Specific Relief Act (SRA)
Specific Performance: General Principles
Specific performance is the relief by which a court compels a party to a contract to do the very thing he promised, instead of merely paying money for breaking his word. It is the heart of Chapter II of the Specific Relief Act. Before any of the detailed sections can be reached, one thing must be true: there must be a contract fit to be enforced. This note sets out the foundation on which every claim for specific performance rests, the general principles that govern the remedy, and how the 2018 Amendment changed its character from a discretionary favour into a general right.
Figure: The foundation of specific performance: a concluded, certain and valid contract, and which kinds of agreement can be enforced
1. What Specific Performance Means
The idea ▪ Definition. Specific performance is a decree of the court directing a party to a contract to perform his own obligation under it, according to its true terms. ▪ Contrast with damages. Damages give the injured party a money substitute for the promise; specific performance gives him the promise itself. ▪ An equitable origin. The remedy grew out of the practice of the courts of equity, which intervened where the common law remedy of damages was inadequate. In India it is now wholly statutory, governed by the Specific Relief Act, 1963. ▪ A remedy in personam. The decree operates against the person of the defendant, commanding him to act; disobedience is enforced through the executing court. |
2. The Foundation: A Contract Fit to be Enforced
The court cannot order performance of something that is not, in law, a binding contract. Four requirements form the threshold of every claim.
Four threshold requirements ▪ A concluded agreement. There must be a true meeting of minds, a consensus ad idem on all essential terms. A mere negotiation, an agreement to agree, or a letter of intent is not enough. ▪ Certainty of terms. The terms must be certain, or capable of being made certain. A court cannot enforce a bargain whose content it cannot ascertain. ▪ A valid and enforceable contract. The agreement must satisfy Section 10 of the Contract Act: free consent, competent parties, lawful object and consideration. ▪ Not void, and not a voidable contract that has been avoided. If the contract is void, there is nothing to enforce; if it is voidable and the other party has lawfully avoided it, the right to performance falls with it. |
Mayawanti v Kaushalya Devi (1990) 3 SCC 1 The Supreme Court held that the jurisdiction to decree specific performance is discretionary but is founded on the existence of a valid and enforceable contract. Where the very existence or the terms of the contract are in doubt, the plaintiff must first establish the concluded bargain before the question of specific performance can arise. |
3. General Principles Governing the Grant
Principle | What it means |
|---|---|
Contract must exist | The plaintiff must prove a concluded, certain and valid contract |
Mutuality | The contract should, as a rule, be capable of being enforced by both parties |
Readiness and willingness | The plaintiff must plead and prove he was ready and willing to perform his own part throughout: Section 16(c) |
Clean conduct | The plaintiff must come with clean hands; fraud, misrepresentation or unfair advantage will defeat the claim |
No statutory bar | The contract must not fall within Section 14, and no personal bar under Section 16 should apply |
Enforcement subject to the Act | After 2018 the court shall enforce the contract, subject only to Sections 11(2), 14 and 16 |
4. Who May Sue and Against Whom
The parties to a specific performance suit ▪ Who may obtain the relief: Section 15. Any party to the contract; the representative in interest or the principal of a party; and certain others named in Section 15, such as the beneficiary of a settlement or a company after amalgamation. ▪ Against whom relief may be enforced: Section 19. The other party to the contract; a person claiming under him by a title arising after the contract, except a transferee for value who paid in good faith and without notice; and others named in Section 19. ▪ The good faith purchaser without notice. The most important exception in Section 19: a later purchaser who bought for value, in good faith and without notice of the earlier contract, takes free of the claim. |
5. From Discretion to a General Remedy: The 2018 Shift
The change of character ▪ Before 2018. Specific performance was the exception. The old Section 10 allowed it only where damages were an inadequate remedy, and the old Section 20 made even a proved case subject to the court's wide discretion. ▪ After 2018. The new Section 10 provides that the court shall enforce the contract, subject to Sections 11(2), 14 and 16. Section 20 was recast to deal with substituted performance. Specific performance is now the general rule, and damages the alternative. ▪ Effect on principle. The adequacy of damages is no longer the gateway. The question is no longer whether the court should exercise a discretion in the plaintiff's favour, but whether the contract falls within the narrow bars that still remain. |
6. Specific Performance and Damages
- Not mutually exclusive. Under Section 21, a plaintiff suing for specific performance may also claim compensation, in addition to or in substitution for performance, and the court may award it where performance cannot be granted or is not enough to do complete justice.
- Election preserved. The court may still, where performance is refused for a reason personal to the claim, leave the plaintiff to his remedy in damages under the ordinary law of contract, which Section 3 saves.
7. Frequently Asked Questions
Q. What must a plaintiff prove before the court will consider specific performance?
A. A concluded, certain and valid contract that is not void and, if voidable, has not been avoided; and, under Section 16(c), that he was ready and willing to perform his own part throughout.
Q. Is specific performance still a discretionary remedy?
A. For contracts made on or after 1 October 2018, no. The new Section 10 makes it a general remedy the court shall enforce, subject only to Sections 11(2), 14 and 16. For earlier contracts, the old discretionary law applies.
Q. Can a plaintiff ask for both specific performance and compensation?
A. Yes. Section 21 allows a claim for compensation in addition to or in substitution for performance, and the court awards it to do complete justice.
Q. Against whom can a decree for specific performance be enforced?
A. Under Section 19, against the other party and those claiming under him by a later title, but not against a transferee for value who bought in good faith and without notice of the contract.
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