A detailed note on the amendments made in the Specific Relief Act, 1963,

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SIGNIFICANT CHANGES TO THE SPECIFIC RELIEF ACT, 1963
On 23rd July, 2018, the Rajya Sabha has approved the Specific Relief (Amendment) Bill,
2017 (“Bill”), which was passed by the Lok Sabha on 15th March, 2018. The Bill is set to
become a law after the President's assent is received.
Remedies under the Specific Relief Act, 1963, as it presently exists, are discretionary by
their very nature and the Courts have to strike a balance between the relative rights of the
parties in an equitable and a just way. The Bill proposes several major amendments to the
provisions of the Specific Relief Act, 1963 (“Act”), as it presently exists, including taking
away discretionary powers of the Court.
The Bill proposes the following amendments in the Act:
 Grant of Specific Performance will now be a general rule and Damages the exception:
Under the Act, specific performance is granted by way of exception, the presumptive
remedy being damages. The relief of specific performance is discretionary and it is not
merely because it is lawful to do so, but it is governed by sound judicial principles as
provided under the Act. However, the Bill now proposes amendments to take away the
discretionary powers of the Courts to grant specific performance of a contract. Specific
Performance of a contract shall now be compulsorily enforceable by the Courts. This
change in the basic structure of the Act can be seen in the proposed amendment in
Sections 10 and 11 of the Act.
The outcome of this amendment would be that all the contracts which do not fall under
Section 14 of the Act shall now be compulsorily enforceable by the Court.
For ease of reference the contracts which fall within the categories of the proposed
Section 14 are reproduced below:
“(a) where a party to the contract has obtained substituted performance of contract
in accordance with the provisions of section 20;
(b) a contract, the performance of which involves the performance of a continuous
duty which the court cannot supervise;
(c) a contract which is so dependent on the personal qualifications of the parties
that the court cannot enforce specific performance of its material terms; and
(d) a contract which is in its nature determinable.”
Presently, subsection (1) of Section 14 enumerates the classes of contracts in respect of
which specific performance cannot be enforced. However, presently even though a
contract does not fall within the categories enumerated in subsection (1), specific
performance of the same can still be refused, it being a discretionary relief. However,
the Bill proposes to do away with the discretionary relief. The effect of the same would
be that if the contract does not fall within the categories enumerated in the proposed
Section 14 (1), specific performance of the same cannot be refused.
The provisions of Section 20 of the Act which enumerates certain circumstances in
which the Court may properly exercise the discretion and grant specific relief and the

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circumstances in which the Court may properly refuse the relief is now proposed to be
substituted by a new Section 20 which propounds a new concept of Substituted
Performance of a contract.
The moot point is what will happen in a scenario where the Court is required to grant
specific performance under the proposed amendments and the circumstances are such
that :
 the contract gives the Plaintiff an unfair advantage over the Defendant or
 the performance of contract would involve some hardship on the Defendant
which he did not foresee whereas its non performance would involve no
hardship on the Plaintiff or
 the contract though not voidable, it would be inequitable to grant specific
performance.
 Substituted Performance of Contract
Section 20 of the Act which enumerates different factors for refusing to grant specific
performance is now proposed to be substitute with “Substituted performance of
contracts, etc.”. A bare reading of the proposed provision reveals that an option is been
granted to the party who suffers breach, either to seek specific performance or to opt
for substituted performance. Once he has opted for the latter he cannot seek the
former. However, one can only opt for substituted performance only after complying
with the conditions referred to in sub section (2) of the proposed section 20 viz. notice
as stipulated therein. A party who suffers such breach shall also be entitled to recover
the expenses, costs and compensation incurred in obtaining substituted performance.
 Recovery of Possession of Immoveable Property
As per the provisions of Section 6 of the Act, only a person who has had possession of
the Immoveable Property or any person claiming through him may sue for recovery of
possession. There were conflicting views of different Courts as to whether a person
other than the person dispossessed could file a suit for possession under this Section.
It appears that this has now been put to rest by the amendment to Section 6 proposed
by the Bill. In view of the amendment now proposed by the Bill, following persons can
file a suit for possession:
 A person who has been dispossessed himself say Mr. X;
 A person through whom Mr. X has been in possession;
 A person claiming through Mr. X.
 Personal bars to relief
Section 16 of the Act gives grounds of defense founded on the conduct of the Plaintiff.
These are circumstances outside the contract. Therefore, in the event the Plaintiff falls
foul of in any of the said circumstances, he would be disqualified from seeking specific
performance. The Bill proposes certain amendments to this provision also.

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Subsection (a) to Section 16 of the Act disqualifies a person who would not be entitled
to recover compensation for breach of a Contract. This subsection is now proposed to
be substituted by disqualifying those who have obtained substituted performance
service under proposed Section 20.
The moot point here is whether a guilty Plaintiff who was earlier disqualified under
subsection (a) to Section 16, can now be entitled to specific performance.
The other amendment proposed is in Section 16 subsection (c) and in its explanation.
Where readiness and willingness, of a Plaintiff to perform its part of the contract has to
be averred and proved, the same is now proposed to be restricted to only proving.
Absence of the averment as to the readiness and willingness of the Plaintiff to perform
its part of the contract would not disqualify the Plaintiff from seeking specific
performance.
 Special provisions for contracts relating to infrastructure projects
The Statement of Objects and Reasons to the Bill states that the new Section 20A is
proposed for infrastructure projects which provides that the Court shall not grant
injunction in any Suit where it appears to the Court that granting such an injunction
would cause hindrance or delay in the continuance or completion of the Infrastructure
Project.
It further provides that the Department of Economic Affairs is a nodal agency for
specifying various categories of projects and infrastructure subsectors. The same are
provided in the Schedule to the Bill. The said Schedule can be amended only as
stipulated therein.
A corresponding provision is proposed under Section 41 of the Act where it is proposed
that Injunction cannot not be granted if it would:
 impede or delay the progress or completion of any infrastructure project or
 interfere with the continued provision of relevant facility related thereto or
 services being the subject matter of such project
In addition, the Bill also proposes addition of Sections 20B and 20C under the Act.
Section 20B proposes notification of certain Civil Courts as Special Courts to exercise
jurisdiction and to try a suit under this Act in respect of contracts relating to
infrastructure projects. In addition, these suits are to be disposed of by such Special
Court within a period of twelve months from the date of service of summons to the
Defendant, which period may be extended for a further period of 6 months in aggregate
as per proposed Section 20C.
Bharti Bhansali Shivani Khanna
Associate Partner
FZB & Associates FZB & Associates
Advocates and Solicitors Advocates and Solicitors

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Disclaimer
The contents of this Article are for informational purposes only and for the reader’s
personal non-commercial use. The views expressed do not constitute legal advice. The
contents are intended, but not guaranteed, to be correct, complete, or up to date. FZB &
Associates disclaims all liability to any person for any loss or damage caused by errors or
omissions, whether arising from negligence, accident or any other cause.
FZB & Associates
Advocates and Solicitors
402-B Savla Chambers
40, Cawasji Patel Street,
Fort, Mumbai 400 001,
India
Telephone : 022 22816315/ 22826316
shivani.khanna@fzbassociates.com