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Specific performance means fulfilling a promise made under a contract as agreed. A suit for specific performance can be filed by any party, in a court of competent jurisdiction, who has suffered loss due to non-performance of contract on part of the other party to the contract. Remedy of specific performance which is affected in case of breach of contracts is provided by the equity courts. However, this cannot be asked for as a right because it is provided on the satisfactory discretion of the court. It is an alternative to awarding damages, and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential information or real property. Section 16(c) of the act put the onus of proof on the plaintiff to prove by way of evidence that he had performed his part of contract or was willing to perform his part of contract. Clause (c) emphasizes the phrase ‘readiness and willing’. It is the most important pre-requisite on the part of the plaintiff to file a suit for specific performance. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him.
In India, most of the specific performance suits relate to sales of immoveable properties and to some extent transfer of shares. In a suit for specific performance, plaintiff must approach Court with clean hands . Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. The court should come to this conclusion by taking into consideration, the conduct of the plaintiff prior to and subsequent to filing of the suit. An intention to make time the essence of the contract must be expressed in unequivocal language. “In sale of immovable property time is never regarded as essence of contract. The presumption is against time being essence of contract. Under law of equity governing rights of parties to specific performance of contract to sell real estate law looks not at letter but substance of agreement. Where under terms of contract parties mentioned specific time, it has to be ascertained whether parties intended to complete transaction in reasonable time. The expression to make time essence of contract must be expressed in unequivocal language. ”As to the point of limitation is concerned, the suit for specific performance has to be filed within reasonable time which depends upon facts and circumstances of each case. No strait-jacket formula can be laid down in this behalf. However, where the intention of the parties is to exclude this remedy they can do so by explicitly mentioning in the contract. In such a case, the court will provide for the liquidated damages as provided for in the contract.
The Supreme Court has held that under Section 19(a) and (b) of the Specific Relief Act, 1963, specific performance of a contract can be enforced against either party thereto and any person claiming under him by a title arising subsequent to the contract, except a transferee for value, who has paid his money in good faith and without notice of the original contract.
There is an ongoing debate in the legal literature regarding the desirability of specific performance. Economists, generally, take the view that specific performance should be reserved to exceptional settings, because it is costly to administer and may deter promisors from engaging in efficient breach.
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