Due to the sudden outbreak of Corona virus pandemic, a large number of areas
have been affected, contracts being one of them. Renegotiation of contracts is
being done and discussions are being made regarding their applicability at the
current times. Through this research paper, an attempt has been made to look
into the usefulness of the Specific Relief Act
, 1963 in this situation. The act
generally, deals with civil rights and not penal laws.
The paper has been
broadly divided into four parts namely:
- Recovering possession of property (section 5-8)
- Specific performance of contracts ( section 9-25)
- Preventive relief i.e. injunctions ( section 36-44)
- Other important chapters such as rectification of instruments,
rescission of contracts, cancellation of instruments, declaratory decree,
Recovering possession of property
Immovable property: Sections 5 & 6 of the act lists down the provisions for
recovery of possession of immovable property. Section 5 says that a person who
is entitled to possession of specific immovable property can recover it through
the manner provided under the Code of Civil Procedure, 1908. The title under
this section must be of ownership or possession. Under Section 6, a person who
is dispossessed of his immovable property can file a suit.
The requirements for
this section to be applicable are:
- The plaintiff is in Juridical possession of the immovable property in
- He has been dispossessed without his consent and without following the
due process of law.
- The dispossession has taken place within six months of filing the suit.
Under section 6, the possession refers to a legal possession which may exist
with or without actual possession. Section 14 of the Limitation Act,
1963 applies to proceedings against dispossession. But a relief comes as Supreme
Court while invoking its plenary powers under article 142extended the limitation
period of appeals from high courts or tribunals.
This is because difficulties
might be faced by the litigants all over the country to file their applications/
petitions/ suits, etc. as given under the general law of litigation or other
central/ state laws.
section 7 provides that a person who is entitled to possession
of specific movable property may recover it in the manner as provided under code
of civil procedure, 1908 but for that some ingredients need to be fulfilled:
- Only the persons who are having the present/ current possession of the
movable property can file a suit under this section.
- The possession may be by ownership or through a temporary or special
right as provided under explanation 2 of section 7. The right may arise
through bailment, pawn or by finding of goods.
Under article 91 (b) of Limitation Act, 1963, a period of three years is
provided for filing of suit starting from the date when the property is
wrongfully taken. Under section 7, a suit can be brought even against the owner
if the person is enjoying special or temporary right to the present possession.
Section 8 provides for liability of person, not as owner, to do delivery to a
person who is entitled to immediate possession.
But the person under section 8
- Hold property as an agent or trustee of owner
- When it is impossible to ascertain monetary value of property
- When it is not possible to calculate damage to be awarded if loss
happens to such loss
- Hold the property wrongfully
Therefore, section 6 of the specific relief act can be used by the tenants to
regain the possession of their property but other factors are also included in
it such as the presence of the force majeure clause in the lease agreement, the
rental laws of the given state, etc. Also, the 2018 amendment to section 6 of
the act by including the persons through whom the said person has been in
possession in filing the suit for dispossession, proved to be of great help.
Specific Performance of contracts
The specific performance of contracts means the performance or implementation of
the exact terms of the contract. But for this to come to rescue, the following
conditions must be met under section 10of the specific relief act, 1963:
- When there is no standard for ascertaining the actual damage
- When compensation in terms of money is not adequate relief. This
includes the cases where subject matter of the contract is an immovable or
movable property, when they are not an ordinary article of commerce, or are
not easily available in market, etc.
Although under section 14, there are certain contracts which cannot be
specifically enforced such as the contracts where:
- Compensation in terms of money is an adequate relief
- Where the contract has very minute details.
- Contracts involving performance of continuous duty which can't be
supervised by the courts
- the contracts of determinable nature such as the partnership contracts
Although under section 14 (3), there are also some contracts which are
specifically enforceable. In general terms, the court can refer to any kind of
forced action, though it is mostly enforced to complete a transaction which was
previously agreed upon. So, if any situation arises at the time of the present
pandemic due to which the performance of contract is interrupted, then at least
under this chapter, the court can't grant any relief according to the changed
The specific performance has a lot to do with the real estate contracts at the
current time because each parcel of land is termed as unique and the monetary
damages are not adequate. However, in terms of specific performance in
employment context, the court may not order specific performance because of the
unwanted character of two parties being forced into an employment agreement.
According to section 20 of the original act, the courts were having discretion
to grant the remedy of specific relief. Earlier, it was granted only in
exceptional cases. But through the 2018 amendment act, this concept was removed.
But there are still limited grounds on which the court can deny the specific
relief. So, there are chances of increased number of cases in which specific
relief can be granted.
Also, the requirement in clause (c) section 16 of the act that required the
parties to plead that they are ready and willing to perform the contract has
been done away with. Now, the party has no burden to prove its readiness to
perform the contract. Although the mere plea that plaintiff is ready to pay
consideration can't be considered. It is mandatory on his part to prove that he
is having means to generate the same.
Preventive relief i.e. injunctions
Injunction is a kind of equitable remedy to prevent the defendant party from
doing certain acts so that they do not cause any kind of nuisance to the
There are basically three types of injunctions provided under the
specific relief act namely:
- Temporary injunction
- Perpetual injunction
- Mandatory injunction
Without dealing with each one of them section wise, I would just like to
restrain myself to talk about their applicability at the time of current
pandemic. The temporary injunctions are dealt with under section 37 of the
specific relief act. They are granted for a specific period of time or until
further orders of the court. This is done to protect the interests of the
individual or the property of the suit till the time of final judgement.
are some of the cases under which temporary injunction can be granted such as:
- Where the defendant threatens to deprive the plaintiff of his property
- To prevent the defendant to commit the breach of contract or any other
- To stay the operation of an order related to transfer, suspension,
retirement, dismissal, removal or termination of service of a person
appointed in public service or engaged in state's affairs. This may include
employee of a company owned or controlled by state government.
Many other cases are also included under it. The Bombay high court in a recent
judgement dated March 30, 2020granted injunction against sale of pledged shares
taking note of the present COVID-19 situation. But that leads to a lot of
questions as the order is not descriptive.
On the other hand, the perpetual injunction (section 37(2)) is given at the time
of final judgement. Section 38 deals with the cases in which the plaintiff can
be granted with perpetual calendar injunction. The burden of proof lies on the
plaintiff to prove the breach of obligation by the way of showing the
infringement of legal right.
Although cannot be granted on the basis of wrongful
possession against the lawful owner. The continuing possession by a lessee
without the consent of lessor may not count as lawful possession but it
is 'juridical possession' and therefore, injunctions can be granted on n such
At this time of the pandemic, the courts are limiting the in-person hearing and
only most important cases will be heard through video conferencing because of
the social distancing and shelter at home orders. Because of this many
businesses are worried about obtaining the injunction reliefs. Also, with an
increase of the work from home arrangement for a large number of employees,
there is a greater threat of employees' taking or misusing their employer's
confidential information. So, it becomes very important for the company to
prevent irreparable harm to their businesses by obtaining injunction.
Ex parte injunction:
The Uttarakhand high court in one of its judgments echoed
that there are three essentials for the purpose of granting an ex parte interim
injunction by a court namely
- Prima facie case
- Balance of convenience
- And irreparable loss
The ex parte injunction is generally, a direction granted after hearing only one
party. It takes place in matters of urgency without any notice to the other
party involved. But there are chances that this kind of order may restrain a
party or an entity from pursuing his profession. This might result in a loss
which can't be compensated in money.
So, while thinking of granting an ex parte
relief, the court needs to look into several aspects so that no party suffers
from unwanted damages which will make their situation even worse at this time.
Other important chapters
Rectification of instruments and rescission of contracts: rectification
basically means correcting the errors in a legal document/ contract. It is a
fair and equitable remedy granted by the court when the facts do not seem
according to the intention of the parties. The rectification is provided in
cases where there is fraud and mutual mistake of both the parties.
The party who
wants rectification needs to establish that a prior complete agreement was
reduced in writing according to the common intention of parties but due to
reason of mistake, the common intention could not be expressed.
It may be that during this outbreak or possibly, even after it ends, few parties
to a contract try to waiver away from their contractual obligation seeking the
excuse of the disruption caused due to pandemic. So, if a party to a contact
commits a contractual breach, the other can rescind the contract and free
himself from it. This is done with the aim to put an end to the contract and
bring the parties back to their original position. If the contract rescinds, the
court can ask the party to restore the benefits (section 30 of the specific
Cancellation of instruments: in simple terms, the cancellation of instruments
means bringing down to zero a written document which is proof of transaction
between the parties who are part of transaction.
The main requirements for
filing a suit of cancellation are:
- If the instrument becomes void
- If it becomes voidable
- If the instrument has potential to cause injury/harm to the party that
is filing the suit.
- If the party that has filed the suit is under reasonable apprehension of
injury by the other party or it has already caused the damage/injury.
There are also provisions relating to power of court, requiring restoration of
benefits received and fair compensation under section 33of the act. This serves
the end of justice for the parties who are in fear of being harmed with the
performance of such instruments. At the time of this pandemic, there may arise a
number of cases where a party may fear being harmed by the other party in the
contracts such as lease deed, insurance policy, mortgage, etc.
But again that
depends on a case to case basis. Also, the will deeds at this time will required
to be cancelled and restructured a lot. A prominent case in this regard is
the Ganga Prasad vs. Munna Lal & others
decided on 21 December, 2017.
So, the specific relief act can serve a fruitful purpose at the time of pandemic
if used correctly. There are some provisions related to recovery of property and
preventive relief that can come to direct rescue. Although it's difficult to
bring to the front the exact purposes that will be served by the Specific relief
act, 1963 or any other act or legislation at this point of time. This may be
because such kind of crisis and some of the situations arising because of it
have never been experienced before. But still there is a scope for the specific
relief act to prove its efficacy and application.
- Suo Moto writ petition (civil) No(s). 3/2020
- Supreme Court In C.S. Ventakesh v. A.S.C. Murthy ( civil appeal no.8425 of
2009) on 07.02.2002
- Rural Fair price Wholesale Limited & Anr. v. IDBI Trusteeship Services
Limited & Ors Commercial Suit No. (L) 307 of 2020
- Balwant Singh Chauhan v. Mahavidyalaya Sabha, Jwalapur, Haridwar decided on
Award Winning Article Is Written By: Ms.Srishti Yadav
Authentication No: SP125401934075-11-0921