Specific Relief Act Sections & Case Laws PPT.pptx

THE SPECIFIC RELIEF
ACT, 1963
PRESENTED BY
ADVOCATE K. SRI BHARATHI

SPECIFIC RELIEF: A HISTORICAL BACKDROP
• “Ubi Jus, ibi remedium”: where there is a right, there is a remedy.
• The Specific Relief Act, 1963 is the second legislation, replacing the earlier 1877
enactment of the Specific Relief Act. The 1963 Act was enacted after consideration of the
Law Commission in its Ninth Report. The 1963 Act more or less followed the English
position on the equitable remedy of specific performance. The remedy of specific relief
was cradled in English law of equity, as a discretionary relief. This Act was enacted in
1963 following the approach that when a person has withdrawn himself from the
performance of a particular promise or a contract with respect to another person, the
other person so aggrieved is entitled to relief under the Specific Relief Act, 1963. This Act
is considered to be one of the branches of the Indian Contracts Act, 1872.

Preventive Relief (Sec 36 – 42)

SECTION 5. Recovery of specific immovable property.—A person
entitled to the possession of specific immovable property may recover it in the manner
provided by the Code of Civil Procedure, 1908 (5 of 1908).

Section 6. Suit by person dispossessed of immovable property.—
1) If any person is dispossessed without his consent of immovable property otherwise than
in due course of law, he or any person [through whom he has been in possession or any
person] claiming through him may, by suit, recover possession thereof, notwithstanding any
other title that may be set up in such suit.
(2) No suit under this section shall be brought— (a) after the expiry of six months from the
date of dispossession; or (b) against the Government.
(3) 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.
(4) Nothing in this section shall bar any person from suing to establish his title to such
property and to recover possession thereof.

Section 10. Specific performance in respect of contracts.—The specific performance of a
contract shall be enforced by the court subject to the provisions contained in sub-section
(2) of section 11, section 14, and section 16.
In B. Santoshamma vs. D. Sarala and Anr., (2020) 19 SCC 80 Apex Court, while examining
the 2018 amendment made to Section 10 of the Act observed that after the amendment to
Section 10, the words "specific performance of any contract may, in the discretion of the
Court, be enforced" have been substituted with the words "specific performance of a
contract shall be enforced subject to the provisions contained in subsection (2) of Section
11, Section 14 and Section 16". It was concluded that although the relief of specific
performance of a contract is no longer discretionary, after the amendment, the same would
still be subject to Section 11, Section 14, and Section 16 of the Act.

2018 Amendment To Specific Relief Act Prospective ; Cannot
Apply To Transactions Which Took Place Prior To 1.10.2018
Katta Sujatha Reddy vs Siddamsetty Infra Projects Pvt. Ltd. | 2022 LiveLaw (SC) 712 ; 2023 (1) SCC 355
ISSUE: Whether the amended Section 10 of the Specific Relief Act is prospective or retrospective in operation?
“54. In the light of the aforesaid discussion, it is clear that ordinarily, the effect of amendment by substitution would be that the
earlier provisions would be repealed, and amended provisions would be enacted in place of the earlier provisions from the date
of inception of that enactment. However, if the substituted provisions contain any substantive provisions which create new
rights, obligations, or take away any vested rights, then such substitution cannot automatically be assumed to have come into
force retrospectively. In such cases, the legislature has to expressly provide as to whether such substitution is to be construed
retrospectively or not.
55. In the case at hand, the amendment act contemplates that the said substituted provisions would come into force on such
date as the Central Government may appoint, by notification in the Official Gazette, or different dates may be appointed for
different provisions of the Act. It may be noted that 01.10.2018 was the appointed date on which the amended provisions would
come into effect.
56. In view of the above discussion, we do not have any hesitation in holding that the 2018 amendment to the Specific Relief
Act is prospective and cannot apply to those transactions that took place prior to its coming into force.”

SECTION 14 AS PER AMENDMENT- Contracts not specifically
enforceable.—
• The following contracts cannot be specifically enforced, namely:—
• (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

SECTION 15(b) – RIGHT TO REPURCHASE ASSIGNABLE
Indira Devi versus Veena Gupta & Ors.- 2023 (5) CTC 617
“21. It can be summed up from the aforesaid judgments that the condition of right to repurchase in sale deed will not be personal to the
vendor unless the terms in the documents specifically state so. Such a right can always be assigned and the contract containing such
condition shall be enforceable. The only exception being that such a right should not be personal in nature. The assignment of
obligations in a document is not possible without the consent of the other party. No implied prohibition of transfer or assignment can be
inferred in a document. The benefit of contract is assignable in cases where it does not make any difference to the person on whom the
obligations lies, to which of two persons he is to discharge.
22. If the facts of the case in hand are considered, we do not find that there is any term in the conditional Sale Deed which debars its
assignment to any other person. The clause only mentions regarding right of repurchase. The option is given to the vendors with the
obligations on the vendee. The right to repurchase in the present case has been assigned by Kishori Lal Sahu (now deceased) in favour
of respondent no.1 who is none else than his daughter-in-law to whom other properties have also been gifted.
23. Even the argument raised by learned counsel for the appellant that such an assignment of a right cannot be treated as a gift as
consideration money is involved, is also noticed and rejected for the reason that the executor of the Gift Deed i.e Kishori Lal Sahu (now
deceased) had transferred his right to repurchase the property in favour of respondent no.1. That right could always be assigned by him
with whatever conditions attached to it. Further in the suit filed, he was also a plaintiff, who died later.”

who has obtained substituted performance of the contract under section 20

Requirements under Section 16 of Specific Relief Act
Gaddipati Divija & Anr v Pathuri Samrajyam & Ors. Citation: 2023 LiveLaw (SC) 327 –
CIVIL APPEAL NO. 4206-4207 OF 2011 – DATED 18.04.2023
• Originally, Section 16 of the Specific Relief Act, 1963 (“SRA Act”) required a plaintiff to aver in pleadings and
also prove that he has performed or has always been ready and willing to perform his obligation under the
contract, in order to seek specific performance of contract. Further, the explanation to Section 16(c) states that
in a contract involving the payment of money, the plaintiff need not actually deposit the money to the defendant,
but must aver that he has performed, or is ready and willing to perform the contract according to its true
construction.
• However, after the 2018 amendment to Section 16 of the SRA Act, the requirement of averring its willingness to
perform has been done away with. Since the matter at hand dates back to 2002, the amended Section 16 of
the SRA Act was inapplicable.

• When the specific performance of the terms of the contract has not been done, the
question of time being of the essence does not arise
• While deciding whether time is of the essence in the concerned Agreement of Sale or not, the Bench placed
reliance on the judgment in Katta Sujatha Reddy v. Siddamsetty Infra Projects (P) Ltd. & Or 2023 (1) SCC
355, wherein it was reiterated that in sale of immovable property, there is no presumption that time is the
essence of the contract. However, the Court may infer performance in a reasonable time if the conditions
are evident from the express terms of the contract, from the nature of the property, and from the
surrounding circumstances.
• The Bench observed that the purchaser’s obligation to pay the balance consideration amount was
dependent upon the fulfillment of the vendor’s obligation to get the land measured and demarcated within
three months. The Bench opined that the legal heirs of Mr. Rao failed to perform their obligation of
demarcating the Property, while Respondent No.1 had established her willingness to perform her obligation
by paying the balance sale consideration, which is the primary requirement as per Section 16(c) of the SRA
Act. The High Court’s order has been upheld and the appeal has been dismissed.

Specific Relief- Mere Extension Of Time For Deposit Will Not
Absolve Plaintiff Of Obligation To Prove Readiness & Willingness:
SC - Ravi Setia v. Madan Lal, (2019) 9 SCC 381
• "Undoubtedly, the time for deposit could be extended under Section 28 of the Act. However, the mere
extension of time for deposit does not absolve the plaintiff of his obligation to demonstrate readiness and
willingness coupled with special circumstances beyond his control to seek such extension.
• The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and
willingness on the part of the plaintiff. The plaintiff was required to plead sufficient, substantial, and cogent
grounds to seek an extension of time for deposit because otherwise, it becomes a question of his conduct
along with all other attendant surrounding circumstances in the facts of the case.”
• “The failure of the plaintiff to offer any explanation why the balance consideration was not deposited within
the time granted, the filing of the application for extension of time after the expiry of the prescribed period
coupled with the frivolousness of the grounds taken in the application for extension that the money would lie
in the bank without earning interest, are all but evidence of incapacity on part of the plaintiff to perform his
obligations under the agreement and reflective of lack of readiness and willingness"

Conduct Of Plaintiff Crucial In A Suit Of Specific Performance: Supreme
Court - Shenbagam vs KK Rathinavel 2022 LiveLaw (SC) 74; 2022 SCC OnLine SC 72
In evaluating whether the plaintiff was ready and willing to perform his obligations under the contract, it is not
only necessary to view whether he had the financial capacity to pay the balance consideration but also assess
his conduct throughout the transaction, the bench comprising Justices DY Chandrachud and AS Bopanna said.
“ 25…In doing so, the trial court viewed the legal issue from an incorrect lens. The foundation of a suit for
specific performance lies in ascertaining whether the plaintiff has come to the court with clean hands and has,
through his conduct, demonstrated that he has always been willing to perform the contract. There is a
conspicuous absence in the judgment of the trial court of any reference to evidence led by the respondent to
indicate his willingness to perform the contract. The trial court merely adverted to a “document produced on
behalf of the plaintiff” and concluded that he had sufficient means to purchase the suit property. Apart from this
observation, the judgment fails to analyze the terms of the agreement, the obligations of the parties, and the
conduct of the respondent or the appellant. In evaluating whether the respondent was ready and willing to
perform his obligations under the contract, it is not only necessary to view whether he had the financial capacity
to pay the balance consideration, but also assess his conduct throughout the transaction"

Specific Performance Suit -Trial Court Should Frame Specific
Issue On Readiness & Willingness: Supreme Court
V.S. Ramakrishnan vs. P.M. Muhammed Ali | 2022 LiveLaw (SC) 935 | 2022 SCC OnLine SC 1545
The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on
the same, the bench of Justices MR Shah and MM Sundresh observed.
"Such a finding could not have been given by the learned Trial Court without putting the plaintiff to notice and
without framing a specific issue on the readiness and willingness on the part of the plaintiff. There must be a
specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance
and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the
issue is so that the parties to the suit can lead the specific evidence on the same.", the court said.
The court therefore remanded the case to the Trial Court to frame the specific issue with respect to the
readiness and willingness on the part of the plaintiff.

Relief Of Specific Performance Can Be Denied If Suit Was Not
Immediately Filed After Breach: Supreme Court
U N Krishnamurthy vs A M Krishnamurthy | 2022 LiveLaw (SC) 588 | 2022 SCC OnLine SC 840
• The Supreme Court observed that continuous readiness and willingness on the part of the Plaintiff is a
condition precedent for the grant of the relief of Specific Performance.
• The court added that there is a distinction between readiness and willingness to perform the contract and both
ingredients are necessary for the relief of Specific Performance.
• While readiness means the capacity of the Plaintiff to perform the contract which would include his financial
position, willingness relates to the conduct of the Plaintiff, the bench comprising Justices Indira Banerjee and
Hrishikesh Roy observed.
• "In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following
questions, namely:- (i) Whether there is a valid agreement of sale binding on both the vendor and the vendee
and (ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract
as envisaged under Section 16(c) of the Specific Relief Act, 1963."

“..It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and
till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the
bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This
crucial facet has to be determined by considering all circumstances including the availability of
funds and mere statement or averment in plaint of readiness and willingness, would not suffice"
Suit Filed Just Before Expiry Of Limitation Period
• “The courts will also frown upon suits that are not filed immediately after the
breach/refusal. The fact that the limitation is three years does not mean that a purchaser
can wait for one or two years to file a suit and obtain Specific Performance. The three years
is intended to assist the purchaser in special cases, as for example where the major part of the
consideration has been paid to the vendor and possession has been delivered in part
performance, where equity shifts in favor of the purchaser"

Specific Performance Suit - When No Time Is Fixed For Performance,
Limitation Runs From Period When Plaintiff Had Notice Of Refusal :
Supreme Court
• A. Valliammai V. K.P. Murali, 2023 LiveLaw (SC) 777; 2023INSC823; 2023 SCC OnLine SC 1150
• The first part of Article 54 states that the limitation period for filing a suit for specific performance would be three years
from the date fixed for performance. However, when no date is fixed, the period of limitation is three years from the date
when the plaintiff has notice that performance has been refused, as per the second part of Article 54.
• “The limitation period of three years under the second part of Article 54, which is from the date when the party had
notice of the refusal by the other side, had expired when the suit for specific performance was filed on 27.09.1995.",the
Court held.
• “The appellants must succeed in this appeal since the suit for specific performance is clearly and without doubt barred
by limitation”, the Court said while setting aside the decision of the High Court.

NOT TAKEN ANY STEPS EVEN AFTER PAYING FULL SALE
CONSIDERATION
Pattammal v. S. Arumugasamy, 2021 SCC OnLine Mad 1009 : (2021) 3 LW 46 : (2021) 6 CTC 432
“18. In this case, the plaintiff alleging that the defendants trying to forcibly evict him from the rented premises, has
filed the suit in O.S. No. 6741 of 2005 on 14.10.2005 but it took 14 months thereafter for him to file the suit for specific
performance. The said conduct indicate that he was not ready and willing to perform his contract, in spite of threat of
eviction. The reasons given by the trial Court for reckoning the limitation and rejecting the plea of the bar under Order
2, Rule 2 of the Civil Procedure Code does not go in consonance with the established principle of law. Ready and
Willingness has to be established from the date of agreement till the date of filing the suit. In this case, one could
easily see that even after expressing his ready and willingness in the previous suit filed for injunction, the plaintiff has
not taken any steps to call upon the defendants to come and execute the sale deed after receiving the balance sale
consideration. He waited for nearly 1 year 2 months and thereafter, filed the suit for specific performance. There is no
evidence to show to prove his readiness and willingness, no application filed for deposit the balance sale
consideration. Even assuming, the sale agreement Ex.A1 is true and valid, the respondents ought to have sought for
enforcement of the contract on or before 18.11.2002. In this case, the plaint presented only on 22.12.2006.”

NO SUFFICIENT MONEY AT THE TIME OF THE SALE AGREEMENT
IMMATERIAL
Arokkiyaraj v. A. Arokkoyaraj, 2021 SCC OnLine Mad 1106 ; (2021) 6 CTC 863
“19. In this case, the plaintiff has expressed his ready and willing in the pre-suit notice and the
plaintiff has also come forward to deposit the money in the Court by filing the lodgement
plaint that the plaintiff is an employee in Tamil Nadu Electricity Board as Foreman and his wife is a
examined in support of his defence admit that the plaintiff has sufficient means. The fair
agreement, he did not have sufficient money, does not mean that he was not ready and willing to
months period mentioned in the agreement. By his conduct, the plaintiff has established that he
Therefore, the trial Court finding regarding the readiness and willingness is also based on
same is confirmed.”

MATERIAL QUESTIONS TO BE CONSIDERED
Shrutivinda Agro Farms (P) Ltd. v. Nova Dyeing & Printing Mills Ltd., 2022 SCC OnLine Mad 1105 ; (2022) 4
CTC 706
“58. Therefore, as per the above judgment of the Apex Court, to adjudge whether the first defendant (plaintiff in C.S. No. 627 of
2008) was ready and willing to perform his part of the obligation, the Court must take into consideration the attending
circumstances prior and subsequent to the filing of the suit. In this context, the conduct of the first defendant prior to the filing of the
suit would show that the first defendant had purchased 8 acres of nearby land and the access to the purchased land is only
through the suit schedule property. After the sale agreement, legitimately expecting that the sale agreement would materialise, the
first defendant had purchased the adjacent lands. Now in view of refusal of decree for specific performance, the first defendant is
unable to use the purchased land. These attending circumstances prior and subsequent to the filing of the suit would indicate that
the first defendant was ready and willing to perform their part of the contract.
60. Moreover, the Apex Court in its recent judgment in Kamal Kumar v. Premlata Joshi, (2019) 3 SCC 704, has again reiterated the
settled principles of law that the decree for specific performance is a discretionary and equitable relief, for which the material
questions required to be gone into are : (i) existence of valid concluded contract; (ii) readiness and willingness of plaintiff to perform
his part of contract; (iii) plaintiff performing his part of contract and its extent and manner, and whether such performance is in
consonance with terms of contract;

(iv) whether it is equitable to grant relief of specific performance regarding suit property or it
causes any hardship to defendant, and if yes, how and in what manner such relief can be
granted; and (v) entitlement of plaintiff to any other alternative relief such as refund of
earnest money with interest etc., and on what grounds such relief can be granted?
62. The Hon'ble Apex Court in A. Kanthamani v. Nasheen Ahmed, (2017) 4 SCC 654, relying
upon the decision of the Privy Council in Bank of India v. Jamsetji A.H. Chinoy, 1949 SCC
OnLine PC 81 on the question as to how and in what manner the plaintiff is required to prove
his financial readiness so as to enable him to claim specific performance of the
contract/agreement, also quoted with approval the view taken by Chagla A.C.J., inter alia
that “it is not necessary for the plaintiff to produce the money or vouch a concluded scheme
for financing the transaction to prove his readiness and willingness”.

NO STRAIT-JACKET FORMULA TO MANDATE THE ISSUANCE OF
PRE-SUIT NOTICE
Lakshmi Ammal v. Gejaraj, 2022 SCC OnLine Mad 7211; (2022) 4 CTC 649 : (2022) 4 RCR (Civil) 725
“18. Since the period of three years was coming to an end on 11.05.2007, the plaintiff thought it fit to immediately
institute the suit on 16.04.2007. Under such circumstances, non-issuance of a pre-suit notice cannot be put against
the plaintiff. Law does not expect that, in every case, there should be a pre-suit notice before a suit is filed. It will
depend upon the facts and circumstances of each case and there cannot be a strait-jacket formula to mandate the
issuance of pre-suit notice in every case. This is one case, where, in view of the terms of the agreement, the plaint
d to institute the suit without issuing the pre-suit notice, since the three-year period was coming to an end.
20. This Court holds that the plaintiff had established the execution of the sale agreement and also the payment of
substantial amount towards sale consideration and also his readiness and willingness to perform his part of the
contract. Therefore, the natural consequence would be that the plaintiff will be entitled for the relief of specific
performance.

UNREGISTERED SALE AGREEMENT COULD BE TAKEN AS
EVIDENCE
22. even where the sale agreement is not registered, the document can be received
as evidence for considering the relief of specific performance and the inadmissibility
will confine itself only to the protection sought for under Section 53-A of the Transfer
of Property Act. It is therefore held that, even though the sale agreement was not
registered, it can be acted upon as an evidence for deciding the relief of specific
performance.”

NON-ISSSUANCE OF REPLY IMMATERIAL – READINESS & WILLINGNESS
NOT PROVED – TIME IS AN ESSENCE OF CONTRACT
Prabakaran v. Geetha, 2022 SCC OnLine Mad 769 ; (2022) 3 CTC 650
“16. Both the Courts below took adverse inference against the defendant for not giving a reply to the legal
notice. In the considered view of this Court, the suit was filed within 11 days from the date of issuance of the
legal notice and there was hardly any time for the defendant to respond to the legal notice. That apart
according to the defendant, there was no need to respond to the legal notice since the 2 years period already
expired on 17.5.2009 and the legal notice was issued only on 4.7.2009. Both the Courts below unnecessarily
gave undue importance to the non-issuance of a reply by the defendant for the legal notice. Whether the
defendant gives a reply or not, the Courts below ought to have independently considered the readiness and
willingness on the part of the plaintiff which is mandatory in a suit for specific performance. On the facts of the
present case, this Court finds that the plaintiff did not prove her readiness and willingness due to the following
reasons:—

a) The first positive step taken by the plaintiff was when the legal notice dated 4.7.2009
was issued to the defendant and this was well beyond the period of 2 years fixed under
the agreement and
b) The plaintiff did not take any steps to deposit the balance sale consideration
immediately after filing the suit and waited for more than 2 years till the decree was
passed on 23.11.2011.
21. Insofar as the first substantial question of law is concerned, this court holds that time
is the essence of the contract and the plaintiff failed to perform her part of the contract
within the stipulated time.
22. Insofar as the second substantial question of law is concerned, the plaintiff failed to
prove her readiness and willingness to pay the balance sale consideration and hence she
is not entitled for the relief of specific performance.”

ARTICLE 54 LIMITATION OF THREE YEARS RUNS FROM THE DATE
STIPULATED IN THE CONTRACT
Suresh Kumar Kankariya v. K. Jigibai, 2022 SCC OnLine Mad 1931; (2022) 3 CTC 501
“35. In the present case, the agreement is dated 14.12.1998 and the time fixed under the agreement was 12
months. If that is taken into consideration, the plaintiff ought to have paid the balance sale consideration on or
before 14.12.1999. This Court has already upheld the finding of the Lower Appellate Court to the effect that
Ex.A3 receipt is a concocted document. Hence, if Ex.A3 is eschewed, the suit ought to be filed within 3 years
from the expiry of the time fixed under the agreement. The suit for specific performance was filed only on
25.2.2004 which is much beyond the period of limitation. At this juncture, it will be relevant to take note of the
Judgment of the Division Bench of this Court in [K. Murali v. M. Mohamed Shaffir] reported in (2020) 1 CTC 38
where Article 54 of the Limitation Act was interpreted by this Court.
36. It is clear from the above judgment that the first part of Article 54 will apply to the facts of the present case.
The limitation begins to run from the date the parties have stipulated for the performance of the contract. ”

PROPERTY MORTGAGED EVEN ON THE DATE OF SALE AGREEMENT –
READINESS & WILLINGNESS NOT ESTABLISHED
K. Rajalakshmi v. S. Ganesan, 2020 SCC OnLine Mad 6535; (2020) 2 Mad LJ 97: (2020) 5 CTC 799
10. In the light of the above submissions, now the points for consideration are (i) Whether the plaintiff is always ready
and willing to perform his part of the contract?; (ii) Whether in the absence of any proof as to the readiness and
willingness, the contract could be enforced?; (iii) What relief the appellant is entitled for?.
14. It is well settled that the readiness and willingness have to be proved not only from the date of agreement but also it
should continue throughout the proceedings. From the very inception of the agreement, the readiness and willingness
have to be established by the party, who seeks equitable relief. The readiness and willingness are the two distinct acts.
The readiness means capacity of mobilise the amounts and the willingness is mental attitude. If both go together and
proved on the part of the plaintiff, who is seeking equitable relief, can succeed in the Court of law. Even assuming that
the defendant has not redeemed the mortgage, the normal conduct of the plaintiff would be to see that the remaining
amount is paid, mortgage is redeemed to make a marketable title. Keeping silent despite the fact that the defendant has
refused to execute the agreement and issued legal notice along with cheque amount, revoking the contract, the plaintiff
has filed the suit after one year, makes it clear that the mental attitude namely, willingness is totally absent on the part of
the plaintiff.

Further, on entire perusal of the evidence adduced on the side of the plaintiff, it is seen that absolutely
there is no evidence whatsoever available on record to show that the plaintiff had in fact a capacity to
pay remaining sale consideration and had capability to mobilise the funds. Such being the matter,
merely because the mortgage is not redeemed by the defendant, it cannot be said that only the
defendant is at fault and the plaintiff is ready and willing.
15. It is also to be noted that even in the plaint pleadings, except that the property was mortgaged,
there are no details whatsoever pleaded in the plaint. Whereas, the evidence of the defendant clearly
indicates that on the date of agreement itself, a sum of Rs. 7,50,000/- was due over the mortgage.
Such being the position, if really the plaintiff was interested to purchase the property and he was very
serious, his normal conduct would be to pay remaining sale consideration and get it redeemed the
mortgage to make marketable title, but he remained silent. All these facts clearly established that the
readiness and willingness is totally absent on the part of the plaintiff.”

SUIT FOR INJUNCTION – AFTER PROLONGED DELAY, FILED A SUIT
FOR SPECIFIC PERFORMANCE
Antony Moses v. Roselin, 2020 SCC OnLine Mad 2170; (2020) 5 CTC 435 : (2020) 1 LW 605
“27. This Court is of the considered opinion that Order II, Rule 2 of the Code of Civil Procedure in clear
terms stipulates that every suit shall include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action. Thus, when the cause of action aroused from and out of the suit Sale
Agreement dated 02.06.2005 and on payment of advance by the plaintiff to the first defendant, the plaintiff
ought to have instituted the suit for specific performance at the first instance. Contrarily, he has chosen to
file a suit for permanent injunction to sell the property and after a prolonged period by not stating the earlier
suit filed in O.S. No. 236 of 2008 for specific performance. Thus, such a conduct is a clear suppression of
fact as far as the plaint filed in O.S. No. 236 of 2008 is concerned. In the plaint, there is no averment
regarding the filing of the earlier suit in O.S. No. 611 of 2007. This being the factum, the Trial Court is right
in rejecting the relief of specific performance and there is no perversity or infirmity as such in respect of the
decision arrived by the Trial Court.”

THE ALTERNATE RELIEF OF RETURN OF ADVANCE IS A CONSEQUENTIAL RELIEF –
GRANTED UNDER OVII RULE 7
“29. The learned counsel for the defendants raised a contention that there is no prayer for alternate relief. This
Court is of the considered opinion that such relief could be granted by invoking the general relief clause under
Order VII, Rule 7 of the Code of Civil Procedure.
30. The alternate relief of return of advance in a suit for specific performance is a consequential relief and
therefore, the same need not be construed as a different relief. Once the relief of specific performance is
rejected, then the refund of advance amount shall be consequential as no parties to the suit can be allowed to
have an unjust enrichment. In other words, the dismissal of the relief of suit for specific performance, cannot
stand in the way of granting the alternate relief to refund the advance amount with reasonable interest. The
question arises in the absence of any such relief sought for in the plaint, whether the Court can grant the relief or
not. This Court is of the considered opinion that the alternate relief to refund the advance amount is to be
construed as a general relief, as such a relief is consequential to the rejection of the relief of specific
performance. In the event of not considering the alternate relief under the umbrella of general relief, then one of
the parties to the civil suit would be prejudiced and the other party will get an unjust enrichment.”

EVEN IF FALSE, IF IT NOT LEAD TO ANY INJUSTICE, ENTITLED TO
RELIEF PRAYED FOR
Tmt. Kanjana Baskaran v. R. Sundaram, 2023 SCC OnLine Mad 5637; (2023) 5 Mad LJ 366
“24. The principle that the equitable relief of specific performance cannot be granted to a person who has put forward a
false case is based on the doctrine that one who seeks equity must do equity. In this case, the plaintiffs have not set up
a false claim. More so, though we find some variance in the evidence of PW1 that alone will not dis-entitle him to get the
relief of specific performance. Our opinion is strengthened by the observations made by this Court
in Pachaiappan v. S.P. Koon Mari, (1996) 2 LW 1, wherein the Division Bench of this Court has observed that if in a
particular case, the false claim set up by the plaintiff is immaterial and does not affect the main case in any manner,
Court shall not refuse the relief.
25. As long as the version put-forth by the plaintiffs even if it is false, if it is not lead to any injustice, he is entitled to the
relief prayed for. To put it in another way, if the falsity impinges on the essential ingredients, then only it affects the
plaintiffs case. Even assuming that the plaintiffs had knowledge about the above two issues even before the date of
execution of sale agreement and they have stated that they came to know about the same after the date of execution of
sale agreement the same cannot be construed as affecting material particulars of the contract and this point is answered
accordingly.
26. In fine, we are of the considered opinion that the plaintiffs were ready and willing to perform their part of the contract
and they have proved the same satisfactorily. In the result, they are entitled to the relief of specific performance.”

CANNOT RELY ON THE CONDUCT OF THE DEFENDANT WHEN PLAINTIFF
NOT PROVED HIS READINESS & WILLINGNESS
U.Venkatesan vs Susila - 2023 (5) CTC 283
“(43) The plaintiff/appellant has paid just Rs.2 lakhs which is just the amount equivalent to 1/15th of the total
consideration. In case a decree is granted for specific performance that will result in unjust enrichment by appellant at
the cost and irreparable loss to defendants who had never received amount. It is to be noted that the plaintiff's counsel
has referred to the conduct of defendants in denying the genuineness of the Agreement- Ex.A1. It is true that the
defendants have taken a stand disputing genuineness of the Agreement and contended that the Agreement was
executed in connection with the loan transaction, the plaintiff/appellant had with the 4th defendant. The conduct of
defendants or plaintiff in a suit for specific performance may be relevant for the purpose of exercising the discretion
whether to grant equitable relief or not. When the plaintiff has failed to prove his readiness and willingness to perform
his part of contract in terms of the Agreement, he cannot get relief by referring to the conduct of the defendants. Since
this Court has held that the plaintiff/appellant was never ready and willing to perform his part of contract, this Court
cannot grant the equitable relief in favour of appellant/plaintiff.”

Specific Relief Act ‘Readiness’ Does Not Imply ‘Willingness’ Under
Section 16 (c) : Kerala High Court
George M. Mathews @ George V. Muhammed Haneefa Rawther Citation: 2023 LiveLaw (Ker) 67
• The court observed that while readiness refers to the capacity of the plaintiff to enforce a contract, willingness
refers to the conduct of the plaintiff warranting performance. According to the court, the specific performance
of a contract can only be enforced if readiness is backed by willingness.
• Based on the documents produced the court was satisfied with the financial capacity and readiness of the
plaintiff to pay balance consideration for the sale of the property. However, on perusal of the evidence the
court also found a lack of bonafide in the conduct of the plaintiff due to several reasons including suppression
of several material facts and variance in the pleadings of and proof adduced. Hence the court concluded that
the plaintiff was not willing to perform the contract, even though he was ready with the funds for the sale
consideration.
• In light of the facts and circumstances of the case, the court refused to exercise its discretion under Section
20 in favor of the plaintiff and set aside the impugned judgment in favor of the defendant. The court also
ordered the return of the advance of sale consideration to the defendant along with interest.

19. Relief against parties and persons claiming under them by
subsequent title
• (a) either party thereto;
• (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value
who has paid his money in good faith and without notice of the original contract;
• (c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been
displaced by the defendant;
• [(ca) when a limited liability partnership has entered into a contract and subsequently becomes amalgamated with
another limited liability partnership, the new limited liability partnership which arises out of the amalgamation.]
• (d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the
new company which arises out of the amalgamation;
• (e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the
company and such contract is warranted by the terms of the incorporation, the company:
• Provided that the company has accepted the contract and communicated such acceptance to the other party to the
contract.

Decree For Specific Performance Can't Be Obtained
Behind The Back of A Bona-Fide Purchaser: Supreme
Court
• Seethakathi Trust Madras v Krishnaveni - 2022 LiveLaw (SC) 58 ; 2022 (3) SCC 150
• "...it is not possible for us to accept that a decree could have been obtained behind the back of a
bona fide purchaser, more so when the transaction had taken place prior to the institution of the
suit for specific performance".
• The Court referred to Section 19(b) of the Specific Relief Act which says that specific performance
can't be enforced against a subsequent purchaser who paid money in good faith and without
notice at of the original contract.

SECTION 19(b) – “WITHOUT NOTICE” – ONUS OF PROOF
B. Amudha v. K. Rajendran, 2022 SCC OnLine Mad 1567; (2022) 3 Mad LJ 702: (2022) 4 CTC 608: (2022)
3 CCC 198
“10. The question arising for consideration is whether the case on hand will fall under the exception set out in
Section 19(b) of the Act. This provision was comprehensively interpreted by the Division Bench of the Madras
High Court in Arunachala Thevar v. Govindarajan Chettiar, (1977) 90 LW 543. It was noted that the following
four elements have to be proved to successfully claim the benefit of the exception viz.,
1. that the transfer is for value;
2. that the consideration has been paid;
3. that the subsequent transferee has taken the transfer in good faith; and
4. that both the purchase and the payment of the consideration had been made without notice of the prior
contract.
11. The first two elements are positive and the rest are negative in character.
12. The manner in which the expressions “paid his money”, “good faith” etc., have to be understood was laid
down in the said decision. Coming to the expression “without notice” and the onus of proof, the Hon'ble
Division Bench held as follows:
“15. “Without notice” : The word ‘notice’ is defined in Section 3 of the Transfer of Property Act thus:

A person is said to have notice of a fact when he actually knows that fact, or when, but for wilful abstention from
an enquiry or search which he ought to have made, or gross negligence, he would have known it.
This definition includes both actual and constructive notice. A bona fide contract, whether oral or written, prevails
against a subsequent registered conveyance if the transferee had notice of the prior contract. The legal
presumption of knowledge or notice arises from:
1. willful abstention from an enquiry or search;
2. gross negligence;
3. registration, omission to search the register kept under the Registration Act, may amount to gross
negligence so as to attract the consequences which result from notice;
4. actual possession; and
5. notice to an agent.
A purchaser is deemed to have notice of anything which he has failed to discover either because he did not
investigate the title properly or because he did not enquire for deeds relating to the property. The onus of proof lies
upon the party seeking to defeat the prior contract, to adduce prima facie evidence that he is a bona fide transferee
for value without notice. But, the burden is light and he may discharge it by merely denying the factum of notice on
oath. In any case, very little evidence is required on his part to prove this fact which is negative. However, each
case will have to be examined on its own facts, to find out whether the onus has been fully and satisfactorily
discharged or not.

In Veeramalai Vanniar v. Thadikara Fenkayya, AIR 1968 Mad 383, a Division Bench of this Court, relying on Durga
Prwad v. Deepchand, (1954) 1 SCR 360 has observed that it is also the duty of the subsequent purchaser to enquire from the person
in possession as to the precise character in which he was in possession at the time when the subsequent sale transaction was
entered into.
16. Onus of Proof : It is one of the recognised canons of jurisprudence and an accepted principle that ordinarily when a party claims
exemption from a general provision of law, the onus lies upon him to prove that he comes within the exception. Section 19(b) lays
down a general rule that the original contract maybe specifically enforced against a subsequent transferee, but allows an exception to
that general rule not to the transferor, but to the transferee, and, therefore, it is clearly for the transferee to establish the circumstances
which would allow him to retain the benefit of the transfer which prima facie he had no right to get. Thus, it is clear that the onus is
upon the subsequent purchaser to prove that he is a transferee for value who had paid his money in good faith and without notice of
the earlier contract so as to bring himself within the exception provided under Clause (b) of Section 19. In Bhup Narain
Singh v. Gokulchand, 1933 SCC OnLine PC 81, Lord Thankerton, who spoke for the Board, while dealing with Section 27of the old
Act corresponding to Section 19 of the new Act, has observed
“It is clearly for the transferee to establish the circumstances, which will allow him to retain the benefit of transfer which prima facie he
had no right to get. Further, the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and
whether he had notice of the original contract lie and the provisions of Sections 103 and 106 of the Evidence Act, 1872, have a
bearing on the question.”

20. Substituted performance of contract.—
• (1) Without prejudice to the generality of the provisions contained in the Indian Contract Act, 1872 (9 of 1872),
and, except as otherwise agreed upon by the parties, where the contract is broken due to non-performance of
promise by any party, the party who suffers by such breach shall have the option of substituted performance
through a third party or by his own agency, and, recover the expenses and other costs actually incurred, spent
or suffered by him, from the party committing such breach.
• (2) No substituted performance of contract under sub-section (1) shall be undertaken unless the party who
suffers such breach has given a notice in writing, of not less than thirty days, to the party in breach calling upon
him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he
may get the same performed by a third party or by his own agency: Provided that the party who suffers such
breach shall not be entitled to recover the expenses and costs under sub-section (1) unless he has got the
contract performed through a third party or by his own agency.
• (3) Where the party suffering breach of contract has got the contract performed through a third party or by his
own agency after giving notice under sub-section (1), he shall not be entitled to claim relief of specific
performance against the party in breach.
• (4) Nothing in this section shall prevent the party who has suffered breach of contract from claiming
compensation from the party in breach.

C. Haridasan versus Anappath Parakkattu Vasudeva Kurup &
Others - 2023 LiveLaw (SC) 31 ; 2023 SCC OnLine SC 36
By way of the Specific Relief (Amendment) Act, 2018 (hereinafter “the Amendment Act”), Section 20 of the Act
has been substituted, thereby rendering the relief of specific performance to be a statutory remedy, instead of
a discretionary remedy. Previously, the unamended provision granted the courts the discretion to deny the
relief of specific performance, on the basis of judicially developed exceptions, even where it would otherwise
be lawful to direct specific performance. Now, such statutorily created exceptions have been excluded. The
Amendment Act has eliminated the discretion of the courts in cases involving specific performance of
contracts and grants a right to an aggrieved party to seek specific performance of a contract in certain cases,
subject to the provisions contained in Sections 11(2), 14 and 16 of the Act

21. Power to award compensation in certain cases.—
(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach 1 [in
addition to] such performance.
(2) 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 the plaintiff is entitled to
compensation for that breach, it shall award him such compensation accordingly.
(3) 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.
(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the
principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in
his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall,
at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim
for such compensation.
Explanation.—The circumstances that the contract has become incapable of specific performance does not
preclude the court from exercising the jurisdiction conferred by this section.

Specific Relief Act - Compensation In Lieu Of Specific
Performance Can't Be Granted Unless Specifically Claimed In
Plaint: Supreme Court
Universal Petro Chemicals Ltd vs BP PLC and others, 2022 LiveLaw (SC) 185; 2022 (6) SCC 157
• Specific Relief Act, 1963- Section 21(5) - "No compensation shall be awarded under this section unless
the plaintiff has claimed such compensation in his plaint:
• Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any
stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim
for such compensation".

The scope of Section 21 (4) and (5) was examined by this Court in Shamsu Suhara Beevi
v. G. Alex and Another (supra). This Court referred to the Law Commission of India's
recommendation that in no case the compensation should be decreed unless it is claimed
by a proper pleading. However, the Law Commission was of the opinion that it should be
open to the plaintiff to seek an amendment to the plaint, at any stage of the proceedings
in order to introduce a prayer for compensation, whether in lieu or in addition to specific
performance. In the said case no claim for compensation for breach of agreement of sale
was claimed either in addition to or in substitution of the performance of the agreement.
Admittedly, there was no amendment to the plaint asking for compensation either in
addition or in substitution of the performance of an agreement of sale (para 21)

22. Power to grant relief for possession, partition, refund of earnest
money, etc.—
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any person
suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask
for—
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1 [made by]
him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically
claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the
proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to
award compensation under section 21

Relief Of Possession Is Ancillary To Decree For Specific
Performance And Need Not Be Specifically Claimed; Section 22(2)
Specific Relief Act Is Directory: Supreme Court
Manickam @ Thandapani vs Vasantha | 2022 LiveLaw (SC) 395 | 2022 SCC OnLine SC 2096
• Section 22 deals with a Court's power to grant relief for possession, partition, refund of earnest money, etc.
Section 22(2) provides that no relief under clause (a) or clause (b) of sub-section (1) shall be granted by the
court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief
in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as
may be just for including a claim for such relief.
• In this case, after obtaining a specific performance decree and execution of the sale deed, the decree-holder
filed an Execution Petition for directing the judgment debtor to put the decree-holders in possession of the
property conveyed. This application was allowed by the Execution court.

• Later, allowing the petition filed by the Judgment debtor, in which he contended that no decree was
granted to the decree-holder in respect of delivery of possession and therefore the execution for
delivery of possession is not maintainable. The High Court held that without claiming for delivery of
possession in a suit for specific performance, there could not be any such order for possession in
terms of Section 22 of the Specific Relief Act, 1963. The High Court granted liberty to the appellants
to file a separate suit for possession as per the decree passed.
• Referring to various judgments of the Supreme Court and High Court, the Apex Court bench
observed that even under the Specific Relief Act, of 1877, the position was that the relief of
possession is ancillary to the decree for specific performance and need not be specifically claimed.
• Referring to Section 22(2), the bench comprising Justices Hemant Gupta and V. Ramasubramanian
observed:

“Section 22(2) of the Act, though is worded in negative language, "no relief under clause (a) or clause (b) of
sub-section (1) shall be granted by the court unless it has been specifically claimed", but the proviso takes out
the mandatory nature from the substantive provision of sub-section (2) when the plaintiff is allowed to amend
the plaint on such terms as may be just for including the plaint for such relief "at any stage of the proceeding".
"At any stage of the proceeding" would include the proceeding in suit or in appeal and also in execution. The
proviso to sub-section (2) of Section 22 of the Act contemplates that the Court shall, at any stage of the
proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including a claim for such
relief. The said proviso makes the provision directory as no penal consequences follow under sub-section (2)
of Section 22. Therefore, sub-section (2) of Section 22 is a rule of prudence to ask for possession "in an
appropriate case". The appropriate case would not include a suit for a specific performance simpliciter but may
include a suit for partition or a suit when the decree is to be executed against a transferee. Sub-section (2)
cannot be said to be a mandatory provision as the power to claim relief at any stage of the proceeding makes
sub-section (2) a directory. Sub-section (2) is a matter of procedure to avoid a multiplicity of proceedings. The
procedural laws are handmaids of justice and cannot defeat the substantive rights.”

Courts Cannot Suo Motu Grant Refund Of Earnest Money If It Is Not
Specifically Prayed For In Specific Performance Suit: Supreme Court
• Desh Raj vs Rohtash Singh | 2022 LiveLaw (SC) 1026 | 2023 (3) SCC 714| Justices Surya Kant and Bela M.
Trivedi
• "The plaintiff in his suit for specific performance of a contract is not only entitled to seek specific performance of the
contract for the transfer of immovable property but he can also seek alternative relief(s) including the refund of any
earnest money, provided that such a relief has been specifically incorporated in the plaint. The court, however, has
been vested with wide judicial discretion to permit the plaintiff to amend the plaint even at a later stage of the
proceedings and seek the alternative relief of refund of the earnest money. The litmus test appears to be that unless
a plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment,
no such relief can be granted to him. The prayer clause is a sine qua non for the grant of decree of refund of earnest
money. In the absence of such a prayer, it is difficult to accept that the courts would suo-moto grant the refund of
earnest money irrespective of the fact as to whether Section 22(2) of the SRA Act is to be construed directory or
mandatory in nature."

SECTION 24. Bar of suit for compensation for breach after
dismissal of suit for specific performance.—The dismissal of a suit
for specific performance of a contract or part thereof shall bar the plaintiff’s right to
sue for compensation for the breach of such contract or part, as the case may be, but
shall not bar his right to sue for any other relief to which he may be entitled, by reason
of such breach

27. When rescission may be adjudged or refused.—
(1) Any person interested in a contract may sue to have it rescinded, and such rescission
may be adjudged by the court in any of the following cases, namely:— (
a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face and the defendant is
more to blame than the plaintiff.
(2) Notwithstanding anything contained in sub-section (1), the court may refuse to rescind
the contract—
(a) where the plaintiff has expressly or impliedly ratified the contract; or
(b) where, owing to the change of circumstances which has taken place since the making of
the contract (not being due to any act of the defendant himself), the parties cannot be
substantially restored to the position in which they stood when the contract was made; or
(c) where third parties have, during the subsistence of the contract, acquired rights in good
faith without notice and for value; or
(d) where only a part of the contract is sought to be rescinded and such part is not severable
from the rest of the contract.

Section 28 Specific Relief Act - Time To Deposit Balance Sale
Consideration Cannot Be Extended As A Matter Of Course:
Supreme Court
P. Shyamala Versus Gundlur Masthan | 2023 SCC OnLine SC 184 ; Civil Appeal Nos. 1363-1364 OF 2023
• Observing that the time for paying sale consideration cannot be extended as a matter of course, the Apex Court
found fault with the trial court for condoning the huge delay of 853 days which the plaintiff took to move an application
seeking extension of time to deposit the balance amount.
• The Supreme Court did not deem these reasons as good-enough for not moving the application in a timely manner.
“The explanation which was given by the plaintiff narrated hereinabove, can hardly be said to be a sufficient explanation
as to why the plaintiff did not pay the balance sale consideration as per the judgment and decree or even did not make
an application within a reasonable time under Section 148 CPC and Section 28 of the Specific Relief Act seeking
extension of time for making payment.”

• If the plaintiff was ready with the money, he could have got the sale deed executed
through power of attorney after effecting payment, the Court said while adding that the
Trial Court was wrong to condone the huge delay of 853 days without sufficient
explanation.
• Referring to V.S. Palanichamy Chettiar judgment, the Court said that the provisions to
grant specific performance of an agreement are quite stringent.
• “Equitable considerations come into play. The Court has to see all the attendant
circumstances including if the vendee has conducted himself in a reasonable manner
under the contract of sale. It is further observed that therefore, the Court cannot as a
matter of course, allow extension of time for making payment of balance amount of
consideration in terms of a decree”, the court reiterated in its judgment.

SEEK EXTENSION OF TIME WITHIN 3 YEARS FROM DATE OF DECREE
C.Venkatesan Vs. Kaaliyathal @ Kaliyammal & Ors – 2023 (5) MLJ 282
14. The learned Single Judge of this Court, in the order passed on 20.03.2017 in C.R.P(MD) No.122 of 2016,
(M.Parimanam @ Parimana Konar Vs.T.Egammai) after analyzing various Supreme Court Judgments, ultimately,
culled out principle emerged from various Judgment in Paragraph No.13. The same is extracted as follows:
“13. It is well settled by number of judicial pronouncements, a decree of specific performance is in the nature of
preliminary decree. It is also well settled that;
(a) the Courts have power under Section 28 of the Specific Relief Act and Section 148 C.P.C., to extend the time
to deposit the balance sale consideration even after expiry of time limit fixed in the decree;
(b) if no time limit is fixed in the decree, the decree-holder must deposit the balance sale 11/16
https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.711 of 2019 consideration within a reasonable time;
(c) the Courts have power to rescind the contract at the instance of judgment-debtor;
(d) extension of time to deposit is not automatic. The Court must consider all the facts and circumstances, while
passing order either extending or rejecting the request;
(e) the decree holder must seek extension of time within three years from the time limit granted, or if no time limit
is fixed within three years from the date of decree or judgment in Appeal; and
(f) Courts have no power to extend time if such request is made after the time for deposit is barred by limitation.”

HELD: 15. Therefore, what emerges from the above precedent is that though the suit for
specific performance was decreed, the decreetal Court which passed the decree, retains the
control over the decree by construing the decree as a preliminary decree. In this case, the
learned trial Judge has exercised his power, as enumerated under various precedent and
rescinded the contract by not enlarging the time. On the facts of this case, though the suit was
decreed 12/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.711 of 2019 on 14.10.2010, the
long delay of eight years taken by the defendants to pay the balance sale consideration, that
too, on the ground of his mother's illness, is not only appreciable but also fallacious.”

Specific Relief Act | Action To Cancel Instrument Under Section 31 Is
Not Action In Rem: Supreme Court
M/s Asian Avenues Pvt Ltd vs Sri Syed Shoukat Hussain 2023 LiveLaw (SC) 369; 2023 SCC OnLine SC 514
• It means that the cancellation of an instrument as per this section will bind only the parties to the proceedings
and will not operate universally against everyone.
• A bench comprising Justices Abhay S Oka and Rajesh Bindal made this observation while deciding an
appeal in which the issue was whether the arbitration clause in a development agreement could have been
invoked in a suit that has been filed seeking cancellation of the very same agreement. The High Court
interfered on the ground that adjudication pursuant to invocation of Section 31 of the Specific Relief Act is an
adjudication in rem. However, the Supreme Court pointed out that this view was erroneous, as held in Deccan
Paper Mills Company Limited v. Regency Mahavir Properties and Ors
• "However, in the case of Deccan Paper Mills Company Limited, this Court has categorically held that it is
impossible to hold that an action instituted under Section 31 of the Specific Relief for cancellation of an
instrument is an action in rem", the bench noted.

Such a decree is binding only on parties

SECTION 34. Discretion of court as to declaration of status or
right.—Any person entitled to any legal character, or to any right as to any property,
may institute a suit against any person denying, or interested to deny, his title to such
character or right, and the court may in its discretion make therein a declaration that he
is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to
seek further relief than a mere declaration of title, omits to do so
Explanation.—A trustee of property is a “person interested to deny” a title adverse to the
title of some one who is not inexistence, and for whom, if in existence, he would be a
trustee

SECTION 34 APPLICATION OF PROVISO CLAUSE
P. Suresh v. R. Rangasamy, 2020 SCC OnLine Mad 27849 ; (2021) 1 CTC 320;
(2020) 5 LW 705
“34. There is yet another reason why the plaintiff must be non-suited. A simple relief
for declaring that the decree passed in the earlier suit, without a corresponding
prayer for declaration of his right in the suit property achieves nothing. A decree
declaring an earlier decree as void is a mere enabling decree, passing which the
Court would be in a position to declare the right of the plaintiff. A suit where the
plaintiff seeks only an enabling relief but omits to seek a substantial relief is plainly
not maintainable.”

Suit Barred By Proviso To S.34 SRA Should Not Be Dismissed Without
Opportunity To Amend Plaint & Seek Consequential Relief: MP High
Court - GANPATLAL versus GANGA BAI AND ORS - 2022 LiveLaw (MP) 245
• Facts of the case were that the Appellant/Plaintiff had instituted a suit against the Respondents/Defendants. He had
sought for declaration of title to the suit land and for permanent injunction, thereby restraining the Defendants from
alienating the same.
• While upholding his title to the suit land, the civil court noted that the Appellant/Plaintiff was not having possession
over the same. Furthermore, he had not sought the relief of possession. Therefore, the trial court held that his suit was
hit by the proviso to Section 34 of the Act as he did not claim a better relief available to him. On this said ground, his
suit was dismissed.
• The trial Court has hence committed gross illegality in dismissing the claim of plaintiff upon holding that the same is
barred by proviso to Section 34 of the Specific Relief Act, 1963 as he has not claimed relief of possession despite not
being in possession. The appellate Court has also failed to consider this aspect of the matter in its true perspective.
Thus, I am of the opinion that plaintiff ought to be afforded an opportunity to amend his plaint to claim the
consequential relief.
• With the aforesaid observations, the decisions of the courts below were set aside. The court remanded the matter
back to the trial court along with the application moved by the Appellant under OVI R17 CPC and directed that the
same be decided in accordance with the law.

POSSESSION PREREQUISITE FOR SUIT FOR INJUNCTION
Arulmighu Parasunathaswamy Thirukoil v. State of T.N., 2021 SCC OnLine Mad 8039; (2022) 1 CTC 357 : (2022) 1 MWN (Civil) 314
: (2022) 2 Mad LJ 108
“13. It is well settled that in a suit for injunction, the primary question to be considered is one of possession, on the date of filing of the suit
and that a person in possession, though without title, can resist interference from another, who has no better title than himself and get
injunction. In a case, where the allegations of a Plaintiff are that he is in lawful possession of the property and that his possession is
threatened to be interfered and invaded by the Defendant, the Plaintiff is entitled to sue for a mere injunction without adding prayer for
declaration of his rights. It is not necessary for a Plaintiff, seeking injunction to prove his title and it would suffice if he proves that he was
in lawful possession of the same and his possession was invaded or threatened to be invaded by a person, who had no title whatsoever.
14. In this case, keeping in view the above reasons and settled principles, when admittedly the suit property belonged to the Temple and
the title and possession of the suit property are not disputed by the Defendants and possession of the Plaintiff was threatened to be
invaded by the Defendants, by way of issuance of patta to the encroachers, in the interest of justice and public and in order to maintain
precincts, the possession of the suit property by the Plaintiff Temple is necessarily to be protected, by granting, a judgment and decree,
as prayed for, which the courts below had miserably failed to do so and hence, the impugned judgments are liable to be set aside.
Accordingly, the substantial questions of law are answered in favour of the Appellant.”

Section 38 Specific Relief Act: Plaintiff Has To Prove His Actual
Possession On The Date Of Filing The Suit: SC
• BALKRISHNA DATTATRAYA GALANDE Vs. BALKRISHNA RAMBHAROSE GUPTA & Anr; 2020
(19) SCC 119
• "In a suit filed under Section 38 of the Specific Relief Act, possession on the date of the suit is a
must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that
he was in actual possession of the property on the date of the suit, he is not entitled to the decree
for permanent injunction.”
• The court added: “Without paying rent, he cannot have any legitimate right to be in possession of the suit
premises. The party seeking injunction based on the averment that he is in possession of the property and
seeking assistance of the Court while praying for permanent injunction restraining the other party who is
alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property.
Having not paid rent for more than fifteen years, it cannot be said that possession of the first respondent-
plaintiff can be said to be lawful possession entitling him to grant of a permanent injunction."

SECTION 40. Damages in lieu of, or in addition to, injunction.—
• (1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory
injunction under section 39, may claim damages either in addition to, or in substitution
for, such injunction and the court may, if it thinks fit, award such damages.
• (2) No relief for damages shall be granted under this section unless the plaintiff has
claimed such relief in his plaint: Provided that where no such damages have been
claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff
to amend the plaint on such terms as may be just for including such claim.
• (3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the
plaintiff shall bar his right to sue for damages for such breach.

SECTION 42. Injunction to perform negative agreement.—
Notwithstanding anything contained in clause (e) of section 41, where a
contract comprises an affirmative agreement to do a certain act, coupled with
a negative agreement, express or implied, not to do a certain act, the
circumstance that the court is unable to compel specific performance of the
affirmative agreement shall not preclude it from granting an injunction to
perform the negative agreement:
Provided that the plaintiff has not failed to perform the contract so far as it is
binding on him.

THE SPECIFIC RELIEF
(AMENDMENT)ACT, 2018

• The remedy of specific relief was cradled in English law of equity, as a discretionary relief.
The courts of equity granted specific relief upon satisfaction of inadequacy test. The
inadequacy test presupposes that any breach of contract is adequately compensable in
terms of money and that insisting upon specific performance of a contract would impinge
the liberty of the promisor. To that effect, the courts of equity have adopted a ‘hierarchical
approach’, whereby the compensation for the breach is granted as a primary relief and
specific performance as a secondary relief.
• The scheme of specific relief, as devised by the courts of equity, is a procedural labyrinth.
The breaching party could use the scheme of the Act as a shield against his own
defaults. Consequently, the specific relief under original scheme of the Act is rendered
unpredictable. The Specific Relief (Amendment)Act, 2018 was enacted in order to
overcome the lacunae.

• Elimination of inadequacy test: The courts of equity granted specific relief only when the
compensation under the common law were inadequate. Likewise, under the scheme of
Specific Relief Act, 1963, the aggrieved party is required to satisfy the inadequacy test at
the outset. The compensation would be deemed inadequate if : (a) there exists no fixed
yardstick to determine the precise damages quantifiable in terms of money; or (b) that
the compensation in terms of the money for breach of contract, would not afford
adequate relief.
• The Specific relief (Amending) Act, 2018 has eliminated the inadequacy test by
substituting the Section 10 and Section 14 and Section 20 in entirety. Under the
amended scheme, the remedy of specific relief is a regular statutory remedy. The
amendment has dispensed the courts indulgence into technical aspects pertaining to
adequacy of compensation. The amendment has also relaxed the negative burden of
proof on the aggrieved party.

The Central Government has, by way of a notification dated August 1,
2018, introduced the Specific Relief (Amendment) Act, 2018
(‘Amendment Act’), which amends the Specific Relief Act, 1963
(‘1963 Act’). However, the date on which the provisions of the
Amendment Act will come into effect has not yet been notified.
• i. The 1963 Act provided that specific performance is a limited
remedy, which may be granted by a Court, at its discretion, subject to
certain conditions. The Amendment Act empowers the Court to grant
specific performance as a general rule, subject to the certain
exceptions.

i. The amended Section 10 stipulates that specific performance of contract shall be
enforceable subject to provisions of Section 14 and Section 16. Meaning thereby,
that the grant of specific relief is not subject to the discretion of the court. The
specific relief is a regular statutory remedy under amended scheme of the Act.
In addition, the aggrieved party can now choose his own remedy. The amended
scheme provides that the aggrieved party can either choose for a substituted
performance or the compensation instead of the specific relief. The amendment
gives considerable weightage to the convenience of choice to the aggrieved party.

ii. Substituted performance: The Amendment Act gives an
affected party the option to arrange for performance of the contract
by a third party or by his own agency (substituted performance),
and costs for such substituted performance may be recovered from
the defaulting party. After obtaining substituted performance,
specific performance cannot be claimed. However, the affected
party’s right to claim compensation will not get affected

iii. Infrastructure projects: A schedule has been added pursuant to the
Amendment Act which broadly describes the infrastructure projects which
would be under the purview of the 1963 Act. These projects can be
categorized as follows: (i) transport; (ii) energy; (iii) water and sanitation;
(iv) communication (such as telecommunication); and (v) social and
commercial infrastructure (such as affordable housing).
iv. Injunctions: The Amendment Act prevents Courts from granting
injunction in respect of contracts relating to infrastructure projects if such an
injunction would hinder or delay the progress or completion of the
infrastructure project

• v. Special Courts: The Amendment Act requires that State Government
will, in consultation with the Chief Justice of the relevant High Court,
designate one or more Civil Courts as Special Courts to deal with cases
under the 1963 Act, in relation to infrastructure projects. Such cases must
be disposed off within 12 months, which period can be extended by six
months, of the date of service of summons to the defendant.
• vi. Experts: The Amendment Act inserts a new provision which empowers
the Courts to engage experts in suits where expert opinion may be
needed. Such expert may be examined in the Court in relation to the
expert’s findings, opinions, etc.

• The Supreme Court recently in the case of, SMT. KATTA SUJATHA REDDY V.
SIDDAMSETTY INFRA PROJECTS PRIVATE LIMITED, 2022 SCC Online SC 1079 [Civil Appeal

FACTS:
1.While considering an appeal against the order passed by the trial court, the Telangana High Court
framed issues for adjudication including whether section 10 of the Specific Relief Act substituted
by the 2018 Amendment is prospective or retrospective in nature?
2.The Telangana High Court vide judgment dated April 23, 2021 held that, inter-alia, Section 3 of the
2018 Amendment is retrospective in nature. In this regard, the Court observed the following:
• When a provision is replaced by way of substitution, the substituted legislation operates
retrospectively and not prospectively;
• Specific relief in essence is a part of the law of procedure, hence it is a retrospective law; and
• An appeal is a continuation of the suit, hence any change in law between passing of the decree
and decision of the appeal must be taken into consideration.

FINDINGS/ OBSERVATIONS OF THE SUPREME COURT:
1. The 2018 Amendment was brought in to increase adherence to the sanctity of contracts.
This amendment created new rights and obligations that did not exist prior to the
amendment. Section 10 of the Unamended Specific Relief Act was subjected to the
discretion of courts, but after the 2018 Amendment, this provision was converted to a
mandatory provision. The amendment was directed towards the growth of commercial law
and so that parties comply with contracts and reduce breaches thereof.
2. After the 2018 Amendment, specific performance is based on the satisfaction of the
requisite ingredients in the Specific Relief Act. Such remedy is no longer dependent on
equitable principles expounded by judges. Further, the adequacy of damages as stipulated
in Section 14 (1)(a) in the unamended Specific Relief Act has been removed.

3. The nature of amendments to a statute determine whether they are procedural or substantive law. For this,
reference to the nature of the parent enactment may not be material. If the substituted provisions contain any
substantive provisions which create new rights, obligations, or take away any vested rights, then such
substitution cannot automatically be assumed to have come into force retrospectively. In such case, the
legislature would have to expressly provide whether such substitution is to be construed retrospectively or not.
4. While considering the 2018 Amendment, it incorporates substantive principles, and for this reason, the
amendments to the Specific Relief Act would apply prospectively.
5. The Court also relied on Shyam Sunder v. Ram Kumar, [(2001) 8 SCC 24], and observed that when a
substantive law is brought about by amendment there is no assumption that it shall take retrospective effect,
unless the legislature expressly clarified the same

SRA 2018 Made Specific Performance Of Contract General Rule
Rather Than Exception, Legislative Shift Towards Stronger
Enforcement Of Contracts: Delhi HC
• GLOBAL MUSIC JUNCTION PVT. LTD. v. SHATRUGHAN KUMAR AKA KHESARI LAL YADAV & ORS. 2023
LiveLaw (Del) 795
• A division bench of Justice Manmohan and Justice Saurabh Banerjee said that the 2018 Amendment Act has
brought the Indian Specific Performance Act in line with the UNIDROIT Principles of International Commercial
Contracts, as it aspires to achieve “harmonization in international law governing commercial contracts.”
• The court said that the primary intent behind the 2018 Amendment Act is to introduce a “greater certainty” in the
enforcement of contracts and consequently improve India’s ranking in “Enforcement of Contracts’ and ‘Ease of
Doing Business.”
• Furthermore, the bench observed that courts are not precluded from granting an injunction to perform a negative
covenant and the same is in no manner controlled or affected by Section 14 of the Specific Relief Act, 1963.

• It added that the 2018 Amendment Act does away with the primacy given to damages as
a relief over specific performance and shifts the focus from the previous default remedy of
award of damages for breach of contract to enforcing specific performance of contracts.
• “This Court is of the view that by virtue of the changes brought about by the Amendment
Act, 2018, the Courts will now grant specific performance unless the claim for relief is
barred under limited grounds prescribed in the statute. This change is aimed at providing
greater protection of contractual expectations by ensuring that a non-defaulting party can
obtain the performance it bargained for,” the court said.
• It added, “The Amendment Act, 2018 intends to discourage errant parties who may deem
it more viable to breach a contract than perform it, as the cost of damages may still be
less than the cost of the performance.”

Specific Performance Cannot Be Granted Against Defendant By
Compelling Him To Enter Into Agreement With A Third Party:
Supreme Court
• Raman (D) vs R Natarajan | 2022 LiveLaw (SC) 760 | 2022 (10) SCC 143 | Justices Indira Banerjee
and V. Ramasubramanian
• In this case, the specific performance of the Agreement in question comprised of two parts namely,
(i) the defendant entering into an agreement with his brother's wife for the purchase of land for
providing access to the land agreed to be sold under the suit Agreement of Sale, and (ii) the
defendant thereafter executing a sale deed conveying the property covered by the suit Agreement of
Sale. The suit was decreed by the Trial Court. Though the Appellate Court reversed it, the High
Court allowed the second appeal and upheld the Decree.

• The court observed that the defendant's brother's wife was not a party to the suit agreement of
sale, and thus the Court cannot compel her to enter into an agreement with the defendant. While
allowing the appeal, the bench observed:
• In any case, the High Court ought to have seen that a Court cannot grant the relief of specific
performance against a person compelling him to enter into an agreement with a third party and
seek specific relief against such a third party. In other words, the specific performance of the
agreement by the appellants herein depended upon (i) the appellants entering into an
agreement with a third party; and (ii) the appellants being in a position to compel such third party
to perform her obligations under such agreement...Since the defendant's brother's wife was not
a party to the suit agreement of sale, the Court cannot compel her to enter into an agreement
with the defendant. In other words, the performance of the first part of the obligation, which we
have indicated in the preceding paragraph, cannot be compelled by the Court, as it depends
upon the will of a third party.

Registration Act | Unregistered Agreement To Sell Is Admissible As
Evidence In Suit For Specific Performance: Supreme Court
R. Hemalatha v Kashthuri - 2023 LiveLaw (SC) 304; 2023 SCC OnLine SC 381
• The Supreme Court has held that Section 17(1A) of the Registration Act, 1908 is the only exception to the
Proviso of Section 49 of Registration Act. Thus, the Proviso to Section 49 shall apply to the documents other
than the ones referred to in Section 17(1A).
• The Bench comprising of Justice M.R. Shah and Justice Krishna Murari has held that an unregistered
Agreement to Sell, which is otherwise required to be compulsorily registered, shall be admissible in evidence in
a suit for specific performance in terms of Proviso to Section 49 of Registration Act. The only exception to the
Proviso of Section 49 would be documents mentioned in Section 17(1A) of Registration Act (R. Hemalatha v
Kashthuri).
• It was observed that the Proviso to Section 49 was inserted in 1929 and Section 17(1A) was inserted in 2001
in the Registration Act. Section 17(1A) requires compulsory registration of documents executed on or after
2001, which contain contract to transfer for consideration any immovable property for the purpose of Section
53A of Transfer of Property Act. The effect of non-registration of such documents shall have no effect for the
purposes of said Section 53A. Thus, the exception to Proviso to Section 49 is provided under Section 17(1A)
of the Registration Act. Otherwise, the Proviso to Section 49 with respect to the documents other than referred
to in Section 17(1A) shall be applicable.

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