Introduction

• Equitable remedies are judicial remedies that restore the parties to the same position they would have been in if no breach of contract occurred.
• They are provided by the Specific Relief Act, 1963 (SRA) and may be broadly classified as:
  • Recovery of Possession
  • Specific Performance
  • Injunction
  • Rectification and cancellation of instruments and rescission of contracts
  • Declaratory Relief

Equitable Remedies

Recovery of Possession

It can be classified as follows:

• Recovery of possession of immovable property - Section 5 & 6 of the Act talks about recovery of possession of immovable property.
• Recovery of possession of movable property - Section 7 & 8 of the Act talks about recovery of movable property.

Section 5 - Recovery of specific immovable property. — A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908.

Section 6 - Suit by person dispossessed of immovable property.— (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom he has been in possession or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought—

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

• In the case of Gitarani Paul v. Dibyendu Kundu (1990), it was held by the Hon’ble Supreme Court that when the plaintiff files a suit regarding the dispossession, it is enough if he proves that he is entitled over the title of that property. Once the title is proved other details like being diverted from the property or other things are not required to be proved.

Section 7 - Recovery of specific movable property —A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908.

Explanation 1 — A trustee may sue under this section for the possession of movable property to the beneficial interest of the person for whom the trustee is entitled.

Explanation 2 — A special or temporary right to the present possession of movable property is sufficient to support a suit under this section.

Section 8 - Liability of person in possession, not as owner, to deliver to persons entitled to immediate possession.—Any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases:—

(a) when the thing claimed is held by the defendant as the agent or trustee of the plaintiff;

(b) when compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed;

(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;

(d) when the possession of the thing claimed has been wrongfully transferred from the plaintiff.

Explanation —Unless and until the contrary is proved, the court shall, in respect of any article of movable property claimed under clause (b) or clause (c) of this section, presume:

(A) that compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed, or, as the case may be;

(B) that it would be extremely difficult to ascertain the actual damage caused by its loss.

Specific Performance of Contracts

• When breach of contract takes place, then, instead of awarding damages, the court can order a specific performance.
  • Specific performance is granted in cases where damages will be insufficient.
• Section 10 of SRA says that courts shall enforce specific performance unless the matter falls under Section 11(2), Section 14, Section 16.
• Section 11 - Cases in which specific performance of contracts connected with trusts enforceable — A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced.
• Section 14 - Contracts not specifically enforceable —The following contracts cannot be specifically enforced, namely: —

(a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20 of this Act.

(b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise.

(c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms.

(d) a contract which is in its nature determinable, that is a contract which can be terminated at the instance of one of the parties or at the occurrence or non-occurrence of a certain event.

• Section 16 - Personal bars to relief —Specific performance of a contract cannot be enforced in favour of a person —

(a) who has obtained substituted performance of contract under section 20; or

(b) who has become incapable of performing, or violates any essential term of the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation. —

For the purposes of clause (c)—

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction.

• In the case of Nutbrown V. Thornton (1805), it was held that specific performance can be ordered for a contract to supply machinery which could not be readily obtained elsewhere.

Injunction

• An injunction, mentioned from section 36 to 44 of SRA, is a form of preventive relief in which the court restrains the party threatening breach to the extent possible.
  • Injunctions under SRA may be divided into different types namely temporary, perpetual and mandatory.
• Section 38 of SRA deals with perpetual injunction. It states that -

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II of this Act.

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely: —

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) where the invasion is such that compensation in money would not afford adequate relief;

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

• Section 39 of SRA deals with Mandatory Injunction. It states that -

When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Rectification, Rescission of Contracts and Cancellation of Instruments

• Section 26 of SRA deals with the ways in which instruments can be rectified. It states that when, through fraud or mutual mistake, the parties do not show their real intention then:
  • Either party or representative in interest may file a suit for rectification of the instrument.
  • The plaintiff in his plaint may plead for rectification of instrument.
  • The defendant in his defence may claim for rectification of instrument.
  • The court can direct rectification of instruments in cases where the party through fraud does not show their real intention to prevent violation of rights to the third party.
• Sections 27-30 deals with rescission and rescission can be granted on following grounds:

(a) where the contract is voidable or terminable by the plaintiff;

(b) where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plaintiff.

• Section 31-33 deals with cancellation of instruments. The following description provides when an instrument can be cancelled:
  • Section 31 explains that when an instrument is void or voidable against a person, then he can get that instrument if it may cause damage to it.
  • Section 32 deals with the situations in which a contract can be partially cancelled.
  • Section 33 deals with the powers of aggrieved party after cancellation and orders to the defendant after cancellation.

Declaratory Relief

• Section 34 and 35 of SRA deal with declaratory decrees which are declared through the courts to the parties to suit/contract.
• Section 34 deals with the point that when any person has a certain right or obligation over the property or a title and he has been denied that right by any party, then the aggrieved party may file a suit for the enforcement of the right over the property which has been denied to him.
  • The Court will give a declaration after looking over the case that the aggrieved party has a right over the title of such property and so a declaratory decree will be passed.
  • Such declaratory decree will not be passed by the court when the plaintiff demands something more than the title over that property.
• Section 35 deals with the effect of the declaration which explains that the decree will be binding only on the parties to suit and the trustees at the time of suit if any.

Conclusion

Bentham has said, “The law ought to assure me everything which is mine, without forcing me to accept equivalents, although I have no particular objection to them.” The Law of Specific Relief seeks to implement the same idea by way of equitable remedies. The flexible nature of equitable remedies assists in the enforcement of equity.