- Date 24 Dec 2020
- Category Civil Law
ABOUT THIS PROJECT
Specific performance is equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed by contract to do. Thus, the remedy of specific performance is in contrast with the remedy by way of damages for breach of contract, which gives pecuniary compensation for failure to carry out the terms of the contract. Damages and specific performance are both, remedies available upon breach of obligations by a party to the contract; the former is a ‘substitutional’ remedy, and the latter a ‘specific’ remedy. The remedy of specific performance is granted by way of exception.
The plaintiff seeking this remedy must first satisfy the court that the normal remedy of damages is inadequate, the presumption being that in cases of contracts for transfer of immovable property , damages will not be adequate. Even in these cases specific performance is not always granted, as it is a discretionary remedy.
The relief must be specifically claimed. When the plaintiff claims specific performance of a particular agreement, the suit could be decreed for specific performance of only that agreement, and not any other.
The prescribed period of limitation for a suit of specific performance is three years from the date fixed for performance, or, if no such date is fixed, when the plaintiff has noticed that performance has been refused.
Section 10 of the Specific Relief Act, 1963 , states “ Cases in which specific performance of contract enforceable.
Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced—
(a) when there exists no standard for ascertaining actual damage caused by the non-
performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.
Explanation: Unless and until the contrary is proved, the court shall presume—
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:—
(a) where the property is not an ordinary article of commerce, or is of special value
or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.”
There is a clear distinction between the cases giving rise to the filling of a suit for specific performance in the event of breach of recitals of an agreement for due performance of which the parties have covenanted to agree and perform and those which the award of compensation will be adequate relief.
Damages cannot be ascertained
The rule is based on the uncertainty of calculation of damages in cases where they cannot be based on anything, but conjecture or surmise. Thus, where A agree to buy, and B agrees to sell, a picture by a dead painter and two rare China vases, A may compel B specifically to perform this contract, for, there is no standard for ascertaining the actual damage which would be caused by its non-performance.
By claiming damages for breach of contract, the plaintiff disentitles himself, on account of his own election, to treat the contract from claiming specific performance of the same contract as an alternative case, either originally or subsequently, by way amendment. Such conflicting terms are not permitted under OVII, rule 7 of the CPC.
However, a stipulation in a contract to be liable to repay the amount paid and to pay compensation if the promisor sold the property to another person , does not detract from the right to specific performance.