Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract.[1]
Section 12 provides for specific performance of part of contract. Subsection (1) thereof postulates that except as otherwise hereinafter provided in the section, the court shall not direct the specific performance of a part of a contract. Sub-section (4) thereto envisages that when a part of the contract which, taken by itself, can and 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 specific performance of the former part.
Section 10(b) provides that: “Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced- (a) * * * (b) when the act agreed to be done is such that compensation in money for its non[1]performance would not afford adequate relief.”
Spry in his Equitable Remedies, 4th Edn., 1990 stated at p. 59 that: “In the absence of special circumstances rendering equitable relief appropriate the courts will not grant specific performance, if damages would leave the plaintiff in as favourable a position in all material respects, it is now necessary to reassess earlier decisions in which damages have been held to be an adequate remedy.”
At p. 60 it is stated that:
“A special difficulty arises where even if the agreement in question is performed in specie, the right that the purchaser will obtain will probably not amount to more than a right to receive payments of money, such as when the land in question will probably be compulsorily acquired pursuant to statutory authority, but the better view is that damages are not an adequate remedy even in cases of this kind.”
At p. 106 it was further stated that: “Although it was said in a number of early cases that courts of equity will not order specific performance of part only of a contract, this limitation has no basis in principle, and it is now accepted that in a number of diverse circumstances partial enforcement in specie is appropriate.”
At p. 135 it is stated that: “It is well established that generally a plaintiff will not succeed in obtaining an order of specific performance unless he is able to show sufficiently and clearly the existence of a contract that is valid and enforceable at law at the time when the order is sought.”
At p. 158 it is stated that: “Whenever there is an active misrepresentation, whether it is innocent or fraudulent, or a non-disclosure in circumstances where there is a duty of disclosure, and according to the appropriate legal and equitable rules, the defendant against whom proceedings for specific performance are brought has a right to rescind, it follows as a matter of course that specific enforcement will not be ordered against him.”
At p. 199 it is stated that the court may take account of the fact that there are- ” third persons so connected with the defendant that, by reason of some legal or moral duty which he owes them, it would be highly unreasonable for the court actively to prevent the defendant from discharging his duty.”
At p. 312 it is stated that: “It has been held by courts of equity that specific performance will not be granted to a vendor if, although he has established a good title on the balance of probabilities, that title is sufficiently uncertain to be regarded as a doubtful title in the sense in which that term is understood in the material authorities; for otherwise it might appear in subsequent proceedings that a title that the purchaser has obtained a deficient, and there might be no way in which he could be properly compensated.”
[1] Sardar Singh v Krishna Devi (1994)