How to specific performance of contract

 

Introduction;

          So the topic is how to specific performance of contract. Actually the topic is main because it's essential for court work. As we can say it's the main part of the property cases. As what happens, most people did the contract OR agreements and did not obligate the same contracts and agreements so we seek remedy through the specific performance.  specific performance may applied through both parties they can file the suit for specific performance.

          for the specific performance of the contract we have given the relieves in specific relief act 1877 , through many ways. Specific performance is given. By giving possession of the property to the claimant or order party to do the very act which he is under an obligation not to do or by declaring and determining the rights of the parties otherwise than by an award or by compensation, or by appointing the receiver.

          moreover code of civil procedure for recovering the immovable property for specific performance would be followed and also same procedure would be followed for movable property.

          hence there are more liabilities over both parties so the suit can be filed above both parties vice versa for the specific performance the obligations made under the agreements. For example a person want to sale the immovable property at the value of nine laces, buyer gives fifty thousand as token money and said that i will pay the other amount within 4 months. but after the 4 months buyer  does not obligated and not giving the remaining amount, than the seller may apply for specific performance within the period of 3 years. same as if after 4 months buyer pays the remaining amount and seller is not performing the part of contract than buyer may seek relief through specific performance of the contract.

          its not necessary that all contracts be specifically performed, some contracts cannot be performed such as; for which compensation in money is adequate relief or contract in nature are revocable etc.

 

concerned sections;

          in this portions we will discuss the concerned and main sections to under the topic given. as the main headings are given bellow;

(1)    Who may obtain the specific performance

(2)    Ways of specific performance

 (3)   How specific relief is given

(4)    Types of specific performance

(5)    Cases in which contract is specifically performed

(6)    Cases in which contract is not specifically enforced

(7)    Some sections relating to specific performance

(8)    Power of court to award compensation other than possession

 

WHO MAY OBTAIN THE SPECIFIC PERFORMANCE;

         According to section 23 of specific relief act 1877;  Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by- 

(a) any party thereto; 

(b) the representative in interest, or the principal, of any party thereto: provided that, where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless where his part thereof has already been performed; 

(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled there under; 

(d) where the contract has been entered into by a tenant for life in due exercise of a power, the remainder man; 

(e) a reversionar in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant; 

(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach; 

(g) when a public company has entered into a contract and subsequently becomes amalgamated with another public company, the new company which arises out of the amalgamation; 

(h) when the promoters of a public company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company.

 

WAYS OF SPECIFIC PERFORMANCE;

         Section 4 of specific relief act defines the ways as; Except where it is herein otherwise expressly enacted, nothing in this Act shall be deemed-

 (a) to give any right to relief in respect of any agreement which is not a contract; 

(b) to deprive any person of any right to relief, other than specific performance, which he may have under any contract; or  

(c) to affect the operation of the Registration Act, 1908] on documents.

 

HOW SPECIFIC RELIEF IS GIVEN;

          As per section 5 of specific relief act; Specific relief is given- 

(a) by taking possession of certain property and delivering it to a claimant; 

(b) by ordering a party to do the very act which he is under an obligation to do; 

(c) by preventing a party from doing that which he is under an obligation not to do; 

(d) by determining and declaring the rights of parties otherwise than by an award of compensation; or  

(e) by appointing a receiver.  

 

TYPES OF THE SPECIFIC PERFORMANCE;

          According to specific relief act there are two types of specific relief ; 1 recovery of immovable property and 2 recovery of movable property so one by one we define both;

Recovery of specific immoveable property;

 8. A person entitled to the possession of specific immoveable property may recover it in the manner prescribed by the Code of Civil Procedure. 

 Suit by person dispossessed of immoveable property; 

9. If any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. 

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. 

No suit under this section shall be brought against the Government. 

No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. 

 

Recovery of specific moveable property; 

10. A person entitled to the possession of specific moveable property may recover the same in the manner prescribed by the Code of Civil Procedure. 

Explanation 1 - A trustee may sue under this section for the possession of property to the beneficial interest in which the person for whom he is trustee is entitled.  

Explanation 2 - A special or temporary right to the present possession of property is sufficient to support a suit under this section. 

 

CASES IN WHICH CONTRACT IS SPECIFICALLY PERFORMED;

         There are some cases in which contracts can be performed such as; section 12. Except as otherwise provided in this Chapter, the specific performance of any contract may in the discretion of the Court be enforced-  

(a) when the act agreed to be done is in the performance, wholly or partly, of a trust; 

(b) when there] exists no standard for ascertaining the actual damage caused by non-performance of the act agreed to be done; 

(c) when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or  

(d) when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done. 

Explanation - Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer moveable property can be thus relieved. 

 

CAESES IN WHICH CONTRACT IS NOT SPECIFICALLY ENFORCED;

          According to section 21 of  specific relief act there are some in which contract can be specifically performed/enforced such as ;

 The following contracts cannot be specifically enforced:– 

(a) a contract for the non-performance of which compensation in money is an adequate relief; 

(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms; 

(c) a contract the terms of which the Court cannot find with reasonable certainty; 

(d) a contract which is in its nature revocable; 

(e) a contract made by trustees either in excess of their powers or in breach of their trust; 

(f) a contract made by or on behalf of a corporation or public company created for special purposes, or by the promoters of such company, which is in excess of its powers;  

(g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date; 

(h) a contract of which a material part of the subject- matter, supposed by both parties to exist, has, before it has been made, ceased to exist.

 

And, save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract other than an arbitration agreement to which the provisions of the said Act apply and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

 

SOME SECTIONS RELATING TO THE SPECIFIC PERFORMANCE;

         There are also  some sections which important for over topic which are also given below;

Contract of which the subject has partially ceased to exist 

13. Notwithstanding anything contained in section 56 of the Contract Act, a contract is not wholly impossible of performance because a portion of its subject-matter, existing at its date, has ceased to exist at the time of the performance.

 

Specific performance of part of contract where part unperformed is small 

14. Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. 

 

Specific performance of part of contract where part unperformed is large 

15. Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant. 

 

Specific performance of independent part of contract 

16. When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.

 

POWER OF COURT TO AWARD COMPENSATION OTHER THAN POSSESSION;

         In some cases court has the power to award compensation as its defined under section 19 of specific relief act;

Any person suing for the specific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, such performance. 

If in any such suit the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant and that plaintiff is entitled to compensation for that breach, it shall award him compensation accordingly.   

 

If in any such suit the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.  

Compensation awarded under this section may be assessed in such manner as the Court may direct.  

Explanation - The circumstance that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section.