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.
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