A contract establishes a contractual obligation on the parties involved.
It binds them either to do or not to do certain things. When there is a
failure in performance of the obligation, either of the parties can sue
the other. The most common, easiest and well established legal remedy
for breach of a contract is to provide compensatory or punitive
compensation, in terms of money, to the other party.
But in some cases of contractual obligation, the compensatory or
punitive compensation is inadequate or inequitable. This happens when
the unmet contractual obligation in the contractual relation cannot be
calculated in money terms. For instance, in a contract when there is an
obligation on a party to return an invaluable thing like an
irreplaceable object of a particular kind, failure of which cannot be
compensated by any other means, the legal remedy required is to return
that object and nothing else. Similarly, if someone dispossesses another
person, as part of a contractual relation, of his home which is
invaluable to him in non-monetary terms, the only option is to recover
the possession of that house.
In such a case, what the party wants is the other one to perform a
specific thing - like delivery of any invaluable thing or perform any
particular thing that has no substitute at all - then it is the
Specific Relief Act, 1963
which enables the party to get it enforced through the court.
Specific reliefs that the act provides for
Specific relief is essentially an order of a court which requires a
party in a contractual obligation to do a specific thing stated in the
contract. Specific performance comes into play when compensatory damages
in terms of money cannot adequately compensate the loss. No directive
for specific performance will be issued by the court when monetary
compensation is an adequate relief in a contractual failure or the
specific performance in question involves a continuous supervision by
the court. The specific relief issued by the court is a discretionary
one, provided on the basis of principle of equity. It is not a matter of
right. Civil remedies alone come under the specific relief act.
The Specific Relief Act is a procedural law. It provides for a range of
specific reliefs and they are as follows:-
Recovery of possession of property
Any person having a right of possession of a specific movable or
immovable property involved in a contractual relation can recover it, in
the manner laid down in the Civil Procedure Code (CPC). A mere
possessory title is good enough to take such an action. Similarly a
person in possession of a movable property, when he is not its owner,
has an obligation to deliver it to the possession of the person entitled
A person who is in possession of an immovable property cannot be
dispossessed of it except by exercise of legal course of due process of
law even if the possessor holds no title of the property. The purpose
of this provision is to prevent a person from using force to dispossess
another one of a property he holds just as a possessor. The court has
power to issue orders for enforcing any of the above said rights under
Specific performance of contracts
When a party in a contractual obligation files a suit for a specific
performance of an obligation, the court has the authority to direct the
other party to perform it. This is done in a breach of contract when the
actual damage caused cannot be ascertained in the absence of any
standard for quantification of loss or when monetary compensation cannot
be treated as an adequate relief.
A court can specifically enforce a contract to execute a mortgage, or a
security for ensuring a repayment of any loan, or a formal deed of
partnership/purchase of a share of the partnership. A suit for the
enforcement of a contract for the construction of any building or
execution of any other work on land is also possible.
As said earlier, a suit for specific relief cannot be enforced when
compensation for non-performance of a contract in money terms is an
adequate relief. If a contract runs into minute details or dependent on
the parties in performance in such a way that a court cannot enforce it
in material terms, such a suit cannot be enforced for specific
performance. If a contract is calculable in nature, that would not come
under the specific relief law. If performance of a contract involves
continuous duty which a court cannot supervise normally, such a contract
also cannot be enforced under the act.
In allowing specific performance, the court should exercise sound and
reasonable discretion in tune with well established judicial principles.
Nothing should be granted by the court just because it is lawful for the
court to do so. The comparative advantage of each party in the contract
should be kept in mind by the court while taking a decision.
In some cases of specific performance, the plaintiff may claim
compensation also in addition, or as a substitute, or both. But when the
plaintiff does not claim compensation the court cannot award
If the petitioner, in addition to specific performance, asks for some
reliefs such as possession, partition or refund of earnest money, the
court can provide them if it is claimed in the suit. The court can allow
him to amend the suit to add such a claim if it is not prayed for
Rectification of instruments
The act allows the court to issue orders for rectification of documents
executed in mutual mistake of the parties. But rectification is not
possible when mistake is unilateral. If the instrument does not by
mistake express the real intention of the parties, the court can allow
and specifically enforce such a rectification of the instrument so as to
express that intention.
Rescission of contracts
A person may sue for rescission of voidable and terminable contracts or
of contracts unlawful for causes not apparent on its face. This is quite
opposite to the relief of specific performance. On rescission of
contract the other party is relieved of discharging the contractual
However, if the plaintiff has ratified the contract or the position of
parties cannot be restored to the original position or the third parties
have acquired rights, the court cannot rescind the contract.
If the sale or lease of any property is decreed as a specific
performance and the purchaser or lesee does not pay the purchase money
or the amount, it is possible that the seller or lessor can seek
rescission of contract and the court can rescind the contract.
A suit for specific performance can have alternate prayer of rescission.
The court while rescinding the contact has to ensure equity to both
Cancellation of instruments
A person can sue for cancellation of an instrument, including registered
ones, when he had an apprehension of any serious injury from it. Then
the court can order cancellation of it on merit. The court can cancel an
instrument partially and retain the rest in force when it enforces a
spectrum of different rights and obligations. While cancelling, the
court can allow compensation or restoration of money already provided so
as to ensure equity of justice on both parties.
A person can ask the court to declare his right to a property he holds
including a contingent right when it is being denied by someone else.
The court can then issue a declaration as to his entitlement in the
property. This declaration would prevent some future litigation.
This relief is invoked when there is a doubt about one’s right over a
property. The declaration thus made is binding only on the parties to
the suit and not on others. A stranger to a contractual obligation
cannot seek this remedy.
Preventive reliefs are provided by issuing injunctions – either
temporary or perpetual.
Temporary injunction will be in force for a specified time but the
perpetual ones will be in force forever. Temporary injunctions are
issued when there is irreparable injury, incomparable mischief or grave
injustice. A temporary relief to be issued must be in the nature of
perpetual relief sought for.
Perpetual injunctions can be granted only after hearing both parties. By
issuing injunction, the court prevents the defendant to perform or not
to perform an act so as to prevent a breach of contract in assertion of
the right of the plaintiff.
In addition to issuing injunction, the court can allow claim for damages
or relief for specific performance in addition as prayed for, in genuine
cases of irreparable injury. The plaintiff can be allowed to amend the
petition so as to add a claim for damages at any stage of the
The power of the court to grant injunction is an exercise of discretion
and not a matter of right of the plaintiff. But that exercise must be
based on well settled principles of law. The guiding principle behind
the prohibitory injunction is that it is issued based on the principle
that in order to ensure exercise of a legal right, there is a need to
prohibit its violation. In granting injunction the court should weigh
the gravity of mischief that the breach of contract provides to both the
parties and arrive at an equitable decision.
Section 38 of the act speaks about when to grant perpetual injunctions
but the Section 41 speaks about when injunctions should be refused -
such as restraining anybody from using a judicial process or a
legislative body etc.
The law purports to ensure some sort of equitable justice in addition to
normal remedies when there is an obvious failure in meeting a binding
legal obligation under a contract.
The law upholds that one who does equity alone can seek equity and
therefore the plaintiff who comes with no clean hands cannot seek any
remedy. The plaintiff must be fair, honest and free from any taint in
order to invoke the provisions under this law. The law is a bright spot
in the body of Indian legal thought in terms of its fairness and right