3

Part
Specific Relief Act

Contracts which cannot be specifically enforced than an arbitration agreement to which the
[Section 14] provisions of the said Act apply) and has
The following contracts cannot be specifically refused to perform it, sues in respect of any
enforced: subject which he has contracted to refer, the
existence of such contract shall bar the suit.
(a) Where a party to the contract has obtained
substituted performance of contract in 3. Notwithstanding anything contained in
accordance with the provision of Section 20; clause (a) or clause (c ) or clause (d) of sub
(b) A contract, the performance of which section (1), the court may enforce specific
involves the performance of a continuous performance in the following cases:-
duty which the court cannot supervise; (a) Where the suit is for the enforcement of
(c) A contract which is so dependent on the a contract,-
personal qualifications of the parties that the (i) To execute a mortgage or furnish any
court cannot enforce specific performance other security for security for securing
of its material terms; and the repayment of any loan which the
(d) a contract which is in its nature determinable. borrower is not willing to repay at once;
1. Section 14 has been substituted by the Provided that where only a part of the loan has
Specific Relief (Amendment) Act, 2018, been advanced the lender is willing to advance the
w.e.f. 1-10-2018, for the following; remaining part of the loan in terms of the contract;
(a) A contract for the non-performance of which or willing to advance the remaining part of the loan
compensation in money is an adequate in terms of the contract; or
relief; (ii) To take up and pay for any debentures of
(b) A contract which runs into such minute or a company;
numerous details or which is so dependent (b) Where the suit is for;-
on the personal qualifications or volition of (i) The execution of a formal deed
the parties, or otherwise from its nature is
of partnership, the parties having
such, that the court cannot enforce specific
commenced to carry on the business
performance of its material terms;
of the partnership; or
(c) A contract which is in its nature determinable;
(ii) The purchase of a share of a partner
(d) A contract the performance of which in a firm,
involves the performance of a continuous
(c) Where the suit is for the enforcement
duty which the court cannot supervise.
of a contract for the construction of any
2. Save as provided by the Arbitration Act,
building or the execution of any other
1940 (10 of 940), no contract to refer
work on land;
present or future differences to arbitration
shall be specifically enforced: but if any Provided that the following
person who has made such a contract (other conditions are fulfilled, namely;

APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 1
 (i) The building or other work is described of a continuous duty which the court
in the contract in terms sufficiently cannot supervise cannot be specifically
precise to enable the court to determine enforced. The Specific Relief Act, 1963
the exact nature of the building or work does not mention any time limit of the
(ii) The plaintiff has a substantial interest performance of a continuous duty.
in the performance of the contract Therefore, section 14(1) (b) provides that
and the interest is of such a nature a contract which involves performance
and compensation in money for non- of a continuous duty which the court
performance of the contract is not an cannot supervise cannot be specifically
adequate relief; and enforced. Significantly, under the
(iii) The defendant has, in pursuance of the Specific Relief (Amendment) Act 2018
contract, obtained possession of the position remains the same.
whole or any part of the land on which Example 1- A contracts with B to execute
the building is to be constructed or other certain works or to build or repair a structure which
work is to be executed. the Court cannot supervise. Hence it cannot be
(e) A contract which is so dependent on the enforced:
personal qualifications of the parties that the Example 2- A lets land to B and B contracts to
court cannot enforce specific performance cultivate it in a particular manner for three years
of its material terms; and next after the date of the lease. If B makes breach
(f) A contract which is in its nature determinable. no specific relief shall be granted to A.
(i) Contract where a party to the contract Example 5- A and B contract where A agrees
has obtained substituted performance to give his land to B. A agreed to make annual
[Section 14(a)]: First contract where advances to B. For three years next after date of the
specific performance can be refused is contract B will grow particular crops on the land
where the party has obtained substituted in his possession and deliver them to A when cut
performance. It is important to mention and ready for delivery. If breach is made by B no
that substituted performance is a new specific relief shall be granted to A.
concept incorporated by the Specific In Kuldeep Chander v Chief Inspector of Shops,
Relief Amendment Act 2018. an injunction requiring the tenant to follow rules
Example- A enters into a contract to of opening and closing shop shall open and close
sell his IMP to B for 50 lac. A makes shop cannot be granted since it will involve con-
breach. B got substituted perfor- stant supervision, and something which court can-
mance form C and purchase the IMP not monitor.
from him. If B files a suit for specific (iii) Contract dependent on personal
performance no specific relief shall qualification or volition [Section
be granted. 14(c)- A contract of service depends on
(ii) Contract involving performance of the personal volition of the parties and,
a continuous duty which the court therefore, the same cannot be specifically
cannot supervise [Section 14(b)]- A enforced either by the master or the
contract which involves the performance servant.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 2
 Example 2- A contracts to give her (iii) Where a statutory body acts in breach of
singing or dance performance twice violation of the mandatory provisions.
a week for coming two months in B’s However, A statutory body is one which
hotel for Rs. 50,000/- per night. A is established or created by a statute
makes breach of contract. No specif- e.g. Indian Airlines Corporation and
ic relief shall be granted to B. similar bodies, but a body which is only
Example 4- A contracts with B that governed or administered by certain
he will paint a picture for B for Rs. statutory provision is not a statutory
50,000/-. A makes breach of contract. body, e.g. executive Council of a college.
No specific relief shall be granted to The law relating to dismissals and relief against
B. illegal exercise of power, therefore, may be
Contract of employment- stated thus:

Significantly, contracts of employment, (i) Under Section 14(1) (b) of the Specific
contracts of personal service, contracts involving Relief Act the contract of personal service
performance of artistic skill like contracts to sing, cannot be specifically enforceable.
to paint, to act, contracts of authorship, are ordi- (ii) Where service of an employee of the
nary examples of things requiring personal skill statutory body is terminated in breach
of the requirement of a statute, the
and, therefore beyond the capacity of the judicial
Court may declare that the dismissal is
process to enforce their actual performance. The
ineffective, and the servant continues
only choice in is to claim damages.
to be in service. The Apex Court Ram
Services under the Statute- Sahan Rai v. Sachiv Samanaya
In case of Sirsi Muncipality v Cecelia Prabandhak, has held that in the case
Kom Francis Tellis, the Court is of the view that of statutory bodies, a dismissal which
normally Court would not give a declaration that is without jurisdiction, mala fide or
the contract of personal service subsists and the in breach of natural justice so as to be
in contravention of the doctrine of ex
employee, ever after having been removed from
debito justiciae, the Court will give a
service, can be deemed to be in service against the
declaration.
will and consent of the employer. This rule, howev-
(iii) In the case of such non-statutory bodies,
er, is subject to three well-recognised exceptions:
a dismissed employee cannot specifically
(i) Where a public servant is sought enforce his contract of personal service.
to be removed in contravention of
In Executive Committee of Vaish De-
the provisions of Article 311 of the gree College v. Lakshmi Narain, the
Constitution; Supreme Court made a distinction be-
(ii) Where a worker is sought to be reinstated tween statutory body, which is a creation
on being dismissed, under the industrial of a statute, and other bodies governed
law, and by certain statutory provisions of their
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 3
 proper administration which is not suffi- Direction to the expert. The Court may also
cient to make them statutory bodies; and direct such expert to report to it on such issue and
held that the executive Committee of a may secure attendance of the expert for providing
college constituted under a Co-Opera- evidence, including production of documents on
tive Societies Act was not such a body. the issue.
It observed that a contract of personal Direction to any person [Section 14A(2)]:
service cannot be enforced, except in the
wherever, the court considers necessary, it may re-
three exceptions mentioned above. quire or direct any person to give relevant infor-
(iv) Contract which is determinable mation to the expert or to produce, or to provide
[Section 14(d)]- A contract which is of access to, any relevant documents, goods or other
determinable nature cannot be enforced. property for his inspection.
However, moot question is what is Expert reports forms court record [Section
determinable contract? In general, 14A(3)]: The opinion or report given by the expert
determinable means revocable. It means shall form part of the record of the suit.
a contract which can be determined Examination or cross examination of the
or put to an end by a party to the expert [Section 14A(3)]: The court, may examine
contract. Therefore, when a contract is the expert personally in open court on any of the
determinable or revocable by a party matters referred to him or mentioned in his opinion
to the contract it cannot obviously be or report, or as to his opinion or report, or as to
enforced. the manner in which he has made the inspection.
Example- A and b contract to Further, with the permission of the court any of the
become partners in a certain business, the parties to the suit may also examine the expert.
contract not specifying the duration of Fee of expert [Section 14A(4)]: The expert
the proposed partnership. This contract shall be entitled to such fee, cost or expense as the
cannot be specifically performed, for, if court may fix, which shall be payable by the parties
it were so performed, either A or B might in such proportion, and at such time, as the court
at once dissolve the partnership. may direct.
In case of partnership at will as Who may obtain specific performance (Section 15)
defined by section 7, Indian Partnership General Rule, i.e. privity to contract: the parties
Act, 1932, any partner can put to an end to the contract can claim specific performance
the relation of partnership or he can retire [Section 15(a)]:
by giving a notice in writing to all the
It is important to mention that Section 15 mentions
other partners of his intention to retire.
who can claim specific performance of the con-
The Specific Relief (Amendment) Act 2018- tract. The general rule under the law of contract
Section 14A is incorporated by the Specif- regarding who can enforce the contract is privity
ic Relief (Amendment) Act 2018. It provides for to contract, which provides that only parties to the
expert opinion. Where the court considers it nec- contract can enforce the contract and the stranger
essary to get expert opinion. Where the court con- to the contract cannot sue. However, Section 15
siders it necessary to get expert opinion to assist it mentions general rule as well as exceptions where
on any specific issue involved in the suit, it may apart from the parties to the contract even third per-
engage one or more experts. son can claim specific relief.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 4
Specific performance by the parties when agree- contract provides that his interest shall not
ment to sell is oral or written but signed only by be assigned, his representative in interest of
vendor and not by vendee: When agreement to his principal shall not be entitled to specific
sell is oral or written but signed only by vendor and performance of the contract, unless such
not by vendee then two moot questions which need party has already performed his part of the
clarification are: whether it is a valid agreement? contract, or the performance thereof by his
Can it be specifically enforced? representative in interest, or his principal,
This controversy was put to rest by the Apex Court has been accepted by the other party. Lets
of India in case of Aloka Bose v. Parmatma Devi, understand who is the representative in
where it stated that all agreements of sale are bi- interest;
lateral contracts as promises are made by both, the
The representative in interest-
vendor agreeing to sell and the purchaser agreeing
to purchase. It cannot be said that unless agreement The representative in interest generally
is signed both by the vendor and purchaser, it is not includes those persons who are entitled to the
a valid contract. Even an oral agreement to sell is benefit of the contract. It is not necessary that all
valid. If so, a written arguments signed by one of the representatives in interest must join the case as
the parties, if it evidences such an oral agreement co-plaintiffs. Where one or more representatives in
will also be valid. Moreover, in India, an agreement interest refuse to join the case as they were absent
of sale signed by the vendor alone and delivered to at that time or due to other reason then they can be
the purchaser, and accepted by the purchaser, has impleaded as defendants.
always been considered to be a valid contract. In
In Beswick v. Beswick, B transferred
the event of breach by the vendor, it can be specifi-
his business to A and in return A promised B
cally enforced by the purchaser. There is, however,
to pay an annuity to B and B’s widow after B’s
no practice of purchaser alone signing an agree-
death. The House of Lords held that this promise
ment of sale. (AIR 2009 SC 1527)
could be specifically enforced by B’s personal
Exceptions to privity to contract: Stranger to
representatives, i.e. widow, against A. The House
the contract or persons other than the parties
of Lords stated that three factors were considered
can obtain specific relief-
while granting specific performance; inadequacy
In following exceptional cases, a stranger to the
of damages (nominal in that case) as a remedy for
contract or persons other than the parties can obtain
breach of contract, the fact that the promisor (A) had
specific relief:
received the entire consideration for his promise,
(a) The representative in interest or the
and the fact that B could have specifically enforced
principal of any party thereto- The
the contract had A refused to perform his part. It
representative in interest or the principal
has been suggested that the remedy would not have
of any party thereto who can claim specific
been available, had any of these factors been absent.
performance of the contract. However,
where the learning, skill, solvency or any The court further held that specific performance is
personal quality of such party is a material given whenever it is the most appropriate method
ingredient in the contract, or where the of enforcing the contract which was actually made.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 5
Assignee is “representative-in-interest”- (i) Where the learning, skill, solvency
A contract is ordinarily assignable unless or any personal quality of such
the personal quality of a party is a material ingre- party is a material ingredient in the
dient in the contract or where the contract shows contract: Where from the contract it
an intention that the interest shall not be assigned. is clear that learning, skill, solvency
Where the benefit of a contract has been assigned, or any personal quality of such party
is a material ingredient in the contract
the assignee may, as a general rule, enforce spe-
then only parties can claim the specific
cific performance, provided that the assignee can
performance and the representative in
himself perform or procure the performance of the
interest or the principal of any party shall
assignor’s obligation under the contract.
not be competent to claim such relief.
Example- A interested in pledging his jewellary or
family idol to B but was persuaded by B to sell Example- A, a singer or dancer, agent of X has
it him. A agreed to sell with a right to repurchase. entered into the contract to give her performance on
Subsequently A assigns his right to repurchase to B’s birthday. B made breach of contract. Specific
X. B makes breach of contract. As X is assignee performance can be claimed by A only and not by
and hence representative in interest and hence can X, his principal.
claim specific relief. In Mohendra Nath Mookerjee v. Kali Prashad
Principal- Johuri, the court held that where A agreed to grant
Under law, act done by the an agent is act a lease to B, of a property which was at the date
done by the principal provided the agent has author- of the agreement in the possession of mortgagee,
ity to do that act. According to Sections 186-187 of and B agreed to undergo all the labour necessary
the Indian Contract Act, 1872 where a contract is for the conduct of a suit redemption which was
entered into by the agent having actual, implied or then pending, and to pay all the expenses of the
ostensible authority from his principal to enter into litigation, and the rent was to commence from the
the contract on his behalf, then the principal is the date on which possession was recovered from the
actual party to the contract and he can claim spe-
mortgagees, it was held that personal quality of B
cific performance. The circumstances in which the
was a material ingredient in the contract, and that
agent may personally enforce a contact entered into
his heir was not entitled to specific performance
by him on behalf of the principal are dealt with in
against A.
Section 230 of Contract Act, 1872.
Example – A, an agent of X having authority to (ii) Where the contract provides that his
do so, agreed to sell a flat to B. B made breach of interest shall not be assigned- Where it
contract. Here X, the principal of A can file a suit is categorically provided in the contract
for specific relief. that interest shall not be assigned then
Exceptions where the representative in interest only parties can claim the specific
or assignee or the principal of any party cannot performance and the representative in
claim specific relief [Proviso]: interest or assignee or the principal of
The following two exceptions are mentioned under any party shall not be competent to claim
proviso: such relief.
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 Example- According to a contract, A has a right such contracts are made for better management and
to repurchase some ornaments from B. The contract enjoyment of the property. As per legal dictionary
provide that this right cannot be assigned by A to a remainder man is a term used in property law to
stranger. If breach is made by B then specific relief refer a person who inherits or is entitled to inherit
can be claimed by A or his heirs and not by his property upon the termination of the estate of the
former owner. A remainder man holds an interest in
assignee.
the remainder and will become its possessor at some
The Apex Court of India in Shyam Singh future time. For example, if the owner of property
v. Daryao Singh, held that in the absence of any gives a piece of his real property to “to A for life,
words or expressions in the documents indicating and then to B, “B is entitled to a future interest,
prohibition on assignment or transfer of right of called a remainder, and B is termed a remainder
repurchase and in the case of clear provision of man. B’s interest becomes possessory only on A’s
Section 15(b) of the Specific Relief Act, 1963, an death.
implied prohibition cannot be read into the terms of Example- A agrees to give his property on
the documents. Merely because in the documents, to B on leave where B is tenant for life and after
there is mention of ‘heirs’ of the contracting parties B property will go to C (lessee) if C survives B.
but not their ‘assignees’ or ‘transferees’, the legal Here C is the remainder man if B enters into any
right of assignment available to the benefit of
contract as per his power for better management
original contracting party under Section 15(b) of
and enjoyment of the property then C can claim
the Act cannot be denied to it.
specific performance after B.
(b) Where the contract is a settlement on
marriage, or a compromise of doubtful (d) A reversioner in possession, where the
rights between members of the same agreement is a covenant entered into with
family, any person beneficially entitled his predecessor in title and the reversioner
thereunder- is entitled to the benefit of such covenant-
Another exception to the general rule is Reversions in property law is a future
the family settlement. Where, under a family interest that is retained by the grantor after the
arrangement, the contract is intended to secure a conveyance of an estate to another person. Once
benefit to a third party then such third party may the lease expires or the life estate tenant dies the
sue in his own right as a beneficiary. property automatically reverts to the grantor of
Example- Four brothers (A, B, C and lease. However, where grantor of lease has died
D) entered into a family settlement to give during life time of tenant for life then the property
maintenance to mother or widowed sister-in- will revert to the reversioner in possession i.e., his
law (brother’s wife) or marriage expenses to
legal representative.
X, an unmarried sister, then such beneficiary
can enforce the contract for specific relief. (g) A reversioner in remainder, where the
(c) Where the contract has been entered agreement is such a covenant, and the
into by a tenant for life in due exercise of reversioner is entitled to the benefit
a power, the remainder man- thereof and will sustain material injury
Where the contract is entered into by a tenant by reason of its breach-
for life in due exercise of a power, the remainder When in reversion a future interest is created in
man can claim specific enforcement. Generally the property in favour of third person rather then
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the grantor of the lease then such third person is LLP and LLP II is amalgamated LLP. Therefore,
known as reversioner in remainder. Here remainder where a contract was entered into by LLP I with B
means the person other than the original grantor to then after amalgamation, LLP II can file a suit for
whom the land will pass after the death of tenant specific relief against B.
for life. (i) When a company has entered into a
Example- A contracts to grant the property on contract and subsequently becomes
lease to B for life, then to C. Here B will use the amalgamated with another company,
land for the lifetime of B, but on B’s death, the land the new company which arises out of the
will go to C. Here C is reversioner in remainder who amalgamation-
has future interest in the property. Where breach of Example- X & Co. is a sick company and
contract is made by B then C will suffer material there is amalgamation of X & Co. and Y & Co. In
injury and hence can claim specific performance. this example, X & Co. is amalgamating company
Difference between a reversion and a remainder- and Y & Co. is amalgamated company. Therefore,
The difference between a reversion and a where a contract was entered into by X & Co. with
remainder, is that in reversion the particular estate B then after amalgamation, Y & Co. can file a suit
for specific relief against B.
will fall into the possession of the original grantor
or his representative after the death of the tenant for (j) When the promoters of a company have,
life, whereas in remainder the estate which under before its incorporation, entered into a
the same circumstances will fall into the possession contract for the purposes of the company,
and such contract is warranted by the
of a person other than the original grantor.
terms of the incorporation, the company-
(h) When a Limited Liability Partnership
In last exception, where promoters of a company
(LLP) has entered into a contract and
before incorporation have entered into the contract
subsequently becomes amalgamated with
which is warranted by the terms of the incorporation
another limited liability partnership, the and after incorporation breach is made by the other
new Limited Liability Partnership which Party then Company can enforce the contract.
arises out of the amalgamation- However, two conditions must be fulfilled:
Another exception to the general rule that (a) The company has accepted the contract
only the parties to the contract can claim specific and
enforcement is incorporated by the Specific Relief (b) Has communicated such acceptance to
(Amendment) Act 2018 which provides that the other party to the contract.
amalgamated LLP. Where a contract is entered into Example- A, B, C and D (as promoters of
by a LLP which subsequently becomes financial a company) entered into a contract with X to
unsound (amalgamating LLP) and combines with purchase property (to be used for company) before
a rich company, i.e amalgamation takes place, incorporation of the company. However, after
then this news LLP (amalgamated LLP) can claim incorporation X made breach of contract. Now
specific relief against B. company can file a suit for specific relief against
Example- LLP I is a sick limited liability X provided the company has accepted the contract
partnership and there is amalgamation of LLP I and has communicated such acceptance to the other
and LLP II. In this example, LLP I is amalgamating party to the contract.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 8
1. Personal bars to relief [Section 16]- (b) A person who becomes incapable or commits
Specific performance of a contract cannot be any wrong: Another person who is not entitled
enforced in favour of a person- to specific relief is a person who has become
(a) Who has obtained substituted performance incapable of performing, or violates any
of contract under Section 20; or essential term of, the contract that on his part
(b) Who has become incapable of performing, remains to be performed, or acts in fraud of
or violates any essential term of, the contract the contract, or willfully acts at variance with,
than on his part remains to be performed, or or in subversion of, the relation intended to be
acts in fraud of the contract, or willfully acts established by the contract. Therefore, Section
at variance with, or in subversion of, the 16(1)(a) mentions following persons who are
relation intended to be established by the not entitled to claim specific relief:
contract; or
(i). A person who becomes incapable of
(c) Who fails to [prove] that he has performed
performing the contract.
or has always been ready and willing to
(ii). A person who violates any essential
perform the essential terms of the contract
term of the contract.
which are to be performed by him, other
than terms the performance of which has (iii). A person who acts in fraud of the
been prevented or waived by the defendant. contract;
Explanation- For the purposes of clause (c)- (iv). Willfully acts at variance with, or
(i). Where a contract involves the payment in subversion of, the relation intended to be
of money, it is not essential for the plain- established by the contract;
tiff to actually tender to the defendant or to (i). A person who becomes incapable of
deposit in court any money except when so performing the contract- Where after entering
directed by the court. into the contract the promisor has become incapable
(ii). The plaintiff must [prove] performance of performing the contract he cannot claim specific
of, or readiness and willingness to perform, relief, i.e., insolvent or person of unsound mind;
the contract according to its true construc- Example- A, a singer or dances enters into a
tion. contract to give her performance on B’s birthday.
(ii). Personal bars to relief i.e., persons not enti- Subsequently, she met with an accident and
tled for relief became incapable of giving her performance. She
cannot claim specific performance as performance
Section 16 talks about the person who can-
becomes impossible and the contract becomes void.
not claim relief of specific performance. Signifi-
cantly, under Section 16 relief cannot be granted in Example 2- A, a singer or dance enters into a
favour of following persons: contract to give her performance on B, Birthday.
(a) A person who has obtained substituted Subsequently, she met with an accident and became
performance of contract: who has obtained and insane person. She cannot claim specific
substituted performance of contract under performance as performance becomes impossible
Section 20. See discussion under Section 20. and the contract becomes void.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 9
 (ii). A person who violates any essential term Readiness and willingness to perform-
of the contract- where a party to the contract Willingness is a mental element whereas readiness
violates any essential term of the contract that is to is translating the will into action and is preceded
be performed on his part then it is personal bar and
by the necessary preparation to be ready. It means
he cannot claim specific performance.
readiness must be backed by willingness and its
Example 1- A contracts to sell rare goods to
imminent physical action is shown when it is about
B, who was to pay advance money. B failed to pay
advance money he cannot claim specific relief. to put into action. It is important to note that both
Example 2- A contracts to sell his house to B willingness and readiness must be there. There may
who agreed to pay advance money so that A can get be a situation where a person is willing to do but not
that property free from mortgage before selling. B ready to do or he is ready to do due to some pressure
failed to pay advance money. Accordingly A could but not willing to do. Therefore, if any of them is
not get his property free from mortgage and could lacking the cannot claim specific performance.
not sell to B. No claim of specific relief shall be
granted in favour of B. In Jai Gopal Goyal v. Bishen Dayal Goyal,
(iii). A person who acts in fraud of the defendant had agreed to sell house to plaintiff.
contract- another personal bar to the party is when It was averred by plaintiff that amount of loan
he is acting in fraud of contract. advanced by them to defendant was treated as
Example 1- A contracts to sell B a house and advance and balance sum was to be paid by
garden in which there are ornamental trees, which plaintiffs at the time of execution and registration
are a material element in the value of the property. A of sale deed. But defendant had issued notice to
without B’s consent, cut the trees. A cannot enforce
plaintiff to return money advanced by plaintiffs
specific performance of the contract.
earlier and vacate suit property. As evidence was
Example 2- Where A, holding land under
led by plaintiffs in support of averments made in
contract with B for a lease, commits waste, or
treats the land in an inappropriate manner. A cannot plaint; that he had paid advance money and willing
enforce specific performance of contract. to pay balance at the time of execution of sale deed,
(iv). Willfully acts at variance with, or which remained unrebutted, hence, plaintiffs were
in subversion of, the relation intended to be entitled to decree for specific performance, as they
established by the contract;- where the party were ready and willing to perform their obligation
to contract willfully acts at variance with, or in under agreement. (AIR 2005 Del 39)
subversion of, the relation intended to be established
by the contract, it acts as personal bar and he cannot In Hakim Singh V Ram Snehi, the purchaser
claim specific relief. was present before the sub-Registrar on the date
Example- A, agent of X enters into a contract to mentioned in the notice sent to him by the vendor
sell X’s property to B. Subsequently, A flies a suit to for registration. On the other hand, inspite of the
challenge his status as agent of X on the ground that notice, the vendor failed to appear before the sub-
his consent for the contract of agency was obtained Registrar. It was held that the purchaser was ready
by X due to fraud. If B makes breach of contract.
and willing to perform his part of the contract and
A cannot claim specific relief as he willfully acts
at variance with, or in subversion of, the relation hence he was entitled to specific performance.
intended to be established by the contract. (AIR 2001 All 231)
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 10
 Other than terms the performance of which provision is that plaintiff must prove that he had
has been prevented or waived by the defendant always been ready and willing to perform the
cannot claim specific relief- Significantly, where a additional term of the contract. Therefore, sufficient
party to contract has performed a part of the contract evidence to indicate readiness and willingness of
and is ready and willing to perform remaining the plaintiff from the date of suit till date hearing of
suit must be there.
part and claims that he is either prevented by the
defendant from performing that part or defendant Immediately after the expiry of the six
months period lawyer’s notice was given calling
has waived performance of that part then he can
upon the appellant defendant to execute the sale
file a suit for specific performance provided he
deed. It is also averred in the plaint that the plaintiff
proves in the court that he was ready and willing to
met the defendant several times and requested him
perform remaining part or performance was either to execute the sale deed. On finding inaction in his
prevented or waived by the defendant. part, the suit for specific performance of contract
Not essential for the plaintiff to actually was filed and there was clear averment in plaint
tender to the defendant or to deposit in court that the plaintiff was always ready to get the sale
any money [Explanation i]- Where a contract deed prepared after paying necessary consideration
involves the payment of money, it is not essential and also that defendant is bound to execute the
for the plaintiff to actually tender to the defendant sale deed on receiving the balance amount and the
or to deposit in court any money except when so plaintiff was entitled to get the document executed
directed by the court; by the defendant. It was held that order decreeing
Syed Dastagir v. T.R. Gopalkrishna suit for specific performance in favour of plaintiff
Setty, the readiness and willingness to perform the would be proper.
contract as required by Explanation (i) to Section Readiness and willingness to perform: time is
16 (c) means compliance in spirit and substance and essence of contract
not in letter and form. If the plaintiff proves that he According to Pollock & Mulla the intention can be
has already paid the substantial amount and makes ascertained from-
payment of the balance of Rs. 120 in the court (i). The express words used in the contract
without the court’s order the plaintiff is supposed to
(ii). The nature of the property which forms the
be ready and willing to perform the contract and the subject matter of the contract.
delayed payment of the balance of Rs. 120 is not to
(iii). The nature of the contract, and
be constructed adversely against the plaintiff. The
plaintiff was therefore, held entitled to the specific (iv). The surrounding circumstances.
performance of agreement to sell the properties. Contract to sell or let property by one who has
Plaintiff must prove performance of, or no title, not specifically enforceable [Section 17]-
readiness and willingness to perform according (1) A contract to sell or let any immovable
to its true construction [Explanation ii]- property cannot be specifically enforced in
Explanation ii to this sub section provides that the favour of a vendor or lessor.
plaintiff must [prove] performance of, or readiness (a) Who, knowing himself not to have any
and willingness to perform, the contract according title to the property, has contracted to
to its true construction. The requirement of this sell or let the property.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 11
 (b) Who, though he entered into the contract not at the time fixed by the parties or by the court
believing that he had a good title to the for the completion of the sale or letting, give the
property, cannot at the time fixed by the purchaser or lessee a title free from reasonable
parties or by the court for the completion doubt, then he cannot claim specific performance.
of the sale or letting, give the purchaser Example- A, being in possession of certain land,
or lessee a title free from reasonable
contracts to sell it to Z. On inquiry it turns out that
doubt.
A claims the land as heir of B, who left the coun-
(2) The provisions of sub-section (1) shall also try several years before, and is generally believed
apply, as far as may be, to contracts for the to be dead. But there is no sufficient proof of his
sale or hire of movable property death. A cannot compel Z specifically to perform
Contract of sale or lease of IMP [Section 17(1)- the contract.
It is important to mention that Section 17 Contract of sale or hire of moveable property
mentions the contract where the vendor or lessor [Section 17(2)]-
of IMP cannot claim specific performance. It pro-
Where a contract for sale or hire the move-
vides that where a contract to sell or let immovable
able property is made by a person who has no title
property is made by a person who has no title or his
or his title is doubtful, then the contract cannot be
title is doubtful, then the contract cannot be specif-
specifically enforceable in favour of the vendor.
ically enforceable in favour of the vendor or lessor.
Significantly, Section 17(1) talks about the immov- No Title [Section 17(2) (a)]-
able property whereas Section 17(2) talks about the In a contract to sell or give on hire any mov-
movable property. able property cannot be specifically enforced in fa-
Vendor or lessor has knowledge that he has no vour of a vendor who, knowing himself not to have
title [Section 17(1) (a)]- any title to the property, has contracted to sell or
hire the property.
Where a contract to sell or let immovable
property is made by a person who has no title and Example- A agreed to sell the painting of a dead
he has knowledge that he has no title then he cannot painter to B. Subsequently, B realized that neither
claim specific performance. It means he is not in- A is owner of that property nor has autgority to sell
nocent and he knows that he has no title still enters but it is a stolen property. B makes breach of the
into contract to sell or let his immovable property. contract. A cannot claim specific relief.
Example 1- A, without C’s authority, contracts to Doubtful Title [Section 17(2) (b)}-
sell to B an estate which A knows to belong to C. In a contract to sell or give on hire any mov-
A cannot enforce specific performance of this con- able property cannot be specifically enforced in fa-
tract, even though C is willing to confirm it. vour of a vendor who, though he entered into the
Vendor or lessor’s title is doubtful [Section 17(1) contract believing that he had a good title to the
(b)]- property, but cannot give the purchaser or hirer a
Where vendor or lessor’s title is doubtful at title free from reasonable doubt at the time fixed by
the time of entering into contract but he believes the parties or by the court for the completion of the
that he had a good title to the property and he can- sale or letting.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 12
 Example- A agreed to sell the painting of a (4) Nothing in this section shall prevent the
dead painter to B. Subsequently, B realized that A party who has suffered breach of contract
is not owner of that property but it belonged to his
from claiming compensation from the party
father who left the country several years before,
and is generally believed to be dead. But there is in breach.
no sufficient perform the contract. No substituted performance without notice to
Substituted performance {Section 20}-
the wrongdoer party [Section 20(2)]-
(1) Without prejudice to the generality of the
provisions contained in the Indian Contract The affected party cannot undertake
Act, 1872 and, except as otherwise agreed substituted performance of contract unless he gives
upon by the parties, where the contract is a notice in writing to the wrongdoer party who has
broken due to non-performance of promise
made a breach of contract of not less than thirty
by any party, the party who suffers by such
breach shall have the option of substituted days, calling upon him to perform the contract
performance through a third party or by within such time as specified in the notice. However,
his own agency, and, recover the expenses on his refusal or failure to do so, the affected party
and other costs actually incurred, spent or
suffered by him, from the party committing may get the same performed by a third party or by
such breach. his own agency.
(2) No substituted performance of contract Cost or expenses can be claimed after
under sub-section (1) shall be undertaken
substituted performance of the contract- It is
unless the party who suffers such breach has
given a notice in writing, of not less than important to note that the party who suffers such
thirty days, to the party in breach calling breach shall not be entitled to recover the expenses
upon him to perform the contract within and costs unless he has got the contract performed
such time as specified in the notice, and on
through a third party or by his own agency.
his refusal or failure to do so, he may get the
same performed by a third party or by his No specific relief when there is substituted
own agency: performance [Section 20(3)]- Where the party
Provided that the party who suffers
suffering breach of contract has got the contract
such breach shall not be entitled to
recover the expenses and costs under performed through a third party or by his agency
sub-section (1) unless he has got the after giving notice he shall not be entitled to claim
contract performed through a third party relief of specific performance against the party in
or by his own agency.
breach.
(3) Where the party suffering breach of contract
has got the contract performed through Substituted performance and compensation
a third party or by his own agency after [Section 20(4)]- Section 20 shall not prevent the
giving notice under sub-section(1), he shall party who has suffered breach of contract from
not be entitled to claim relief of specific
claiming compensation from the party in breach.
performance against the party in breach.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 13