Application of Specific Relief Act 1877 in Bangladesh
by Miss Jesy Chakma
Specific Relief Act 1877 falls within the domain of equity in civil courts. This act is a remedy where both parties have to fulfill their performance under a contract. Specific relief talks about Equity is derived from the Latin word ‘AEQUITAS’ which means fairness. This term of ‘Equity’ means fairness and justice for both parties of a contract under law. Specific relief is a judicial remedy where all the laws and remedies fall under the Civil procedure code.
Specific Relief Act 1877, section 5 defines all sorts of remedies under this act. Where both parties are obligated to perform to fulfill the performance according to the contract. If one of the parties breaches that obligation, another party can seek help and sue under the Specific Relief Act 1877.
Section 8 and 9 talk about immovable property. Section 8 is a remedy of possession of the immovable property if the owner of the property has been wrongfully dispossessed.
And section 9 states that the owner cannot sue the government for dispossession under the Specific relief act.
Section 10 and 11 of the Specific Relief Act deals with the recovery of immovable property. Section 10 and 8 states the process of recovery of movable and immovable property which can suit in court under Civil Procedure Code 1908. Section 11 of the Specific relief act 1877 deals with the liabilities of a person in possession of the immovable property. Possession of moveable property is not the owner. He is just holding possession of that particular moveable property. Section 8 and 9 talks about immovable property and section 10 and 11 defines about the moveable property. These are explained in a perfect manner. Because these are fair in both ways.
Section 12 of the Specific Relief Act 1877 deals with, where one party can sue another party for specific performance of a contract against the defaulting party. This section is practiced on a maxim ‘Equity imputes an intention to fulfill an obligation and ‘equity sees that as done which ought to be done. The agreement of a contract is the main thing in a contract. This means both parties are willing to perform accordingly. But if one party doesn’t fulfill the obligations another party may suffer for the damages. To be fair at this, if one party breaches the contract, another party can ask for specific performance under this section.
‘Specific Performance of contracts’ comes under section 12 of the Specific Relief Act 1877.
Section 12(a) of the Specific Relief Act, the court shall not direct the specific performance of a part of the contract, except in cases coming under one or other of the three preceding sections.
There are certain exceptions that proceed upon the principle that ‘equity looks to the substance of the contract and requires substantial compliance with its conditions rather than its literal fulfillment’ and these are placed in Section 12(b), (c), and (d).
Section 12(b) is applicable when the part of the contract which cannot be specially performed is the conveyance of an item which is only a small portion of the whole in value and admits of compensation in money. The inability to perform the contract may be by reason of a deficiency in the quantity of the subject matter, variance in quality, defect in title, or of some other legal prohibition or lapse of time.
Section 12(c) generates the specific performance of the contract that will not be enforced for the benefit of the defendant/purchaser. The terms of the contract permit the rights and interests of the parties in the property.
Section 12(d) is the third exception to the general law provided in subsection 12(a). A contract is intended to be dealt with as a whole. But this section permits the Court in certain cases where this presumption is rebutted to afford relief by way of partial performance. The basic principle of Section 12(d) is that when a contract consists of several parts which are independent of one another, and some of which cannot or ought not to be performed, such parts can and ought to be performed may be specifically enforced. The court must not create a new contract for the parties, nor any proceeding which merely surmises that the requirements of the section would be satisfied if further inquiry were allowed.
Equitable liability is almost entirely based on fault which may come from any of the parties. Moreover, restitution is not interested in the quality of the defendant’s conduct. Running this kind of statement with ‘common law’ substituted for ‘equity’ immediately exposes the error. However, a subject matter is defined, whether by response or context, in our kind of legal system, unless that matter is first artificially restricted to at least one or other side of the old duality, the substance of the law relating to that matter will come from both common law and equity.
Whereas section 13 talks about an agreement that is impossible to perform of a contract and that contract are void. In this section the subject of a contract is important. And it is impossible to perform or the contract was made at a time but that time is lost. So, it is impossible to matter the subject of the contract. So, in this section, it is important for both parties to this subject matter. Because, if one party is unable to perform, he can defend himself in these circumstances under this act. So, section 13 of the specific relief act 1877 is basically fair and gives equitable judgment for both parties.
Section 14 of Specific Relief Act 1877 defines about, where a party didn’t fulfill the performed part is small. Then another party can sue for specific relief and the court may direct him to perform the specific performance or compensate for the undone performance. Even if the unperformed part is small, the other party suffers for the consequences for another. Whereas both parties agreed to perform according to the contract. So, for the small part that can be performed, the court may force him for the specific performance.
And in section 15, the undone performance of a party is large.
Section 14 and 15 talk about the inability to perform the whole contractual obligation. These two sections are equitable and fair. Because where one party can sue for the undone part and another party can also justify for his undone part. It values both parties’ relation of their subject of the contract.
Section 17 of the Act requires that specific performance of a contract must be done in its entirety. The noticeable thing is that the party at default for non-performance of the entire contract may seek specific performance where a part unperformed is small, but cannot seek compensation. But then again, it cannot have a specific performance where the unperformed part is large. A party not at fault may seek performance with compensation when a part unperformed is small, but it can only seek specific performance without compensation where a large part of the contract has been left unperformed.
Any party suing under specific relief act 1877 under Section 19 for the compensation for the breach of contract can also add substitution for such performance. The main rule of breach of contract, the suffering party is entitled to receive compensation from the other party for the losses due to the breach of contract. Under this section, the suffering party can seek both specific performance and compensation for the losses he has suffered due to the breach of contract. Section 19 gives permission to the suffering party to seek compensation in addition to or substitution of breach of contract, on the other hand, it empowers the court to grant it when concluding that a person is not entitled to specific performance, despite finding that a contract between parties has been broken. Such a conclusion would entitle the aggrieved party to compensation.
Even if a contract has a liquidation clause and one party is willing to pay for the mentioned clause that means he doesn’t want to fulfill his obligations that doesn’t mean the contract is unenforceable. That is defined under section 20 of the Specific Relief Act 1877.
A person cannot just unenforceable a contract where he is just compensating for his undoing part. Because of these sections 19 and 20, neither party can easily get out of a contract. This has made fair the consequences of breach of contract for both parties. Else, only one party would have suffered for loss. This section brings justice for the suffering party.
Section 21 of specific relief provides instances of contracts that are not enforceable. There are 8 kinds of contracts based on their obligations that cannot be specifically enforced. This is a dismissal suit of specific performance of a contract where the part of the plaintiff’s rights to sue for the compensation shall bear for the breach of contract.
Under these sections’ remedies are available for both of the parties where they suffer for the losses by the other. Equitable principles can also limit both parties with equitable remedies. Which also includes ‘he who comes with equity must come with clean hands. The court will not assist the claimant who is a wrongdoer himself. The claimant must have the proper right to claim for the damages.
‘Title to the property’ is an ownership of a property with legal rights and interest. These rights may be held by one or many separate parties, which includes former documents as proof of ownership. This document may be required to transfer ownership of a property to another person. Possession can also be a title; this right often holds ownership but not necessarily have to prove it. Section 18 and 25 deal with ‘Title to Property.
Before we start section 18, we should know what is an ‘Imperfect title’. when a person doesn’t have legal ownership but will inherit the title later. So, the seller cannot transfer the ownership to the purchaser. Until the person acquires the absolute title his title will remain an imperfect title.
Section 18 of the Specific Relief Act 1877 mainly deals with purchaser’s rights against vendors with imperfect titles. If the person selling the property has imperfect title to the property needs permission or agreement of others before he can sell the property. Also, the mortgaged property the person is selling with an imperfect title is under personal incapacities of section 18.
When a purchaser contracts with a person who holds an imperfect title without knowing that the seller holds an imperfect title, as soon as the seller acquires his proper title their contract is enforceable. Once the seller acquires his title, the seller must have to transfer legal ownership to the purchaser.
Also, the purchaser can compel the seller to the court and can enforce a specific contract to complete the documents under section 18 of Specific Relief Act 1877.
The concurrence or agreement of the other party is necessary in order to confirm the title of the seller so of course, the title of the seller is imperfect. The buyer can compel the seller if he acquires the concurrence of the others with the seller that he is acquiring imperfect title through the transfer of absolute title.
If a person sells the property which has already been mortgaged, so the person loses his title and becomes imperfect title under the personal capacity of section 18. Because he will not regain his title unless he pays the mortgage amount with interest. So, even though he has ownership of the property, he doesn’t have absolute title to it. Even if he contracts to sell the property of which still hasn’t gained the absolute title, he will not be able to convey the property to the buyer. Because the property is still in the hands of the mortgage.
In such cases the buyer can do is, if the mortgage amount is less than the selling price, the buyer can compel the seller to regain his mortgaged property and then require his absolute title and transfer the title and ownership to the buyer. But if the mortgage amount is more than the selling price the seller cannot get out of the imperfect title then the contract becomes unenforceable.
As this section follows the law of Equity the seller can also sue the buyer for the nonpayment of the buyer. In section 18, if the seller has an imperfect title and cannot fulfill the obligations according to the contract. Thus, the buyer(defendant) has to prove that the seller has the imperfect title then the court will dismiss the suit of the plaintiff. The court will order the plaintiff to return any advance payment received from the defendant and also the cost incurred by the defendant caused by this lawsuit.
In section 25 specific relief act 1877 mentioned, a person who has no title at all voluntarily contracts to sell property between two parties. It is a contract of moveable and immovable property, where a contract cannot specifically be enforced in favor of a vendor or lessor. We know from section 18, the person who has no title is known as Imperfect title that means he has not acquired his absolute title yet. But in section 25, If a person contracts to sell the property with imperfect title and knows he is not the owner and buyer/seller cannot fulfill his obligations and the seller sues him, the seller will not get any relief. A property dealer has no absolute title to any property and if he contracts to sell the property, he cannot compel the other party to fulfill the obligations of the contract. Also, a person with no title believing he had the good title to the property but couldn’t prove it to the buyer within a fixed time or the plaintiff entered into the property believing he had the good title to the property and couldn’t prove it to the court at the time of the hearing, his suit will be unenforceable. Here, the plaintiff himself is unable to give a doubtful free title to the defendant; he cannot ask for specific relief from the defendant because he himself cannot prove that he has the absolute title to the property.
Therefore, both sections 18 and 25 deal with ‘title to property’ means in both sections the topic title holds a very respectable role. In section 18 talks about the person who has an imperfect title. That means he will require his title any time soon. Before he requires his absolute title and in meantime, he contracts with a purchaser to sell the property. Until the seller requires his title their contract will be on hold. But if the seller fails to require his absolute title, he cannot ask the defendant for the specific performance according to the contract. On the other hand, section 25 deals with the person who has no title at all and that person can be any property dealer. We know a property dealer doesn’t hold any title but he voluntarily makes contracts between two parties. As he doesn’t hold any title and he himself knows it and still he enters into a contract with another party, he cannot compel the other party to fulfill the agreements. Because he himself cannot prove that he doesn’t hold any title. So, his contract becomes unenforceable.
Judicial discretion is the power to make legal decisions according to their discretion. The ability to exercise discretion allows a judge to decide a legal case or matter within a range of possible decisions. However, where the exercise of discretion goes beyond constraints set down by legislation, by binding precedent or constitution, then the court may be abusing its discretion or undermining the law. In that case, the court may be ultra vires for its decision. Judicial power comes from the power of the law which has no existence. Courts are the instruments of law. Discretion of law needs to be exercised in the court prescribed by law. Using discretionary power is the duty of the court to follow it. Its power is not for the purpose of giving effect to the will of the judge.
In few circumstances discretionary power is given to the judges which are mentioned in section 22 of specific relief act 1877.
Decree for specific performance is discretionary which is provided by section 22. But the discretion of the court is not arbitrary and must be followed by the judicial principles and must be capable of correction by a court of appeal.
Section 22(i) of specific relief act 1877 is applicable when the plaintiff faces an unfair advantage over the defendant. There are some cases in a contract where the plaintiff faces unfair advantage even though there may be no fraud or misrepresentation on the plaintiff’s part. In this case, the defendant takes the advantage of the plaintiff by misrepresentation or maybe fraud during the agreement of the contract. And so that the plaintiff shouldn’t suffer any loss this chance is given to the plaintiff.
Section 22(ii) applies when the plaintiff suffers a loss because of the defendant’s non-performance. There such circumstances in a contract that the defendant didn’t know he would have to face hardship to fulfill the obligation which he did not foresee. And the defendant doesn’t fulfill his obligation then the plaintiff can take action against the defendant.
Section 22(iii) Discretion may be applied by the court where the plaintiff suffers a loss because of the consequences of the contract. In a contract, specific performance is needed to be done by both parties whereas the plaintiff suffers a loss for the consequences of the contract even though the plaintiff has performed accordingly.
The certain circumstances are explained above in section 22 of the Specific Relief Act 1877. Not every contract has its proper end. There are few cases where the plaintiff suffers. Specific relief acts 1877 always speak for equity. In these cases, contracts need to be balanced; if it’s not from the parties then it has to be by the court. This discretionary power is completely fair so that the contracts can be balanced.
‘Preventive Relief’ is granted at the discretion of the court to a party which he is under an obligation not to do. Specific Relief Act 1877 prevents a party from something he is not obligated to do. Preventive relief is also a discretionary relief; it is the power to give declarations. Given injunction by the court can be temporary or perpetual.
This injunction basically a court order to refrain a party from doing a particular act or to do a particular act. Specific Relief Act gives the order to the parties to fulfill their obligations but injunction orders a party to stop doing what he is under an obligation not to do. The court at its discretion grants temporary or permanent injunction as preventive relief. A temporary injunction is a court order prohibiting an ongoing action by a party until there has been a trial. The main purpose is to prevent irreparable damage done to property or preserve the property until the trial is over.
The permanent form of the injunction means perpetual injunction. The purpose of the injunction is a court order to prevent a party from a specific course of action. Thus, the perpetual injunction is granted by the court to dispose of the injunction suit. The final judgment is granted as a permanent injunction with few perpetual conditions:
- When the defendant himself is a trustee of the property and becomes a threat to the owner (the plaintiff). Then the plaintiff can ask for a perpetual injunction.
- The damage can be caused by the invasion of the defendant cannot be calculated as the actual damage; in this case, the plaintiff can ask for a permanent injunction.
- Such damage may be caused by the defendant which cannot afford adequate monetary compensation thus the plaintiff can seek a permanent injunction.
- Where the defendant probably cannot even pay the monetary compensation, the plaintiff can ask for a perpetual injunction.
- Where the plaintiff is already in a process of a suit over land and the defendant again puts a suit against the plaintiff on a different court over the same land. Then the plaintiff can ask for a perpetual injunction to prevent the multiplicity of judicial proceedings.
An individual may be punished by the court for violating an injunction. Perpetual Injunction is given under section 54 of specific relief act 1877.
Where a deed made by the parties by their mutual consent, before so executing such deed they want to cancel it. Then they would institute a suit for rescission of the deed. This rescission is done under section 35-38 of the Specific Relief Act 1877.
A contract becomes binding once it is signed by the parties mutually. A contract is required to be performed written in the contract with terms and conditions. Also, where the agreement of the contract is no longer mandatory when the contract is canceled. It means the contract is already canceled and parties can ask for ‘rescission’ of the contract means revoked.
Any parties can seek Rescission if the person is in the position to void or terminate the contract. When a contract looks legitimate but the actual reason for this contract is unlawful. The plaintiff can seek rescission but he also has to prove that the defendant is more to blame for unlawful activities than the plaintiff.
Rescission by agreements is a discharge of the parties from the obligations of the contract by a new agreement made after the execution of the original contract but prior to its performance. Rescission by mutual assent is separate from the right of one of the parties to rescind or cancel the contract for cause or pursuant to a provision in the contract.
Cancellation is done under sections 39-41 of the specific relief act 1877. Under these sections, if a person desires to cancel a contract he will apply for cancellation of the contract deed. Only when the other party can understand after an agreement that if he/she fulfills all the obligations of the contract he/she will be at a big loss and which is not possible to cover at any cost then he/she can seek for cancellation from the court.
If the court believes that that instrument has the potential of causing injury/harm to him if such a transaction is continued may file a suit at a Civil Court to have such an instrument declared to be void.
Rescission can be sought by any parties to terminate the contract which also can be agreed mutually by both parties. If there’s any unlawful interference by a party and the other party doesn’t want to perform activities so he can ask for rescission to terminate the contract.
On the other hand, Cancellation can be sought by any party. To prevent himself from any kind of big loss. After the agreement of the contract if he suffers a big loss from fulfilling the obligations of the contract which is not possible to cover at all then he can ask for cancellation. But also, even if the court grants him the cancellation, he may have to compensate for the damage he cost to the other party for not fulfilling the obligations.