SPECIFIC & PART PERFORMANCE OF CONTRACT

Specific performance is an equitable remedy available where no other remedies are adequate. Wherein the court orders performance of contract which are of such a nature where compensation is not the adequate relief or where the amount of loss cannot be calculated and contract is of unique nature.

As per Sec10 of Specific Relief Act 1963 an individual can approach court for Specific performance for breach of contract and can only be enforced –

-when there exists no standard for ascertaining actual damages caused by the non-performance of the act or agreed to be done, or

-when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Usually such remedies are available for breach of contract of immoveable property but not in cases of moveable property unless and until it is proved that the property is not of ordinary nature and is not easily available in the market.

Time Limitations to avail such relief

Time prescribed under law for filing of such cases are three years from the date fixed for such performance & if no such period is fixed than from that date when plaintiff realizes that there is non-performance of such contract.

Part Performance has been explained under Sec 53A of the Transfer of Property Act, 1882 which states that if a person contracts to transfer immoveable property for consideration and hence continues in or obtains possession, notwithstanding that absolute transfer has not been taken place further his right cannot be taken away from the transferor himself or any other person claiming under him. Unless and until the contract provides. This is part performance of contract as part contract has been performed and the transferee has not indicated the unwillingness to complete the remaining half of the contract.

The following are the essence of this section to be used as a shield-

Existence of contract to transfer such immoveable property, contract must be in writing duly signed by both the parties, for consideration, transferee in part performance of the contract has taken possession or has done something in furtherance of the contract, transferee is willing to perform his contract.

This section protects the bona fide transferee. As the transferor is estopped from entailing any sort of ownership rights against the property except for those rights which are mentioned in the contract. The existence of right to claim protection under S.53A would be only available if contract made thereof is in writing.

Credit: Vinita shetty