SRA

SRA

LECTURE – 1,

SPECIFIC RELIEF ACT 1963

MAINS QUESTIONS

  1. As against civil law countries, specific performance in India is a discretionary remedy. Explain.
  1. For what purposes remedy of specific relief may be granted up the SRA, 1963?
  1. Describe the procedure for recovery of specific immovable property under the SRA, 1963.
  1. Explain the procedure in detail by which any person dispossessed of immovable property without his consent may recover back the possession of it.
  1. Under what circumstance can a person file suit for getting back the possession of immovable property from which he has been dispossessed?

LECTURE – 1,

SPECIFIC RELIEF ACT 1963

GENERAL INTRODUCTION

 

General Introduction:-

  • The law of Specific Relief is generally based on principles of Equity.
  • Equity represents the ‘Conscience of Law’ and a moral correction of law in order to accord more with justice.
  • In its primary sense, equity is fairness or natural justice.
  • Equity means to do unto all men as we would they should do unto us.
  • Specific Relief was granted by the Courts of Equity is England, in the cases where there was no Common Law Relief or in such cases where the relief granted by the common law courts was inadequate.

Specific Relief:-

  • The law of Specific Relief aims at providing the remedy to the suitor in specie, i.e. the very thing which the other party was bound to perform.
  • It provides for the exact fulfillment of an obligation or the specific performance of the contract.
  • Where pecuniary compensation is not adequate relief for the non- performance of the contract, the specific relief may be granted.
  • The Specific Relief Act, 1963 is based on the Ninth Report of the Law Commission of India on the Specific Relief Act, 1877.
  • Specific Relief is a discretionary remedy, i.e., the court is not bound to grant the specific relief merely because it is lawful to do so or that the suitor has a right to get such relief.
  • However, the discretion of the court is not arbitrary or unreasonable but is sound and reasonable.
  • Specific Relief is the law of procedure as it supplements the procedure given under the Code of Civil Procedure, 1908.

Chapter- 1, Recovering Possession of Property:-

Section 4

  • Specific Relief Act applies only to civil suits i.e. to enforce individual civil suits.
  • And not for enforcing criminal (penal) laws.

Section 5

  • Recovery of Specific Immovable Property will be as provided under CPC.

 

Section 6

  • Suit by person dispossessed from immovable property
  • If a person is “dispossessed
  • From immovable property
  • Without his consent
  • Otherwise than in due course of law
  • He or any person claiming through him
  • May recover possession by a suit under section 6.
  • Notwithstanding any other title that may be set up in such suit.
  • No suit under 6 shall be brought
  • After 6 months from the date of dispossession.
  • Against the Government.
  • No Appeal or Review against any decree/ order passed under section 6.
  • Any person is not barred under section 6 from suing to established his title and recover possession thereof.

Section 7

  • Recovery of Specific Movable Property
  • A person entitled to the possession of Specific Movable Property.
  • May recover it in the manner provided by the Civil Procedure Code.
  • Explanation- 1 – A ‘trustee’ may sue for the recovery of movable property to which he is trustee.
  • Explanation- 2 – A special or temporary right to the present possession of movable property is sufficient for filing a suit under section 7.

Section 8

  • Liability of person in possession not an owner, to deliver to person entitled to immediate possession.
  • Any person having the possession or control of a ‘particular’ article of movable property.
  • Of which he is not the owner.
  • May be compelled specifically to deliver it to the person entitled to its immediate possession –
  • When the thing is held by the defendant as the agent or trustee of the plaintiff;
  • When compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed;
  • When it would be extremely difficult to ascertain the actual damage caused by its loss;
  • When the possession of the thing claimed has been wrongfully transferred from the plaintiff.

Explanation- Unless and until the contrary is proved, the court SHALL PRESUME (b) or (c).

LECTURE – 1,

SPECIFIC RELIEF ACT 1963

 

PRELIMINARY QUESTIONS

 

  1. The words not defined in the SRA shall be understood according to –

(a) The Indian Succession Act

(b) The Transfer of Property Act

(c) The Indian Contract Act

(d) None of the above

 

  1. Specific Relief Act is the product of –

(a) 8th report of the law commission of India

(b) 9th report of the law commission of India

(c) 10th report of the law commission of India

(d) None of the above

 

  1. Specific Relief can be granted for –

(a) Enforcing individual civil rights

(b) Enforcing penal laws

(c) Both civil and penal laws

(d) Neither civil nor penal laws

 

  1. Burden to prove adverse possession is on –

(a) Court

(b) Defendant

(c) Plaintiff

(d) None of the above

 

  1. A suit for possession under section 5 of SRA can be filed within –

(a) 3 years

(b) 6 months

(c) 12 years

(a) 30 years

 

  1. The Specific Relief Act, 1963 came into force on –

(a) 02.1963

(b) 03.1963

(c) 03.1964

(d) 03.1965

 

  1. Any specific immovable property may be recovered –

(a) In the manner provided in the Code of Civil Procedure, 1908

(b) In the manner provided by Transfer of Property Act, 1882

(c) In the manner provided by The Contract Act, 1872

(d) None of the above

 

 

  1. Under SRA, a suit for recovery of possession can be filed –

(a) Only in respect of movable property

(b) Only in respect of immovable property

(c) In respect of both movable and immovable property

(d) None of the above

 

  1. A suit for possession of immovable property under section 6 can be filed within –

(a) 2 years of dispossession

(b) 1 year of dispossession

(c) 6 months of dispossession

(d) 12 years of dispossession

 

  1. To maintain suit under section 6 of SRA, the possession must be –

(a) Actual judicial possession

(b) Constructive possession

(c) Symbolic possession

(d) Either actual or symbolic or constructive possession

 

  1. Suits for recovery of possession of immovable property under section 6, SRA can be filed against –

(a) A government

(b) A private individual only

(c) Both against government and private individuals

(d) None of the above

 

  1. An order or decree under section 6 of SRA is –

(a) Appealable

(b) Reviewable

(c) Neither appealable nor reviewable

(d)  Neither of the above

 

  1. The object of section 6 of SRA is –

(a) To restrain a person from using force and to dispossess any person illegally or without his consent.

(b) Is not to restrain any person from dispossessing other

(c) To maintain peace and public order

(d) Neither of the above

 

  1. A suit under section 6 can be brought by –

(a) A tenant holding over

(b) Any trespasser

(c) Servant

(d) None of the above

 

  1. The question of title under section 6 of SRA, 1963 is –

(a) Irrelevant

(b) Relevant

(c) No provision is made under SRA

(d) Neither of the above

LECTURE – 2

Chapter- 2: Specific Performance of Contracts

Section- 9

  • Defences respecting suits for relief based on Contract –
  • Except as otherwise provided herein,
  • Where any relief is claimed under this Chapter in respect of a Contract.
  • The person agreed whom the relief is claimed may plead by way of defence
  • Any ground which is available to him under any law relating to contracts.

Section 10

  • Cases in which special performance of contract enforceable –

Except as otherwise provided in this Chapter,

The specific performance of any contract may in the discretion of the court, be enforced –

  • When there exists no standard for ascertaining actual damage caused by the non- performance of the act, agreed to be done; or
  • When the act agreed to be done is such that compensation in money for its non- performance would not afford adequate relief.

Explanation- Unless and until the contrary is proved, the court shall presume –

  • That the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and
  • That the breach of a contract to transfer movable property can be so relieved except in the following cases:
  • Where the property is not an ordinary article of commerce, or is of special value or interest to the please or consists of goods not easily obtainable in the market.
  • Where the property is held by the defendant as agent or trustee of the plaintiff.

Section- 11

  • Cases in which Special Property of contracts connected with trusts enforceable –
  • Except as otherwise provided in this Act,

Specific Performance of a Contract may, in the discretion of it

Be enforced when the act agreed to be done is in the performance, wholly or partly of a trust.

  • A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced.

Section- 12

  • Except as otherwise herein provided in this section,

The court shall not direct the special performance of a part of a contract.

  • (a) When a party to contract is unable to perform the whole of his part

(b) But the part which must be left unperformed by only a small proportion to the whole in value, and admits of compensation in money.

  • The court may, at the suit of either party,
  • Direct the special performance of so much of the contract as can be performed,

And award compensation in money for the deficiency.

Section 12(3)

  • Where a party to a contract is unable to perform the whole of his part.
  • And the part which must be left unperformed either –
  • Form the considerable part of the whole though admitting of compensation in money; or
  • Does not admit of compensation in money,
  • He (defaulter) is not entitled to obtain a decree for S.P.
  • But the court may, at the suit of the other party
  • Direct the party in default to special perform so much of is part as e can perform,
  • If the other party –
  • In a case falling under clause (a)- pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed,

And a case falling under clause (b)- pays or had paid the consideration for the whole of the contract without any abatement; and

  • In either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

Section 12(4)

  • When a part of a Contract which, taken by itself, can and ought to e specifically performed,
  • Stands on a separate and independent footing from another part of the same contract, which cannot or ought not to e specifically performed,
  • The court may direct special perform of the former part.

Section 12- Explanation: for the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part if a portion of its subject- matter existing at the date of the contract has ceased to exist at the time of its performance.

Section 13, Right of Purchaser or lessee against person with no title or imperfect title:-

Where a person contracts to sell or let certain immovable/ movable property having no title or only an imperfect title,

The purchaser or lessee has the following rights:-

  • If the vender or lessor has subsequently to the contract has acquired any interest in the property –the purchaser or lessee may compel him to make good the contract out of such interest.
  • Where the concurrence or conveyance of other persons is necessary for validating the title, an they are bound to concur at the request of the vendor or lessor –the purchaser or lessee may compel him to procure such concurrence.
  • Where the vender professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it.

The purchaser may compel him to redeem the mortgage and to obtain a valid discharge and where necessary, also a conveyance from the mortgagee.

  • Where the vendor or lessor sues for special perform of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of his deposit, if any with interest thereon, to his costs of the suit and to a lien for such deposit, of the vendor or lessor in the property.

CONTRACT WHICH CANNOT BE SPECIAL ENFORCED

Section 14, Contracts not Specifically Enforceable:-

The following contracts cannot be specifically enforced; viz:

  • (a) For the non- performance of which compensation in money is an adequate relief;
  • A contract running into minute or numerous details depending upon personal qualifications or volition of the parties
  • Or is of such a nature that the contract cannot enforce special performance of its material terms;
  • A contract which is in its nature determinable;
  • Which involves performance of a continuous duty which the Court cannot supervise.
  • Save as provided by Arbitration Act,1940,

“No contract to refer PRESENT or FUTURE differences to arbitration” shall be special enforced;

But if a person has contracted and refused to perform such contract, sue in respect of any subject, which he has contracted to refers, the existence o such contract shall bar the suit.

  • Notwithstanding anything in clause (a), (b), (c) and (d) of S.S. (1), the court may enforce special performance in the following cases:-
  • If the suit is 2 enforce a contract –
  • To execute a mortgage or furnish any other security for repayment proviso-
  • To take up and pay for debentures of a company
  • Where suit is for –
  • The execution of a formal deed o partnership, having commenced the business,
  • The purchase of a share in a part firm,

For construction of building or other work on land.

Lecture – 3

PERSONS for or against whom contracts may be Special Performed

Section 15, WHO may obtain Special Performance –

  • Except as otherwise provided by this chapter, the Special Performance of a contract may be obtained by –
  • Any party thereto;
  • The representative-in-interest or principal of any party provided if contract depends upon the learning, skill solvency or any personal quality of a party –
  • The rii or principal not entered to special performance
  • unless consented by other party,
  • any person beneficially entitled if contract is –
  • a settlement on marriage
  • Compromise of doubtful rights between members or same family.
  • Contract is by a tenant for life – a reminderman
  • A reversioner in possession where the agreement is a covenant
  • A reversioner in reminder – reversioner will sustain material injury by its breach.
  • The new company – which arises after amalgamation under contract.
  • The company – when the promoters of a company have entered into contract before its incorporation.

Section 16 Personal Bars to Relief:

Special Performance of a contract cannot be enforced in favour of person –

  • Who would not be entitled to compensation for its breach;
  • WHO –
  • Has become in capable of performing, or
  • Violates any essential term of contract, or
  • Acts in fraud of the contract, or
  • Willfully acts at variance with, or in subversion of contract.
  • Fails to aver and prove that he has performed or ready and willing to perform terms of contract.

Section 17, Contract to sell or let property by one who has no title, not specifically enforceable:

  • A contract to sell or let any immovable or movable property cannot be special enforceable in favour of a lessor or vendor, who –
  • Knowing not to have any title, contracted so.

Believing good title, but could not give title free from reasonable doubt.

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