Answer Writing: Specific Relief Act, 1963

     

Q. Can the following contracts be enforced specifically:-

a. A contract for the sale of property which is under attachment by Court’s order?

Ø  After 2018 Amendment to the Specific Relief Act, 1963, relief of specific performance can be refused only on the grounds mentioned in Sections 11(2), 14 and 16 of the Act and none of them provide that property attached by Court cannot be sold by contract. In fact, Section 52 of the Transfer of property Act, 1882 provides that contract for sale of property which is the subject-matter of a suit is not void but is subject to the decision of the Court; thereby implying that such sales are allowed.

Therefore, Court can order specific performance of the contract mentioned above subject to the decision of the Court which has attached the property. In case the defendant gets the right to be able to sell the property, the Plaintiff can ensure its performance by virtue of Section 13 of Specific Relief Act, 1963.

 

b.    Contract to marry?

Ø  Though 2018 Amendment to Specific Relief Act, 1963 (Hereinafter referred to as “SRA”) made the relief of Specific Performance of Contracts mandatory. Sections 11(2), 14 and 16 enlist certain situations where a contract cannot be enforced specifically. One such ground is given in Section 14(c) of the SRA namely: contracts based on personal qualification. ‘Personal Qualification’ is nowhere defined in the Act but it broadly includes contracts based on personal skills or personal relations, etc. A contract to marry also falls under this category. Marriage in India has been recognized as a sacrosanct irrespective of the religion of the parties. It cannot be specifically enforced because its purpose is to not just enter into the ceremony of marriage but to honor matrimonial alliance as much as possible. Holding otherwise would result in instability, destitution and vagrancy; some things that are opposed to our public policy. For these practical and statutory impediments, a contract to marry cannot be enforced specifically. 

Q: State the principles governing the grant or refund of a Mandatory Injunction. Under what circumstances can the Court grant an injunction to perform a negative agreement? 

A: Introduction

There are two modes of relief: (i) by compensation, and (ii) by injunction. The latter could further be of two kinds depending upon the time period of its operability: (i) Temporary Injunction, which is granted upon prima facie facts and thus stays operative till a certain time or stage, and (ii) Perpetual injunction, whose operative period isn not restricted. It is final in nature and is thus granted upon merits of the case. On the other hand, depending upon the nature of the injunction granted, it can either be a (i) prohibitive injunction or a (ii) mandatory injunction. In the former case, as the name suggests, there is a restriction upon some action whereas in the latter case, there is a duty to not do something coupled with an order compelling performance.

[full text coming soon]

Q: What do you understand by declaratory decree? What is its practical utility? 

A: The following is a sample answer. Actual answer must be much shorter.