The Specific Relief (Amendment) Act, 2018

Introduction 

Major Amendments 

• Sec 6: Suit by person dispossessed of immovable property 
  • In this section after the words “he or any person” the words “through whom he has been in possession or any person” are inserted. Before the Amendment Act of 2018, Section 6 of the Act permitted a person forcibly removed from possession, or someone claiming through him, to sue for such dispossession.  
  • The addition of the word “through whom he has been in possession or any person” widens the scope of the provision and provides the right to initiate a suit to the person through whom the aggrieved party had been in possession of the immovable property.  
•  Discretionary to statutory remedy 
  • Sec 10: The substitution of the new section for Section 10 made the enforcement of specific performance mandatory, shifting from a discretionary power of a court to a more obligatory duty. The specific performance must align with the provisions of section 11(2), section 14 and section 16, which outlines the certain exceptions and conditions where specific performance may not be enforced. 
  • Sec 11: The word “contract may, in the discretion of the court” is substituted by “contract shall”. Through this amendment, the court's discretion is taken away in order to guide the courts to enforce specific performance. 
• Sec 14: Contracts not specifically enforceable 
  • This section is substituted by a new section and the Amendment states that substituted performance, contract involving continuous duty, contract depended on personal qualifications of a party and contacts of determinable nature cannot be specifically enforced.  
• Expert Assistance 
  • Insertion of sec 14A provided that the courts may engage one or more experts for their opinion to resolve specific issues involved in a suit. The expert’s opinion becomes part of the court record and parties have the right to examine the expert personally in open court. 
• Limited Liability Partnership (LLP) 
  • Insertion of clause (fa) in sec 15 states that a newly amalgamated LLP may obtain specific performance of contract entered with one of its component LLP’s. 
    • Insertion of clause (ca) in sec 19 states that specific performance of a contract may be enforced against a newly amalgamated LLP for contract entered with one of its component LLP’s. 
• Persons bar to relief 
  • Under sec 16 clause(a) which stated that specific performance cannot be enforced in favour of person who would not be entitled to compensation for its breach was substituted by person who has obtained substituted performance under sec 20. 
  • Under clause (c) the party seeking specific performance only needs to prove the same and is not required to aver in the pleadings and the courts cannot deny the relief if the parties failed to aver. 
• Substituted performance 
  The Amendment provided substitution of new section for section 20.  
  • The amendment removed the court’s discretion to grant or refuse specific performance. 
  • Due to the breach, the aggrieved party may now seek substituted performance from a third party or one of its agencies, and it may also recover the cost associated with providing the substituted performance from the party that violated the agreement.  Such performance can only be acquired upon serving a notice of minimum 30 days to the defaulting party. However, substituted performance will not be applicable if the Parties have a contract that states otherwise. 
• Infrastructure projects 
  The Amendment inserted Sec 20A, 20B and 20C to the Act. 
  • Sec 20A has made special provisions for contracts relating to infrastructure projects specified in the Schedule inserted in the Act by the amendment. It prohibits a civil court from granting an injunction in relation to such infrastructure projects where grant of such injunction would cause impediment or delay in progress or completion of such projects.  
  • Sec 20B provides for designation of Special Courts to try a suit under the Act in respect of contracts relating to infrastructure projects.  
  • Sec 20C provides for expeditious disposal of suits filed under this Act. It states that the suit shall be disposed of within 12 months from the date of service of summons to the defendant, which may be further extended for a period not exceeding 6 months in aggregate. 
  • Under sec 41 clause (ha) has been inserted which provides that no injunction can be granted if it impedes or delays the progress or completion of any infrastructure project or interferes with the continued provision of relevant facility. 
  • Schedule- A schedule related to the category of projects and infrastructure sub-sectors has been inserted after Part III. 
• Sec 21: Power to award compensation in certain cases 
  • In this section the words "either in addition to, or in substitution of" has been substituted by "in addition to" in order to promote specific performance of contracts rather than claiming compensation in substitution of specific performance. 
  • Amendment to sec 25 is the effect of enactment of Arbitration and conciliation Act, 1996 replacing the repealed Arbitration Act, 1940.