Specific Relief

Introduction:
The Specific Relief Act provides for specific reliefs.
Specific relief means relief of a certain species i.e., an exact
or particular, a named, fixed or determined relief. The
term is generally understood as providing relief of a
specific kind rather than general relief. For example in the
case of a contract between two parties if one of them fails
to deliver a certain goods he may be required to pay
damages for breach of contract but under the specific relief
act he may be required to perform the contract specifically
i.e., specific performance of a contact may require to
deliver the promised goods. The Specific Relief Act is
concerned only with the enforcement of civil rights and
not penal laws. This is mentioned in Sec 3 of this act which
says:”Specific relief can be granted only for the purpose of
enforcing individual civil rights and not for the mere
purpose of enforcing civil law.”
Specific performance is generally granted when there
exists no standard for ascertaining actual damage, for
instance when the object of sale is a picture by a dead
painter or where compensation in money will not provide
adequate relief to the plaintiff. Sometimes an instrument
in writing does not express the real intention of the parties
due to fraud or mutual mistake, rectification of such
instruments is permitted by the specific relief act. Specific
relief could also be in the form of rescission of a contract.
The court may order rescission when the contract is
voidable or terminable by the plaintiff or it is unlawful.
When a written instrument which is void or voidable,
such instrument is left outstanding could cause serious
injuries to the plaintiff, the court may order the
cancellation of such instrument, under the Specific Relief
Act. The Specific Relief Act also enables the court to issue
a declaratory degree, to a person entitled to any legal
character, or to any right as to property, which is denied
by the other. An important equitable relief under the
Specific Relief Act is injunction. Injunction could be a
direction to a person to do something, which is his duty to
do, or abstain from doing something, which he is legally
bound not to do.
Rescission of contract:
Rescission of contract means the termination or annulment
of a contract the rescission of a contect necessarily
constitutes a bar to its performance by either of the party
to it. The grounds of bringinging a suit of rescission have
been given in sections 27 and 28 of the SPECIFIC RELIEF
ACT, 1963.
Sec 27. When rescission may be adjudged or refused:
1. Any person interested in a contract may sue to have
rescinded, and such rescissions 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 contact is unlawful for causes not apparent
on its face and a defendant is more to be blamed 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
have taken place since the making if 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 the 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.
The relief of rescisionn is available subject to very
important limits. This is so because every voidable
contract is valid as long as it is not avoided. If the relief of
rescission is not quickly obtained, circumstances may so
seriously change that it would then not be desirable to put
an end to the contract sub section(2) accordingly provides
that the right of rescission is not available in the following
cases:
1) Affirmation: the plaintiff looses the right of rescission
when on becoming aware of his right, he chooses to
ratify the contract. Once the contract is affirmed it
cannot be avoided afterwards. It may be expressed or
implied. An expressed affirmation takes place when the
right to rescind is openly waived. An implied
affirmation takes place when the party having the right
to rescind is instead enjoying the benefits of the contract
2) where restitution is not possible:
The right of rescission is also lost where the position of
the party has been altered to such an extent that they
cannot be put back to their original status. Where one
party has already resold the goods or consumed them,
restoration of the status quo ante becomes impossible.
The transferee obtained the possession of the property
in part performance of the contract. The court said that
possession over property was to be protected even if the
period of limitation for bringing a suit for specific
performance had expired. The transferee was required
to fulfill the necessary conditions in order to defend and
protect his possession. The Limitation Act does not
extinguish defenses it only bars remedy.
3) Intervention of third parties:
Where rights of third parties have intervened, rescission
cannot be allowed to prejudice of such rights. Where,
for example, a person has obtained goods by fraud and
before the seller is able to catch him he transfers the
goods to a bona fide buyer, the deceived seller would
not now be allowed to get rid of the sale on the account
of fraud.
4) Severance:
Rescission is not allowed where the plaintiff is seeking
rescission as only the part of contract and that part is
not severable from the rest of the contract.

Cases

Affirmation:
In Long v. Lloyd A sold his lorry to B by making a false
representation that the lorry was in “excellent condition”.
On the lorry’s first journey B discovered serious defects in
the lorry. He did not rescind the contract, but instead
accepted A’s offer of half the cost of repairs. The lorry
completely broke in the next journey and then B wanted to
rescind the contract. It was held that B, by accepting the
offer of sharing the cost or repairs by a and thereafter
continuing using the lorry, had affirmed the contract the
contract and he has now no right to rescind it.

When restitution is not possible:

In Wallis v. Pratt, the buyer purchased seeds described
as “English sainfoin seeds”. The seeds supplied by the
seller were of an inferior and different variety known as
“Giant sainfoin seeds” at the time of the supply of seeds
the buyer could not make out the defect as the two
varieties were indistinguishable. The defect could be
known only after the seeds were sown and the crops were
ready. The buyer could claim compensation only there
was no chance of avoiding the contract and rejecting the
goods as a contract of sale was not severable.

Intervention of third parties:

In Phillips v. Brookes a person, North, when to the

plaintiffs shop and selected some pulse worth 2550
pounds and a ring worth 450 pounds. He took out a
cheque book to write a cheque for a sum of 3000 pounds.
While writing the cheque he told the plaintiff “I am Sir
George Bullogh” and he also mentioned Sir George
Bullogh’s residential address. Plaintiff had heard about Sir
George Bullogh, being a person of credit and he confirmed
the address from the directory. North then told the
plaintiff “I should like to take the ring, as it was my wife’s
birthday tomorrow”, and offered to collect the pearls after
the cheque was cashed. Plaintiff handed over the ring to
north under the impression that he was Sir George
Bullogh. North then pledged the ring to defendants for
350 pounds, who took the same in good faith and without
of fraud. The plain plaintiff sued the defendants for the
return of the ring contending that no property in the ring
has past to North because of mistake regarding his
identity. It was held that the agreement was not void on
the ground of mistaken so far as the plaintiff contracted to
dell and deliver the ring to the person who present in the
shop. The contract was only voidable on the ground of
fraud. It may be noted that when a person receives some
goods under a voidable contract and he transfers the
further before the contract has been avoided, to a bona
fide transferee, whose acting in good faith and without
notice about the defective title of the transferor, the
transferee gets a good title. The defendants have therefore
acquired a good title in this case.

Sec 28. Rescission in certain circumstances of contracts

for the sale or lease of immovable property, specific
performance of which has been decreed:-
1) Where in any suit a decree for specific performance of a
contract for the sale or lease of immovable property has
been made and purchaser or lessee does not, within the
period allowed by the decree or such further period as a
court may allow, pay the purchase money or other sum
which the court has ordered him to pay, the vendor or
 lesser may apply in the same suit in which the decree is
made, to have the contract rescinded and on such
application the court may, by order, rescind the
contract, either so far as regards the party in default or
altogether, as the justice of the case may require
2) Where the contract is rescinded under sub section (1),
the court-
a) Shall direct the purchaser or lessee, if he has obtained
possession of the property under the contract, to
restore such possession to the vendor or lessee, and
b) May direct payment to the vendor or lessor of all the
rents and profits which have accrued in respect of the
property from the date in which possession was so
obtained by the purchaser or lessee until restoration
of possession to the vendor or lessor, and, if the
justice of the case so requires, the refund of any sum
paid by the vendee or lessee as earnest money or
deposit in connection with the contract.
3) If the purchaser or lessee pays the purchase money or
some other sum which he ordered to pay under the
decree within the period referred to in sub section(1),
the court may, on application made in the same suit,
award the purchaser or lessee such further relief as he
may be entitled to, including in appropriate cases all or
any of the following reliefs, namely:-
 a) The execution of the proper conveyance or lease by
the vendor or lessor ;
b) The delivery of possession, or partition and separate
possession on the execution of such conveyance or
lease.
4) No separate suit in respect of any relief which may be
claimed under this section shall lie at the instance of a
vendor, purchaser, lessor or lesse, as the case may be
5) The cost of any proceedings under this section shall be
in the discretion of the court.

Section 28 enables the court to put inbuilt remedy of

rescission in a decree of specific performance. Where a
decree of a specific performance has been passed in
respect of a contract for the sale or lease of immoveable
property, but the party to whom such relief has been
granted does not pay the price within the time delimited,
the seller may ask the court for rescission. The court will
direct the purchaser or lessee, if he has already taken over
possession, to restore it to the seller and also pay to him
rent for the period during which he enjoyed the benefits of
possession. Where justice so requires the court may order
refund of the earnest money, if any, paid by the vendee or
lessee. Where, on the other hand, the vendee or lessee has
deposited the money as directed by the court, he may be
allowed any relief as same just to the court in the
circumstances.

Alternative prayer for rescission for specific

performance:

As provided by sec 29 of SPECIFIC RELIEF ACT

1963, the plaintiff may in a suit for specific performance
make a prayer that if such prayer may not be granted the
contract may be rescinded. He has to make delivery of the
instrument for being cancelled.
But the converse is not true. So, the prayer for
decision of the contract or, in the alternative, for a decree
of a specific performance is not permissible.

Sec 29. Alternative prayer for rescission for specific

performance- A plaintiff instituting a suit for the specific
performance of a contract in writing may pray in the
alternative that if the contract cannot be specifically
enforced it may be rescinded and delivered up to be
cancelled; and the court, if it refuses to enforce the contract
specifically, may direct it to be rescinded and delivered up
accordingly.
 In Smt. Krishnabhai v, Wellworth Developers, there was
suit for declaration that agreement for development and
construction thereon was void as the plaintiff had been
deceived to accept for lesser consideration than the value
of the property. The plaintiff also made alternative prayer
for a decree of specific performance of the contract in full.
In their submissions, defendants had also showed
willingness to perform and complete the transaction
knowing fully well that the plaintiff had prayed for
specific performance as an alternative relief contenting
that the agreement was void.
It was held that in the above said situation plea of
alternative relief was maintainable.

Rescission and equity

Section 30 lays down that the court may require
parties rescinding to do equity. It provides:

Sec 30. Court may require parties rescinding to do

equity.- On adjudging the rescission of a contract the
court may require the party to whom such relief is granted
to restore, so far as may be, any benefit which he may
have received from the other party to make any
compensation to him which justice may require.
It is a maxim of law that “he who seeks equity must do
equity” in the transaction in respect of which relief is
sought. So while decreeing rescission the court might
direct not only payment of compensation to the defendant
but also restoration of any benefit received by the plaintiff
under the contract.

In Akshayalingam Pillai v. Ayyambal, 1993 64 MAD LJ 536:

the DB held that a decree for specific performance ensures
not only for the benefit of the plaintiff but also that of the
defendant; the passing of the decree does not terminate
the suit because all reliefs open to the plaintiff after
judgment are equally available to the defendant.

In Mohammad Alli Sahib v, Abdul Khadir Saheb, 1927 59

MAD LJ 351, after directing the purchaser to pay the price
within three months, the court had the power to grant
extension of time on sufficient cause shown though the
application was made after the time fixed for performance
and expired.
Cancellation of Instruments(sec 31-33)

Section 31 to 33 of the SPECIFIC RELIEF ACT 1963

provide for the cancellation of instruments. They are
reproduced below:

Sec 31. When cancellation may be ordered-

1. any person against whom a written instrument is

voidable, and who has reasonable apprehension that
such instrument if left outstanding may cause him
serious injury, may sue to have it adjudged void or
voidable and the court may, in its discretion, so
adjudged it an order it to be delivered up and cancelled.
2. If the instrument has been registered under the Indian
Registration Act, 1908 the court shall also send a copy of
its decree to the officer in whose office the instrument
has been so registered; and such officer shall not on the
copy of the instrument contained in his books the fact of
its cancellation.
A sale deed which was executed by practicing a fraud
on the transferor, who was also not of sound mind,
was held liable to be quashed and not to be
specifically enforced.
Who can seek cancellation?

A sale deed was executed in respect of an ancestral

property the transferor’s sons challenged it and sought a
declaration that the sale was null and void. There was
nothing to show their ages and whether they had birth
right in the property. They were not allowed to challenge
it on the ground of the competence of the transferor, the
suit was also time barred because it could be filed only
within three years of the cause of action whereas thirteen
years had already passed.
In a case of cancellation of a sale deed on the ground
that the deed was void, it was held that the suit could be
filed in civil court by the recorded tenure holder,
executants of the deed or his successor. The suit filed by a
third party was not maintainable.
When a document is valid, no question arises of its
cancellation. When a document is void abnitio, a decree of
setting aside the same would not be necessary of the same
is non est in the eye of the law.
Sec 32. When instruments may be partially cancelled:
Where an instrument is evidence of different rights or
obligations, the court may, in a proper case, cancel it in
part and allow it to stand for the residue.

Illustration in Preceding Act 1877

This section corresponds with section 40 of the repealed
Specific Act 1877. That section carried the following
illustration:
A draws a bill on B who endorses it to C by whom it
appears to be endorsed to D, who endorses it to E. C’s
endorsement is forged. C is entitled to have such
instrument cancelled, leaving the bills to stand in other
respects.

Sec 33. Power to require benefit to be restored or

compensation to be made when instrument is cancelled
or is successfully resisted as being void or voidable:

1.On adjudging the cancellation of an instrument

the court may require the party to whom such relief
is granted to restore so far as may be any benefit
which he may have received from the other party
 and to make any compensation to him which justice
may require.
1. Where a defendant successfully resist any suit on
the grounds-
a) That the instrument sought to be enforced or to
against him in the suit is voidable, the court may,
if the defendant has received any benefit under
the instrument from the other party require him
to restore, so far as may be, such benefit to that
party or to make compensation for it.
b) That agreement sought to be enforced against
him in the suit is void by reason of his not having
been competent to contract under section 11 of
Indian Contract Act, 1872, the court may, if the
defendant has received any benefit under the
agreement from the other party, require him to
restore, so far as may be, such benefit to that
party, to the extent to which he or his estate
thereby.

When agreement void:

An agreement not enforceable by law is said to

be void [sec 2(8) of Indian Contract Act]. A
contract is void-
  Where the consideration or object or an
agreement is forbidden by law.
 Is of such nature that if permitted it would
defeat the provisions of law.
 It is fraudulent
 It involves injury to a person or property
 If the court regards it as immoral or opposed
to public policy(sec 23 Indian Contract Act
1872)

It will also be noted that an agreement in restraint of

marriage of any person other than a minor or by which
anyone is restraint from exercising a lawful profession,
trade or business or legal proceedings or agreements of
unmeaning or of wagering nature and an agreement
without consideration as general rule are void, a contract
by a minor is void.

When contract is voidable:

An agreement which is enforceable by law at the option of
one or many parties thereto, but not at the option of the
other or others, is a voidable contract.
 When consent to an agreement is caused by coercion,
fraud or misrepresentation, the agreement is contract
voidable at the option of the party, whose consent was so
caused.
A contract induced by undue influence is voidable at the
option of the party, whose consent was so caused.

Reasonable apprehension
the relief provided under section 31 of the SPECIFIC
RELIEF ACT is based upon protective justice and upon
idea of “quia time” (for fear) and, therefore, where there is
no apprehension of injury to the plaintiff, no suit can be
instituted. Reasonable apprehension is to be determined
with the reference to the circumstances of each case which
the court has to deal with.

Requirement of ground of relief

1. The relief under section 31 of the SPECIFIC RELIEF
ACT cannot be claimed as a matter of right; the court
will act upon the principle of the exercise of sound
discretion, having due regard to the conduct of the
parties.
 2. Where there the parties are in pari delicto and fraud is
alleged as the ground for cancellation, the court may
refuse relief to the plaintiff, as he is equally to be
blame as is defendant.
3. Relief cannot be granted under section 31 of the
SPECIFIC RELIEF ACT where there is a question of
mere inadequacy of consideration.
4. No suit for the cancellation of a will can be instituted
during a testator’s lifetime.

Partial cancellation
section 32 of the SPECIFIC RELIEF ACT will be applicable
only when rights and obligation under an instrument are
distinct and separable.
LAW OF CONTRACT
ASSIGNEMENT
Ayush Sharma

B.A L.L.B (HONS)

THE SPECIFIC
RELIEF ACT
1963
 ACKNOWLEDGMENT
I would like to express my special thanks of gratitude to my teacher Prof. Eqbal
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Secondly, I would also like to thank my parents and friends who helped me a lot in
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I am making this project not only for marks but to also increase my knowledge.

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