The law relating to specific performance as engrafted in the Specific Relief Act, 1963 ("the Act") is an extremely important facet of civil law. The Act inter alia covers most aspects pertaining to performance of contracts as also injunctive reliefs which can be granted and claimed.

This project shall acquaint and take us through the basic principles and important aspects to be borne in mind while seeking specific performance of contracts in relation to immoveable property and related aspects.

In respect of moveable property, the general rule is that specific relief is refused as there is a presumption that the failure to perform can be compensated in terms of money in view of Section 10 of the Act as unamended. Even though Section 10 of the Act now stands amended, it does not mean that specific performance for moveable's will be ordinarily granted.

The law will still provide and presume that breach of a contract in respect of moveable's can be compensated and therefore refuse performance. The exception to this will be amongst others when the moveable 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.

Keywords

• Assignment: When a party transfers his rights and interest in the contract tb another person, he is said to assign the contract
• Breach: When a contracting party refuses to perform his obligation, there is a breach of contract.
• Contribution: When a joint promissor has performed the whole of the promise, he may claim the share from other joint promisors. This is known as contribution.
• Joint promisors: When a promise is made by two or more persons, they are known as joint promisors.
• Novation: When a new contract is substituted for an existing one either between the same parties or new parties, it is termed novation.
• Period of Limitation: A time laid down in the Law of Limitation for various contracts. If it is not performed during this period, the performance becomes time barred.
• Reciprocal promise: A promise made in consideration of other party's promise is reciprocal promise.
• Remission: Acceptance of lesser performance than what was contracted for is known as remission.
• Rescission: When one or all the terms of a contract are cancelled, it is termed as rescission.
• Tender: An offer to perform a promise.
   

Introduction
A contract is an agreement upon sufficient consideration to do or not to do a particular act. The party on whom this contractual obligation rests must not fail to discharge such obligation. In case of his failure, the other party will have a right sue for performance of the contract. This is called 'Specific Performance'.

Order of specific performance are granted when damages are not an adequate remedy, and in some specific cases such as land sale. Such orders are discretionary, as with all equitable remedies, so the availability of this remedy will depend on whether it is appropriate in the circumstances of the case. Under current law, courts grant specific performance when they perceive those damages will be inadequate compensation. Specific performance is deemed an extraordinary remedy, awarded at the court's discretion.

Types Of Performance

Actual Performance
In this case, the promisor actually performs the said promises which he is obligated to do under the contract. On performing a contract in this manner the contract is discharged and the promisor's liability towards the contract ceases to exist. Actual Performance of the contract can be further divided into Partial and Substantial Performance of Contract.

Partial Performance
In the partial performance of the contract, the promisor or promisee has performed their respective obligations but has not performed it completely. Partial Performance of the contract may be due to non-willingness to perform or due to certain unforeseen circumstances. The essential part of such a contract is that the other party should show a willingness to accept the partly performed obligation.

Substantial Performance
In this type of performance, the main essence of the contract is almost fulfilled. Substantial performance is applicable only if the contract is not an entire contract and is severable. The rationale behind creating the doctrine of substantial performance is to avoid the possibility of one party evading his liabilities by claiming that the contract has not been completely performed. However, what is deemed to be substantial performance is a question of fact to be decided according to the circumstances.

Attempted Performance
When the performance has become due, it is sometimes sufficient if the promisor offers to perform his obligation under the contract. This offer is known as attempted performance or more commonly as tender. Thus, tender is an offer of performance, which of course, complies with the terms of the contract.

If goods are tendered by the seller but refused by the buyer, the seller is discharged from further liability, given that the goods are in accordance with the contract as to quantity and quality, and he may sue the buyer for breach of the contract if he so desires. The rationale is that when a person offers to perform, he is ready, willing, and capable to perform. Accordingly, a tender of performance may operate as a substitute for the actual performance and can affect a complete discharge.

Essentials Of A Valid Tender

It is necessary that the tender must be valid. For a tender to be valid, the following conditions must be satisfied:

1. It must be unconditional: An unconditional tender is one which is in accordance with the terms of the contract. Thus, a conditional offer of performance is not a good tender and the other party is entitled to reject it. For example, A, a debtor, offered to pay B, his creditor, the amount due to him if B sells certain goods to him. It is a conditional tender and. therefore, invalid.
    
2. It must be made at a proper time and place: Generally, the time and place of performance are agreed upon, by the parties and the tender must be made accordingly. Thus, a tender of good alter the business hours or of goods or money before the due date is not a valid tender. For example, if the promisor wants to deliver the goods at I a.m., this is not a valid tender unless it was so agreed.
    
3. In case of tender of goods, it must give a reasonable opportunity to the promisee of ascertaining that the goods offered are the same as the promisor is bound to deliver. Thus, a tender of goods at such time when the other party cannot inspect the goods, is not a valid tender.
    
4. It must be for the whole obligation: A piecemeal tender of goods or to pay the amount in instalments is not a valid tender. For example. A promises to deliver 100 bags of rice on a certain day. If all the agreed day and place A offers to deliver RO bags only. This is not a valid tender and A is not dichargcd from his obligation. However, a minor deviation from the terms of the contract may not render the tender invalid.
    
5. It must be made to the promisee or his duly authorized agent: Thus, a tender to a stranger is not valid. In case there are joint promisees, it is not necessary for the promisor to offer performance to each one of them. A tender may be made to any one of the joint promisees. Thus, a tender made to one of several joint promisees has the same legal effects as a tender to all of' them.
    
6. In case of payment of money, tender must be of the exact amount due and it must be in the legal tender. It should not be in any other form such as foreign currency or cheque. A payment by cheque is a valid tender provided the person to whom it is made is ready and willing to accept it.

Time And Place For Performance

It is for the parties to a contract to decide the time and place for the performance of the contract. The rules regarding the time and place of performance are given in sections 46 to 50 of the Contract Act. These are as follows:

1. Performance of a promise within a reasonable time [1]:
   According to section 46 where the time for performance is not specified in the contract, and the promisor himself has to perform the promise without being asked for by the promisee, the contract must be performed within a reasonable time. The question 'what is a reasonable time' is, in each particular case, a question of fact. Thus, it is clear from this provision that if time for performance is not stated, the contract is not bad for want of certainty.
    
2. Performance of promise where time is specified [2]:
   Sometimes, the time for performance is specified in the contract and the promisor has undertaken to perform it without any application or request by the promisee. In such cases, the promisor must perform his promise on that particular day during the usual hours of business and at place where the promise ought to be performed.
    
3. Performance of promise on an application by the Promisee [3]:
   It may also happen that the day for the performance of the promise is specified in the contract but the promisor has not undertaken to perform it without application or demand & by the promisee. In such cases, the promisee must apply for performance at a proper place and within the usual hours of business.
    
4. Performance of promise where no place is specified and also no application is to be made by promisee [4]:
   When a promise is to be- performed without application or demand by the promisee, and no place is specified for performance, then it is the duty of the promisor to apply or ask the promisee to fix a reasonable place for the performance of the promise and to perform it at such place.
    
5. Performance of promise in the manner and time prescribed or sanctioned by promisee[5]:
   Sometimes the promisee himself prescribes the manner and the time of performance. In such cases, the promise must be performed in the manner and at the time prescribed by the promisee. The promisor shall be discharged from his liability if he performs the promise in-the manner and time prescribed by the promisee.

Performance Of Reciprocal Promises

When parties to an agreement make mutual promises to do or to abstain from doing something, they are known as 'reciprocal promises'. Section 2(f) of the Contract Act defines a reciprocal promise as promises which form the consideration or of the consideration for each other. In such cases there is an obligation on each party to perform his own promise and to accept performance of the others' promises.

Types of Reciprocal Promises:
Reciprocal promises have been classified in the following three categories:

1. Mutual and independent:
   When each party must perform his part of the promise independently without waiting for the performance or readiness to performance by the other party, the promises are called mutual and independent.
    
2. Conditional and dependent:
   When the performance of one party depends on the prior performance of the other party, the promises are called conditional and dependent.
    
3. Mutual and concurrent:
   When the parties have to perform their promises simultaneously, they are said to be mutual and concurrent.

Order of Performance of Reciprocal Promises[6]
Sometimes a problem arises, with regard to the order in which reciprocal promises are to be performed. Contract Act provides that where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they must be performed in that order; and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires.

Effects of Preventing the Performance of Reciprocal Promises
Sometimes it may so happen that one party to a reciprocal promise prevents the other from performing his promise, In such a situation, the contract becomes voidable at the option of the party so prevented, and he is also entitled to claim compensation from the other party for any loss suffered due to non-performance of' the contract.

Appropriation Of Payment

The term 'appropriation of payment' means the application of payment. When a debtor owes several distinct debts to one creditor and makes a payment to the creditor which is insufficient to discharge all the debts, a problem may arise as to which particular debt, should the payment be applied. In some cases the debtor may himself expressly point out to which particular debt the payment be applied, while in others the circumstances may indicate the debt to which the payment is to be applied. But the difficulty arises when neither there an express indicating nor can it be implied from circumstances. In India, the rules regarding appropriation of payments are given in sections 59 to 61. These rules are as following:

1. Where there is an express or implied intimation by the debtor[7]:
   A debtor has the right to instruct his creditor to which particular debt the payment is to be applied. If the creditor accepts the payment, he is duty bound to follow the instructions. If the debtor expressly informs the creditor while making payment that the payment be applied to a particular debt, the creditor must do so. But if there is no express intimation by the debt then the intention should be seen from the circumstances of the case.
    
2. Where there is no express or implied intimation[8]:
   If, while making the payment, the debtor does not intimate and there are no circumstances indicating to which debt the payment is to be applied, then the creditor has the option to apply the payment to any lawful debt due from the debtor. The amount, in such a case, can be applied even too a debt which has become time-barred. However, it cannot be applied to a disputed debt. But, once an appropriation has been made by the creditor and the debtor is informed, the creditor cannot change his option later on.
    
3. Where neither party appropriates[9]:
   Where neither the debtor nor the creditor makes any appropriation, the payment shall be applied in discharge of the debts in order of time, whether or not they are time-barred. If the debts are of equal standing, the payment shall be applied in discharge of each proportionately. It should be noted that where moneys are received by the creditor without any definite appropriation on either side, the money so received must first be applied in payment of interest and then in payment of principal.

Specific Performance Of Contract Enforceable.[10]

Under the following conditions specific performance of the contract is enforceable:
When there exist no standard for ascertaining actual damage:
It is the situation in which the plaintiff is unable to determine the amount of loss suffered by him. Where the damage caused by the breach of contract is ascertainable then the remedy of specific performance is not available to the plaintiff. For example, a person enters into a contract for the purchase of a painting of dead painter which is only one in the market and its value is unascertainable then he is entitled to the same.

When compensation of money is not adequate relief:
In following cases compensation of money would not provide adequate relief:

1. Where the subject matter of the contract is an immovable property.
2. Where the subject matter of the contract is movable property and,
3. Such property or goods are not an ordinary article of commerce i.e. which could be sold or purchased in the market.
4. The article is of special value or interest to the plaintiff.
5. The article is of such nature that is not easily available in the market.
6. The property or goods held by the defendant as an agent or trustee of the plaintiff.

In Case of Ram Karan v. Govind Lal[11], an agreement for sale of agricultural land was made & buyer had paid full sale consideration to the seller, but the seller refuses to execute sale deed as per the agreement. The buyer brought an action for the specific performance of contract and it was held by the court that the compensation of money would not afford adequate relief and seller was directed to execute sale deed in favour of buyer.

Similarly, it was held by the court where the part payment was paid by plaintiff and defendant admitted that he had handed over all documents of title of property to the plaintiff. Sale price in an agreement is not low and defendant had failed to establish that said document was only a loan transaction then the agreement is valid and defendant is liable to perform his part (M. Ramalingam v. V. Subramanyam)[12].

Specific Performance Of Contracts Connected With Trusts Enforceable.[13]

1. specific performance of a contract may, in the discretion of the court, be enforced when the act agreed to be done is in the performance wholly or partly of a trust.
2. A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced.

Specific Performance Of Part Of Contract.[14]

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

1. Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed be a 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 specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.
2. Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either:
   1. forms a considerable part of the whole, though admitting of compensation in money; or
   2. does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party;
      
      1. in a case falling under clause:
         
         1. 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, in a case, falling under clause
         2. [pays or has paid] the consideration for the whole of the contract without any abatement; and
      2. 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.
          
3. When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed the court may direct specific performance of the former part.

A party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance.

Rights Of Purchaser Or Lessee Against Person With No Title Or Imperfect Title.[15]

1. Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee has the following rights, namely:
   
   1. if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest.
   2. where the concurrence of other person is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance.
   3. where the vendor 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.
   4. where the vendor or lessor sues for specific performance 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, interest and costs on the interest, if any, of the vendor or lesser in the property which is the subject-matter of the contract.

The provisions shall also apply, as far as may be, to contracts for the sale or hire of movable property.

Contracts Not Specifically Enforceable.[16]

1. The following contracts cannot be specifically enforced, namely:
   
   1. a contract for the non-performance of which compensation in money is an adequate relief.
   2. a contract which runs into such minute or numerous details or which is so dependent on the personal qualification or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;
   3. a contract which is in its nature determinable.
   4. a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.
       
2. No contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.
    
3. The court may enforce specific performance in the following cases:
   
   1. where the suit is for the enforcement of a contract,
      
      1. to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once: or
      2. to take up and pay for any debentures of a company.
          
   2. where the suit is for,
      
      1. the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or
      2. the purchase of a share of a partner in a firm;
          
   3. where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land: Provided that the following conditions are fulfilled, namely:
      
      1. the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
      2. the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and
      3. the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.

Who Can Obtain Specific Performance[17]

Section 15 of the Specific Relief Act, 1963 provides for those persons who can obtain specific performance of a contract. Those are as follows:

1. Any party to a suit.
2. Representative in interest or principal of any party thereto.
3. If a contract is a settlement of marriage or a compromise of doubtful rights between members of the same family, any beneficiary entitled thereunder.
4. If a tenant enters into a contract for life in due exercise of a power, the remainderman.
5. A reversioner in possession, if an agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant.
6. A reversioner in remainder, if an agreement is a covenant and the reversioner is entitled to the benefit and will sustain material injury if there is a breach of contract.
7. If a company has entered into an amalgamation with another company through a contract, the new company which arises out of such amalgamation.
8. If the promoters of a company entered into a contract before its incorporation for purposes of the company and such contract is warranted by the terms of the incorporation, the company provided that the company accepted the contract and communicated such acceptance to the other party of the contract.
    

Personal Bars To Relief.[18]

Specific performance of a contract cannot be enforced in favour of a person:

1. who would not be entitled to recover compensation for its breach; or
2. who has become incapable of performing, or
3. violates any essential term of the contract that on his part remains to be performed, or
4. acts in fraud of the contract, or
5. willfully acts at variance with, or
6. in subversion of the relation intended to be established by the contract; or
7. 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 of the performance of which has been prevented or waived by the defendant.
   
   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.

Contract To Sell Or Let Property By One Who Has No Title, Not Specifically Enforceable.[19]

1. A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor;
   
   1. who, knowing himself not to have any title to the property, has contracted to sell or let the property;
   2. who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.
2. The provisions shall also apply, as far as may be, to contracts for the sale or hire of movable property.

Non-Enforcement Except With Variation.[20]

Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought, except with the variation so set up, in the following cases, namely:

1. whereby fraud,
2. mistake of fact or
3. misrepresentation,
4. the written contract of which performance is sought is in its terms or
5. effect different from what the parties agreed to, or
6. does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contact.
7. where the object of the parties was to produce a certain legal result which the contract as framed is not calculated to produce.
8. where the parties have, subsequently to the execution of the contract, varied its terms.

Relief Against Parties And Persons Claiming Under Them By Subsequent Title.[21]

Specific performance of a contract may be enforced against:

1. either party thereto.
2. any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract.
3. any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant.
4. when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation.
5. when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company.

Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract

Conclusion
One of the important aspects of civil right is the fulfillment of the expectations created by a contract voluntarily made by the parties. Contract is not just an isolated transaction. It is often a link in a chain of several contracts. A failure at one place can cause a serious dislocation of economic social life. The contract must be enforced. The only way the law of contract can enforce a contract is by awarding compensation to the injured person or by specifically enforcing the obligations under the contract.

The most natural way of terminating the contract is to perform it. The performance may be either actual or attempted (also known as Tender). When a party offers to perform his promise in accordance with the contract, and the other party refuses to accept it, the contract is discharged. The tender to be valid must be unconditional, made at the proper time, place and manner, made to the promisee or his authorized agent, and must be for the whole obligation.

Performance can be demanded by the promisee only. In case of his death his representatives can demand performance. In case of contracts of a personal nature, they should be performed by the promisor. In other cases, it may be performed by his agent, and in case of his death by his legal representatives.

When two or more persons make a joint promise, then unless a contrary intention appears from the contract, all of them must perform jointly. If any one of the joint, promisors dies, his legal representative shall be liable to perform along with other joint promisors.

The contract should be performed at the time specified and at the place agreed upon. If no time is specified the promisor must perform the promise within a reasonable time. In case no time and place is fixed for the performance, the promisee must ask the promisor to fix the day and time for performance. In commercial agreements, time's the essence of the contract.
Promises which form the consideration or part of the consideration for each other are termed as reciprocal promises. Reciprocal promises must be performed in the order specified in the contract.

Assignment of a contract means transfer of rights and obligations under a contract to third party. It may be done by the act of the party or by operation of law. Rights and benefits under a contract can be duly assigned. But a promisor cannot assign his liabilities. Contracts of a personal nature cannot be assigned.

Appropriation means applying the payment to a particular debt. If, while making the payment, the debtor specifies the debt to which it should be applied, then the creditor must appropriate the payment to that debt only. In case the debtor does not specify the debt to which it should be applied, the amount can be appropriated by the creditor in the manner he deems it fit.

Specific performance is a form of equitable relief, given by the court in case of breach of contract, in the form of a judgment that the defendant does actually perform the contract according to the terms and stipulations.

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.

Not all the contracts are specifically enforceable. These include the following:

1. A contract for non-performance of which compensation in money is an adequate relief.
2. A contract that runs into such minute details which is so dependent on the personal qualification or violation of the parties or otherwise its nature is such that the court cannot enforce specific performance of its material terms.
3. A contract which is by its nature terminable.
4. A contract, the performance of which involves a continuous duty, which the Court cannot supervise.

The plaintiff must be entitled to any legal character or to any right as to any property. The defendant should have denied or be interested in denying the character or title of the plaintiff. It is this denial which gives a cause of action for declaratory relief. And that the plaintiff is not in a position to claim further relief than mere declaration of his title, or where he is so able to seek further relief, he can seek such relief also.

End-Notes:

1. The Indian Contract Act, 1872 , Section 46
2. The Indian Contract Act, 1872 , Section 47.
3. The Indian Contract Act, 1872 , Section 48.
4. The Indian Contract Act, 1872, Section 49.
5. The Indian Contract Act, 1872, Section 50.
6. The Indian Contract Act, 1872 , Section 52.
7. The Indian Contract Act, 1872 , Section 59.
8. The Indian Contract Act, 1872 , Section 60.
9. The Indian Contract Act, 1872 , Section 61.
10. The Specific Relief Act, 1963 – Chapter 3 - Section 10.
11. A.I.R. 1999 Raj. 167
12. A.I.R. 2003 Mad. 305
13. The Specific Relief Act, 1963 – Chapter 3 - Section 11
14. The Specific Relief Act, 1963 – Chapter 3 - Section 12.
15. The Specific Relief Act, 1963 – Chapter 3 - Section 13.
16. The Specific Relief Act, 1963 – Chapter 3 - Section 14.
17. The Specific Relief Act, 1963 – Chapter 3 - Section 15.
18. The Specific Relief Act, 1963 – Chapter 3 - Section 16.
19. The Specific Relief Act, 1963 – Chapter 3 - Section 17.
20. The Specific Relief Act, 1963 – Chapter 3 - Section 18.
21. The Specific Relief Act, 1963 – Chapter 3 - Section 19.