Right
Section 40 lets the court award damages in a suit for a perpetual or mandatory injunction. The plaintiff may be granted damages in addition to the injunction, or in substitution for it where the court decides an injunction ought not to be granted but the plaintiff has a valid claim. As under Section 21, the damages must be claimed in the plaint, and the plaint may be amended to add the claim; and, mirroring Section 24, the dismissal of the injunction suit bars a fresh suit for damages for the same wrong. The measure is drawn from the general law of damages.
3. The Two Sections Compared
Basis | Section 40 (with injunction) | Section 21 (with performance) |
|---|---|---|
The main relief | A perpetual or mandatory injunction | Specific performance of a contract |
What it adds | Damages in addition to, or in substitution for, the injunction | Compensation in addition to, or in substitution for, the decree |
Must be claimed | Yes: damages are awarded only if claimed in the plaint | Yes: no compensation unless claimed (Section 21(5)) |
Amendment | The plaint may be amended to add the claim | The plaint may be amended to add the claim |
Bar on a fresh suit | Dismissal bars a later damages suit for the same wrong | Section 24: dismissal bars a later compensation suit for the same breach |
The measure | The general law of damages | Drawn from Section 73 of the Contract Act |
4. Parallel Provisions
Twins in different chapters ▪ Both award money within the suit. Each lets the court add money to the main relief, or give it in place of that relief. ▪ Both require a claim. The money must be claimed in the plaint, with amendment allowed to add it. ▪ Both carry a claim-splitting bar. Section 24 bars a later compensation suit after a dismissed performance suit; a like bar follows a dismissed injunction suit under Section 40. |
5. A Worked Example
Suppose a plaintiff sues for a perpetual injunction restraining a factory from discharging effluent onto his land, and also for the loss already caused to his crops. The court, granting the injunction, may under Section 40 also award damages for the crops already ruined, so long as he claimed them; the injunction stops the future wrong, the damages repair the past one. Now compare a suit for specific performance of a contract to sell land, where the buyer has also lost the rent he would have earned. The court, decreeing performance, may under Section 21 award compensation for that lost rent, so long as it was claimed. The two provisions do the same work, one beside the injunction and the other beside the decree, and each insists the money be asked for in the plaint.
6. Frequently Asked Questions
Q. What is the difference between Section 40 and Section 21?
A. Section 40 lets the court award damages with, or instead of, an injunction; Section 21 lets it award compensation with, or instead of, specific performance. They are parallel provisions in different chapters.
Q. Must the money be claimed in both?
A. Yes. Under Section 21(5) no compensation is awarded unless claimed, and under Section 40 damages are awarded only if claimed; in each the plaint may be amended to add the claim.
Q. Is there a claim-splitting bar under each?
A. Yes. Section 24 bars a fresh compensation suit after a dismissed performance suit, and a like bar follows a dismissed injunction suit under Section 40.
Q. Where does the measure of the money come from?
A. Section 21 draws its measure from Section 73 of the Contract Act; Section 40 applies the general law of damages.
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