Sunday, January 22, 2012

Specific Relief Act, 1963, a Quick Summary


 Under the law, three distinct actions could be brought for the recovery of specific immovable property, namely –
  1. A Suit based title by Ownership;
  2. A Suit based on possessory title;
  3. A Suit based on the strength merely of previous possession, in the case of a wrongful ouster, i.e. without following the due process of law, of a person without his consent.


Section 5:
              I.      When a cloud is raised over a person’s title and he does not have a possession, a Suit for declaration and possession, with or without a consequential injunction is the remedy;
           II.      Where a person’s title is not in dispute but he is out of possession, he has to sue for possession and consequential injunction;
         III.      Where there is merely an interference with a person’s lawful possession or where there is a threat of dispossession, it is sufficient to sue for an injunction simpliciter. Anathula Sudhakar versus P Buchy Reddy – AIR 2008 SC 2033 (2039).

In a Suit under this Section, the title of both the parties can be gone into and considered by the court; but the possession claimed by the party should be juridical, which is recognized by law as such. For example, a Servant or an agent may have possession of property against strangers, but not against his mater or principal, for he holds on behalf of the latter. Sobha versus Ram Phal – AIR 1957 All 394.

Previous possession where it is juridical affords evidence of title and where the defendant is a trespasser and the Plaintiff is in continuous and peaceful possession, he is entitled to retain such possession.

Where there is prima facie and clear proof of dispossession the Court can order restoration at interlocutory stage of the Suit but it should be done on rarest case. Jivanbhai versus Bhavanji – AIR 1995 Guj 92 at 94.

Possession means the physical possibility of a person dealing with a property as he likes and not mere physical possession. Bahadur Chand versus Naina Mal – 25 IC 35; In other words, not merely physical contact, but also a possibility of the person dealing with a thing exclusively constitutes possession. Emperor versus Lallu Waghju – ILR 43 Bom 550; where a person has, in his own right and merely as representative of another such control over property as to be able to exclude others from it and has the intention of exercising such power of exclusion, he can be said to be in possession of it. Ramchandra versus State of Orissa – AIR 1957 Orissa 80;  
It is not necessary that the person possessing should have actual physical contact.

Section 6: Suit by person dispossessed of immovable property:

This section was incorporated in the Act with a view to provide a summary, cheap and useful remedy to a person dispossessed of immovable property, without following the due process of law.

In a Suit under Section 6, the Plaintiff can aver only previous possession and dispossession by the defendant without following the due process of law, within six month from the date of dispossession the Suit being brought and claim recovery of possession. Any other averment or claim made by the Plaintiff will not be relevant for decision of the Suit under Section 6 and the Court in such case should ignore such irrelevant averments and claims and confines itself to the averment of possession and claim for the recovery of possession only. Under this Section the court can neither go into the question of title nor adjudicate upon the issue of title. Babu Khan versus Nazim Khan – AIR 2001 SC 1740 (1744).

If the Court finds that ingredients of Section 6 are present and are in favour of the Plaintiff, the Court would decree his claim for ejectment of the defendant even though it be patent to the court that the defendant is the owner of the immovable property. Thus a Landlord commits a trespass when he forcibly enters upon the land in the possession of the tenant whose tenancy has expired. Saraswati versus Brindaban – 1972 Kash LJ 402; AIR 1968 SC 620; AIR 1970 SC 846.

Where a person holds possession under a grant resumable at will or in condition in favour of the grantor and the latter exercises his right to resume and ousts the grantee, the grantee cannot claim to proceed under this Section and recover his previous possession. As against third parties, grantee’s possession is good, but as against the grantor it is precarious and does not give a legal right so long as the exercise of the right of resumption remains a valid right. AIR 1964 SC 685.

But a wrong doer by committing an act of trespass cannot maintain a possessory action, if he is in the meantime turned out. Damayanthi versus Theyyan – 1979 Ker LT 85. The reason is that the wrong doer never acquires juridical or juristic possession.

Where Suit is brought by dispossessed Plaintiff not against the person who dispossessed him but against who was made to occupy the property, the Suit is maintainable. AIR 1995 Guj 148 at 149.

Where previous possession of person claiming relief is in dispute, the injunction should not be granted and court should attribute possession to person with better title. Tajul Islam versus S M Sheikh – 1995 AIHC 1911 at 1913 Bom;


Section 7: Recovery of specific movable property:

The goods that are to be recovered must be specific and ascertainable, and if the goods are not so specific, the claimant can get only compensation.

In a Suit under this Section, it is not necessary that the Plaintiff should have been previously in possession or the goods should have been removed from his possession. It is enough to find the right, that he has acquired a right to present possession. Such right may arise out of title, where the Plaintiff is the owner or it may be a special or temporary right, which may have been granted by the owner or created by law. A special right to possession when arising out of the act of the owner may take the form of a Bailment or a lien.

Property of every description which is not immovable property is movable property.


Section 8: Liability of person in possession, not as owner, to deliver to persons entitled to immediate possession.


Specific performance of Contracts

Specific reliefs are by ordering a party to do the very act which he is under an obligation to do. Obligation as defined under Section 2 “includes every duty enforceable by law”.

The aim and object of the law is and ought to be to enforce the promise according to its terms and in the spirit of its intent, literally and liberally.

“No principal can be more sacred than that a man shall be compelled to perform his contract”, said Jessel M R. In all cases, “where a court of equity has jurisdiction to enforce the specific performance of a contract and persons voluntarily, without fraud, accident or mistake, enter into contracts, the jurisdiction ought to be exercised.

The whole doctrine of Specific performance rests on the ground that a man is entitled in equity to have in specie the specific thing for which he has contracted, and that he is not bound to take damages instead.

Contracts are to be fairly and liberally performed. Men are not suffered by law to depart from the Contracts at their pleasure. Courts enforce, wherever they can, the literal performance of the contract.








Section 9: Defences respecting Suits for relief based on Contract. 
 Bibi Jaibunisha versus Jagdish Pandit – (1997) 4 SCC 481.

Section 10: Cases in which specific performance of contract enforceable:

A Suit comprehensive, Suit for the Registration of the Sale Deed and for recovery of possession, is not barred on the ground that a statutory alternative remedy of registration is available under section 77 of the Registration Act. An Agreement for transfer of property implies a contract not only to execute the deed of transfer but also to appear before the Registering Officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory. AIR 1999 SC 2958 (2961). 

Section 11: Cases in which specific performance of contracts connected with trusts enforceable.  

Section 12: Specific performance of part of contract.

Generally speaking, court do not entertain jurisdiction in respect of contract which cannot be enforced as a whole.

There is no principal of law that once there is part performance of the agreement, there has to be decree of specific performance of such an agreement. Kishan Chand vesus Sita Ram – AIR 2005 P & H 156 (164).



Section 13: Rights of purchaser or lessee against a person with no title or imperfect title:

Section 14: Contracts which cannot be specifically enforceable and specifically enforceable:


Section 15: Who may obtain specific performance

Section 16: Personal bars to relief: The conduct of the party applying for relief is always an important element for consideration.

Section 17: Contracts to Sell or let property by one who has no title not specifically enforceable

Where the Seller to his knowledge, has not got what he contracted to sell, he has no equity to enforce against the purchaser.


Section 18: Non enforcement except with variation:

The defendant may prove by evidence, oral or otherwise, that something has to be added to or altered in the written contract, and then, if the Plaintiff seeks specific performance, he has to submit to the variation.

Section 19: Relief against parties and persons claiming under them by subsequent title. This section provides the categories of persons against whom specific performance of a contract may be enforced.

Section 20: Discretion as to decreeing specific performance:

Section 21: Power to award compensation in certain cases.

The jurisdiction of the court to grant compensation as an apt and flexible instrument for doing exact justice under diverse and complicated circumstances.

The damages in addition to or in lieu of specific performance can only be granted by the court on the basis that contract is alive and subsisting and the Plaintiff is entitled to specific performance, whereas the damages for breach of contract is awarded on the basis that the contract is dead.

The common law damages for breach of contract and the damages by way of specific relief u/s 21 of the Specific Relief Act, 1963 are totally different in nature and character. In a claim for damages for breach of contract, the Plaintiff comes to the court with a case that the contract is no longer subsisting AIR 1983 Cal 6 at 9.

The court has a free hand in the matter of the assessment of compensation, but the court is to be guided by the principles specified in Section 73 of the Contract Act, 1872.

Compensation is given for any loss and damages caused by the breach to the promisee, the losses which naturally arose in the usual course of things from such breach, or which the parties knew when they made the contract to be likely to result from the breach of it. A person can only be held responsible for such consequences, as may be reasonably supposed to be in the contemplation of the parties at the time of making the contract. S.73 of Singhal and Subramanyan contract; Hadley versus Baxendale (1854) 9 Ex 341.

A Seller of immovable property guarantees his title to the purchaser and when the purchaser is evicted of the said purchased property, the purchaser is entitled to recover by way of damages the value of the immovable property at the date of such eviction, and not merely the purchase money he has paid. Nagardas versus Ahmed Khan, ILR 21 Bom 175 at page 185, per Farran CJ; Rancchod versus Manmohandas ILR 32 Bom 165.

The obligations of Seller and the buyer of immovable property are set forth in Section 55 of the Transfer of Property Act, 1888.

While proceeding upon the principle that the purchase money belongs to the vendor and the land to the vendee, it can be said that the vendor may claim interest on this money and the vendee can claim rent and profits of the land.

Where nothing appears to occasion the delay, the rule is that if the purchaser who on the face of the contact is under the necessity of paying on a certain day, sets apart his money, and gives notice that it is ready, interest stops from that time, provided it be shown that he made no interest on it.

But a purchaser who takes possession before completion must pay interest on the unpaid part of the purchase money. The act of taking possession is an implied agreement to pay interest. For, so absurd an agreement as that a purchaser is to receive the rents and profits to which he has no legal title, and the vendor is not to have the interest, as he has no legal title to the money, can never be implied. Fludyer versus Cocker – (1805)12 Ves 25.

A Court of Equity interposes only according to conscience. Birch versus Joy – 3 HLC 565.

Courts can take judicial notice of rise in prices of land, when granting damages in  a Suit for specific performance of an agreement to sell land. Shantabai versus Manakchand – AIR 1988 Bom 82, 88, 89 at para 11. (Sharad Manohar J.)

Compensation against subsequent purchaser: If the court comes to the conclusion that the subsequent purchaser has colluded with the Seller defendant, to defeat the rights of the purchaser, in such cases the court has powers to direct the subsequent purchaser to pay compensation to the first purchaser. AIR 2002 Bom 408 (411).

Demand and refusal give the cause of action. Virasami versus Ramasami – ILR 3 Mad 87.

Under Section 21, a Suit may be brought –
For specific performance of the contract;
For specific performance of the contract and damages, in substitution of such performance;
For specific performance with an alternative claim for damages for breach of the contract;
For a decree for specific performance and in addition for a relief, the right to which arises out of a contract, for eg, possession of the property which the defendant has contracted to convey.

Section 23: Liquidation of damages not a bar to specific performance:

Where a clause in the agreement provides that in case of the violation of the terms and conditions of the agreement, the Plaintiff would be entitled to recover damages, it can be stated that it is strictly a penalty clause for securing the performance of the contact. It only provides that if any party violates the terms and condition of the contract, he would be liable to pay a penalty. This would not mean that contract is not to be performed. AIR 2000 SC 191 (193, 194).

Where the parties themselves agree to the effect that it would be open to the Sellers either to repay the money advanced under the agreement or to sell the Suit property, it would not be just to grant relief of specific performance in such cases. AIR 1993 Kant 257 at 274.

Section 24: Bar of Suit for compensation for breach after dismissal of Suit for specific performance:

Where the Suit for specific performance of a contract of sale by the purchaser who has paid part of the sale price in advance, is dismissed on the ground that he himself was in the breach, his subsequent Suit for refund of the amount paid is not barred. AIR 1945 Nag 67.

Section 25: Application of preceding sections to certain Awards and testamentary directions to execute settlements.



Rectification of Instruments

The parties in question may have come to an agreement which is clear, valid and complete, equitable and conscientious, but when they proceed to have this agreement set down in writing, the expression actually employed may be such as does not convey the purport it was intended to, with the result that the parties to the written contract find, that, in effect and in scope, it is very different from what they had really agreed to.


Section 26: When instruments may be rectified.
An omission in a Regd Sale deed can be rectified under this Section 26. But if the parties themselves execute a supplementary deed to rectify an omission in the original document, such supplementary deed is not an extraneous evidence, Both the documens have to be read together. Brij Lal versus kartar Kaur – (1989) 1 LLR 622, 623, 624 (P&H).

Whenever a prayer is made for rectification of an instrument, the question to be considered is not what the parties would have done, had they been able to anticipate subsequent developments, but what was their intention at the time contact was made. If the parties have deliberately left out something from the written instrument, that cannot be put in.


Recession of Contracts:

Where consent to an agreement is caused by coercion, fraud or mistake or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. On the other hand where both the parties to an agreement are under a mistake of fact essential to the agreement, the agreement is void.

A person who fails to obtain specific performance of a contract, may get it rescinded and delivered up to be cancelled.

 If the defrauded party chooses to sue, three remedies are open to him, namely –
He may rescind the contract absolutely and sue to recover the consideration parted with upon the fraudulent contract; or
He may bring an action to rescind the contract and in that action have full relief; or
He may retain what he has received and bring an action to recover the damages sustained.

An examination of this section shows that the relief of rescission may be asked for in respect of contracts, whether in writing or not, wherever transfer of property Act is in force; and in respect of written contracts only on other places, and it may be asked for in the following classes of cases:
Voidable contracts;
Terminable contracts;
Unlawful contracts;
Void contracts.

Section 28: Rescission of contracts in certain  circumstances where the specific performance for the sale or lease of immovable property is decreed:

Section 29 and 30.



Cancellation of instruments:
In the matters of voidable contracts in writing, the powers of judicial rescission are co-extensive with those of directing the cancellation and surrender of the instruments.

A forged instrument, so long as the forgery has not been judicially determined, may cause the greatest mischief, and a court of equity will order its cancellation in anticipation. And it does not matter that the Plaintiff is not a party to such a document, it does not embody a contract which binds him personally.
Section 31: Where cancellation may be ordered.

Cases occurs where a written instrument, originally valid, becomes inefficacious by subsequent events, such as, by satisfaction or payment, or other causes; and its existence casts either a cloud upon the title of the other party or subject him to the danger of some future litigation; under such and like circumstances, although the written instruments have become void, courts interpose to prevent injustice or hardship and will decree a delivery and cancellation of the instrument.

Section 32: what instruments may be partially cancelled: the court is not bound to annul the whole of the instrument impugned, but may in its discretion, allow a part of it to stand, if it is evidence of different rights or different obligations.

Section 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.


 Section 34: Discretion of court as to declaration of status or right:

It is certainly for the interest of the State that this jurisdiction of the court should be maintained and the causes of apprehended litigation, respecting real property necessarily affecting its use and enjoyment, should be removed; for as long as they remain, they will prevent improvement and consequent benefit to the public. It is a matter of everyday observation that many plots of lands in our cities remain unimproved because of conflicting claims.

The section does not lay down as a rule, that any one who claims any interest in property, present or future, may ask the court to give an opinion, on his title. ILR 8 Cal 761; it does not warrant every kind of declaration but only a declaration that the Plaintiff is entitled to a legal character or to any right as to any property, and it warrants this kind of relief only under certain special circumstances. AIR 1916 PC 78; ILR 47 All 434;

Where a Suit is simpliciter for perpetual injunction under Section 38, on the basis of possession only, Section 34 does not apply. Fabrica do Igreja versus Union of India – (1995) 2 Cur CC 100 at 105 Bom.

A declaratory decree is not capable of execution as it does not require the judgment debtor to do or not to do anything. No proceeding for contempt of court lies against the judgment debtor if he ignores the decree, the decree holder can seek his remedy by Suit on the basis of the declaratory decree. 1975 CrLJ 679 (P&H) (FB)

Section 35: Effect of declaration: The judgment passed under this Section is judgment in personam and judgment in rem.


Injunctions
Section 36: Injunction is a judicial process by which one who has invaded or is threatening to invade the rights, legal or equitable, of another, is ordered to refrain from doing, or to do a particular act or thing. The thing required to be done is what the defendant ought to do, and the act or thing restrained is a wrongful act or thing.

Injunction is a form of relief given, to prevent a party from doing which he is under an obligation not to do, or called upon to do a certain ac, which he is under an obligation to do. Section 2(a) defines “obligation” to include every duty enforceable by law. This right may arise out of contract or may arise of statutory obligations or may arise under common law.

As a rule, the proper remedy of a person, seeking to enforce, the observance of a positive contract, is an action for specific performance, as distinguished from the enforcement of a negative contract by injunction. The obligations arising under an instrument, which regulates the rights of the parties, are enforced not by decree for specific performance but by a decree for an injunction. LR 16 Eq 433, 439, as per Lord Selborne.

A person obtaining possession under an agreement of sale cannot be said to be a person in wrongful possession, though his possession is not based on title, such a person is entitled to clam preventive relief of injunction to protect his possession, during the pendency of his Suit for specific performance, from being violated. 1983 Mah LR 297.

In granting or withholding an injunction, the court should exercise its judicial discretion, as defined in section 20 of the Act, and weight the amount of substantial mischief done, or threatened, to the Plaintiff, and compare it with that which the injunction, if granted, would inflict upon the defendant.

In the exercise of sound discretion, an injunction will not be granted where –
There is no evidence, that the defendant has done, or threatens to do, anything, which would interfere with the enjoyment of any right vested in the Plaintiff;
The invasion of the right, if any, of the Plaintiff, is of a theoretical or trivial character, which would at most, give the Plaintiff a right to claim nominal damages;
The injunction would inflict far more injury on the defendant than the advantage which the Plaintiff could derive from it.

Section 37: Temporary and perpetual injunction:

Section 38: perpetual injunction when granted:
Where Plaintiff is apprehending encroachment on his land, he is entitled to permanent injunction, against defendant from encroaching or interfering with his peaceful possession. AIR 1998 Mad 65.

In order to entitle a litigant to a perpetual injunction, he must establish that the injunction is required to prevent the breach of an obligation. The word obligation includes every duty enforceable by law. So that when a legal duty is imposed on one person in respect to another, that other is invested with the corresponding legal right. The obligation or duty enforceable by law may be express or implied, and may arise out of contract,, trust or tort.

Whenever a right exists, or is created, which is cognizable by law, an infringement of that right is prohibited by injunction, unless some consideration of Policy, or expediency, forbid, a resort to this remedy. But the court will not interfere if the legal remedy for compensatory damages would be complete and adequate. The completeness or inadequacy of compensatory remedy is the criterion which determines the right to an injunction.




DISPUTES ARISING IN THE REGULAR COURSE OF ANY BUSINESS ACTIVITY / TRADE RELATIONSHIP; IN THE PERFORMANCE / EXECUTION OF CONTRACTS / AGREEMENTS / OTHER BUSINESS OBLIGATIONS.

(i) Where a person, who is entitled to the possession of any specific movable property, by virtue of being a owner of such specific movable property or by virtue of having a special or temporary right to possess such specific movable property, and who is unlawfully refused / denied to the possession of such specific movable property, may by virtue of Section 7 of the Specific Relief Act, 1963, recover the said specific movable property, by filing a Suit for the recovery of said specific movable property. [Movable property will include all kinds of goods, things – valuable and invaluable]

(ii) The Principal may compel the Agent to deliver any movable property, which is held by the Agent on behalf of the Principal; or a person who is holding any movable property as a trustee of another, by virtue of Section 8 of the Specific Relief Act, may be compelled by that another to deliver that movable property, by filing a Civil Suit in this regard.

(iii) Where any movable property is wrongly transferred to some other person, the same may be recovered, by virtue of Section 8 of the Specific Relief Act, by filing a Civil Suit.

(iv) Where a person against whom a Suit is filed, is making frivolous defences / defences untenable in law, he may be stopped / precluded from taking any such defences, by virtue of Section 9 of the Specific Relief Act, 1963.

(v) Where a party to the Contract is evading in performing his part of the Contract, thereby seriously prejudicing the other contracting party, the said other contracting party, by virtue of Sections 10, 12, 14(3), 19, 21, 22, 23, 42 and subject to Sections 14, 16, 17, 18, 20, 24, may by filing a Suit for Specific performance,

(a) cause the said defaulting party to perform his part of the contract; and
(b) may also seek damages in addition to Specific performance; or
(c) may seek damages in lieu of Specific performance; and
(d) can also seek additional damages for breach of Contract.
(e) The party enforcing specific performance of the contract, by virtue of Section 29 of the Specific Relief Act, in the alternative of specific performance, may seek rescission (cancellation) of the contract in case specific performance is refused by the court.

(vi) Where a person, who has purchased goods / movable property, from a person who has no title or has imperfect title to the said goods / movable property, the said purchaser, by virtue of Section 13 of Specific Relief Act, 1963, has a right and he –
(a) May compel the said other person to make good the title where in future the said other person acquired the title to such goods / movable property;
(b) May compel the said other person to procure the concurrence of a person whose concurrence will validate the title of the purchaser;
(c) Where in a case, the Seller had filed the Suit for Specific performance of the contract, and his said Suit is dismissed for want of title or imperfect title, the purchaser in the said Suit, (a) can claim the refund of his amount paid over said goods / movable property and (b) can also recover interest on the said amount paid including costs of the Suit.

(vii) Where the contracting parties find, that, either due to mutual mistake or due to fraud of one of the party, the contract entered into between them, in effect and in scope, does not convey the true purport it was intended and the contract is very different from what they had really agreed to, then, either of the contracting parties, by virtue of Section 26 of the Specific Relief Act, may institute a Suit for rectification of said defective instrument / contract, or the parties may in any existing Suit pray for such rectification.

The court may in its discretion, direct the rectification of the instrument so as to express that intention, so far as this rectification can be done without prejudice to the rights acquired by third party in good faith and for value.

Once the instrument is duly rectified by the Order of the Court, then, the said instrument may be specifically enforced by any of the contracting party.

(viii) Where consent to an agreement is obtained by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained; and where both the parties to an agreement are under a mistake of fact essential to the agreement, the agreement is void. In such situation the defrauded party, by virtue of Section 27(1), subject to Section 27(2), has three remedies open to him, namely –
• He may rescind the contract absolutely and sue to recover the consideration parted with upon the fraudulent contract; or
• He may bring an action to rescind the contract and in that action have full relief; or
• He may retain what he has received and bring an action to recover the damages sustained.

The rescission of contract can also be sought of unlawful and terminable contracts.


(ix) Where written instruments / contracts, partially or wholly, originally valid, becomes inefficacious by subsequent events, such as, by satisfaction or payment, or other causes; and its existence casts either a cloud upon the title of the party or subject him to the danger of some future litigation; under such and like circumstances, the said party, by virtue of Section 31 and 32 of the Specific Relief Act, may file a Suit to declare the said whole or partial of the Written Instrument / contract, as void or voidable and get it cancelled.

(x) Where a person is entitled to a legal character (Director of a Company) or to any right as to any property and any person is denying or interested to deny such entitlement, then, by virtue of Section 34 of the Specific Relief Act, the said aggrieved person may file a Suit for declaration by the Court that he is entitled for said legal character or is entitled to that property.

(xi) Where a person who has invaded or is threatening to invade the rights, legal or equitable, of another, the aggrieved person, by virtue of Section 36, 37, and 38 and subject to Section 41, of the Specific Relief Act, may file a Suit for temporary and permanent injunction.

By virtue of Section 40 of the Specific Relief Act, 1963, the aggrieved person, in addition to or in lieu of aforesaid injunction, may seek damages.

Injunction is a form of relief given, to prevent a party from doing which he is under an obligation not to do, or called upon to do a certain act, which he is under an obligation to do.

(xii) Where to prevent the immediate and imminent breach of an obligation, the obligation whether arising from contract or Statute, and where it is necessary to compel the performance of certain acts, which the court is capable of enforcing its performance, then, by virtue of Section 39 of the Specific Relief Act, a Suit for Mandatory injunction may be filed for the issuance of said injunction.





DISPUTES RELATING TO IMMOVABLE PROPERTIES, i.e. Land, flats etc.

The obligations of Seller and the buyer of immovable property are set forth in Section 55 of the Transfer of Property Act, 1888.

Under the law, three distinct actions could be brought for the recovery of specific immovable property, namely –
1. A Suit based on title by Ownership;
2. A Suit based on possessory title;
3. A Suit based on the strength merely of previous possession, in the case of a wrongful ouster, i.e. without following the due process of law, of a person without his consent.

I. When a cloud is raised over a person’s title and he does not have a possession, a Suit for declaration and possession, with or without a consequential injunction is the remedy;
II. Where a person’s title is not in dispute but he is out of possession, he has to sue for possession and consequential injunction;
III. Where there is merely an interference with a person’s lawful possession or where there is a threat of dispossession, it is sufficient to sue for an injunction simpliciter. Anathula Sudhakar versus P Buchy Reddy – AIR 2008 SC 2033 (2039).


(1) WHERE THE BUILDER / DEVELOPER IS EVADING IN PERFORMING HIS PART OF THE CONTRACT, thereby seriously prejudicing the interests of the Purchaser, the Purchaser, by virtue of Sections 10, 12, 14(3), 19, 21, 22, 23, 42 and subject to Sections14, 16, 17, 18, 20, 24 of the Specific Relief Act, 1963, may by filing a Suit for Specific performance, cause the said Builder / Developer to perform his part of the contract and may also seek damages in addition to Specific performance, or may seek damages in lieu of Specific performance; and can also seek additional damages for breach of Contract.

Where despite a decree for specific performance, the purchaser fails to pay the purchase money, or any other sum which the court has ordered him to pay, the Builder / Developer, by virtue of Section 28 of the Specific Relief Act, may apply in the same Suit to declare the contract rescinded.

The party enforcing specific performance of the contract, by virtue of Section 29 of the Specific Relief Act, in the alternative of specific performance, may seek rescission of the contract in case specific performance is refused by the court.

(2) WHERE ONE IS FORCIBLY / UNLAWFULLY DISPOSSESSED FROM HIS LAWFUL POSSESSION –A civil suit u/s 6 of Specific Relief Act, 1963, may be filed before the District Court / High Court for immediate restoration of possession to the person who was in lawful possession.
(3) WHERE ONE IS ANTICIPATING FORCIBLE / UNLAWFUL DISPOSSESSION FROM HIS LAWFUL POSSESSION / OR TO PREVENT TRESSPASS OF IMMOVABLE PROPERTY –
(i) A Civil Suit u/s 35 of the Specific Relief Act, 1963 may be filed thereby seeking declaration to the effect that the person in possession is entitled to the present possession;

(ii) A Civil Suit u/s 39 of Specific Relief Act, 1963 may be filed for Mandatory Injunction against the person who intends to unlawfully dispossess.


(4) IN AN AGREEMENT FOR SALE / PURCHASE OF IMMOVABLE PROPERTY, WHERE ANY PARTY REFUSE TO PERFORM HIS PART OF PROMISE SO MADE IN THE AGREEMENT / CONTRACT.
(i) Where the Seller is evading in performing his part of the Contract, thereby seriously prejudicing the interests of the Purchaser, the Purchaser, by virtue of Sections 10, 12, 14(3), 19, 21, 22, 23, 42 and subject to Sections14, 16, 17, 18, 20, 24 of the Specific Relief Act, 1963, may by filing a Suit for Specific performance, cause the said Seller to perform his part of the contract and may also seek damages in addition to Specific performance, or may seek damages in lieu of Specific performance; and can also seek additional damages for breach of Contract.

Where despite a decree for specific performance, the purchaser fails to pay the purchase money, or any other sum which the court has ordered him to pay, the Seller, by virtue of Section 28 of the Specific Relief Act, may apply in the same Suit to declare the contract rescinded.

The Purchaser enforcing specific performance of the contract, by virtue of Section 29 of the Specific Relief Act, in the alternative of specific performance, may seek rescission of the contract in case specific performance is refused by the court.


(ii) A Suit comprehensive, Suit for the Registration of the Sale Deed and for recovery of possession, is not barred on the ground that a statutory alternative remedy of registration is available under section 77 of the Registration Act. An Agreement for transfer of property implies a contract not only to execute the deed of transfer but also to appear before the Registering Officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory. AIR 1999 SC 2958 (2961).

(iii) Where a person, who has purchased goods / movable property, from a person who has no title or has imperfect title to the said goods / movable property, the said purchaser, by virtue of Section 13 of Specific Relief Act, 1963, has a right and he –
(a) May compel the said other person to make good the title where in future the said other person acquired the title to such goods / movable property;
(b) May compel the said other person to procure the concurrence of a person whose concurrence will validate the title of the purchaser;
(c) Where a mortgaged property is sold as a unencumbered property, the purchaser may compel the Seller to redeem the mortgage and obtain a valid discharge, and if necessary, a conveyance from the mortgagee;
(d) Where in a case, the Seller had filed the Suit for Specific performance of the contract, and his said Suit is dismissed for want of title or imperfect title, the purchaser in the said Suit, can claim the refund of his amount paid over said goods / movable property and can also recover interest on the said amount paid including costs of the Suit.


(iv) Where consent to an agreement is obtained by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained; and where both the parties to an agreement are under a mistake of fact essential to the agreement, the agreement is void. In such situation the defrauded party has three remedies are open to him, namely –
• He may rescind the contract absolutely and sue to recover the consideration parted with upon the fraudulent contract; or
• He may bring an action to rescind the contract and in that action have full relief; or
• He may retain what he has received and bring an action to recover the damages sustained.

(v) Where written instruments / contracts, partially or wholly, originally valid, becomes inefficacious by subsequent events, such as, by satisfaction or payment, or other causes; and its existence casts either a cloud upon the title of the party or subject him to the danger of some future litigation; under such and like circumstances, the said party, by virtue of Section 31 and 32 of the Specific Relief Act, may file a Suit to declare the said whole or partial of the Written Instrument / contract, as void or voidable and get it cancelled.

(vi) Where a person is entitled to an immovable property and any person is denying or interested to deny the such entitlement, then, by virtue of Section 34 of the Specific Relief Act, the said aggrieved person may file a Suit for declaration by the Court that he is entitled for said immovable property.

(vii) Where to prevent the immediate and imminent breach of an obligation, the obligation whether arising from contract or Statute, and where it is necessary to compel the performance of certain acts, which the court is capable of enforcing its performance, then, by virtue of Section 39 of the Specific Relief Act, a Suit for Mandatory injunction may be filed for the issuance of said injunction.

SANDEEP JALAN
MUMBAI.

2 comments:

Christa Dass said...

Dear Mr. Jalan:

The information given by your goodself regarding Sec 6 and Sec 39 of the Specific Relief Act, 1963 was of interest. Kindly advise if there is a certain "time period" within which a suit under Sec 6 can be filed against an illegal occupant who has forcibly taken over one of the houses. I had complained to the police and have a complaint no. regarding the illegal occupancy. But, soon after the illegal occupant forcibly took over the house, he managed to get a temporary injunction against me, therefore, I could not file a suit u/s 6 earlier. Hence, would like to know if the suit u/s 6 can be filed beyond the 6 months period as stated by the Law commission, given the situation that there was a temporary injunction against me till now.

Also, please advise the steps for preventing forced dispossesion (u/s 39) of a tenant living in the other house inside the same premises, who has an agreement with me. I am the beneficiary under the Registered WILL (of a Christian) and am in the process of getting the process of Declaration of the WILL initiated. Look forward to your kind advise. Thank you.

Sandeep Jalan said...

It is not possible to suggest any firm opinion based on brief info given by you.

However, for your information -

1. No injunction can be granted to an alleged trespasser by the Court;
2. You can file Suit for possession based on title u/s 5 of the Specific Relief Act, 1963

Also, you may see links below -

The position of Law in respect of Probate of Wills / Letters of Administration
http://commonlaw-sandeep.blogspot.in/2012/08/is-it-necessary-to-obtain-probate-of.html

DISPUTES RELATING TO IMMOVABLE PROPERTIES
http://thepracticeoflawjalan.blogspot.in/2012/04/disputes-relating-to-immovable_22.html

Immovable Properties http://thepracticeoflawjalan.blogspot.in/2012/04/immovable-properties.html