Specific Performance, now a general remedy.
The law of specific performance has changed in India. Specific performance is now available as a general remedy. By the amendment in 2018 of the Specific Relief Act 1963, specific performance is neither an exceptional nor a discretionary remedy.
Specific relief gives to a promisee what he is entitled under his contract. It constrains the promisor to do what he has promised to do; it compels him to perform his obligation. Such relief goes by another name – ‘enforced performance’. Remedies of specific performance and injunction give to a promisee what has been promised to him. If the main aim of contract remedies is protection of the promisee’s expectation interest, specific performance is the logical remedy that best serves this purpose. In Indian law, specific relief giving enforced performance of a contract is by way of a decree of specific performance, or injunction – prohibitory or mandatory. Before the law was amended in 2018, it was granted as an exception, in cases where compensation either was not ascertainable or was inadequate.
A plaintiff seeking specific performance had to satisfy ‘ the inadequacy test’ at the threshold. Specific performance was an exceptional remedy primarily because of the inadequacy test. Although other factors, viz. plaintiff’s conduct, and exercise of discretion by the Court affect availability of specific performance, my article discusses the role of the inadequacy test in the grant of specific relief. Even though the inadequacy test is fulfilled, the Court must be able to make its decree enforceable. This limitation on court’s power is also discussed. My article supports the view specific performance must be available as a routine remedy, so that a promisee can choose specific performance.
Click here for my article: Exceptional nature of specific performance in the Indian Law.
Click here for the Specific Relief Act, 1963, the amending Act, and the Act as amended.