1. INTRODUCTION
Specific
performance is an actual performance of a contract. The plaintiff is entitled
to have the specific thing wherefore he has contracted. There are some
circumstances when a contract can not be specifically enforced.
According
to Docmory
Specific
performance of contract consists in the contracting Party is exact fulfillment
of the obligation which he has assumed in his doing or omitting the very act
which he has undertaken to do or not to do.
2. RELEVANT
PROVISIONS
Sec.
20 and 21 of Specific Relief Act.
GENERAL
RULE
It
is a general rule that the plaintiff is entitled for the thing for which he has
contract and court can specifically enforce such contract.
4. CASE
LAW
19
CLC 625.
It
was held that where a part of agreement cannot be specifically performed such
part being interlined With the rest of agreement, then whole of the agreement
Would be hit by the same disability.
5. EXCEPTIONS
TO GENERAL RULE
Exception
to the general rule all contained in Sec. 21 all the specific Relief Act.
6. CONTRACT WHICH CAN NOT BE SPECIFICALLY ENFORCED
Following
are the contracts which cannot be specifically enforced.
I. CONTRACTS
WHERE COMPENSATION IS AN ADEQUATE RELIEF
A
contract for non-performance of which compensation in money is an adequate
relief.
II. CONTRACTS
RUNNING INTO MINUTE OR NUMEROUS DETAIL
A
contract which runs into such minute of numerous details.
III.
CONTRACTS DEPENDANT UPON PERSONAL QUALIFICATION
A
contract dependent upon personal qualification cannot be enforced.
IV.
CONTRACTS BEPENDENT UPON VIOLATION OF THE PARTIES
A
contract dependent upon violation of the parties cannot be enforced.
V.
UNCERTAINTY OF TERMS
A
contract eh term of which the court cannot be find with reasonable certainly.
VI.
REVOKABLE
A
contract which is in its nature revokable.
VII.
CONTRACT MADE BY TUSTEE IN EXCESS OF THEIR POWER
A
contract made by trustees either in excess fo their power or in breach of their
trust.
VIII.
CONTRACTS BY OR BEHALF OF A CORPORATION OR PUBLIC COMPANY CREATED FOR SPECIAL
PURPOSES
A
contract made by or on behalf of a corporation or public company created for
special purposes, or by the promoters of such company, which is in excess of
its powers.
IX.
CONTRACTS OF PERFORMANCE OF A CONTINUOUS DUTY EXISTING OVER A LONGER PERIOD
THAN THREE YEARS
A
contract, the performance of which involves the performance of a continuous
duty extending over a longer period than three year from its date.
x.
NON-EXISTENCE OF MATERIAL PART OF SUBJECT MATTER
A
contract of which a material part of the subject matter, supposed by both
parties to exist. has, before it has been made ceased to exist.
XI.
CONTRACT TO REFER TO ARBITRATION
No
contract to refer to arbitration shall be specifically enforced.
7. DEFENCES OF DEFENDANT
I. MEANING
It
means a denial by the defendant of the truth or validity of the plaintiff's
claim. So it is denial of plaintiff claim.
II. DEFENCES
IN SUIT OF SPECIFIC PERFORMANCE
Following
are the defenses available the defendant
(i)
Absence of Writing or Part Performance
The
plaintiff has not performed the whale of his part of contract and that part
left unperformed forms a considerable portion of the whole which does not admit
for compensation in money.
(ii)
Compensation in Money is Adequate Relief
Defendant
may set up a defense that compensation in money would be an adequate relief to
the plaintiff.
(iii)
Uncertain Terms
The
terms of the contract cannot be fined with certainty. So want of certainty is a
ground for resisting specific of the contract.
(iv)
Absence of Consideration
Contract
without consideration is a good ground for defendant.
(v)
Great Hardship
The
performance of the contract would involve hardship on the defendant.
(vi)
Defective Title
The
plaintiff cannot make good title to the property in accordance with the
contract.
(vii)
Misrepresentation
The
assent of the defendant was obtained under misrepresentation.
(viii)
Mistake of Fact
The
assent of the defendant was given under mistake of fact.
(ix)
Inadequate Consideration
The consideration
paid by the plaintiff is grossly inadequate as to the amount to fraud or undue
advantage taken by the plaintiff.
(x)
Contract made by Company in Excess of its Powers
Contract
made by the company in excess of its powers is defense for the defendant.
(xi)
Unfair Advantage to the Plaintiff
The
contract when made gave the plaintiff an unfair advantage to the plaintiff.
(xii)
Laps of Time
Suit
for specific performance must be filed within three ,years if is filed after
prescribed period it will be a defense
for defendant.
8.
CONCLUSION
To
conclude. I can say that, the specific performance of the contract is its
actual execution: The remedy of specific performance is discretionary remedy.
The court will not allow the specific performance when compensation in money is
a sufficient remedy. Under Sec. 21 of the specific relief act contract cannot
be specifically enforced. The defendant may set up a defense against
performance of the contract.
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