Specific Relief: Performance, Declarations and Injunctions — Judicial Services

Weightage: The Specific Relief Act, 1963 is part of the Civil Law paper and the main source of civil judgment-writing questions on specific performance and injunction. The Specific Relief (Amendment) Act, 2018 changed the law, and sources differ on whether it applies to old agreements, so apply the rule to the date of the contract and check the current position.

1. What this Act is for

The Contract Act gives damages. The Specific Relief Act gives a court the power to make a party do what they promised, or stop doing something, or declare a right. It is the main source of suits for specific performance, possession, declaration and injunction.

2. Recovery of possession

• Section 5: recovery of specific immovable property by a suit under the CPC.
• Section 6: a summary suit by a person dispossessed without consent otherwise than by due course of law, to recover possession, within six months of dispossession, without proof of title. No appeal or review lies from the order, but either party can sue on title afterwards. No suit lies against the Government under this section.
• Section 7: recovery of specific movable property.

3. Specific performance after 2018

Before 2018, specific performance was discretionary. After the 2018 amendment, Section 10 says that the court shall enforce performance, subject to Sections 11(2), 14 and 16. Compensation is no longer an automatic alternative, so the court asks whether an exception applies and not whether it should exercise a discretion.

Section 20 was replaced by substituted performance: a party who has suffered a breach may, after giving the defaulting party 30 days' notice, have the contract performed through a third party or their own agency and recover the cost from the defaulter, but cannot then sue for specific performance.

4. Contracts not specifically enforceable: Section 14

A contract cannot be specifically enforced where:

• A party has obtained substituted performance under Section 20.
• The contract is dependent on personal qualifications of the parties, or involves personal skill.
• It is by its nature determinable, such as a contract terminable at will.
• It requires continuous duty that the court cannot supervise.

An agreement to build or repair and an agreement to refer to arbitration have their own rules, so apply Section 14 to the facts.

5. Personal bars: Section 16

Specific performance cannot be enforced in favour of a person who:

1. Would not be entitled to recover compensation for its breach.
2. Has become incapable of performing the essential terms, or has violated them.
3. Fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms.

Readiness and willingness is a question of fact decided on the whole conduct of the plaintiff. It must be pleaded and proved, not just stated, and a plaintiff who cannot show the financial means to pay the price fails (Ouseph Varghese v. Joseph Aley, 1969). Time is ordinarily not of the essence in a contract for the sale of immovable property, unless the contract or the circumstances show otherwise.

6. Other provisions on performance

• Section 12: partial performance in limited cases.
• Section 13: rights of a purchaser against a vendor with an imperfect title.
• Section 19: persons against whom specific performance can be enforced, including subsequent transferees with notice, but not a transferee for value without notice.
• Section 21: compensation with or in substitution for specific performance, if asked for in the plaint.
• Section 22: the court may grant possession or refund of money along with specific performance, but only if asked for in the plaint, or on amendment.
• Limitation: Article 54 of the Limitation Act gives three years from the date fixed for performance or, where none is fixed, from the date the plaintiff has notice of refusal.

7. Declaratory decrees: Section 34

Any person entitled to any legal character or to any right to property may sue for a declaration that he is so entitled, and the court may declare it in its discretion. The proviso bars a declaration where the plaintiff, being able to seek further relief than a mere declaration, omits to do so. A plaintiff in possession of land who is denied title may sue for a declaration, while a plaintiff out of possession must also seek possession.

8. Cancellation and rescission

• Section 31: cancellation of a written instrument that is void or voidable and may cause serious injury if left outstanding.
• Section 27: rescission of a contract in the stated cases.
• Section 33: the court may require the plaintiff to restore benefits received, as a condition.

9. Injunctions: Sections 36 to 42

An injunction is a preventive relief.

• Temporary injunctions last until a stated time or order, and are governed by Order XXXIX of the CPC (Section 37).
• Perpetual injunctions are granted by a decree after trial (Section 37(2)) to prevent breach of an obligation, including a right to property (Section 38).
• Mandatory injunctions (Section 39) compel the doing of acts to prevent breach and restore the position.

Section 41 lists cases where an injunction cannot be granted, such as to stay a judicial proceeding, to restrain proceedings in a court not subordinate, where equally efficacious relief can be had by another usual mode, where the applicant's conduct disentitles him, or where the applicant has no personal interest. Section 42 allows an injunction to enforce a negative covenant even if the court cannot order the positive act.

10. Infrastructure projects

The 2018 amendment inserted Sections 20A to 20C: a court cannot grant an injunction if it would impede or delay an infrastructure project listed in the Schedule, and special courts are to be designated to try suits on such contracts and dispose of them within one year. Learn this as a policy point.

11. A problem-answer pattern

A buyer agrees to buy a plot for ₹10 lakh and pays ₹1 lakh as advance. The seller refuses to execute the deed on the due date. The buyer sues eight months later for specific performance, and the seller says the buyer never had the money. Answer in four steps:

1. After 2018, Section 10 makes performance the rule.
2. The buyer must plead and prove readiness and willingness, including means (Section 16(c)).
3. If the buyer cannot show the means, the claim fails.
4. If shown, grant specific performance, with possession if prayed for (Section 22). The suit is within the three years of Article 54.

Common traps judicial exams set here

• Treating specific performance as discretionary after 2018. It is now the rule, with exceptions.
• Granting a declaration where further relief is available. The proviso to Section 34 bars it.
• Applying Section 6 after six months. The summary suit lapses.
• Granting possession or refund not asked for in the plaint. Section 22 requires it to be prayed.
• Mixing the Section 20 old and new text. Substituted performance replaced the old discretionary Section 20.

Memory aids

• "Rule 10, bars 14 and 16": specific performance after 2018.
• "Ready and willing, pleaded and proved": Section 16(c).
• "Six months, no title": Section 6.

Summary

The Specific Relief Act lets a court order performance, declare rights and issue injunctions. After 2018, specific performance is the rule under Section 10, subject to Sections 14 and 16, and substituted performance is allowed after 30 days' notice.

Section 6 gives a summary remedy for possession, Section 34 allows declarations subject to the further-relief proviso, and Sections 36 to 42 govern injunctions.

Exam protocol

• Check the date of the contract against the 2018 amendment.
• Test readiness and willingness on the facts.
• Ask whether further relief should have been sought.