POSSESSION, PARTITION, AND EARNEST MONEY (Under Specific Relief Act, 1963)

Introduction

In this article, we are going to talk about the specific performance of a contract or deed under the Specific Relief Act, 1963. We will primarily deal in this article with the additional relief given in section 22 of the Specific Relief Act, 1963, along with it we will discuss the object of the specific relief act, what is specific performance, and situations where section 22 can be repudiated.

The Law of Specific Relief in India was initially codified by the Specific Relief Act, 1887. The Law Commission's provisos of this enactment were well-thought-out in its Ninth Report, which guided the enactment of the Specific Relief Act, 1963 in place of the former enactment.



The object of the Specific Relief Act, 1963

The object of the Specific Relief Act is limited to that class of remedies that a suit seeks to obtain and a court of justice seeks to give him the very relief to which he is entitled. The Law of Specific Relief pursues to device the principle of Bentham, who said: “The law must guarantee me everything which is mine, without forcing me to accept equals, although I have no particular opposition to them”.

The Law of specific performance in essence belongs to the law of procedure. It complements various substantive laws such as the law of Contracts, the Transfer of Property Act, Sale of Goods Act.



What is Specific Performance

The Specific Relief Act provides for specific reliefs. Specific relief means relief of a definite species, i.e., a precise or particular, a named, fixed, or determined relief. The term is usually understood as providing relief of a specific kind rather than the general relief of damages or compensation. Specific performance is generally granted when there is a standard for determining actual damage, for example when the object of sale is a picture by a dead painter, or where compensation in money will not provide suitable relief to the plaintiff.

Sometimes an instrument in writing does not express the actual intent of the parties due to fraud or mutual mistake, alteration of such instruments is permitted by the Specific Relief Act.



Relief of Possession, Partition, etc (Section 22)

Where the relief wanted is for the transfer of immovable property, the court may also grant if so, pleaded by the party, relief by way of possession, partition, and separate possession. The court may also grant any other relief, such as a refund of earnest money or deposit paid in case-specific performance is refused. Where the party has not made any such prayer in the original plaint, the court may permit amendment of the plaint.


Section 22- Power to grant relief for possession, partition, refund of earnest money, etc.- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for—



(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or [made by] him, in case his claim for specific performance is refused.


(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.



(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under Section 21.

The object of Section 22, newly introduced in 1963, was to permit parties to sue in one suit for specific performance and possession, etc. This provision was considered essential because, under the 1877 Act, some High Courts had taken the view that since little would pass only after the specific performance is decreed, possession could be claimed only thereafter in a specific suit. Other High Courts, however, favored the view that possession could be asked for in the same suit.

Any person indicting for specific performance for the transfer of immovable property may, in an appropriate case, ask for certain extra reliefs, viz., possession, or partition and separate possession. Such additional reliefs can be claimed in a suit for specific performance to avoid a multiplicity of suits.



Similarly, a person suing for the performance of a contract for the transfer of immovable property, apart from claiming possession, etc. of immovable property may also claim any other relief including the refund of earnest money paid or made by him. If the facts do not warrant the specific performance, the court may refuse the same and order a refund of the earnest money.


The above-mentioned reliefs will not be granted unless the same are either claimed in the plaint initially or by an amendment of the pleadings subsequently. This amendment procedure in the plaint is covered by Section 22(2) and not Order 6, Rule 17, CPC. Plaintiff could be permitted to amend his plaint for including prayer of possession at any stage including execution.



Judicial Pronouncements on Section 22 SRA, 1963

In various cases, the Apex Court of India had the occasion of analysing the scope of Section 22 of the Specific Relief Act, 1963.


In the case of Madamsetty Satyanarayana vs G. Yellogi Rao And Two Others AIR 1965 SC 1405, the apex court held that under Section 22 the jurisdiction to decree specific performance is unrestricted 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 amendment by a court of appeal.


There are cases in which the court may properly exercise a discretion, not to decree specific performance- 1) where the conditions under which the contract is made are such as to give the plaintiff a one-sided advantage over the defendant, though there may be no, fraud or misrepresentation on the plaintiff’s part.



2) where the performance of the contract would involve some hardships on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.


Supreme Court in the case of Babu Lal vs Hazari Lal Kishori Lal & Ors AIR 1982 SC 818 held that:

The expression “in an appropriate case” only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for a specific performance of a contract to transfer the immovable property. That has to be done where the conditions demanding the relief for specific performance of the contract of sale are incorporated within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed.



Supreme court in the matter of Adcon Electronics Pvt. Ltd vs Daulat And Anr 2001 held that no court can grant the relief of possession of the immovable property, the subject matter of the agreement for sale regarding which specific performance is claimed unless the possession of the immovable property is specifically prayed for.


Conclusion

The Specific Relief Act, 1963 has a set of remedies given to the parties to suit. They have different reliefs and enforce rules which focus on providing sufficient compensation to all. This act’s main aim is that no person shall live with the damages and losses and those who have caused such a situation must be in a position to reinstate all unlawful benefits received by them. This act focuses on providing justice to all and not unequal favor to a single party.



This article is written by Meghna Tyagi of Faculty of Law University of Delhi.

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