 the specific relief bill, 1962 (to be introduced in loic sabra)  part i preliminaryclauses 1 short title, extent and commencement 2 definitions 3 savings 4 specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws  part ii specific relief chapter i recovering poss~ion of proper'l'y5 recovery of specific immovabje property 6 recovery of specific movable property 7 liability of person in possession, not as owner, to deliver to persons entitled to immediate possession  chapter ii specific performance of contracts8 defences respecting suits for relief based on contract  contracts which can be specifically enforced9 cases in which specific performance of contract enforceable 10 cases in which specific performance of contracts connected with trusts enforceable 11 specific performance of part of contract 12 rights of purchaser or lessee against person with no title or imperfect title  contracts which cannot be specifically enforced13 contracts not specifically enforceable  enforced clauub14 who may obtain specific performance 15 personal bars to relief 16 contract to sell or let property by one who has no title, not specifically enforceable 17 non-enforcement except with variation 18 relief against parties and persons claiming under them by subsequent title  discretion and powers of court19 discretion as to decreeing specific performance 20 power to award compensation in certain cases 21 power to grant relief for possession, partition, refund of earnest money, etc 22 liquidation of damages not a bar to specific performance 23 bar of suit for compensation for breach after dismissal of suit fo~ specific performance  enforcement of a wards and ;directions to execute settlements24 application of preceding sections to certain awards and testamentary directions to execute settlements  chapter iii rectification of instruments25 when instrument may be rectified  chapter iv rescission of contracts26 when rescission may be adjudged or refused 27 rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed 28 alternative prayer for rescission in suit for specific performance 29 court may require parties rescinding to do equit¥  chapter v cancellation of instrumentsclauses 30 when cancellation may be ordered 31 what instruments may be partially cancelled 32 power to require benefit to be restored or compensation to be made when instrument is cancelled or is successfully resisted as being void or voidable  chapter vi declaratory decrees33 discretion of court as to declaration of status or right 34 effect of declaration  part iii " preventive relief' chapter vii injunctions generally35 preventive relief how granted 36 temporary and perpetual injunctions  chapter viii perpetual injunctions37 perpetual injunction when granted 38 mandatory injunctions 39 damages in lieu of, or in addition to, injunction 40 injunction when refused 41 injunction to perform negative agreement 42 amendment of act 10 of 1940 43 repeal  (to be introduced in lox: sabra)a bill to define and amend the law relating to certain kinds of specific relief· be it enacted by parliament in the thirteenth year of the republic of india as follows:-part i  prelimin arys 1 (j) this act may be called the specific relief act, 1962 short title, extent and (2) it extends to the whole of india except the state of jammu conuneuceand kashmir ment (3) it shall come into force on such date as the central government may, by notification in the official gazette, appoint 10 2 in this act, unless the context otherwise requires,-dcfinitioos (a) "obligation" includes every duty enforceable by law; (b) "settlement" means an instrument (other than a will or codicil as defined by the indian succession act, 1925) whereby the destination of devolution of successive interests in 15 movable or immovable property is disposed of or is agreed to be disposed of; (e) "trust" has the same meaning as in section 3 of the indian trusts act, 1882, and includes an obligation in the nature of a trust within the meaning of chapter ix of that act; 20 (d) "trustee" includes every person holding property in trustj (e) all other words and expressions used herein but not defined, and defined in the indian contract act, 1872, have the meanings respectively assigned to them in that act,, '''hlp 3 except as otherwise provided herein, nothing in this act shan be deemed- (a) to deprive any person of any right to relief, other than' specific performance, which he may have under any contract; or (b) to affect the operation of the indian registration act, s 1908, on documents i' of 1901 10 s~ 4 specific relief can be granted only for the purpose of enforc-=~: ~y ing individual civil rights and not for the mere purpose of enforcfor edforciu& ing a penal law ladividual civd lilhtl and not for edfon:fda penal ]aws " part ii  specific reliei' chapter i recovering possession of propertyrecovery of 5 a person entitled to the possession of specific immovable pro-::':=vable perty may recover it in the manner provided by the code of civil is property procedure, 1908 s of 1901 recovery of specific movable property 6 a person entitled to the possession of specific movable property may recover it in the manner provided by the code of civil procedure, 1908 s of 1901 explanation l-a trustee may sue under this section for  the 20 possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled explanation 2-a special or temporary right to the present possession of movable property is sufficient to support a suit under this section 25 ::r!!~% of ! any person having the possession or control of a particular pollesliod, article of movable property, of which he is not the owner, may be ~:td~i~:rn:! compelled specifically to deliver it to the person entitled to its persons immediate possession, in any of the following cases:-entitled to - immediate (a) when the thing claimed is held by the defendant as the 30 p oaseslion agent or trustee of the plaintiff; (b) when compensation in money would not aftord the plaintiff adequate relief for the loss of the thing claimed; (c) when it would be extremely difficult to ascertain the actual damage caused by its lossi 3s (d) when the possession of the thing claimed has beei1 wrongfully transferred from the plaintiff expzamtion-unless and until the contrary is provm, the court shall, in respect of any article of movable property claimed under 5 clause (b) or clause (c) of this section, presume-(a) that compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed, or, as the case may be; (b) that it would be extremely difficult to ascertain the 10 actual damage caused by its loss  chapter ii specific performance of contracts8 except as otherwise provided herein, where any relief is defenc~1 claimed under this chapter in respect of a contract, the person against ~!i~~~nl is whom the relief is claimed may plead by way of defence any ground relief based h ' h  'i bi t h' d i i t' t t t on contract w lc is aval a e 0 1m un er any aw re a 109 a can rac s  contracts which can be specifically enforced9 except as otherwise provided in this chapter, the specific per- cases in formance of any contract may, in the discretion of the court, be wfichichjpeclpenorm-20 enforcedana: of (a) when there exists no standard for ascertaining the ~~~~~::'ble actual damage caused by the non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensa-25 tion in money for its non-performance would not afford adequate relief explanation-unless and until the contrary is proved, the court shall presume-(i) that the breach of a contract to transfer immovable 30 property cannot be adequately relieved by compensation in money; and (ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:-(a) where the property is not an· ordinary article of 35 commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market; (b) where the property is held by the defendant as the aient or trustee of the plainti1f cases in 10 (1) except as otherwise provided in this act, specific per~ wfichich  speci- formance of a contract may, in the discretion of the court, be perorm-- anee of enforeed when the act agreed to be done is in the performance contracts wholly or partly of 8 trust connected with trusts enforceable (2) a contract made by a trustee in excess of his powers or in s breach of trust cannot be specifically enforced specific 11 (1) except as otherwise hereinafter provided in this section, performance of part of the court shall not direct the specific performance of a part of a contract contract (2) where a party to a contract is unable to perform the whole io of his part of it, but the part which must be left unperformed bears 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 is (3) where a party to a contract is unable to perform the whole of his part of it, arid the part which must be left unperformed either-(a) forms a considerable part of the whole, though admitting of compensation in money; or 20 (b) 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-2s (i) in a case falling under clause (a), 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 (b), the consideration for the whole of the contract without any abatement; and 30 (ii) 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 (4) when a part of a contract which, taken by itself, can and 3s 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 speciflc performance of the former part ezpzaft4tion-for the purposes of this section, a party to a con" tra~t ~ be ~ to be unable to pedorm the whole of his part of it if a portion of its subject-matter exlstmg at the date of the contract has ceased to exist at the time of its performance -  s 12 (1) where a person contracts to sell or let certain immov- riah f able property having no title or only an imperfect title, the pur-c:c:, or chaser or lessee (subject to the other provisions of this chapter), = has the following rights, namely: -peraodt with 10 ( ) if h no title or ate vendor or lessor has subsequently to the contract imperfect acquired any interest in the property, the purchaser or lessee tide may compel him to make good the contrrct out of such interest; (b) where the concurrence of other persons 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 l5 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 or the vendor or lessor, the purchaser or lessee may compel him to procure such convey-20 30 anee;    ;  jjd, (c) 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; (d) where the vendor or lessor sues for specific performance of the contract and the suit is dismi6ised 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 lessor in the property which is the subject-matter of the contract (2) the provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property  contracts wluch cannot be spj'cmcally enforc~35 13 (1) the following contracts cannot be specifically enforced, contract, not pecifinamely:-cauy «i) a contract for the non-performance of which compen- idforeable _tion in money is an adequate relief; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualificatiojui  volition of the· parties, or otherwtae from its· nature is 1ncji that the court cannot enforce specific performan~ of its maw-rial terms; (c) a contract which is in its nature determinable; (d) a contract the performance of which involves the per- s formance of a continuous duty which the court cannot supervise (2) save as provided by the arbitration act, 1940, no contract 10 of j,o to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract 10 (other than an arbitration agreement to which the provisions of the said act apply) and has refused to perform it, lues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit (3) notwithstanding anything contained in clause (4) or clause is (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases:-(4) where the suit is for the enforcement of a contract,-(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower 20 is not willing to repay at once: provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or (ii) to take up and pay for any debentures of a com- 2s pany; (b) where the suit is for,-(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or 30 (ii) the purchase of a share of a partner in a fu:m; (c) 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 fulft11ed, 35 namely:-(i) 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 buuding or work; (u) the plaintiff has a ·substantial interftt in the performance of the contract and the interest is of iuch a nature that compensation in modey for non-perfol'jbance of the contract is not an adequate relief; and (iii) 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  persons for or against whom contracl's may bb spbcd'ically fo di'orced1' exoept as otherwise provided by this chapter, the speciftc who ,  obtaid performance of a contract may be obtained byapec;ific (ei) any party thereto; perforjdoo idcc (b) the representative in interest or the principal, of itny party thereto: is 20 provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party; 25 (c) where the contract is a settlement on marriage, or a compromise of $ioubtful rights between members of the same family, any person beneficially entitled thereunder; (d) where the contract has been entered into by a tenant for life in due exercise of a power, the remaindermen; (e) a reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant; (i) a reversioner in remainder, where the agreement 11 such a covenant, and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach: 35 (g) when a company has entered into a contract and sublequently becomes amalgamated with another company the new company which arises out of the amalgamationj  (h) w:hen the promoters of a company have, before its incorporation, entered into a contract for the purposes ot the company, imd such contract is warranted by the terms of· the incorporation, the company: provided that the company has accepted the contract and s has communicated such acceptance to the other party to the contract penodal 15 specific performance of a contract cannot be enforced in at  to icucf tavour of a person-(a) who would not be entitled to recover compensation for 10 its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to is be established by the contract; or (c) 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 20 waived by the defendant  """-' explanation-for the purposes of clause (e) ,-(i) 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 1'10 25 directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction ig (1) a contract to sell or let any immovable property cannot 30 be specifically enforced in favour of a vendor or lessor-(a) who, knowing himself not to have any title to the property, has contracted to sell or let the property; contract to tell or let property by ode who baa no title, not lpecifically enfoneable (b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by 3s 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 provisiona of su})seetion (1) shall alio apply, is far as may be, to contracts for the sale or hire of movable property 17 where a plaintiff seeks specific performance of a contract in noa-eji-writing, to which the defendant sets up a varia-tion, the plaintiff !=,'~:~ 5 c8ddot obtain the performance sought, except with the variation 10 variatjoil set up, in the following cases, namely:-(a) where by fraud, mistake of fact or mis-representation, tlie written contract of which performance is sought is in its terms or effect different from what the parties agreed to, or does 10 not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contract; (b) where the object of the parties was to produce a certain legal result which the contract as framed is not calculated to produce; is (e) where the parties have, subsequently to the execution (if the contract, varied its terms ,- ~ 18 except as otherwise provided by this chapter, specific per- ~ formanee of a contract may be enforced against-~~: aacl penon (a) either party thereto; =~id bymh-20 (b) any other person claiming under him by a title arising 1cqueq& title subsequently to the contract, except a transferee for value who has paid his money in good faith and wfthout notice of the original contract; (e) any person claiming under a title which, though prior 25 to the contract and known to the plaintiff, might have been displaced by the defendant; (d) when a company has entered into a oontract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; 30 (e) 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 35 communicated such acceptance to the 9th~r party to the contract ~ dlaetiod ii (1) the jurisdiction to decree specific performance is disere- •• to decree- tl d h ida apec:ific onary, an t e court is not bound to grant such relief merely peri'ozmadce because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles s and capable of correction by a court of appeal (2) the following are cases in which the court may properly exercise discmtion not to decree speciflc perfonnance-(a) where the terms of the contract or the conduct of the parties at the time of entering into the ccmtract or the other 10 circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over tlie defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not forsee, is whereas its non-performance would involve no such hardship on the plaintiff; (e) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance 20 e~ i-mere inadequacy of consideration, or the mere  fact that the contract is onerous to the defendant or improvident in its neture, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the-meaning of clause (b) 25 ezplanation 2-the question whether the perfonnance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of 30 the contract (3) the court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance 35 (4) 'nle court shall not refuse to any partyspeciftc performance of a contract merely on the ground that the contract is dot enforceable at the instance of the other party 20 (1) in a suit for specific perfonnance of a contract, the power to plaintiff may also claim compensation for its breach, eibher in adeli-=::m; tfon to, or in substitution of, such perfonnauce c:ertaid eaaet (2) if, in any such suit, the court decides that specific perfonn-s anee ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall ",ward him such compensation accordingly (3) if, in any such suit, the court decides that specific perform-10 anoe ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly (4) in determining the amount of any compensation aw-arded i s under this section, tke court shall be guided by the principles specified in section 73 of the indian contract act, 1872 (5) no compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: provided that where the plaintiff has dot claimed any such 20 compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compedlaucm eotp1a:nation-the circumstances that the contract has become incapable of specific performance does dot preclude the court from 25 exercising the jurisdiction conferred by this section 21 (1) notwithstanc!ling anything to the contrary contained in pewerto the code of civil procedure, 1908, any person suing for the /ipecific ~-;~: performance of a contract for the transfer of immovable property a!on, parti-  t k f r tlon, rcfudd may, m an appropna e case, as 0 -ofeameat 30 (a) possession, or partition and separate possession, of the ldoiley, etc property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made to him, in case his claim for specific performance is refused 35 (2) no relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: provided that where the plaintiff has not claimed any such relief in the plaint, the court shell, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for 40 idcluding a claim for such relief (3) the power of the court to grant relief under clause (b) 01 sub-section· (1) shall be without prejudice to its powers to award compensation under section 20  liquldadol1 of damages not a bar to lj)ecific performance 22 (1) a contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to s be paid in case of its breach and the party in default is willing to 'pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option 10 of paying money in lieu of specific perfonnance (2) when enforcing specific performance under this section, the court shan not also decree payment of the sum so named in the contract 23 the dismissal of a suit for specific performance of a contract is or part thereof shall bar the plaintiff's right to sue for compensation for the breach of such contract or part, as the case may be, but shan not bar his right to sue for any other relief to which he may be entitled, by reason of such breach bar of uil for c:ompen-tiou for breach after clilmiasal of luit for lpec:ific perforjdaq(:c  enforcement of awards and directions 'to ixzcute si:'l'tlements 2010 of ino 24 the provisions of this chapter as to contracts shall apply to awards to which the arbitration act, 1940, does not apply and to directions in a will or codicil to execute a particular settlement application of preceding eectiona to certain award,and testamentary clirectioal to eucute 118ttlemcqt,  chapter iii rectd'ication of instruments 2swhen ide-25 (1) when, through fraud or a mutual mistake of the parties, ~::t a contract or other instrument in writing (not being the articles of association of a company to which the companies act, 1956, r of 1956 applies) does not express their real intention, then-(a) either party or his representative in interest may 30 institute a suit to have the instrument rectified; or (b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleadiftg that the instrument be rectified; or (c) a defendant in any such suit as is referred to ~ clause 35 (b), may, in tlddition to any other defence open to him, ask for rectification of the instrument (2) if, in any suit in which a contract or other instrument 11 sought to be rectified under sub-section (1), -the court finds that the instrument, through fraud or mistake, does not expre!;s the real intention of the parties, the court may, in its discretion, direct 5 rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value (3) a contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the 10 court thinks fit, may be specifically enforced (4) no relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed: provided that where a party has not claimed any such relief in 15 his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim  chapter iv rescission 01' contracts20 26 (1) any person interested in a contract may sue to have it when rcrescinded, and such rescission may be adjudged by the court in any ::j~o:cs=-1 of the following cases, namely:-or refuaed (a) where the contract is voidable or tenninable by the plaintiff: 25 (b) where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plainti1f (2) notwithstanding anything contained in sub-section (1) the court may refuse to rescind the contract-(a) where the plaintiff has expressly or impliedly ratified 30 the contract; or (b) where, owing to the change of circumstances which has taken place since the making of the contract (not being due to any act of the defendant himself), the parties cannot be substantially restored to the position in which they stood when - 'i the contract was made; or  (e) where third parties have, during the subsistence of the contract, acquired rights in good faith without notice and for value; or (d) where only a part of the contract is bought to be reldnded and such part is not severable from the rest of the contract ezplanation-in this section "contract", in relation to the territories to which the transfer of property act, 1882, does not extend,  of 188:1 means a contract in writing 5 itcic~sio~ in 27 (1) where in any suit a decree for specific performance of a cenam ell'-h  qljdstances contract for t e sale or lease of unmovable property has been made ~ codtrlcta and the purchaser or lessee does not, within the period allowed by ~or tbe sale  '  or lease of the decree or such further period as the court may allow, pay the immovable purchase money or other sum which the court has ordered him to 10 ~~ffic pay, the vendor or lessor may apply in the same suit in which the ~rfo~ decree is made, to have the contract rescinded and on such applicahas ~ tion the court may, by order, rescind the contract either so far as decreed regards the party in default or altogether, as the justice of the case may require 15 (2) where a contract is rescinded under sub-section (1), tile court-(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and 20 (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which pobsession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so :oequires, the refund 25 of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract (3) if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made 30 in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:-(a) the execution of ii proper conveyance or lease by the vendor or lessor; 35 (b) the delivery of possession, or partition and separate possession, of the property on thf: ex~1,ltlon qf such conveyanee or l~m~,  (4) no separate suit in respect of any relief which may be claim ed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be  (5) the costs of any proceedings under th •• section shall be in s the discretion of the court !s a plaintift instituting a suit for the specific performance of a altemat ive contract in writing may pray in the alternative that, if the contract ~j:i~~r cannot be speeiftcally enforced, it may be rescinded and delivered up in ~t for to be cancelled; and the court, if it refuses to enforce the contract f~~~r-10 specifically, may direct it to be rescinded and delivered up accordingly 21 on adjudging the rescission of a contract, the court may court jdaj require the party to whom such relief is granted to restore, so far as reqrt~e' - - pa 1 rcmay be, any benefit which he may have received from the other iicindjas to is party and to make any compensation to him which justice may re- do equity quire  chapl'er v cancellation of instruments30 (1) any person against whom a written instrument is void or whcncan-20 voidable, and who has reasonable apprehension that such instrument, :!~~on if left outstanding may cause him serious injury, may sue to have it ordered adjudged void or voidable: and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled 160f 1908 (2) if the instrument has been registered under the indian regis-2s tration act, 1908, the court shall also send a copy of its decree to the oftlcer in whose office the instrument has been so registered; and such omcer shall note on the copy of the instrument contained in his books the fact of its cancellation 31 where an instrument is evidence of different rights or difter- what ins-30 ent obligations, the court may, in a proper case, cancel it in part and !:~:t8 allow it to stand for the residue partially cll¥:cued 3z (1) on adjudging the cancellation of an instrument, the court power to may require the party to whom such relief is granted, to restore, so ~equ~e be tar as may be any benefit which he may have received from the r:c:n~oor 35 other party and to make any compensation to him which justice c!jmpcnaa-- tlod to be may reqwre made when (2) where a defendant successfully resists any suit on the ~~~l~~ groundor is succci8-fully resited (4) that the instrument sought to be enforced against him in as beidi 40 the suit is voidable, the court may, if the defendant has received ~~::'~~e "i  _ iiiybeneftt undt!r the instrwnent from the other party, require him  to r~store, so far as may be, such benefit to that party or to make compensation for it; (b) that the agreement sought to be enforced against him in the suit is void by reason of his not having been competent to 5 contract under section 11 of the indian contract act, 1872, the 9 of 1872 - court may, if the defendant has received any benefit under the agreement from the other party, require him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has benefited thereby 10 chapi'er vi dil(:letioll ofcourta to dc<:laradon « status 01' ript meet of declaratioll declaratory decrees 33 any person entitled to any legal character, or to any right as to any property may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court is may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declara- 20 tion of title, omits to do so e:r:pzanation-a trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee 34 a declaration made under this chapter is binding only on the 2s parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees part iii preventive relief  chapter vii injunctions generally35 preventive relief is granted at the discretion of the court, by injunction, temporary or perpetual preventive idjcfhow paatccl 35 te'mpo~ and~-~~ 38 (1) temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the code of civil procedure, 1908 (2) a perpetual injunction can only be granted by the decree 40 made at the heariftg and upon the merits of the suiti the defendant is thereby perpetually enjoined from the assertion of a right, or from i' the commission of an act, which would be contrary to the rights 01 the plainti1f   chapter viii peri'e'rual injunctions5 37 (1) subject to the oth~r provisions contained in or referred r~ to by this chapter, a perp~tual injunction may be granted to the ~loq plaintiff to prevent the breach of an obligation existing in his favour, gnuted whether expressly or by implication (2) when any such obligation arises from contract, the court 10 shall be guided by the rules and provisions contained in chapter n (3) when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-(a) where the defendant is trustee of the property for the i s plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; 20 (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings 38 when, to prevent the breach of an obligation, it is necessary ~o, to compel the performance of certain acts which the court is capable idj\ljictloaa of enforcing, the court may in its discretion grant an injunction to 25 prevent the breach complained of, and also to compel performance of the requisite acts 3 • (1) the plaintiff in a suit ior perpetual injunction under d •• section 37, or mandatory injunction under section 38, may claim ~uu:ror damages either in addition to, or in substitution for, such injunc-to,·::= 30 tion and ·the court may, if it thinks ftt, award such damages don (2) no relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint: provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceeding, allow 35 the plaintiff to amend the plaint on such terms as may be just for inclu~ng such claim (3) the dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for sa breach 40 an injunction cannot be grantedtldunc:tion when refused (a) to restrain u:ly person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings; 5 (b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; (c) to restrain any person from applying to any legislative body; 10 (d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; (e) to prevent the breach of a contract the perionnance of which would not be specifically enforced; (f) to prevent, on the ground of nuisance, an act of whicb 15 it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efftcacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach 20 of trust; (i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court; (;) when the plaintiff has no personal interest in the matter idjun;tion to 41 notwithstanding anything contained in clause (e) of section 25 perform 40, where a contract comprises an aftlrmative agreement to do a deptive aarecmcnt certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstances that the court is unable to compel specific performance of the a1brmative agreement shall not preclude it from granting an injunction to perform the negative 30 agreement: provided that the plaintiff has not failed to perform the contract so far as it is binding on him ameddmedt 42 in section 32 of the arbitration act, 1940, after the words "nor of act 10 of shall any arbitration, agreement or award be", the word "enforced" 35 1940 shall be inserted repeal g the specific relief act, 1877, is hereby repealed  statement of objects and reasonsthis bill seeks to implement the recommendations of the law commission contained in its ninth report on the specific relief act, 1877, except in regard to section 42 which is being retained as it now stands an eaxlier bill on the subject introduced! in the lok sabha on the 23rd december, 1960, lapsed on its dissolution the notes on clauses, extracted from the report of the law commission, explain the changes made in the existing act asoke k sen new delhi; the &th jum, 1962 clause 2-the definition of trust in the existing act is not sati  factory inasmuch as it refers to express, implied and constructive trusts without defining them the expression is now being defined as in the indian trusts act, 1882, as there should be parity between the two enactments consequential changes have been made in the definition ,,1 trustee clause 3 (existing section 4) -clause (a) of existing section 4 has been omitt!!d as unnecessary under section 2 (h) of the indian contract act, 1872, only an agreement enforceable by law is a contract a mere agreement is not enforceable in law in view ot clause 2 (e) of the bill, clause (a) of section 4 is unnecessary (see also notes under clause 8): the existing sections 5 and 6 have been omitted as being too elementary section 9 has been omitted for the reasons given in paragraph 16 of the report of the law commission clause 4 (existing section 7) -instead of being cast in the negative form as at present, the revised clause brings out the principle more clearly by saying that specific relief being a civil remedy, the plaintiff must show some individual right to it in every case clauses 5 and 6 reproduce existing sections 8 and 10 with the substitution of the word "provided" for the word "prescribed" in both the sections clause 7 (existing section 11) -an explanation modelled on the explanation to the existing section 12, is addled whereby the burden of prov:ng that the case does not fall within clause (b) or clause (c) is laid on the defendant in such cases it should be for the defendant to prove that the article in respect of which possession t claimed is an ordinary article of commerce having no specia] value or interest to the plaintiff or that the damage is assessable in money clause b-this is new in india the defences that are available unde!' the law of contract such as, incapacity of parties, absence of a concluded contract, the uncertainty of the contract, coercion, fraud, mis-representation mistake, illegality or want of authority are all dealt with under the contract act clause 8 prescribes in a compendious way all the defences that are open to a defendant; and incidentally makes the existina section 4 (a) which has now been omitted, all the more unnecessary clause 9 (existing section 12) -clause (a) of existing section 12 which refers to an obligation arising out of a trust is now beln, incorporated in clause 10 with the other provision relating to trusts now to be found in section 21 (e) clause (d) of the existine; section 12 seems to sanction the doubtful d:octrine that insolvency of the defendant is a ground far decreeing specific performance it is totally inconsistent with the principle followed in the grant of specific relief, namely, the non-existence or inadequacy of the remedy at law, but not merely the impracticability of enforcing such a remedy it is, therefore, being omitted the explanation is being amended so as to specify the exceptional cases where courts in india and jn england grant specific performance of contracts to transfer movable property on the presumption that damages would not in such cases give adequate reuef the exception as respects goods not easily obtainable in the market has been engrafted from american law where courts have enforce!! specific pcrfotmance of contracts to furnish gas, water or other necessary materials to a manufacturing establishment where the thing contracted for is not immediately available from other sources rnd a breach of contract would stop the operations of the plaintiff's establishment clause 10-the provir;ions relating to trusts now found in section 12 (a) and section 21 (e) are being grouped together section 12 (a) is ~ut of placp in that section as that section relates to executory rontracts whereas in the case of an obligation arising out of a trust it arises out of an executed contract clause n-sections 14 to 17 deal with claims for specific reliet of a part ofa contract and section 13 enshrines a principle generally applicable to cases falling within sections 14 to 17 all these sections have now been grouped together sub-clause (1) corresponds to section 17 sub-clause (2) corresponds to section 14, sub-clause (3) corresponds to section 15 bu,t on  important change which has been made in sub-clause (3) is that ,when the part which must be left unperformed forms a considerable portion of the whole but admits of compensation in money, the plaintiff is allowed a proportionate abatement of the consideration when he is to :relinquish all claims to further performance or any furthe!' compensation for the breach in this respect the existins position js inequitable sub-clause (4) corresponds to section 16  thp explanation reproduces section 13 with verbal changesclause 12-this is section 18 of the existing act with the following amendments:-(a) it is made clear that this clause applies also to absence of title: (b) by inserting the words "subject to the other provisions of this chapter", it is made clear that other provisions of this chapter, like clause 11, apply to cases under sub-clause (a); (c) in sub-clause (a), for the words "sale or lease", the word "contract" has been substituted so that it is made clear that the sub-clause applies only to contracts to sell, lease or hire; (d) sub-clause (b) is modified so that a plaintiff would also be enabled to require a vendor to get a conveyance from a person who is bound to convey at the request of the vendor; (e) in sub-clause (c) the addition of the words "wherever necessary" makes it clear that a re-conveyance need be obtained only when it is required under law with respect to sub-clause (2), see notes under clause 16 clause 13-this is section 21 of the existing act with the follow-ing amendments:-(i) in sub-clause (1), clause (c) of section 21 has been omitted as unnecessary in view of section 29 of the indian contract act, 1872; (il) clause (f) of section 21 has been omitted in view of clause 8 of the bill; (iii) in item (d), the word 'determinable' has been substituted for the word 'revocable' as the expression 'revocable contract' is not accurate; (iv) clause (e) of section 21 has been incorporated in clause 12 of the bill; (v) in item (d) [clause (g) of section 21] tqe limit of three years, which is artificial and arbitrary, has been omitted, and the proper rule applicable in such cases substituted; (vi) sub-clause (3) is new and incorporates the exceptional cases in which specific performance is l1'anted, notwithstanding the provisions of sub-clause (1) clause 14-this clause reproduces section 23 with the followin, modifications-(i) in sub-clause (b) it is made clear that, in a contract of a personal nature, perfonnance by a third party is not to be imposed on the other party to the contract except where he has accepted such substituted performance; (ii) sub-clauses (c), (d), (e) and: (f) could be substituted by a simple provision providing that a third party to a contract who is entitled to a benefit thereunder or has an interest therein may sue on the contract subject to certain limitations this substitution would, however, have to await a suitable amendment being made in this behalf in the contract act, and the clauses have been reproduced as they stand for the time being; (iii) in sub-clauses (g) and (h) the word 'public' has been omitted since the nature of these provisions is such that they should apply to all companies further in sub-clause (h) it is provided that the contract would be enforceable by or against a company only if it has accepted the contract and has signified its acceptance to the other party to the contract clause 15-this is section 24 of the existing act with the follow-ing modifications:-(i) in sub-clause (a) for the words "is not entitled", the words "would not be entitled" have been substituted in order to make the meaning clear; (ii) in sub-clause (b), following the principles enunciated by case-law, it has been provided that specific performance cannot be enforced where the plaintiff has acted in fraud of the contract or acts at variance with or in subversion of the relationship intended to be established by the contract; (iii) clause (c) of section 24 has been omitted as unnecessary in view of order ii, r 2 of the code of civil procedure, 1908; (iv) clause (d) of existing section 24 gives effect to a provision of english law as it stood under a statute of the sixteenth century, but the law has since been changed a prior settlement of property would divest the title of the settlar immediately and any conveyance thereafter from the settlor to another, even if it be for consideration, would be ineffective to convey any title this provision is therefore totally unnecessary; (v) sub-clause (c) is a new provision which incorporates the principles laid down by case-law that in a suit for specific ierformance the plaintiff must show that all conditions precedent have been fulfilled and also allege and prove a continuous readiness and willingness to perform the contract on his part from the date of the contract to the time of hearing of the suit the plaintiff, however, need net prove performance of or over-readiness or willingness to perform non-essential terms; (vi) by an explanation it is made clear that it is not essential that the plaintiff should tender money payable under a contract, say, for sale to the defendant or to deposit it in court ex~ept when so directed further, the plaintiff should be entitled to specific perfonnance if he avers performance or readiness or willingness to perform the contract according to its trlie construction clause 16-this is section 25 of the existing act with the follow-ing modifications:-clause (c) of section 25 is omitted for the reasons given against clause 15 in respect of the omission of clause (d) of section 24 although section 25 refers to both movable and immovable property, it is not clear how far sections 18 and 25 apply to controcts for the letting of movable property sub-clause (1) is therefore confined to immovable prvperty, but sub-clause (2) provides [as in the case of clause 12 (2)] that the provisions of sub-clause (1) will also apply to movable property in so far as such application is possible clause 17--clause 17 is section 26 with the following changes:-(i) sub-clause (a) amalgamates clauses <a), (b) and (c) of section 26; (ii) -in sub-clause, (c) for the words "contracted to vary", the woids "varied its terms" have been substituted! as a drafting change clause 18 is section 27 of the existing act with the following ehanges:-(i) in sub-clause (d), the word "public" has been omitted as this provision should apply to all companies; (ii) sub-clause (e) has been modified on the lines proposed in: respect of section 23 (b)  [see notes under clause 14 (h) ] clmue 19-this clause reproduces section 22 of the act with the following modifications-(i) sub-section (2) (a) is item i of section 22 the existing proviisfon is somewhat vague there are circumstances in which a court of equity refuses to decree specific performance on the ground of unfairness even though in lew t,he circumstances are not such as to render the contraot voidable the scope of this sub-clause is therefore widened to provide that the unfair advantage may be due to circumstances which may not be sufficient to render the contract voidable; (ii) the two explanations based on case-lew seek to explain in wbat cases unfair advantage or hardship shall not be presumed and with reference to what circumstances hardship should ordinarily ,be determined; (iii) the doctrine that a contmct to be specifically enforceable must as a general rule be mutual has now very little scope for application in india that doctrine is now being abolished and in its place, the following principle is laid down, namely that the fact thet the remedy of specific enforcement is not available to one party is not a sufficient reason for refusing it to the other party sub-clause (4) gives effect to this new principle clauae 20-this is section 19 of the existing act with the following changes:-(i) sub-clause (4) makes it clear that the compensation to :be awarded is to be determined on the basis of section 73 of the indian contract act, 1872; (ii) it is provided in su:b-clause (5) that compensation has to be specifically asked for before it can be granted, and that the court should allow tke plaintiff to amend his plaint at any stage of the proceeding for the purpose clause 21--clause 21 is new sub-clause (1) (a) introduces a rule, now settled by judicial decisions, that in order to avoid a multipiicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance even though strictly speaking the right to possession accrues only when specific perfonnanee is decreed in some cases it has been held that the court may, in a suit for specific -performance, direct a refund of earnest money while refwin, specific performance if the facts disclose a case for such a refund sub~lause (b) gives effect to this and also permits the p1aintift to claim any other relief it is, however, provided that any such relief will not be granted unless a claim in that behalf is made by the plaintiff either initially or by an amendment at a later stage, but that does not prejudice his right to compensation under clause 20 clause 22-this is section 20 of the existing act amplified so as to codify the law on the subject in applying section 20 courts have tried to ascertain the intention of the parties, that is, whether the party bound to performance has on alternative choice given to him by the contract, to perform or to pay the agreed sum; or whether he is bound to do a certain thing, with a penal sum or sum by way of liquidated damages attached as secqrity in the latter clc;e, thp court, notwithstanding the penal clause, enforces performance if the contract be such that without the penal clause it would have been proper to enforce specific performancp clause 23 is section 29 of the existing act provisions have been included in the bill enabling the plaintiff to esk for reliefs such as refund of earnest money, etc, and by way of abundant caution it is made clear in this clause that the dismissal of a suit for specific performance shall not bar a suit for any relief other than damages clause 24 is section 30 of the existing act after the passing of the arbitration act, 1940, the provisions of this clause should be confined to cases of a'rbitration under other laws the operation of which is saved by sections 46 and 47 of the arbitration act, 1940 as respects cases to which the arbitration act, 1940, applies, that act prescrihes the procedure to be followed for their enforcement section 27 a of the existing act is omitted for the reason that suitable provision is to be made in this behalf in the registration act and section 28 has been omitted for the reason the materia) ·provisions thereof have been incorporated in their appropriate places in the bill clause 25-this js section 31 of the existing act with the follow· ing modifications:-(i) under section 31 of the companies act, 1956, the arucles of association of a company may be altered ,by the company by special resolution, and it is, therefore, advis::lb1e to exclude articles of association from the scope of this clause; (if) it is provided in sub-clause (1) that the relief of rectift· eation may be obtained not only in a suit specifically brought for the purpose as at present, but also in a suit in which any right arising under the contract or other instrument is in issue it is further provided that the relief will be open to either party but only if it is specifically asked for in his pleading whether initially or 'by amendment; (iii) section 32 of the existing act has been omitted as it is ambiguous; and if it means that the court will not rectify an invalid instrument, it is not necessary; (iv) section 33 of the existing act has been omitted as unnecessary as this provision seeks to merely enjoin the court to discover the real intention of the parties in any event, chusp 25 of the bill renders this section unnecessary; (v) section 34 of the existing act has been incorporated in sulb-clause (3) clause 26-':ntis is section 35 of the existing act with the following modifications:-(i) section 35 (c) of the existing act and the two para~dhs succeeding it have been omitted in view of clause 27 of this bill; otherwise su'b-clause (1) is a reproduction of section 35; (,ii) sub-clause (2) codifies the principles followed by courts in refusing to rescind a contract; (iii) the requjrement of "writing" at the beginning of section 35 has been omitted by the transfer of property act, 1882, in relation to territories where that act is in force; hence th~ ex·planation clause 27-this is new under section 35(c) of the existing act, the vendor or lessor has the option of bringing a separate suit for the rescission of 9 contract or to apply for rescission in the same suit under the third paragraph of the section, but there is no reason why the vendor or lessor should be allowed to harass the other party in a separate proceeding when the relief of rescission can be made available in thp same suit at the same time suitr!ble reliefs should also be made available to the purchaser or lessee when he makes the payments due but the vendor or lessor does not compjy with the terms of the decree the new clause therefore seeks to provide complete relief to both the parties in terms of the decree for specific performance in the same suit without having to resort to separate proceedings section 36 of the existing act has been omitted as it is in conftict with section 22 of the indian contract act, 1872, and does ndtappear to enshrine any sound principle clause 28-<clause 28 is section 37 of the existing act clause 29-this is section 38 of the existing act amplified to provide that while decreeing rescission the court might direct not only payment of compensation to the defendant but also restoration of any benefit received by the plaintiff under the contract clause 30-this is section 39 of the existing act clause 31-this is section 40 of the existing act clause 32-under section 41 of the existing act a plaintiff who obtains cancellation of an instrument may be required to make compensation to the defendant this provision has been expanded to provide for the following matters:-(i) the plaintiff may i'jlso have to restore any benefit which he may have obtained under the instrument; (ii) the above principle has been extended to apply in favour of a plaintiff in a case where the defendant successfully resists a suit on the ground tha·t it is void or that it is voidable and he ms avoided it: (iii) it is, however provided that in the case of a contract, which is void by reason of the defendant bein~ a minor or lunatic at the time of the contract the defendant must restorp any benefit, whether proprietary or monetary, which he has actually received under the contract there is, however, no question of any liability for making compensation in such a case clause 33-this is section 42 of the existing act clause 34 is section 43 of the existing act clause 35-this reproduces section 52 of the existing act clause 36-this reproduces section 53 of the existing ad clause s7--this is section 54 of the existing act with the follow-ing changes:-(i) for the word "applicant", the word "plaintiff" has been substituted as the former expression is inaccunlte; (ii) section 54 (d) of the act has been omitted for the reason given against clause 9 in respect of the orniasion of section 12(d) clause 38-this is section 55 of the existing act clause 39-this clause is new and gives e1fect to the principles au'eady accepted that the court can, in an action for injunction, exercise its discretion to award damages either in addition to or in substitution for an injunction clause 4o-th,js is section 56 of the existing act with the following changes:-(i) the expression "to stay proceedings" in clauses (a), (b) and (c) of section 56 has given rise to a controversy as to whether any injunction can be directed against the court itself before which the ,proceeding is pending an injunction is a remedy in personam which is di,rected against the liltigwtt and this is now made clear; (ii) section 56(d) has been omitted; the first part of it is inconsistent with article 361 (1) of the constitution, and the second part is unnecessary clause 41-this is section 57 of the existing act clause 42-this clause makes a consequential amend~nt in the arbitration act, umo  extract prom thb: aasrrratlon act, 1940- har of ~uils concelling ubitration  reement or award (10 of 1940) - - ' - 32 notwithstanding any law for the time being' in torce, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or a\wlrd, nor shall any arbitration agreement or award ·be set aside, amended, modified or in any way affected otherwise than as provided in this act ' - - - -  a billto define and amend the luw relating to certain kinds of specific relief (shri asoke k setl, minister of lafd)-