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Analytical Study of The Specific Relief Amendment Act, 2018

The Specific Relief Act, 1963 provides some specific performance measures which offer a remedy in a disputed contract by which one of the parties is compelled to do or not to do the said act which he or she has undertaken to do. However, this obligation only lies when the contract is valid under the eyes of the law and is not terminalized as void.

If all of the parties have authenticated the contract and if then, the acts which were undertaken by the party are not omitted or any problem arises the parties have a backup of the Specific Relief Act, 1963. Withal, this act which was created to ensure specific performance in disputed contact was amended with its provisions in the year 2018. However, the Amendment Act was introduced in the earlier years with the recommendations of a report submitted by “Expert Committee to the Government of India” [1] in the year 2016.

The Specific Relief (Amendment) Act, 2018 made some necessary changes in the arena of civil dispute resolution practice in the original Specific Relief Act, 1963. However, amending a well-established statute is not a piece of a cake and a pre-set of procedures and methods is followed for the same. The Specific Relief (Amendment) Bill, 2017 was presented in the Parliament of India on the 22nd of December, 2017.

The Bill was passed in the Lower house of the parliament which is the Lok Sabha on the date of 15th March 2018 and was then passed in the upper house which is the Rajya Sabha on 23rd of July, 2018. The bill received assent from the President of India on 1st of August, 2018 and that was the time when the Specific Relief (Amendment) Bill, 2017 was transmogrified to the Specific Relief (Amendment) Act, 2018.

Highpoints of the Act of 2018
Some crucial amendments to the Act are:
  1. The legislature has expanded the approach of Section 6[2] of the SRA, by postulating “suit for recovery of possession under Section 6 of the Act may be filed either by the person who was dispossessed without his consent or any person through whom he has been in possession or any person claiming through that person”. Henceforth, this change in the provision of the act has broadened the room for an individual who may file a case under the ambit of Section 6 of the SRA[3]. Prior to the Amendment Act of 2018, specifically the individual who was dispossessed with malefic could file this type of case. However, now! even an individual “through whom the aggrieved person had been in possession of the immovable property”, will get a possibility to file a case under the ambit of Section 6 of the Specific Relief Act.
     
  2. One the utmost imperative change in the legislation is done within Section 10 of the Statute as the said has changed specific performance of the contract from being an alternative to the full-fledged rule in cases where the actual damage for non-performance couldn’t be discovered or the situation in which “compensation for non-performance wouldn’t be an adequate relief”. Section 10 of the Specific Relief Act has been replaced and, the recently inserted Section 10 states “the specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of Section 11, Section 14 and Section 16 of the Act”.

    Prior to this amendment, Section 10[4] of the Act read as under the footnote 4.
    Section 10 of the Act until the amendment of 2018 had the phrase "may, in the discretion of the court". With a Christel clear image of this phrase it can be extracted and understood from the very convention of the sentence that the purpose of the lawmaker at that time was to provide the discretion to the courts in adjudging or to direct or not to direct specific performance of a particular contract. Hereinafter, by the mode of the Specific Relief (Amendment) Act, 2018 all such kind of discretions granted to the court were shook away by the legislative body of India and it was upheld “specific performance of a contract shall be enforced by the court subject to provisions contained in Sub-Section (2) of Section 11, Section 14, and Section 16 of the Specific Relief Act, 1963”.

    The entire entity of this amendment gives the impression at an aim of “strict enforcement of specific performance of contracts” not essentially mediating with the cases of “transfer of immovable properties or other cases of transfer of movable properties as referred to in the Explanation to the unamended provision”. On that account, the Bill pursues to authorize specific performance by the judiciary as a “general-rule”. Amendment of this Section appears to have removed the vagueness of the performance of contracts in belief to reassure parties to step into “developmental agreements and promote infrastructural projects for the rapid economic growth of the nation”.
     
  3. The third most amendment was made in Section 11 of the Specific Relief Act. The said section dealt with the cases of “specific performance of contracts associated with trusts”. This amendment is identical to that in Section 10 of the SRA. This time again, the phrase "contract shall" was replaced in the place of "contract may, in the discretion of the court". The amendment pursues to remove the “discretion of courts” and was intended to direct the courts to obligatorily enforce the concept of specific performance.
     
  4. Another amendment was done in the umbrella of Section 14 of the Specific Relief Act, 1963 which points at the contacts which are “not specifically enforceable”. The amended clauses state that there are only some of the contracts which are not enforceable and the same are mentioned below precisely:
    1. Where substituted performance in accordance with Section 20 of the Act has been obtained, or
    2. where the performance is of the continuous duty which the courts cannot supervise; or
    3. where the contract is dependent on personal qualifications of parties that the court cannot enforce it of its material terms; and
    4. where the contract is determinable.[5]
  5. The 5th change in the act was to include a new and fresh Section, it was named Section 14A and the same deal with provisions related to the powers of the court to “engage experts to assist the court on any specific issue involved in the suit”. The provision was established to authorize the Court for taking assistance of a professional who has his expertise in the said matter of the case and his report or suggestion or opinion could form a record for the case. There is the possibility that the judiciary may in the future order any particular individual to provide the court with some “relevant information, or produce or provide to the expert access to any relevant document, goods or property for inspection”. Though, the use of this provision by the judiciary in the future would be an interesting thing to observe.
     
  6. The next amendment was made as a significance of the legislature’s approach in Section 16 of the Specific Relief Act. here, the parliament of India had a keen percept to enforce the specific performance regardless of the “grant of damages or compensation as an alternative for breach or non-performance”. Furthermore, the requirement obligated in Section 16 (c) [6] “to aver that the party is ready and willing to perform the essential terms of the contract has been done away with” has now been changed and, at present, the individual looking for “specific performance” just requires to verify the same and doesn’t need to “aver” in the proceedings.
     
  7. Succeeding to this, the further amendment was performed in Section 19 of the Specific relief act in-accordance-with-which a new provision was added by inserting a new clause in section 19 of the statute enabling “specific performance of the contract to be enforced against a limited liability partnership which arises out of amalgamation when the limited liability partnership which had entered into a contract had got subsequently amalgamated with another limited liability partnership”
     
  8. Section 20 of the Act was however the Impression Of introduction “Substituted Performance “. The complete section 20 which provided a “discretion to decree specific performance “was replaced by a new section. This brand new and fresh section gives an opportunity to the individual who has agonized a breach, to go for “substituted performance” via a “tertiary party” or by its “own agency and recover the expenses and other costs actually incurred, spent or suffered by such party from the party which had committed the breach”. Nevertheless, Section 20 (2) necessitates the “party who has suffered such breach” to stretch a “written notice of not less than 30 days to the party in breach”. Moreover, the said provision also clarifies that this kind of breach would only be reimbursed if “the contract has been performed through a third party or by its own agency”. Section 20 (3) of the act leaves no doubt in the case “Once the substituted performance has opted, the party suffering breach would not be entitled to claim relief of specific performance against the party in breach”. Section 20 (4) of the SRA “Protects claims of compensation from the party in breach”.
     
  9. The Amendment of 2018 to the fore, announced “Sections 20A, 20B and 20C in the Specific Relief Act”:
    • Section 20A has made “Special Provisions” for cases relating to the “Infrastructure Projects”
    • Section 20B postulates the provisions for “designation of Special Courts to try a suit under the Act in respect of contracts relating to infrastructure projects”.
    • Section 20C offers for “Expeditious disposal of suits filed under the provisions of the Act to be disposed of within 12 months from the date of service of summons to the defendant, which may be extended for a further period not exceeding six months in aggregate.”
       
  10. A minor amendment was made in the Section 21 of the Specific Relief Act [7] wherein. Section 21 (1), the phrase "in addition to" has been replaced by the phrase "either in addition to or in substitution of". This amendment was instigated for the purpose of the Parliament to encourage “Specific Performance of contracts” instead of claiming “Compensation in Substitution of Specific Performance”.
     
  11. There is more amendment in Section 41 of the Act which registers the situations in which “an injunction cannot be granted”. Clause (ha) [8] has been postulated which sustains “An injunction cannot be granted if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related to such project or services being the subject-matter of such project”.
Amendments made by the Parliament of India shows a Christel clear intent to remove the “extensive discretions” provided to the Indian judiciary in the matters to grant “specific performance “and, to “transmogrify the Specific Performance of Contract as a General Rule”. Furthermore, the provisions introducing “substituted performance of contracts” and “Recovery of expenses and costs, including compensation, from the individual in the matter of a breach are made so that projects are not delayed and development is not hindered by breaches”. Distinct specified provisions were made for the matter related to the “infrastructural projects” also carried the same intention. The SPECIFIC RELIEF AMENDMENT ACT, 2018 furthermore, empowered the judiciary to involve professionals in the cases, they are specifically needed.

End-Notes:
  1. Expert Committee’s Report on Specific Relief Act, 1963 submitted on 26th May 2016
  2. Suit by person dispossessed of immovable property:
    1. If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such a suit.
    2. No suit under this section shall be brought:
      1. after the expiry of six months from the date of dispossession; or
      2. against the Government.
    3. No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
    4. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”
  3. Specific Relief Act
  4. Section 10 of the Specific Relief Act Cases in which specific performance of a contract enforceable. —Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced:
    1. when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or
    2. 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:
      1. that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
      2. that the breach of a contract to transfer movable property can be so relieved except in the following cases:
        1. where the property is not an ordinary article of commerce or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
        2. where the property is held by the defendant as the agent or trustee of the plaintiff.
  5. Source; Section 14 of the Specific Relief (Amendment) Act, 2018 [ACT NO. 18 OF 2018]
  6. Section 16 (c) Specific relief act:
    Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation. —For the purposes of clause (c):
    1. Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
    2. The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
  7. The said Section deals with powers to award compensation
  8. Section 41 Injunctions when refused – An injunction cannot be granted:
    Clause (ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility-related thereto or services being the subject matter of such project.]

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