India: The Specific Relief (Amendment) Bill, 2017

Last Updated: 26 April 2018
Article by Pranav Sampat, Yash Chokshi and Tanvi Goenka

Most Read Contributor in India, July 2019

Introduction

The Specific Relief Act 1963 (Act) sets out the remedies available to parties whose contractual or civil rights have been violated. The Act sets out two main remedies to a party whose contract has not been performed: (i) the party may ask the court to compel performance of the contract (specific performance); or (ii) the party may seek monetary compensation instead of performance.

Amendment

The Specific Relief (Amendment) Bill, 2017 (Bill) was introduced by the Minister of Law and Justice Mr Ravi Shankar Prasad on 22 December 2017 and was passed by the Lok Sabha on 15 March 2018.

The Bill seeks to reduce the wide discretionary powers of the courts in granting specific performance of contracts. It seeks to make specific performance a general rule rather than an exception, subject to certain limited grounds.

The highlights of the Bill are as under:

Recovery of possession of immovable property

While the Act permitted a suit for recovery of possession of immovable property to be filed by persons put out of possession or anybody claiming through such disposed persons, the Bill amends Section 6 of the Act and allows persons through whom the dispossessed got possession to file a suit for recovery of possession of immovable property.

Comment: This is a welcome clarification. The amendment now takes away the anomaly which existed i.e., whether a person who is in de-jure possession and not de-facto possession, can maintain an action under Section 6 of the Act.

Court's Discretion to grant Specific Performance

Section 10 of the Act, has been substituted and the discretionary power of the court to grant specific performance has been reduced.

Comment: The substituted Section 10 proposes to reduce the discretionary jurisdiction of the court in granting specific performance of contract. The amendment now seeks to mandate every court to grant specific performance of contract as a general rule.

Engagement of Technical Experts

The Bill contemplates an appointment of an expert to assist the court on specific issues involved in the suit.

Comment: This amendment is much-needed since, often the Courts are not equipped with technical expertise to access the actual issues involved in the suit, for example, suits involving complex development/ re-development of housing societies, public utility services etc.

Substituted Performance

The Bill also provides for substituted performance; in the event where a contract is breached, the aggrieved party is entitled to arrange for performance of the contract by a third party or by his own agency, and to recover the costs and expenses incurred, including compensation from the defaulting party. Such party would have to serve a written notice at least 30 days before undertaking such substituted performance. However, once substituted performance is sought, specific performance cannot be urged/claimed.

Comment: The proposed amendment seeks to serve as an alternative remedy for aggrieved parties.

Requirement to plead readiness and willingness to perform contractual obligations removed

The Bill seeks to relax the stringency of pleadings in the suit, and provides that the party must only prove readiness and willingness; the requirement to 'aver' is sought to be removed.

Provisions specific to Infrastructure Projects

Injunctions

The Act enables courts to grant injunctions to parties, while it provides for exceptional circumstances wherein injunctions may not be granted. The Bill however, by introducing Section 20A, attempts to prevent courts from granting such preventive relief in the form of injunctions to infrastructure projects, especially if the same were to cause hindrance or delay in its continuance or completion.

Types of projects

Various categories of projects and infrastructure sub-sectors have been provided in the Schedule to the Bill. The categories along with some infrastructure sub-sectors are: (i) transport including roads, ports, airports, urban public transport; (ii) energy relating to electricity, oil, gas; (iii) water and sanitation including waste management, water supply and treatment, irrigation (iv) communication including telecommunication services and towers and (v) social and commercial infrastructure with respect to educational institutes, sports, hospitals, tourism, affordable housing etc.

Special Courts

The Bill provides for designation of certain civil courts as Special Courts, by the State Government, in consultation with the Chief Justice of a High Court. Such courts will be entrusted with disposing cases related to infrastructure projects within twelve months from the date of service of summons to the defendant, with the ability to extend the same for another six months after recording reasons thereof.

Khaitan Comment

It has become imperative to change existing provisions pertaining to enforcement of contracts governing such activities. With the rapid growth, and expansion of infrastructure activities, the need to reduce uncertainty in such projects or those involving large public investments is necessitated.

Finally, the move to modernize the Act, to promote growth and investment and to reduce intervention by courts in infrastructure projects, which will largely benefit the public is a step in the right direction. Once the Rajya Sabha passes the Bill, the Act is expected to provide a boost to the infrastructure development in India, thereby facilitating ease of doing business in the country.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions