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INTRODUCTION TO THE SPECIFIC
The remedies for the non-performance of a duty enforceable by law are either compensatory or specific.
The compensatory remedy is the award of what is commonly called damages. This remedy is often either useless or inadequate : useless, where the person ordered to pay them is insolvent; and inadequate, where (for instance) the duty is to transfer a particular house or piece of land, or a moveable to which special interest is attached.
The specific remedy is enforced by directing the party in default to do or forbear the very thing which he is bound to do or forbear, and then, in case he disobeys, by putting him into prison, or attaching his property, or both? Where no one is in default, it is enforced by making such declarations and orders as the nature of the case may require.
The specific remedies commonly enforced by Indian (as by English) Courts are
(a) taking possession of certain property and delivering it to the claimant :
() ordering a party to do the very act which he is under an obligation to do:
(c) preventing him from doing that which he is under an obligation not to do:
(d) rectifying instruments :
(9) determining and declaring the rights of parties to status or property, otherwise than by the award of compensation :
(1) appointing a Receiver:
(i) taking an account of the property of a deceased person and administering the same :
(j) taking accounts of a trust and administering the trust property :
1 Code of Civil Procedure, sec. 260.
(k) the foreclosure of the right to redeem, or the sale of, mortgaged property :
(1) the redemption and reconveyance of mortgaged property :
(m) dissolving a partnership, taking the partnership accounts, realizing the assets, compelling each partner to pay the balance due from him, and discharging the debts of the partnership.
The compensatory remedy has been to some extent dealt with by the Contract Act, sec. 73. The present Act deals with it only so far as it is either supplementary or alternative to specific relief. The specific remedies respectively marked i, j, k, l, and m are dealt with by the Code of Civil Procedure?, the Trusts Act?, and the Transfer of Property Act". The remaining specific remedies are dealt with by
3 the Specific Relief Act. This Act is divided into three Parts, the first containing, besides the usual preliminary matter, a declaration that specific relief cannot be granted for the mere purpose of enforcing a penal law, the second containing provisions as to the kinds of relief above specified in paragraphs a, b, d, e, f, g, and h; and the third relating to the preventive relief referred to in clause c.
The second part treats, first, of the recovery of possession of property, whether moveable or immoveable. When a person is wrongfully dispossessed of immoveable property, sec. 9 (founded on Act XV of 1859, sec. 15) gives him a remedy resembling the Roman interdict de vi and the English assize of novel disseisin *. The object is to discourage people from taking the law into their own hands". A clause equivalent to Act XXIII of 1861, sec. 26, bars appeals against decrees in suits under section 9.
Section 10 deals with the recovery of specific moveable property, and confers a remedy similar to that obtainable in an English action of detinue. Explanations show that a special or temporary right (such as that of a warehouse-keeper) to the present possession of property suffices for the relief intended, and that a bare fiduciary ownership will entitle a trustee to sue. The defendant has not the option of retaining the property on paying its value.
Section 11 deals with the jurisdiction to compel specific delivery of particular moveables, administered by Courts of Equity, and provides for a class of cases analogous to that in which specific relief is given by section 9 in respect to immoveable property. An English statutory provision on the subject is contained in the Mercantile Law Amendment Act, 19 & 20 Vic. c. 97, sec. 2.
1 Sec. 213, and Sched. IV, Nos. 5 Bom. 208, 217. 105-110, 113.
5 8 Bom. 375, per Sargent C.J. 2 Act II of 1882, sec. 59.
6 See C. L. Proc. Act, 1854, sec. 78. 3 Secs. 60, 67, 85-95. VOL. I.
Specific Chapter II, the most important part of the Act, contains the rules performance of
relating to the specific performance of agreements enforceable by contracts. law. It treats, first, of contracts which may be specifically en
forced. These are, any agreement enforceable by law when (1) the act agreed to be done is in the performance of a trust, or (2) no standard exists for ascertaining the actual damage caused by the non-performance of the act agreed to be done, or (3) the act is such that pecuniary compensation for its non-performance would not afford adequate relief, or (4) it is probable that such compensation cannot be obtained. Sections 14, 15, 16, 17 provide for the specific performance of contracts so far as they can be performed, and for compensation so far as it is not possible to perform them. This jurisdiction is a delicate one, as, when the person seeking performance was the person in default, it amounts to something like making a new contract between the parties. Yet it often happens that there is some quite insignificant part of the contract which the party seeking performance was bound to perform but could not. In such a case it is wrong that because some little thing remains undone the whole contract should fail”. Section 14 deals with the case where the part which must be left unperformed is small in proportion to the whole in value, and admits of compensation in money. Section 15 exhibits the different positions held by the party in default and his opponent, when the default is of greater magnitude. The Act then treats of contracts not specifically enforceable, such as contracts for the non-performance of wbich damages are an adequate remedy, contracts dependent on personal qualifications, contracts immediately revocable by the defendant. It deals, thirdly, with the discretion of the Court—the arbitrium boni iudicis - as to decreeing specific performance. It treats, fourthly, of the persons for whom contracts may be specifically enforced ; fifthly, of the personal bars to the relief; sixthly, of the cases in which contracts cannot be specifically enforced except with a variation ; seventhly, of the persons against whom contracts may be specifically enforced; and, eighthly, of the persons who cannot be compelled to perform. The chapter concludes with two sections one (sec. 29) as to the effect of dismissing a suit for specific performance, the other (sec. 30) applying the preceding sections to awards and to testamentary directions to execute settlements.
The Roman law, the modern systems founded thereon, and the Common Law of England, generally hold to the maxim Nemo potest praecise cogi ad factum, and in case of breach of contract only give
See per Lord Eldon, Mortlock v. Buller, 19 Ven. 303-6.
the injured party the right to damages for non-performance! In framing Chapter II, therefore, the rules of the English Courts of Equity were necessarily followed, and almost all the illustrations were taken from the Equity reports. But owing to the non-existence in India of separate courts of law and equity, the absence of the Statute of Frauds and other circumstances, it was found possible to simplify these rules greatly. The principal differences between the English and the Indian systems are
1. The Act discards the English doctrine that a contract to be specifically enforced must be such that it might, when it was entered into, have been enforced by either of the parties against the other. This principle found its place in Courts of Equity rather from a desire for symmetry than from its inherent utility.
2. The Act (sec. 29) declares that the dismissal of a suit for specific performance of a contract shall bar the plaintiff's right to sue for compensation for its breach. This is not so in England. But as in India all remedies on an agreement can be granted by one and the same Court, it is clear that only one suit should lie on account of its non-performance.
3. In England it has more than once been ruled that the Court of Chancery will not compel the performance of a continuous duty extending over many years. The Act renders this doctrine more precise by declaring (sec. 21, cl. g) that contract, the enforcement of which necessarily involves the performance of continuous duties over a longer period than three years from its date, shall not be specifically enforced.
4. The rules as to when a contract for the sale of a married woman's estate will be specifically enforced are in England excessively complicated? The Act makes no distinction in her case, and thus recognises the principle embodied in the Indian Succession Act, sec. 4, and Act III of 1874.
5. In England a voluntary settlement of personal chattels is binding on the settlor, and cannot be defeated by a subsequent sale. But it is otherwise in the case of freeholds, copyholds,
1 See Pothier, Oblig. part I. c. II. Vanderlinden's Institutes of the Law art. 2. § 2: Fry on Specific Perform- of Holland, translated by Henry, ance, 2nd ed., 3. But it seems pos- London, 1828, p. 198. At p. 9 of his sible to make a decree for specific per- book Lord Justice Fry suggests that formance under the German Reichs. the origin of the jurisdiction may be civilprocessordnung, $$ 769, 771,773, found in the Canon Law, and tes 774, 775. And in Holland, and in the Decretals of Gregory, IX. lib. 1, British colonies in which Dutch law tit. 35, C. 2. is administered, it is believed that ? See Fry, p. 201. such decrees are not infrequent. See 3 See Fry, pp. 113-117.
and leaseholds; and specific performance of a subsequent agreement to sell land may be enforced against the voluntary settlor, and the parties claiming under the settlement, though not by the settlor. The Act does not recognise this distinction (which is due to an artificial construction of 27 Eliz., chap. 4), and treats land in this respect as if it were moveable property. The provisions on this subject are contained in section 24, cl. d, which provides that specific performance of a contract cannot be enforced in favour of a person who previously to the contract had notice that a voluntary settlement of its subject matter had been made and was then in force, and in section 25,
which provides that specific performance of a contract for sale or letting cannot be enforced in favour of a vendor or lessor who, previous to entering into the contract, has made a similar settlement.
6. The absence in India (outside the Presidency Towns) in 1877 of any enactments resembling the Statute of Frauds, secs. I, 3, 4, 17, rendered it unnecessary to embody in the Act the intricate rules of the Court of Chancery as to when a parole agreement relating to land will, and when it will not, be specifically enforced. Since 1877 the Transfer of Property Act has been passed; but the distinction between secs. 54, 59, 107, and 118 of that Act and the Statute of Frauds, sec. 4, is that an agreement which does not fulfil the requirements of the Act is void, whereas an agreement which does not fulfil the requirements of the Statute is merely unenforceable.
7. It seems impossible to elicit a consistent doctrine from the English decisions as to the rights of a purchaser or lessee to specific performance with abatement or compensation when the title of the person agreeing to sell or lease is defective. The Act lays down that only in one case can such relief be granted, namely, where the part of the agreement which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money. This relieves the Courts from the exercise of a duty which in many cases must be more a matter of guess-work than of judicial discretion.
8. The right to enforce a contract specifically may in England be lost by delay in resorting to the Court, and a large mass of cases exists relating to this doctrine. The Specific Relief Act contains no rules on this subject, for it had been held that in India the provision of the Limitation Act, art. 113, that suits for specific performance must be brought within three years from the date fixed for the performance, or if no such date is fixed when the plaintiff has notice that the performance is refused, rendered the