Suit For Specific Performance of Contract

Suit for Specific Performance of Contract

Equitable Remedy

Specific performance of a contract is an equitable remedy which was once exclusively administered by the Court of Chancery. It supplemented the remedy in damages offered by the Common Law, which took the breach of a contract equivalent to breaking of purely personal obligation. Sometimes, equity would recognise the contract as conferring a proprietary interest on the person to whom property was to be transferred and where such is not the case, would come to the aid of the injured party by specifically enforcing the contract as damages would be an inadequate redress.1 In a suit for specific performance of the contract, principles of equity apply in Pakistan though the relief is the creature of Statute.

(a) Nature and Scope of Remedy

Specific performance in nature is an order of the court which compels a defendant to fulfil his obligations under a contract in accordance with the terms and conditions stipulated in a contract. Failure to comply with the order will expose the defendant to criminal proceedings for contempt of court. The remedy is normally meant to enforce positive obligations, negative ones being restrained with the use of a prohibitory injunction.2

English law is somewhat reluctant to order a party specifically to perform his contract. This attitude is based principally on two factors. The first is the drastic character3 of the remedy of specific performance, which leads more readily than an award of damages to attachment of the defendant's person. Much stress has been laid on this objection since the virtual abolition of the imprisonment for civil debt. But it is really only strong where the contract calls for personal performance, i.e., for acts to be done by the defendant himself.4 The second factor which accounts for the narrow scope of the remedy is connected with the reasons for which it is sought.

A person may seek specific performance for one of three reasons. First and most easily comprehendible he may want the very thing or performance in its original form that he bargained for. Secondly, the likelihood of obtaining specific performance may give the plaintiff an equitable interest in the subject-matter of the contract; and in the case of defendant's insolvency plaintiff may get the preference over other creditors in respect of that very subject-matter.5 Third reason for wanting specific performance is simply to swell the plaintiff's damages: this would be the practical effect of granting a buyer of shares specific performance where the shares have risen in value after breach. 6

It may well be undesirable to allow a plaintiff to achieve the second and third of these objectives; and this partly accounts for the narrow scope of specific performance in English law. But there seems to be no harm in gratifying the plaintiff's wish to have precisely what he bargained for; and no harm in gratifying the plaintiff's wish to have precisely what he bargained for; and this could perfectly be done without prejudicing third parties or unduly penalizing the defendant. Specific enforce-ability need not give rise to an equitable interest;7 and specific performance can always be refused on the ground that it would be oppressive to the defendant as in the case where shares rose in value after breach 8 or owner not entitled to specific restitution of hire-purchase good after breach since all sums due to him under the agreement had been paid or tendered.9

Mere inadequacy of consideration is not a ground for refusing specific performance unless it is coupled with factors such as mistake or fraud.10 Court will refuse specific performance where the interest to be transferred is merely transitory. 11 Contracts to appoint an arbitrator, 12 to exercise a testamentary power of appointment,13 illegal contract, 14 a contract that is fraud on the public, 15 contract that is irrevocable by the party against whom specific performance is sought, 16 a contract that is wanting in certain essentials to constitute it a binding contract17 will not be specifically enforced. There are certain contracts the performance of which can be specifically enforced. These include (i) Contracts for the sale and purchase of freehold and leasehold property.18 (ii) Contracts for the sale and delivery of specific goods.19 iii) contracts to buy and sell stocks and shares.20 (iv) Contracts for the assignment of copyright.21 (v) Contracts of tenancy. 22 (vi) Contract to execute a mortgage. 23 (vii) Separation Agreements.24 the general rule of equity is that if a thing is agreed upon to be done though there is a penalty annexed to secure its performance, yet the very thing itself must be done. Right to specific performance has been conferred by law only under S. 12 of Specific Relief Act, 1877, equity can in no case replace provisions of law, however inequitable they may look contracting parties are expected to take all necessary precautions regarding capacity and capability of each other to perform their part of the contract. Agreement was enforceable as much at the instance of the seller as at the instance of the purchaser and the fact that the seller claimed in the plaint damages corresponding to interest on the principal amount due did not make it anytheless specifically enforceable. The Court should not decree specific performance of a contract the performance of which depended on the personal volition of a third party.

The court will not enforce a contract which is in its nature revocable by the defendants its interference in such a case would be idle, inasmuch as what it had done might be instantly undone by one of the parties. The refusal in such a case does not depend upon any illegality, inequity or unfairness of the contract, but is sufficiently imposing upon the Judges the labour and on the public the expense of an investigation of disputes. In it, circumstances are such as to preclude any judgment that may be rendered from being final, no Court can be called upon to do a vain thing. Supreme court of Pakistan held that in a contract between Railway Administration and a contractor giving licence to contractor to supply refreshment in refreshments rooms and run buffet cars and it was terminable at 6 months notice the contract was held to be not irrevocable licence. Thus the contract was held to be not specifically enforceable. Calcutta High Court also enunciated that under Clause(d) of Section 21, Specific Relief Act,1877 a contract which is in its nature revocable cannot be specifically enforceable. Thus partnership at will cannot be specifically enforceable because even if such a contract were to be specifically enforced it could be terminated immediately.25

A breach of Foreign Exchange Regulations is a matter of vital consequence to modern States under the stress of the economic pressure of the times. Foreign Exchange Regulations, in their present form, have come into existence after the Second World War as a rigid protective barrage which States have raised against their disappearance by unauthorized means. It cannot, therefore, be doubted that if it is shown that a that a transaction is likely to lead to an unauthorised leakage of Foreign exchange, a Court of Equity would refuse to grant a decree for specific performance.26 Where the plaintiff had been put in the possession of some portion of the property in pursuance of the agreement, it was held that by reason of there having been part performance of the agreement, specific performance must be decreed.27

Specific performance should be refused where it is likely to prove a source of constant trouble and friction between the parties and would not result in an appreciable advantage to the plaintiff, or where the decree for specific performance is likely to prove nugatory owing to the exercise by a subsequent vendee of a superior right of pre-emption. Inadequacy of consideration is not per se a ground for relieving a man from a contract which he has wittingly and willingly entered into.28 It was further held that the two covenants were divisible and, therefore, though the first had failed the second could be specifically enforced under s. 28 (b), Specific Relief Act, 1877. Where plaintiff calls upon defendant to perform a contract different from the real agreement, he cannot claim performance.

Where the parties to the original contract have subsequently agreed orally or by any written valid legal contract to vary the terms in part of the previous contract, the plaintiff cannot obtain specific performance except with variation. Thus this principle is not confined in its operation to variations prior to the breach of the contract. There is no reason why after breach the parties should not agree to vary the terms or why a plaintiff who consents to such variation should not be held bound by the terms of his agreement. Where a contract was made on behalf of a disabled person specific performance could be decreed against him after removal of disability. Plaintiff had proved his investment, finance and labour in development of land in question, he was entitled to decree in terms of agreement having been executed in his favour by both the defendants. The omission of term in agreement for sale to the effect that contract could be specifically enforced through a court of law and decree for specific performance could be obtained by filing a suit was not a valid and lawful ground for refusing grant of decree for specific performance.

Supreme Court of Pakistan held that where one week after the agreement, the father of the vendor filed a suit against the vendor seeking declaration to the effect that he was owner in possession of the suit property and also obtained a stay order, cause of action for specific performance of contract against vendor was inchoate and incomplete and became complete when the suit of the father was dismissed or when the appeal filed by the father of the vendor against the judgment and decree was dismissed by the Appellate Court. Defendants having been condemned unheard, decree of specific performance of agreement passed in favour of plaintiffs and against the defendants, could not be sustain. The Court may not decree specific performance of a contract which appears to be shady but the mere fact that husband of plaintiff (appellant) was patwari was not enough to conclude that deal/transaction in question, was shady or that it gave rise to circumstances which justified refusal to grant specific performance of contract.29

Grant or refusal of specific relief is within the discretion of Trial Court. Where relief granted by Trial Court had been affirmed in appeal, there was no basis for interference in the second appeal.30 Decree for specific performance not sub judice cannot be set aside by the appellate court. The Court should not decree specific enforcement of a contract the enforcement of which depends on the volition of a third party. A mortgage may be redeemed at any time, an agreement to mortgage may be revoked by refunding the money paid as consideration of the agreement.

Specific performance will also not yield any appreciable advantage to the appellant because, in the circumstances of the case, the respondents were likely to redeem the mortgage immediately after the execution of mortgage deed. Execution of the said deed in this case would be nothing but an exercise in futility.

Supreme Court of Pakistan held that an agreement for the continuous performance of certain acts for a period of more than three years cannot be specifically enforced. So Court refused specific performance where agreement seemed to be in perpetuity for all times to come, generation after generation. When once it is found that the contract sought to be enforced is a valid one it is for the defendants to establish legal grounds for refusing relief by way of specific performance. Where there is a novation of contract between the parties they can sue for specific performance of the new contract but they cannot sue for specific performance of the previous contract.

Remedy in personam

Specific performance is a remedy in personam so court can exercise that jurisdiction even where the subject matter of the contract is outside its jurisdiction, provided the party subject to the order is within its jurisdiction. The remedy is awarded at the discretion of the court and it is to be only sparingly awarded, where the court considers it just and equitable to do so.31

Court of Chancery considered the scope of the jurisdiction to grant specific performance. plaintiff and the defendant being in England had agreed for settling the boundaries of two provinces in America namely Pennsylvania and Maryland and the plaintiff sought specific performance of the articles. It was held that it was not permissible as the property was out of the jurisdiction of the court. it was held that the plaintiff was entitled to specific performance for the court in such a case acts in personam. The High Courts in India possess all the powers of equity in England of enforcing their decrees in personam. It is sufficient for the Courts to assume the jurisdiction that the defendant is residing and carrying on his business within its jurisdiction even the property lie outside its limits. 32

Granted where damages inadequate

Since the jurisdiction to order specific performance was supplementary to the common law remedy of damages, it has traditionally been said that specific performance will not normally be granted where the damages provide adequate relief. In the modern law, however, there is no absolute rule to this effect, and it appears that specific performance may now be ordered if that remedy will do more perfect and complete justice than an award of damages.33

The law takes the view that the buyer of a particular piece of land or of a particular house however ordinarily is not adequately compensated by damages, and that he can therefore get a decree of specific performance. A more convincing reason is that the purchaser acquires by the contract an equitable interest in the land sold and that the vendor is entitled to a reciprocal remedy. The vendor can also get specific performance, though his only claim is for money. One reason for this is that it is just to allow him the remedy as it is available against him. Another is that damages will not adequately compensate him for not getting the whole price, as he may not easily be able to find another purchaser. And he may be anxious to rid himself of burdens attached to the land.34

Damages are on the other hand generally an adequate remedy where the plaintiff can get the equivalent of what he contracted for from some other source. For this reason specific performance is not generally ordered of contracts for the sale of commodities, or of shares, which are of readily available in the market. But in many instances, and especially where a vendor refuses to convey the land sold, a mere award of damages would defeat the just and reasonable expectation of the plaintiff. The fundamental rule is that specific performance will not be decreed if there is an adequate remedy at law.35

Section 52 of the Sale of Goods Act 1979 provides that, in any action for breach of contract to deliver specific or ascertained goods, the Court may, if it thinks fit, direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The court of Chancery was accustomed to decree specific performance only where the chattels sold were of unique value to the buyer or possessed special beauty, rarity, or interest.37 The same reasoning seems to underlie the rule that a contract to lend money cannot be specifically enforced by either party: it is assumed that damages can easily be assessed by reference to current rates of interest. The court refused specific performance to a buyer of a set of Hepplewhite chairs, as it held that they were ordinary articles of commerce and of no special value or interest.38 It was crucial in this case that the buyer was contracting with a view to resale and not to use. If the latter had been the case the result, it is submitted, would have been different. Damages are generally regarded as adequate unless the goods are unique. Heirlooms are great works of art are and are regarded as unique for this purpose;39 and it seems that the courts go some way towards recognising a concept of commercial uniqueness. Antiques, valuable paintings and other irreplaceable items may be the subject of an action for specific performance. Thus they may order specific performance of a contract to supply machinery or other industrial plant which cannot readily be obtained elsewhere.40

It is hard to understand as to what legitimate interest of the seller was protected by the court's refusal to grant specific performance in the aforementioned case of Cohen v. Roche; nor is the notion that damages are an adequate remedy in these cases always easy to defend. The buyer may not in fact be able to get a substitute, or a precise substitute. Under the rules relating to remoteness, the plaintiff may recover nothing for part of his loss. In many cases damages are hard to assess accurately. This is true where there is no market, where the plaintiff makes a claim for loss of profits, and where goods are to be delivered by installments extending over a long period. This difficulty is particularly acute where a contract is made to supply a manufacturer with raw materials needed by him in the course of his business. It was at one time thought that such a contract could be specifically enforced on the ground that damages for breach were hard to assess.41 But towards the end of the nineteenth century this view was, unfortunately, abandoned;42 and it seems that only legislation could now revive it. Court refused specific performance of the defendant's promise to make good a gravel pit which he had quarried, as it held that court does not profess to decree a specific performance of contracts of every description. It is only where the legal remedy is inadequate or defective that it becomes necessary for courts of equity to interfere. In the present case complete justice can be done at law. The matter in controversy is nothing more than the sum it will cost to put the ground in the condition in which by the covenant it ought to be.43

In other case plaintiff was not only the administratrix of her late husband's estate but also the person to whom the annuity had been made payable by the contract between the husband and the defendant. Being a stranger to that contract, her only course was to claim payment of the annuity by suing in her representative not in her personal capacity. The defendant argued that qua administratrix her only right was to recover compensation for such loss as the estate had in fact suffered. Therefore, so the argument ran, since the non-payment of the annuity after the husband's death caused no loss to his estate, the only remedy available either to the plaintiff or to the estate was the recovery of nominal damages. This argument was rejected by the House of Lords. to accept it would be to repugnant to the concept of justice as A would have been unjustly enriched by being allowed to retain the entire benefit of the other contracting party's performance without performing his own promise.44

A decree of specific performance would clearly have been available to the husband had the agreement made the annuity payable in his lifetime, and it followed that this remedy was equally available to his personal representatives under the instant contract. In the case of a contract containing interdependent undertakings, a plaintiff cannot obtain an order for specific performance if he is in breach of his own obligations or if he fails to show that he is ready and willing to perform his outstanding obligations in the future.45 Where the article is esteemed not much for its intrinsic value, but as being an object of attachment or curiosity, specific performance will be decreed, as in such a case the loss due to breach cannot be measured by the Court that cannot possibly enter into the feelings of the party. In such a case the impossibility or at least great difficulty of supplying the loss puts damages out of question as a medium of redress.46

It follows that where compensation in money is an adequate relief to the plaintiff a decree for specific performance of the contract should not be made. The proper decree in such a case would be one for damages which should be calculated on the price of the property at the date of the breach of the contract. Thus in a contract for sale of goods or stock the Courts will not generally decree performance of the contract because damages at law, calculated upon the market price of the stock or goods, are as complete a remedy to the purchaser as the delivery of the stock or goods contracted for, inasmuch as with the damages he may purchase the same quantity of the like stock or goods.47

The locality, character, vicinage, soil, easements or accommodations of the land generally may give a peculiar and special value in the eyes of the purchaser, so that it cannot be replaced by other land of the same precise value, but not having the same precise local conveniences or accommodations and therefore a compensation in damages would not be an adequate relief. 48 In a sale of immovable property, agreement between parties once established prima facie, breach of such contract for transfer of agreed immovable property could not be relieved by compensation in money. 49

Adequate relief must be adequate in the mind of the court for some reason found as a fact and stated by the Court for holding it to be adequate relief in spite of the opinion of the plaintiffs that it is inadequate.50 Court will be justified in awarding damages instead of specific performance when the plaintiff considered and indicated by his conduct that the damages are an adequate relief. It is settled law that a promise to advance money in loan cannot sustain a suit for specific performance.51 The reasons for this rule are two fold: Firstly, that damages furnished adequate damages relief in relation to a contract for loan52 and secondly that no person should compel another to accept a loan as he could very well advance it to another, and it would be unjust to compel the would be borrower to accept it as he could in open market procure the loan easily.53

Where plaint revealed that there was a mere agreement to sell, plaintiff could not maintain his suit for declaration on basis of such agreement as it did not create any right, title or interest in property only proper mode of redress for plaintiff would be suit for specific performance of said agreement.54

Discretionary relief

Exercise of discretion is not an arbitrary one but is exercised within certain broad parameters in order to promote justice between the parties. The notion that governs this aspect of the exercise of discretion is sometimes expressed in the equitable maxim, he who seeks equity must do equity or rather more graphically he who comes to equity must come with clean hands. Court has discretion to decree specific performance where an action is brought for breach of contract to deliver specific or ascertained goods.55

The object of this provision was to broaden the scope of the remedy but the discretion has in fact been sparingly exercised. A little-noticed exception is Rawlings v. General Trading Co.56 where specific performance was granted without argument as to remedy. Specific means identified and agreed upon at the time a contract of sale is made.57 Ascertained is not defined in the Act but seems to mean identified in accordance with the agreement after the time a contract of sale is made.58

Jurisdiction of the court to grant the specific performance is discretionary and the Court is not bound to grant relief merely because it is lawful to do so.59 Supreme Court of Pakistan held that discretion is to be exercised only if under all circumstances it is just and equitable to do so.60 Although the exercise of the discretion by the trial Court is capable of correction by a Court of appeal yet the court of appeal should not lightly interfere, it is only when the appellate Court is clearly of opinion that the trial court has exercised its discretion not on sound judicial principles but arbitrarily or perversely that a court of appeal would interfere.61 Even in cases where the language is plain and certain in its terms and obligatory on both parties, the right to specific execution is not absolute and its enforcement must rest on the sound discretion of the Court.62 The discretion, therefore, is neither arbitrary nor capricious.63

Plaintiffs having made a mischief in committing crime of changing date in agreement to sell did not come in the Court with clean hands and for that reason alone, relief of specific performance could not be allowed to them.64 Where a plaintiff in suit for specific performance of contract of sale of immovable property had in fact abandoned all intention of going on with his contract, but was stimulated into activity by learning that the property was likely to be sold over his head, it was held that the case was one in which specific performance should not be granted.65

Though there is nothing that actually amounts to fraud or misrepresentation, and the contract may be perfectly valid, there is nevertheless a want of equality and fairness in the contract which might induce the court to refuse specific performance.66 The Court can properly exercise a discretion to decree specific performance where plaintiff had done substantial acts or suffered losses in consequence of a contract capable of specific performance.67 When an agreement for valuable consideration between two parties has been partially performed, the Court ought to carry out the agreement by a decree for specific performance. If necessary, a Court of Equity will even stretch a point to compel its complete performance.68

Supreme Court of Pakistan held that s. 22 of Specific Relief Act, 1877 invests Appellate Court to correct, in suitable cases, the discretion exercised by the Trial Court.69 In India Divisional Bench of High Court held that appellate jurisdiction is statutory which imposes no limitation about appeals from orders involving discretion, though as a matter of practice it is considered undesirable normally to interfere with the exercise of the discretion of the court below except on grounds of law or where the impugned decision would result in injustice being done. In the latter case, the appellate Court must be held to have both the power and the duty to remedy it. The relief of Specific performance is discretionary and the Revisional Court will not interfere unless it is shown that the real aspect of the case has been overlooked.70 According to Story in Equity Jurisprudence, discretion does not depend upon the mere pleasure of the judge but it should be sound and ought to be reasonably exercised. Such discretion must be regulated and governed by general rules and principles. When these principles will not furnish exact measure of justice between the parties then Court will exercise discretion according to the facts and circumstances of each particular case.71

Exercise of discretion is not simply a matter of fairness and reasonableness which an individual considers. being proper but it should be exercised judicially Specific performance is in effect granted as a matter of course if the contract is valid in form, has been made between competent parties and is objectionable in its nature and circumstances.72 Where a decree would be a source of constant trouble and friction and might even become nugatory Courts ought not to grant it.73 When one of the defendants to the suit for specific performance have a counter-claim to the plaintiffs suit, the Court may in its discretion dismiss the suit in order to avoid multiplicity of suits. 74

The Court is entitled to take into consideration socio-economic conditions prevailing in the country and decree the actions of performance on just terms. Where owner of suit property denied execution of agreement to sell and alleged that the plaintiff was a dummy purchaser set up by the defendant. Owner of suit property made such allegations on oath. Defendant after giving affidavit in evidence did not appear in witness-box for cross-examination and produced his mother as witness. It was held that it was imperatively incumbent upon the defendant to have appeared in the witness-box to refute such allegations. But for the undisclosed reasons the defendant decided not to appear as his own witness. Mother of the defendant could not successfully refute the allegations levelled against the individual conduct of the defendant which reflected adversely upon him. High Court declined to exercise discretionary power for grant of specific performance in favour of the plaintiff. Discretion of the court in a suit for specific performance could not be exercised in favour of a party which obtained possession unlawfully in order to deprive others of their valuable property and tried to cheat the court. A contract entered into by some persons on behalf of themselves and some minors to sell certain lands cannot be enforced if the agreement was not for a purpose binding on the minors. Therefore in case of a contract to sell land by some persons on behalf of themselves and some minors, the persons who are sui juris may be compelled to sell land if the purchaser is willing to pay whole amount for their shares only in the property. The principles stated in section 22 of Specific Relief Act, 1877 are not exhaustive and the Court's discretion to grant specific performance is not confined to them. In special cases where there are some good and reasonable grounds for not exercising this discretion in favour of the plaintiff, the Court will not hesitate to exercise that discretion against the plaintiff. Thus even when a contract is proved to satisfy the requirements of law, a Court may be justified in refusing to grant specific performance, if it is found to be detrimental to public welfare.75

The grant of relief of specific performance is discretionary which is granted by Court after taking into consideration all the surrounding circumstances and facts of the case which may assist in forming a reasonable and judicious judgment for exercising the discretion. Supreme Court of Pakistan held that discretion has to be exercised judiciously on recognised principles and not arbitrarily or on presumptions or assumptions.76

Severe Hardship

Specific performance of a contract is a discretionary relief so it will not be given where its effect would be to cause hardship amounting to injustice to either party or to an interested third party. Vendor and her husband were the co-owners of a house which they had entered into a contract to sell in 1979. Completion was delayed by reason of the husband's bankruptcy. In addition the vendor contracted bone cancer which resulted in her having to have a leg amputated. These events also corresponded with the birth of their second and third children. The purchaser applied for, and was awarded, an order of specific performance, but the vendor appealed on the grounds of hardship. The vendor spoke little English and had to rely on friends and relatives for help. The effect of the decree would thus be to expose her to undue hardship. The court held that in an appropriate case relief could be given against specific performance where hardship once the contract had been entered into, even if the hardship itself was not related specifically to the subject matter and not caused by the plaintiff. The court decided that damages should be awarded instead of specific performance as the latter would amount to injustice, given the level of hardship that would be inflicted on the vendor.77

Though application for an award of specific performance is usually made where a breach of contract has occurred but breach is not pre-requisite for the application of an award. The award of the order is based on the existence of a contract, coupled with circumstances rendering it just and equitable to make an award. The power of the Court to specific performance is not limited to those situations in which at law damages would be recoverable. Thus Court gave an order of specific performance before the contractual date for completion since the defendant was in anticipatory breach of contract and plaintiff having elected to affirm the agreement, would have no immediate right of action for damages.78

Specific performance may not be available as of right but any attempt in a contract to exclude such remedies will be void. In a contract made between the two parties one particular clause apparently purported to exclude equitable remedies. The Court of appeal held that there was a request for an equitable remedy (in this case specific performance) its discretion could not be fettered. Whatever the construction of the clause, it was the decision of the court alone as to whether to grant or refuse any equitable remedy.79

Exercise of discretion by the court is to be made keeping in view that it will not be inequitable as well as will not produce an injustice to the defendant. Thus husband who was the owner of a matrimonial home, entered into a contract to sell the property with vacant possession. Before completion could take place his wife, who did not want to move, registered her right of occupation under the Matrimonial Homes Act 1967 (now 1983) as a class F land charge against the property, and his action had the effect of placing an encumbrance on the ability of the husband to give vacant possession. The husband withdrew from the contract and the purchaser sued for an order of specific performance. Court held that the purchaser should fail in his action since to compel the husband to carry out his obligations would have to apply the court to terminate the wife's right of occupation. In order to do this the husband would have to embark on difficult and uncertain litigation against his own wife, which was clearly undesirable given the fact that they were still living together. Even if he was successful in such an action, the court's decision to remove the right of occupation was in any event was discretionary. Further, if the court awarded specific performance subject to the wife's right of occupation this would have entailed the purchaser in obtaining an order of eviction against the husband and his daughter, thereby resulting in the break-up of the family.80

Mistake and misrepresentation can prevent the equitable discretion to give an order for specific performance. A defendant cannot resist an order simply because he made a mistake. As a general rule the defendant will be held to his bargain, unless he can prove that this would lead to injustice. Thus the vendor offered to sell some property to the purchaser for 2250 pounds but mistakenly wrote1250 pounds. The purchaser, who was aware of the mistake, immediately accepted the offer. The vendor on realising his mistake gave notice of it to the purchaser. It was held that in the circumstances he could not be compelled to carry on with the sale.81 Equity will only grant specific performance if, under all circumstances, it is just and equitable to do so.82

The discretion is not an arbitrary discretion, but one to be governed as far as possible by fixed rules and principles. Specific performance is not a matter of right in the person seeking relief. 83 So plaintiff in such situation will be left to his remedy at law if a decree of specific performance would inflict a hardship on the defendant. The court refused to order specific performance against the buyer-defendant of farming land wholly surrounded by land which belonged to others and over which there was no right of way and buyer-defendant will be unable to enter the land that he has agreed to buy unless he is fortunate enough to obtain a license from adjoining owners84 Where the enforcement of a restrictive covenant would be burdensome futility owing to a change in the neighborhood brought about by the plaintiff, Court refused specific performance.85 As a general rule, hardship to operate as a ground of defence must be such as existed at the time of the contract, and not such as has arisen subsequently from a change of circumstances. In some cases, however, hardship subsequently arising may be treated as a ground for refusing specific performance. This result generally follows if the change of conditions involving hardship to the defendant has resulted from the act of the plaintiff, especially if the plaintif's conduct operated as something in the nature of the trap.86 In a suit for specific performance of contract the defendant cannot rely on a plea of hardship which is self-created as a defence.87

Effect of delay on relief of specific performance

In equity rule is that time is not of the essence in a contract, so plaintiff can obtain relief of specific performance despite the fact that he has not performed his obligations at the specified time as stipulated in the contract. On the other hand, if the parties have agreed that time will be of the essence then in the case of non fulfillment of elements relating to time by the plaintiff will disentitle him of the award of specific performance. It will suffice for the application of the rule that intention to make the time the essence of the contract is made clear by service of notice during the ambit of the contract. Even where time is not made essence of the contract and plaintiff is guilty of unreasonable delay then the principle of equity that delay defeats equity will play its role in depriving plaintiff of the relief of specific performance. Determination as to what is unreasonable hinges upon substantially on the subject-matter of the contract. At one time, the view prevailed that specific performance had to be applied for within 12 months.88 However Court held that specific performance should not be regarded as a prize to be awarded to the zealous and denied to the indolent. In that case a delay of over two years was held not to be a bar to the award of an order.89

Surprise Story 90 defined surprise with reference to the private transactions an undue advantage taken of a party under such circumstances which distract, perplex, misdirect and mislead the balanced and just results of his judgment, and thus make him vulnerable to the artful, the importunate and the cunning. In practice it is a situation in which a party is unexpectedly placed, without any default of his own which will be injurious to his interest. In its legal acceptance it denotes an unforeseen disappointment against which ordinary prudence would not have afforded protection. It means the state of being taken unawares. Court of equity relies on the ground of surprise that it leads a party victimized by it so unaware that he acts without due deliberation and sudden impressions. The court can refuse specific performance of a contract which has been obtained by unfair means. Thus the defendant agreed to grant the plaintiff a mining lease over land which he had only just bought. Specific performance was refused because the defendant was surprised and was induced to sign the agreement in ignorance of the value of his property. The plaintiff must have taken unfair advantage of his superior knowledge. Court relied on the fact that the plaintiff had produced a draft lease during the negotiations, and had hurried the defendant into signing it before he could discover the true value of the property.91 But specific performance will not be refused merely because the plaintiff fails to disclose circumstances which affect the value of the property or the defendant's willingness to contract with him.92 Specific performance will not be granted to a plaintiff who has taken advantage of the defendant's drunkenness, though it is not so extreme as to invalidate the contract at law.93

Conduct of the plaintiff

The conduct of the party applying for relief is always an important element for consideration. Where the plaintiff has himself committed a material breach of the contract, specific performance of contract will be refused to him.94 Plaintiff induced the defendant to agree to take a lease of cellars by orally promising that they would be made dry. This promise had no effect as a misrepresentation as it related to the future nor was any attempt to argue that it was enforceable as a collateral contract. But specific performance was refused on the ground that the plaintiff had made no attempt to perform the promise. Thus specific performance can be refused if the plaintiff fails to perform a promise which he gave to induce the defendant to contract, but which is neither enforceable at law nor effective as an independent defence in equity.95

Similarly, a purchaser of land could not get specific performance if he refused to perform a stipulation to which he had agreed but which could not be enforced against him for want of written evidence.96 The Court can take into account the fact that the plaintiff's conduct has been tricky or unfair.97 Court can also take into account the conduct of the defendant.98 These considerations would, be irrelevant at common law. Supreme Court of Pakistan held that in order to obtain a relief by way of specific performance of a contract the plaintiff has first to allege and prove that he was ever ready and willing to perform his part of the contract from the date of the contract to the date of the suit.99

In a suit for specific performance plaintiff treated and was also required by the court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness from the date of contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought the inevitable dismissal of his suit.100 A conduct amounting to gross carelessness or negligence will disentitle a plaintiff to be granted specific performance.101 The mere fact that a bargain is onerous, cannot, however, avail of as a defence to a suit for specific performance unless it is established that it is also unconscionable or that the plaintiff has taken an improper advantage of his position or the difficulties of the defendant.102 Court will refuse to give effect to the contract when the plaintiffs by their conduct made it impossible for the Court to give effect to the contract in its entirety.103

Where the defendant in entering into the contract is influenced by the idea that by doing so he would get rid of a criminal charge brought against him by the plaintiff and the terms of the contract are such that a man would not agree to them unless under some pressure of circumstances the court should refuse specific performance.104

Supreme Court of Pakistan held that vendee disentitled himself to specific performance as he did not appear before the Sub-Registrar in order to get the sale-deed registered and committed breach of contract.105 Supreme Court of Pakistan held that failure to make express averment in the plaint in a suit for specific performance of the plaintiff's readiness and willingness to perform his part of the contract, though a desirable practice, is not a rule which would make the suit structurally defective. Absence of such an averment, therefore, is not fatal to the suit.106 But where a plaintiff in a suit for specific performance adopts alternative and inconsistent pleadings and the alternative pleadings lead to the conclusion that he was not willing to perform his part of the contract, that would be fatal to the case.107

Every breach or default, however small, or the non-performance of the subsidiary or unimportant term not going to the root of the contract, will not debar the person seeking specific performance from getting the relief.108 Where the plaintiff contributes to the mistake of the defendant and the plaintiff has by his words or his silence or in any way contributed to the error of the defendant, even though he may have done so unintentionally, it will strengthen the defendant's case.109 Where the defendant has been led into any mistake or error, the plaintiff cannot enforce the contract with the mistake. Therefore, where in a sale by auction, the plaintiff had induced the defendant, who was the vendor, to think that he should not bid, and so put him off his guard, and the estate was, by a misapprehension on the part of the person employed to make the reserved bidding, allowed to be knocked down to the plaintiff, the Court, on the ground of mistake, though there was no fraud, declined to enforce the sale.110 The inadequacy of consideration, in order to constitute a valid defence, for the refusal of specific performance, should be of such a nature as to involve the conclusion that the party, who has suffered , was the dupe of ignorance or victim of undue advantage, taken by the plaintiff. There must be evidence that the defendant was the victim of such imposition.111

Determination of the inadequacy of consideration is to be made at the time of the contract and subsequent events do not affect it. Accordingly, the market price at the time of the contract is the decisive factor and subsequent events are not considered in this regard.112 It is necessary to constitute a misrepresentation which will prevent a specific performance that the statement in question shall be so material to the contract built on it that, if the statement be false, the contract becomes one which it would be unconscionable for the party having made the statement to enforce. so the misrepresentation must be shown to have operated to the prejudice of the defendant.113

Where inadequacy of consideration in conjunction with any other circumstances such as suppression of the value of property, oppression, urgent necessity of money, weakness of understanding or ignorance or misrepresentation is evidence of fraud or of undue advantage taken by plaintiff, the contract cannot be specifically enforced.114 Court will refuse specific performance of the contract when the plaintiff is guilty of active suppression and concealment of a fact which is material, and which it is duty of one party to the contract to disclose to the other and which the other party would have come to know, but for such suppression and concealment. But the mere silence as regards a material fact which the one party is not under an obligation to disclose to the other cannot be a ground for refusing specific performance.115

The misconduct operating as a defence must be that of any party to whom performance would become due under the contract. This will of course include an agent who may have been employed by the party in conducting transaction, but exclude a stranger or other unauthorised person making statements. A purchaser is entitled to look at the ostensible authority of the agent of the vendor, if such an agent misleads an intending purchaser by making untrue through unauthorised statements about the property, the vendor cannot compel specific performance.116 Where the assent to a contract of a party thereto has been obtained by the other party by any promise but that promise has not been substantially fulfilled by that party, specific performance will be refused to such party. The promise under consideration is not a promise which was not a part of the contract itself, but was contemporary with it. Such an extraneous promise may proved by parol evidence.117

Unfairness of the contract is to be determined by consideration of circumstances existing at its date.118 Unfairness arising subsequently may sometimes be taken into consideration e.g., unfair valuation by a third party where the price was to be fixed by such valuation.119 There may be circumstances to the position or mental state of the party against whom specific performance is sought such as to render it inequitable that he should be forced by the Court to perform his contract, e.g., intoxication, intimidation, duress illiteracy , want of advice or similar circumstances appearing inconsistent with intelligent consent. In all such cases it need not be shown that the plaintiff was guilty of intentional unfairness.120 Felony of a plaintiff would be a bar to specific performance.121 Held, that the suit for specific performance should be dismissed, as plaintiff had long delayed to perform his part of the agreement.122 Plaintiff who is found to have altered agreement unilaterally is not entitled to specific performance. If the conduct of the plaintiffs smacked of mala fides, inconsistency and dishonesty, the same disentitled them to claim equitable and discretionary relief of specific performance from the Court. Plea as to inadequacy of consideration and ignorance of pardhanashin vendor by way of defence to a suit for specific performance cannot be raised for the first time in appeal.

Equity will not assist a volunteer

Court never decrees specifically without a consideration. The requirement of consideration is a fundamental requirement for the granting of an order for specific performance, whether or not the contract is a simple one or one that is made under seal by deed.123

Impossibility

Equity will do nothing in vain, thus specific performance will not be ordered, and against the defendant who has contracted to sell land which he either does not own, or has already conveyed elsewhere.124 A contract to do an act which, after the contract is made, becomes only partially impossible by reason of the loss or destruction of its subject matter, does not become void when the act so becomes partially impossible, but may, in the discretion of the Court, be specifically enforced so far as it is still capable of performance.125 Where the impossibility, which affect the right to performance relates to subsidiary matters in nature or merely to literal fulfillment, the Court seeks to grant performance with compensation.126 In a suit by the plaintiff for specific performance of a contract to lease land, for which he allegedly paid 500 rupees to the defendant as advance, the defendant pleaded that he was himself a lessee under the Municipality, who had determined his lease and that the plaintiff was aware of it. Held, that as the contract had become impossible of performance by the defendant; it could not be specifically enforced.127 Impossibility of the performance of the contract which premised on the defect in the subject matter of the contract relied on as a defence to the claim must be latent. It may comprise either in the physical nature of thee subject matter of the contract, or in the fact that the subject matter is governed by unusual or burdensome covenants or circumstances.

Supreme Court of Pakistan held in a case where a sale agreement was in favour of two vendees jointly, withdrawal of one would render such bargain to fall through. Agreement of sale having been frustrated came to an end. There being nothing to perform, no specific performance of anything could be decreed. Contract has to be made definite by fulfilling a condition precedent to it, and the condition precedent has not been fulfilled, the Courts would not generally grant specific performance. Thus where a sale-deed is to be executed on ascertainment of the amount of encumbrance, non fulfillment of condition precedent makes it impossible for the Court to pass a decree for its specific performance.128 In the case the very document in which a contract is embodied hasceased to exist due to its having been set aside by a Court, the specific performance of the contract cannot be ordered. 129

No justification in Sharia requiring promises to pay consideration despite impossibility of performance of corresponding part of contract.130 Contract to collect Octroi granted through auction. Contract for financial year expiring on 30.6 1986 and more than ten months out of stipulated period of 12 months for which contract was to be valid having already passed, it was not possible to grant specific relief to applicant to perform contract for the whole period. Court could not reconstruct the contract and instead of stipulated period, grant applicant a new contract for any other period. Applicant not ready and willing to relinquish all claims to further performance and to all his rights to compensation for loss or damages if, any, suffered by him through default of respondent. Relief claimed by respondent by way of specific relief held could not be granted in circumstances of case.131

Person entering into agreement for sale of his property could not be compelled to the contract specifically in case of case of impossibility of the contract or frustration thereof, by act/omission of third party and direction for specific performance whereof would result in causing unreasonable loss to said person and would put him in a disadvantageous position.132

Contracts involving personal services

Equity will not specifically enforce a contract of service.133 It is thought difficult or undesirable to enforce the continuance of the personal relationship of master and servant as in either case it is thought to interfere with the personal liberty but there are various statutory exceptions to the equitable principle. Thus an apprentice can be compelled to perform his duties as such. A seaman who deserts may be taken back to his ship with or without court order.134 This principle is based on the grounds of policy that it would be improper to make one man serve or employ another against his will. But by declaration, a public official may in effect be reinstated.135

The equitable principle applies to all contracts involving personal service even though they are not strictly contracts of service. Thus an agreement to allow an auctioneer to sell a collection of art cannot be specifically enforced136 by either party, though specific enforcement would hardly be an undue interference with personal liberty, even in a suit against the auctioneer. Again, an agreement to enter into a partnership will not be specifically enforced as it is impossible to make persons who will not concur to carry on a business jointly, for their common advantage. Where the object of obtaining a decree was to prevent one of the contracting parties from competing in business with the other, court can only order the execution of a formal partnership agreement, and leave the parties to their remedies on the agreement.137 In all these cases the services to be performed under the contract were of a personal nature. There is no general rule against the specific enforcement of a contract merely because one party has to do work under it. Thus specific performance can be ordered to publish a piece of music.138

No court shall compel an employee to do any work by ordering specific performance of a contract of employment, or by restringing the breach of such contract by injunction. On the contrary courts may order specific performance of a contract of employment if it finds it suitable in its discretion. Thus plaintiff was employed by the defendant for 35 years. Within two years of retirement, which would mean certain pension etc, the defendant ordered the plaintiff to join a certain trade union, which he refused and got a month's notice. The notice was held to be wholly inadequate and a breach of contract which required six if not 12 month notice. An interim injunction was granted so that the plaintiff's employment continued. Certain Statutes enable an industrial tribunal to order reinstatement or re-engagement of an employee.139 Where the contracts are found to be strictly personal as of hiring and service or agreements for the purpose of pleasure, or for the purpose of scientific pursuits, or for the purpose of charity or philanthropy, the courts do not enforce them.140 Generally, in decreeing specific performance of most of such contracts, the inconvenience and mischief will accrue which will outweigh the advantages, so specific performance will be refused. It cannot be assumed that when a contract with the element of personal service or continuous service is before the court, it will refuse specific performance on this ground only without more.141

In some cases, specially in America, trackage and operating contracts between railways of the utmost complexity have been the subject of decrees of specific performance although in making of their decree the Courts have conceded that they would be called upon from time to time to alter and adapt to changing circumstances their regulations for carrying the decrees into effect during a long period of years.142 As a general rule contracts which provide for the personal affirmative acts, or personal services of the parties, are not specifically enforced in equity, not because the legal remedy of damages is always sufficiently certain and adequate, but because the Courts do not possess the means and ability of enforcing their decrees, which would necessarily be very special and of compelling the performance which constitute the equitable remedy. The principle underlying the rule is that if the relation of employer and employee is to be of value or profit to either it must be marked by some degree of mutual confidence and satisfaction, and when these are gone and their place usurped by dislike and distrust it is to advantage of all that their relation be severed.143

The relationship of the corporation and its employees is purely that of master and servant under the general law. As such the contract of service between the corporation and its employees is not capable of specific enforcement.144 Although an employee may establish that he has been wrongly dismissed, still he is not entitled to the remedy of specific performance, in that, contract involving his personal service cannot be specifically enforced in view of s.21 (b) of the Specific Relief Act, 1877.145 Where rendering of personal services under a contract is dependent upon the volition of the parties or where the acts stipulated require special knowledge, skill, ability, experience or the exercise of judgment discretion, integrity and like personal qualities. So whenever a performance according to the spirit of the agreement, rests on the individual will and capacity of the contracting party, a Court cannot direct specific performance of those duties for or on behalf of the contracting party.

Contracts requiring constant supervision

The court will not specifically enforce a contract under which one party is bound by continuous duties, the due performance of which might require constant supervision by the court. Thus the defendants leased to the plaintiff a flat in a block of buildings and covenanted in the lease to maintain in constant attendance a resident porter for the benefit of the tenants. They appointed as porter one Benton who was by avocation a cook, and who was acting as a chef in a City restaurant. Benton rarely acted as porter in person, but left as his deputies his wife, relations, charwomen, small boys, etc. the plaintiff brought an action against the defendants claiming inter alia specific performance of the covenant which had not, so he alleged, been performed. The Court held that it could not grant specific performance of the covenant as it was a contract which would require such supervision as the Court was not prepared to undertake and which the court in such cases has always declined to give146

For the same reason the courts have refused to specifically to enforce obligations to operate railway signals147 and to provide enginepower.148 Court held that a charterparty cannot be specifically enforced against the shipowner.149 Court in other case granted an application for specific performance of a lessor's covenant to employ a resident porter for certain duties. Mervyn Davies J distinguished the facts before from those in Ryan, 150 where supervision of the execution of the undertaking had been required. Here neither personal services, nor a continuous series of acts, were required, but merely the execution of an agreement containing provision for such services. However, the impossibility for the Court to supervise the work has now been rejected as a ground for denying relief. A mandatory injunction ordering the defendant to allow plaintiff, who had been wrongfully locked out of a room in a hotel, to resume his residence was granted. This shows that the court attaches more importance to the plaintiff's interest than the difficulty of supervision. Specific performance of contract for personal service execution of which the Court cannot supervise cannot be granted. The principle underlying refusal by the Court to supervise constantly, is that the Court cannot stop its normal functions for the purpose of giving effect to the terms of a contract which cannot conveniently be supervised or enforced by the Court itself. The act which the Court is called upon to perform is not to give effect to a decree adjudicating the rights of the parties through an officer of the Court.

Contracts which are too vague

An agreement may be so vague that it cannot be enforced at all, even by an action for damages. The obligations in an agreement which it is sought to enforce may be so ill-defined, or what has to be done in order to comply with the order of the Court may not be capable of sufficient definition, that specific performance would in the circumstances be an unsuitable remedy. But even where the agreement is definite enough to be enforced in some form of legal proceedings, it may still be too vague to be enforced specifically, because the court cannot even formulate its decree. The agreement must be definite enough to be enforced both legally and specifically, so the court must be able to formulate its decree. Thus the defendants undertook to publish an article to be written by the plaintiff, but could not agree with him as to its precise wording. Specific performance was refused as there was no definite manuscript whose publication could be ordered. Similarly the court will refuse to specifically enforce a contract for the sale of goodwill alone, without the business premises to which it is attached and in respect of which it is acquired as the difficulty will arise to mention in the decree as to what is required of the vendor. Thus a covenant to lay out 1,000 pounds in building and a contract to construct a railway station with nothing to indicate the nature, materials, style, dimensions or anything else have been held not to be specifically enforceable.151

The principle is that the description must be such as to enable the court to determine with certainty with the aid of such extrinsic evidence as is admissible under the law. The description need not be given with such particularity as to make a resort to extrinsic evidence inadmissible. Reasonable certainty is all that is required; an extrinsic proof is allowed in order to apply not to alter or vary the written agreement.152 The vagueness or uncertainty may be obviated not only by oral evidence but also by reference to legal presumptions for there cannot be said to be any uncertainty where the law will supply the details making the agreement certain. Mere fact of indefinite words such as electra being used in a contract does not necessarily make it too uncertain for performance.153 Such words may be understood with sufficient certainty by reference to the words to which they are added and the surrounding facts of the case.154

It is duty of the Court to put a reasonable interpretation on the terms of the contract, in its attempt to remove the elements of uncertainty. Where, therefore, the contract is in respect of the purchase of land required for the construction of a railway at the price fixed therein and there is a provision agreed upon between the parties as regards records, to be made, it must be held that the surveyor can determine the area of land required and the contract is not unenforceable for uncertainty.155 Where terms of alleged agreement on basis of record being vague on account of non-mention of sale consideration. Sale was not specifically enforceable.156 The mere difficulty in fixing the terms of a contract is no ground for refusal to grant specific performance. If the essential terms of a contract are settled, the contract may well be regarded as complete and concluded and may be enforced specifically, either as consisting of those terms only or together with such other terms and conditions as may be regarded as being usual in the contracts of that description.157

Thus, in a suit for specific performance of an agreement to sell land, the fact that on account of extraordinary character of the property for its containing valuable minerals there is a considerable difficulty in fixing a reasonable rate is no ground for refusing to enforce the contract in specie.158 The contracting parties must appear in the contract or the memorandum of it in order to constitute a binding contract but they may so appear either by description or reference sufficient to ascertain and establish their identity. 159 A description of a party simply as executor, the mortgagee, or trustee is sufficient since parol evidence enables it to be ascertained who fills the capacity described.160 A party cannot have an agreement, with the whole world; he must have some person with whom the contract is made.161

The description of the subject-matter should be so definite, as that it may be known with certainty what the purchaser imagined himself to be contracting for,162 and that the contract may be ascertained what it is.163 Where no date of performance of a contract is fixed or the material date in a contract is otherwise uncertain and vague, such a contract will not be specifically enforced. Thus specific performance of an agreement to grant a lease cannot be decreed unless that agreement either expressly or impliedly fixes the date from which the term is to run.164

Apart from the questions relating to the subject matter, the parties, and the price,, the absence of other material terms renders a contract unenforceable, unless they can be supplied by the Court either by construction or inference or implication of law. The question as to what terms are material in any contract depends on the nature of the contract In the absence of express agreement, the law in many cases makes good the defect by supplying terms by application or inference. Thus, a contract to sell a house is prima facie construed as a contract to sell the fee simple, while a similar contract may, by reason of its other terms, be construed as a contract to sell the vendor's interest. In a contract for the sale of land, a condition is implied for a good title and for delivery of the deeds or satisfactory proof of their contents and loss.165

The completeness of a contract is to be determined at the commencement of the action, since it is at that time, that non-performance must be incapable of justification. Performance is ordered, notwithstanding the incompleteness of the contract at that date, if the incompleteness is attributed to the default of the defendant and it is of such a nature that it admits of being remedied or compensated; or where a term which is not then ascertained is of such a nature that Court is able to ascertain it by means available to it.166 If a contract contains a stipulation to sell for a named sum less than any other purchasers would offer, it is not enforceable as the price cannot be ascertained. 167 The Court will not enforce a contract the terms of which are uncertain. Thus where under contract for sale, the sale was to be made by all three vendors, having separate shares in relevant khasra numbers. Price nevertheless was alleged to be paid or promised to be paid to all vendors in lump sum. Court refused specific performance. It was not known in the circumstances as to in what proportion or to what extent each vendor had to receive or share the same.

Building Contracts

The general rule is that a contract to erect a contract cannot be specifically enforced. The defendant granted the plaintiff a 21 year lease of land. At the end of the lease the defendant discovered that the repairing covenants had not been met by the plaintiff and sought a decree of specific performance. He failed. Money damages, in the circumstances, would be an adequate remedy. There seems to be tree reasons for this rule. First, damages may be an adequate remedy if the building-owner can engage another builder to do the work. Secondly, the contract may be too vague if it fails to describe the building with sufficient certainty. Thirdly, specific enforcement of the contract may require more supervision than the court is willing to give. But in the case of non-existence of the first two reasons, the court will, in effect, disregard the third and order specific performance. Court will incline towards the specific enforcement of the contract if (i) the work is precisely defined; (ii) damages will not adequately compensate the plaintiff, and (iii) the defendant is in possession of the land on which the building is to be done. Thus the plaintiff corporation acquired land for an improvement scheme and sold part of it to the defendant, who covenanted to demolish the houses on it and to build new ones. The demolition was carried out and plans for the new houses were approved. The court ordered specific performance of the covenant to build. The defendant's obligations were precisely defined by the plans: damages would not adequately compensate the corporation if a site in the middle of the town were left vacant instead of being occupied by houses yielding rates; and as the defendant had possession the corporation could not get the work done by employing another builder. A building or engineering contract requires technical knowledge and long experience in the line for executing the works covered by the contract. It is thus a contract which is dependent on the personal qualifications and volition of the parties and is also of such a nature that the Court cannot enforce specific performance of its material terms.

Contracts specifically enforceable in part only

Court refused specific performance of an undertaking to have a porter constantly in attendance. An alternative claim that the defendant should be ordered simply to appoint a porter was also rejected on the ground that when the court cannot grant specific performance of the contract as a whole, it will not interfere to compel specific performance of part of a contract. But where the parts of a contract are severable specific performance of each part can be separately granted. 1561 Divisibility of a contract is a question of fact. Where the contract is in substance divisible, there is nothing to prevent the Court from carrying into effect that portion of it, which is capable of being carried into effect. Agreement for a lease can be ordered by the court to be specifically enforced although some of the terms of the prospective lease could not be specifically enforced. Execution of the lease can cover the enforcement of the whole agreement for lease. But the court in execution of lease agreement is not concerned with the performance of the covenants in the lease. Doctrine of severance of contract is not invocable where initial agreement void ab initio.

Where the suit for specific performance of contract of sale was decreed for 405 acres of land out of which 33 Acres were subsequently acquired under Land Reforms Regulation (MLR 115), it was held that decree for specific performance can be given effect to the extent of area available for transfer. It is necessary that the part unperformed must admit of compensation in money. Where reasonable estimate of it is not obtainable the Court refuses to compel the purchaser to take compensation. Thus, where a house and grounds were sold by the Court, and, pending the making out of the title, some ornamental timber was cut down, the purchaser was discharged, because the act affected the value of the property to the purchaser, as a residence, in a way which the Court was unable to measure. But the contrary view was expressed (p. 592) by Fry in section 1278 to the effect that the objection that the compensation is unascertainable is one which the Court is unwilling to entertain and it grants relief with compensation in many cases in which the ascertainment of the amount to be paid cannot be said to be certain or exact, but only the reasonable estimate from the evidence of competent persons. Where the vendee made representation that whole of property, although subject-matter of contract, belong to him or he had authority to sell whole of such property not so authorised to represent to represent others, section 15, Specific Relief Act, 1877 was held to be attracted and plaintiff could not succeed unless he relinquished all claim to further performance and all right to compensation. A major agreed to sell property belonging to himself and his minor nephew whose property he had no right to sell, and consequently the agreement with regard to which was void, the purchaser was held entitled, in a suit for specific performance, on offering to pay the whole purchase-money, to a decree directing the adult party to convey all his interest in the property. It is open to a person bringing a suit for specific performance of contract to relinquish his claim to any part of the property in suit on the conditions specified in s.15 of Specific Relief Act, 1877 at any time before the suit is finally decided by a Court. Where the contract consists of several parts, separate and independent of each other and some of which cannot or ought not to be performed may be specifically enforced.

The Court must look to the substance and not the form of the document of contract of contract where the parties contracted to lease and exercise option for purchase of plot, the option of purchase not being condition precedent to its lease and being independent and separate matter, it was held that the right to specific performance in respect of purchase even without prior execution of lease deed, was enforceable. The question whether a contract is divisible or indivisible is one of construction, and depends upon the particular nature and terms of each individual contract. A contract for the sale of property in one lot will generally be considered indivisible, and the Court will not as a general rule, compel the specific performance of the contract, unless it can execute the whole contract.

Where a vendor sells two or more plots of land at one time and for one sum, the contract is entire, unless there be some express clause making it separable and the failure of the title to one of the plots is a complete bar to the vendors enforcing a performance upon the purchaser as to the others to which the title is good. Where a particular proceeding though not itself illegal, is inseparably connected with another in such a manner that both form parcels of one transaction, for one trading adventure, such transaction is illegal in its entirety and cannot be partially enforced. If, however, any part of the contract is invalid as being forbidden by law, but other part is valid, the entire contract is not void and may be enforced pro tanto. The appellants agreed to buy two houses which were owned by the first, second and third respondents as tenants in common. He could not enforce this contract against the first respondent because she had no power to make the contract. The question was: could the appellant enforce the contract against the second and third respondents so as to require conveyance to him of the two-third shares which belonged to these respondents. It was held by the Privy Council that there was nothing to prevent the conveyance of these shares. Moreover the proposition is untenable that the vendor is exempt from the necessity of conveying any part if there is a considerable part to which no title can be made. A contract which is initially void for uncertainty cannot be improved by part performance so as to entitle either of the parties thereto to decree for specific performance.

Where the plaintiff has partly performed an oral contract, required by the statute to be in writing, on the expectation that the party defendant would perform the rest, the court will not allow the party defendant to back out the contract upon the strength of the statute. It is open to the Courts to grant a decree or not for part performance. The term may indicate their discretion. The Court cannot ask a party to do a certain act which would in effect drive a third party to suit. Where the contract is any manner alternative, so that the parts of it are mutually exclusive one of the other, and the plaintiff has a right to ask for the performance of one part, the court may treat this as independent of the other. Court will not take upon itself to separate its parts and enforce them piecemeal in the case the contract is really indivisible. It is open to the plaintiff to relinquish his claim to any part of the suit property at any time before the suit is finally decided by the court of appeal.

Wherein a number of persons combine to sell property, parts of which are owned by some of them with other persons individually, a claim by the vendee for enforcement of the contract as against some portions only of the property will be sustained if the portions claimed can be reasonably enjoyed independently of the remainder. A sold property belonging to himself and his sister B. B alleged that she had not authorized A to sell her share in the property. The vendor could not specifically enforce the agreement only relating to the share of A by paying proportionate price. He must, if he wishes to go on with the purchase, specifically give up his rights as to the share of B and pay the entire consideration promised for the whole property for the transfer of share of A. In India the rule is same that purchaser has to pay the whole stipulated amount and not the proportionate amount on the relinquishment of some of his rights. Thus two-third property was sold to a person and subsequently remaining one-third was also sold to him and at the same time an agreement was made with him that he would reconvey the whole property on the payment of the entire price received by the vendor plus some compensation.

A suit was brought for specific performance of the agreement but it was found that the defendant was legally incompetent to reconvey the 2/3 property purchased earlier. It was held that the plaintiff could got reconveyance of 1/3 property on payment of the total amount agreed to be paid and not by paying 1/3 of the price agreed to be paid for the whole property. Contract against one of the vendors having fallen through, due to a vendor being not a signatory of agreement although alleged to have received advance money alongwith others, contract as such remained one undivided contract. Transaction resultantly must stand or fall as a whole. As consideration for the contract was not capable of bifurcation, contract was not capable of specific performance.1585 Part performance of the contract is not permissible if the contract is suffering from an inherent legal infirmity. Awarding of compensation for deficiency in the area of the land contracted to be sold had arisen after the making of the decree for specific performance in respect of the whole of such land. In equity jurisdiction, it has often been said that equity may treat land as money or money as land for the purpose of doing justice in the case.

The principle of mutuality

Court will not order specific performance at the suit of one party unless it could do so at the suit of the other.168 Thus a party who undertakes to render personal services or to perform continuous duties cannot claim specific performance as the remedy is not available against him.169

Mutuality is often said to be a condition of specific performance which involves two assertions of positive and negative mutuality. Positive mutuality is better understood in the context of sale of land in which the vendor is entitled to specific performance of contract despite the damages an adequate remedy on the ground that as the purchaser is entitled to specific performance so it will be considered unfair to deny to the vendor what is granted to the purchaser.170 Thus, an infant cannot maintain an action against for specific performance, since it

is not maintainable against him.171 Again if the defendant agrees to form a company for the purpose of working the plaintiff's patent, and the plaintiff agrees that he will devote the whole of his time to the interests of the company, there can be no specific performance at the instance of the plaintiff for, he himself cannot be compelled to render personal services to another.172

If one party were compelled to perform his obligations in accordance with the terms of the contract while the obligations of the other party under the contract, or some of them, remained unperformed, it might be unfair that the former party should be left to his remedy in damages if the latter party failed to perform any of his unperformed obligations.173 In other case defendants, an infant and his sister, agreed through their joint agent to grant a lease to the plaintiff. They then broke the agreement, and the plaintiff brought an action for specific performance. He failed. An action for specific performance cannot be maintained against an infant, and therefore an infant cannot maintain such an action against anyone else.174

A party may be entitled to the remedy by way of damages even in cases in which want of mutuality may preclude the remedy by way of specific relief.175 A minor being incapable of entering into a contract , he cannot sue or be sued for specific performance on the ground of want mutuality.176 The principle of mutuality in contract admits of many exceptions as in the form of conditional contracts, unilateral contracts or contracts in the nature of an undertaking.

Relevant time for dealing with mutuality

At one time it was supposed that the Court would not grant specific performance to one party unless, at the time the contract was entered into, it could not have been enforced against him by the other. It was suggested by Fry (1921) in Specific Performance that there had to be mutuality between the parties at the time an enforcement contract had been entered into.178

This rule of mutuality was subject to extensive review. The facts of the case were that the defendant had contracted to grant a sublease to the plaintiff, provided the plaintiff did some external and internal repairs to the premises. The plaintiff did the internal repairs but, though he was ready and willing to do the external repairs, he was unable to do so because the defendant had then done them herself at her own expense. The defendant repudiated the contract and the plaintiff claimed for an order of specific performance. Court held that defence of mutuality is judged on the basis of the facts and circumstances which exist at the time of hearing and court while granting specific performance take into account the whole contract of the parties regarding the subject matter and if injustice and unfairness will not accrue to the defendant then it will be awarded in the absence of any disqualifying circumstances. Court further held that lack of mutuality is only relevant if, at the date of hearing, the plaintiff has not performed his obligations under the contract and could not be compelled for some reason to perform his unperformed obligations specifically.

Even where the mutuality in this sense does not exist, the court may possibly, in the exercise of its discretion, order specific performance if damages would be an adequate remedy to the defendant for any default on the plaintiff's part. So the relevant time for considering the question of want of mutuality is not the date of contract but the date of the trial in which a breach of contract is alleged. Want of mutuality do not affect the jurisdiction of the court to order specific performance but are to be taken into account in the exercise of discretion of the court whether so to order. Court held that lack of mutuality might have been a good argument while the contract was executory but, by the time the case came before the court, the plaintiff had performed her side of the agreement, and it was too late for the defendant to rely on that defence. This rule of mutuality will not be an obstacle, so court has the jurisdiction to award damages in lieu of specific performance under the Chancery Amendment Act 1858. In the case of conditional contracts, mutuality must be at the time the condition is fulfilled.

Exceptions to the requirement of mutuality

There are many exceptions to this requirement of mutuality. A contract for the sale of land can be enforced against a person who has signed a memorandum of the contract by one who has not, and against whom the contract could therefore not be enforced. If An agrees to grant a lease of land to B if B will build on it, B cannot be forced to build; but if he actually does build he can get specific performance of A's promise to grant the lease. Specific performance cannot be ordered against a person who sells land which he does not own and cannot force the owner to convey to him, because court does not compel a person to do what is impossible; but if he becomes owner before the purchaser repudiates he can claim specific performance.

Conversely a vendor with defective title cannot claim specific performance, but may be forced to convey for a reduced price. It seems that a person of full age can claim specific performance of a voidable contract made during infancy even though he could have elected to repudiate the contract.1610 Further exception to the rule of mutuality can be found where a victim of fraud or innocent misrepresentation can claim specific performance even though the contract could not be specifically enforced against him. Court can make an order of specific performance in respect of a landlord's covenant to keep the premises in a good state of repair despite rules of equity restricting the award of the order whether based on mutuality or not. Defendant has signed the memorandum required by section 40 of the Law of Property Act 1925, in order to render a contract to sell land actionable against the party to be charged, it is specifically enforceable at the instance of the plaintiff, though he himself has signed nothing. The number and importance of these exceptions has led Ames to doubt the existence of the requirement of mutuality in suits for specific performance.

The true principle is that equity will not compel specific performance by a defendant if after the performance of his part of the contract, the only common law remedy that is available to him for the security of the performance on the part of the plaintiff is damages. All the exceptions to the requirement of mutuality can be explained on the ground that the defendant has already got what he bargained for, or that he will get it as a result of the proceedings begun by the plaintiff. The reason why a person who has not signed the memorandum of a contract for the sale of land can specifically enforce it against one who has signed is that the plaintiff, by the act of filing the bill, has made the remedy mutual that is, he gives the court jurisdiction to hold him to the agreement.

The court has no such jurisdiction when specific performance is claimed on behalf of an infant as the act of filing the bill by his next friend cannot bind him. Ame's formula gives a vivid insight into the basis and scope of the equitable principles in contrast to the alleged requirement of mutuality. Whereas the English cases, on the other hand remained engrossed in the general requirement of mutuality while recognising manifold exceptions attached to it. The two methods of approach can be distinguished on the basis of degree of emphasis with no practical consequences.

Institution of actions for specific performance of agreement

Actions for specific performance of contracts between vendors and purchasers of real estates including contracts for leases should be commenced in the Chancery Division. All other actions for specific performance may be brought in either the Kings Bench Division or the Chancery Division.1621 In the case of actions for specific performance of any agreement for the sale, purchase, or lease of any property where in the case of a sale or purchase the money or in the case of a lease the value of the property does not exceed 500 pounds, proceedings may be institute in the County Court. Since 1927 a new procedure has come into force in the Chancery Division under which summary judgment for the specific performance of a contract for sale and purchase of property can be obtained in a similar manner to the procedure already common in actions commenced in the King's Bench Division by specially indorsed Writ.

Partial Specific performance with compensation

It is a fundamental principle that in granting the relief of specific performance, a Court of equity will, if necessary distinguish between the essential and non-essential stipulations and while enforcing the former will disregard the latter, and award in place of the omitted terms a suitable compensation. There may be the possibility of small mistakes or inaccuracy, some of those little circumstances that would not defeat an action at law and yet lie so explicitly in compensation that they ought not to prevent the execution of the contract. Equity, having regard to the substance rather than to the form of the contracts, will not allow the impossibility of a literal fulfillment to prevails a defence, when the agreement can be substantially carried out so as to effectuate the intentions of the parties and to do justice between them.

Equity requires substantial and not the literal fulfillment of engagements. Compensation will not be awarded and the vendee will be forced to accept the interest which the vendor has, if the defect or variation is obvious, plain, and palpable to the senses, or when the purchaser had actual notice of it at the time of entering into the agreement. Karachi High Court held the vendor is in a position to convey substantially what purchaser contracted for the Court can decree specific performance with compensation for any small or immaterial deficiency. The area was no more than false demonstration and not a restriction of the description of the whole property, and there being no possible doubt as to the property agreed to be sold, the defendants could not be said to have been unable to perform the whole of the contract within the meaning of s.14 of Specific Relief Act, 1877.

Where one of the conditions of a contract of sale is that if any error, misstatement or omission should be disclosed, it would not annul the sale nor would any compensation be allowed by the vendor or purchaser in respect thereof, such a condition would apply only to the case of innocent errors or accidental slips but not to cases where the error or misdescription is materially different in substance from what it was represented to be compensation can be allowed. Indian High Court enunciated the law on the point to the effect that where there is a substantial deficiency in the area of property sold, the Court will not compel the purchaser to take the property with compensation even where the condition of sale was that if any error or misstatement, shall appear to have been made in the particulars or description of the property, such error or misstatement shall not annul the sale, nor entitle the purchaser to be discharged from the sale or to receive any compensation.

Privy Council held that ss. 14 to 17 of Specific Relief Act, 1877 taken together constitutes a complete Code within the terms of which relief by way of specific performance of part of a contract might be brought, and although assistance might be derived from a consideration of cases upon this branch of English jurisprudence, the language of the sections must ultimately prevail. Agreement to sell was not a valid agreement where it was executed during minority of one of the defendants. Such agreement was the one which could not be spilt up and enforced in parts.

Damages in addition to or substitution of specific performance

S.2 Chancery Amendment act 1858 gave the Court of Chancery the power to award damages in lieu of specific performance (now s50 Supreme Court Act 1981) commonly referred to as Lord Cairn's Act. Court of Appeal or High Court has jurisdiction to entertain an application for an injunction, it may award damages in addition to, or in substitution for, an injunction. The plaintiff obtained a decree of specific performance for the sale of the house to the defendant. The plaintiff had bought a new house in the meantime and he could not keep up the mortgage installments on the house he had sold to the defendant. The mortgagee took possession and sold the house making specific performance impossible. The plaintiff then claimed to have the specific performance decree cancelled and damages in lieu of specific performance requested. The date of breach of the contract was about 21 January 1974, the decree of specific performance was drawn up and entered on 26 November 1974, and specific performance became impossible on 3 April 1975, when the mortgagee took possession and sold. The Court of Appeal fixed the date of assessment of damages at 26 November 1974, but in the House of Lords it was held that damages should be assessed at 3 April 1975 as the vendors had acted reasonably in pursuing the remedy of specific performance, so the damages should be assessed on the date on which the remedy of specific performance became aborted and impossible, not being the vendor's fault should logically be fixed. Damages may often be awarded in addition to specific performance but, again most frequently and prominently in contracts for the sale of land. Thus the vendor's title to land was subject to an encumbrance which amounted to a breach of contract. The plaintiff, it was held, could get specific performance of what title the defendant had, plus damages based on the cost of discharging the encumbrance.

In a suit for specific performance the plaintiff is not bound to pray specifically for damages either in addition to or in substitution. He has a choice of remedies open to him to apply for and the Court has discretion to allow damages if it is of the opinion that the damages are an appropriate remedy. But this rule is subject to one important limitation that during the progress of the suit and before the final hearing the plaintiff should not have abandoned his claim for to specific performance or otherwise disentitled him to that relief by any act on his part. Award of compensation in addition to specific performance was to prevent multiplicity of suits and to do complete justice between parties. A suit for specific performance and damages was brought but before it could be heard, the defendants performed the contract. It was held that the plaintiff was nevertheless justified in bringing his suit to a hearing for damages. Where in a suit for specific performance of an agreement to sell land, the plaintiff is content with compensation in lieu of specific performance, the suit is still a suit of specific performance. In such a case the decree will award compensation as specific relief on the footing that the agreement is subsisting and not damages as for breach of agreement.

One of the co-sharers entered into a contract for the sale of the entire land including the interest of the other co-sharer, at the same time giving an undertaking to obtain the consent of the other co-sharers to transfer and the contract was not fulfilled on account of the refusal of the rest of the co-sharers to give up their shares, it was held that as the contract was not capable of performance, the vendee was entitled to damages for non-performance of the contract. Where it was contended that the first suit for specific performance did not seek relief for damages because cause of action for damages arose only after suit for performance was filed and the suit was filed when cause of action for the same arose.

Karachi High Court enunciated that plaintiff could amend his plaint on footing of first cause of action but could not file separate suit and damages for breach of contract and plaintiff in a suit for specific performance is not obliged to pray specifically for damages and the Court has always a discretionary power to award damages when it considers that damages should be given though not asked for in the plaint. If the Court is not in a position to grant relief of specific performance, it would not be denuded of its power to grant damages, provided a case of breach of contract and entitlement to recover damages is made out. By addition of relief of damages, neither the cause of action would change nor any cause of action would be added, but only result would be the addition of a relief which the party was entitled to claim, in the alternative or in addition to the relief of specific performance. By granting permission to amend the plaint for including relief of damages, it could not be considered that the nature of the suit had been changed. A suit may be brought for specific performance of a contract plus damages in substitution of such performance with an alternative claim for damages for breach of contract.1644 Where specific performance of the contract is refused by the defendant, the plaintiff is entitled to claim back earnest money and damages, provided they are not penal. His omission to claim specific performance does not bar his right to claim damages. If the plaintiff after obtaining a decree for specific performance discovers that the defendant is incapable of carrying out the decree, the plaintiff may apply for rehearing and ask that in lieu of the decree for specific performance, a decree for damages may be awarded.

There is a distinction between damages for a breach of a contract which can only be claimed under the Contract Act and damages in substitution for specific performance, the claim for which S.19 of the Specific Relief Act permits. The two claims are based on entirely different considerations. Compensation in substitution for specific performance is granted where the Court could have grated specific performance but declines in its discretion to do so. Whether the claim is for specific performance or for damages, the cause of action is the breach of contract. The reliefs follow as a consequence of the breach of contract.

If the party aggrieved is ready and willing to carry out his part and the party complained against commits a breach then the party aggrieved may either sue for specific performance or for damages. Moreover a claim for specific performance under the Specific Relief Act can co-exist with a claim for damages under the Contract Act and a claim under one Act cannot preclude a claim under the other so long as the requirements of the respective statutes are satisfied. In the proper case therefore, a plaint for specific performance can be converted by amendment into a claim for damages for breach of contract.

Where a plaintiff claiming specific performance prays in the alternative for the return of moneys expended by him and for other proper relief, the prayer is wide enough to include a claim for compensation for breach of contract in substitution for its performance. In the case of breach of contract to sell, the plaintiff can sue for specific performance or alternatively for damages. The plaintiff is entitled even at the trial to elect whichever of the two remedies would be advantageous to him and if he abandons the relief for specific performance, the suit must be treated as a suit for damages. But where a purchaser to a contract for sale made a claim for damages, on the footing of its breach by the vendor, it would amount to a definite election on his part to treat the contract as at an end and thereafter no suit for specific performance can be maintained by him, for, such election, he has disabled himself from making the averment that he had always been ready and willing to perform his part of the contract. But if the purchaser sues for and obtains a decree for specific performance, without claiming any provisions of Order 2 Rule 2, Civil Procedure Code. Supreme Court of Pakistan held that purchaser by serving notice to the seller and demanding compensation for the breach of agreement would not give up his right for specific performance of the sale agreement entered into between the parties.

Liquidated damages no bar to specific performance

The general rule of equity is that if a thing is agreed to be done, the very thing ought to be done though there is a penalty annexed to secure its performance or a sum is named in the contract to be paid in the case of its breach. A court of equity is anxious to treat the penalty as being merely a mode of securing the due performance of the act contracted to be done and not a sum of really intended to be paid. The contract, however, must not be one where compensation in money would be adequate relief. The question is essentially one of construction for the Court depending upon the circumstances of each case and the primary intention of the parties. In the case of a contract stipulating that one certain act shall be done with sum annexed to secure the performance of this very act then Court is enabled to decree specific performance in spite of the damages clause and thus carry out the intention of the parties. The equity bars against the construction that that the contract is of alternative nature. The onus is upon the defendant to show that the case is one in which the Court should not exercise its discretion and grant specific performance in favour of the plaintiff. A contract being otherwise proper can be specifically enforced by the plaintiff although a sum is named in it and the defendant is willing to pay the same in account of its breach by him. It was held that as there was no condition that the vendees should abandon their right to specific performance, and there was no understanding by them to accept a certain sum of money in lieu of their rights as purchasers, the contract could be specifically enforced. Lahore High Court held that Court has power to decree specific performance of the contract despite the stipulation in the contract regarding payment of a specified sum in the case of its breach. If there is a penalty clause, the plaintiff has the right

either to claim the money or to enforce specific performance, but he cannot have both.1662 Supreme Court of Pakistan held in a case that where the primary obligation under a contract is secured by a secondary covenant to pay a penalty or liquidated damages, the obliger obtains no option of breaking his primary obligation. Where plaintiff had assessed quantum of damages or loss he was to sustain in case of non-performance and had offered to accept the amount in lieu of specific performance of alleged contract, his right to enforce specific performance would be prima facie barred.

Entitlement to sue for specific performance

The general rule with regard to suits to enforce contracts is that the parties to the contract, or their representatives, are the necessary and sufficient parties to the suit meaning thereby that all the parties to the contract should be parties to the suit and none else. Thus in a suit to enforce specific performance of a single contract to convey land to several persons, it was held that the parties on each side must be marshalled as plaintiffs and defendants and it is not open to some only of the joint contractors to institute such a suit where the others refuse to have specific performance.

The contract is what constitutes the rights and regulates the liabilities of the parties; in a stranger there is no liability; and against him, there is no more right to enforce specific performance in Equity than to recover damages at law. Though a minor who has agreed to purchase property through his guardian cannot generally sue for the specific performance of the contract, where the guardian is a de jure guardian and is competent to bind the minor by his contract and the contract is also for the obvious benefit of the minor, the minor can bring such a suit.

A contract in the Iqrarnama to reconvey the land to the vendor, though does not create any interest in the land is yet capable of being transferred to a third person; and the transferee is entitled to enforce the contract of conveyance against the vendee except a bona fide purchaser for value without notice of the agreement. Representative-in-interest can sue for specific performance. An assignee of a contract by way of mortgage may enforce his security by means of specific performance. Where the personal quality of a party to a contract is a material ingredient in a contract, the right to enforce the contract ceases upon the death of the party with whom it was made and cannot be claimed by his legal representative. Personal quality need not necessarily be restricted to particular skill or learning but may include anything peculiar to a man or his descendants. A contract to repurchase land within a specific time is a personal covenant and cannot be assigned; G sold his land to V on condition that after the lapse of ten years G or his descendants should have the right to repurchase it within two years. G's heirs sold the right reserved to one who again sold it to plaintiff. Held that the intention of the parties was that assignees outside family would not enforce the contract. It was a case of personal quality.

In the case of a marriage settlements the reasonable rule is that all beneficially entitled under the contract of settlement are within the valuable consideration of the marriage, and so competent to enforce stipulations in their own favour. Persons beneficially entitled under a compromise of doubtful rights between members of the same family can sue for the specific enforcement of such compromise. The commission of an act of bankruptcy by the plaintiff prevents him from enforcing a contract of sale, either as purchaser or vendor; in the former case because he may not be able to pay the money, in the latter case because he may not be capable of conveying the estate. It is not necessary that a person should be declared insolvent by the Court. General insolvency and incapacity to fulfil obligations may be sufficient. Breach of a contract by a party disentitles him to get relief of specific performance. Thus in a case of an agreement for a lease where the lessee commits breaches of the term of the agreement, such as waste, failure to insure or repair, or, if the agreement is for sub-lease, knowingly commits acts which are inconsistent with the covenants of the head lease, the contract is not enforced. Where a plaintiff sued a member of a joint Hindu family for specific performance of a contract to sell his share, and included in the same suit a claim for partition and possession against all the members. Court held that the claim for partition was wrongly joined as at the date of suit the plaintiff had no right to sue for partition, not having completed his title by a sale deed. A subsequent purchaser from party to contract of which specific performance is claimed is a necessary party to a suit to enforce specific performance. In a suit to enforce specific performance of a contract for sale of land by the execution of a registered conveyance, any person in possession claiming under an anterior agreement of sale is a proper party to the suit and the decree should be against both of them. Where the Receiver in a suit had, by order of Court, sold certain property in the suit, and had executed the contract of sale in his own name, a plaint praying for specific performance against the purchaser for refusing to complete the contract was admitted with the Receiver as co-plaintiff, he having obtained leave to sue.

Contract to refer to arbitration, when bar a suit

Proviso to s. 21 of the Specific Relief Act, 1877 is intended to prevent persons, who of their free-will entered into contracts to refer matters in controversy to arbitration, from breaking them wilfully and capriciously. The courts of Equity will not enforce the specific performance of a contract to refer a controversy to arbitration. But before this section can be relied on as bar to a suit upon a contract containing a stipulation that matters in dispute shall be referred to arbitration: it must be shown that the plaintiff has refused to refer to arbitration and that the filing of such a suit was not such a refusal.

To bar a suit under s. 21 of the Specific Relief Act, a refusal to arbitrate must be before the action is brought. The proviso relates only to inchoate and abortive arbitration proceedings and not to a case where the contract to refer to arbitration has been carried out. Where an agreement was to refer to arbitration to three persons without any provision for the appointment of other arbitrators, and two of them refused to act there is no subsisting agreement capable of being carried into effect and this section is no bar to a suit in respect of any subject which was referred to arbitration. The wording of s. 21 of Specific Relief Act (I of 1877) is wide enough to cover contracts to refer any matter which can legally be referred to arbitration, and one of such matters is a suit proceeding in Court. After service of summons, the parties drew up and signed an agreement to refer the matter in dispute to arbitration. Held, that the agreement was a bar to the suit. Sec. 21 of the specific Relief Act applies to an agreement before suit as well as to one made during the pendency of a suit. It would be most inconvenient if two simultaneous proceedings in respect of disputes were allowed, namely, arbitration proceedings and proceedings before court of justice.

The contract, the existence of which would bar a suit under sec. 21 must be an operative contract, and not a contract broken up by the conduct of all the parties to it. The parties to a suit referred the matters in suit to arbitration and the Court accordingly adjourned the suit. The arbitrators made an award disallowing the plaintiff's claim. Held that the further hearing of the suit was barred. Arbitration agreement entered into by one partner without authority does not constitute a bar to recover a debt due to the firm. When on the termination of partnership ,the partners agreed to refer all the matters in dispute to arbitration, and then one of them withdrew from the arbitration without sufficient cause and instituted a suit in the Court to recover a half share of the debt realised by the other party, held that this section was a bar to that suit. The principle is that it is not in the power of a person to revoke at his mere will and pleasure a submission to arbitration after he has once agreed to the submission.

Decree for specific performance

The judgment debtor in a decree for specific performance must be given an opportunity of obeying the decree prior to the ordering of the issuance of a process against him. Where no opportunity has been given, the application ought to be dismissed, and the decree holder can make a second application after allowing such opportunity to the judgment debtor. Where a decree for the specific performance of a contract has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the Court. The Court has power there to direct the execution of a sale-deed either by the decree-holder or some other person appointed by the court. The manner in which that power is to be carried out is set out in Rule. 34, Order 21, C.P.C. It is essential decree-holder to do all things necessary for completion of the transaction. Such decree enjoins the parties to perform their part of the agreement and on their failure to do so, Court itself performs those obligations by carrying out the act required to be done. Where defendant fails or refuses to execute the necessary sale-deed, Court can do so on his behalf. Title remains vested in the vendor and does not pass on the other party as long as deed is not executed. Both the parties to a decree for specific performance are in a position to apply for the execution of the decree, and as such the applicant for execution should be ready and willing to perform his part of the contract.

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1A.G. Guest, Anson’s Law of Contract, Twenty-Sixth edn. p.516.

2 Paul H. Richards, Law Of Contract, Third ed., p.317.

3 Winfield, Tort, 7th ed., p. 516.

4 Corbin, Contracts, s. 1138.

5 G.H. Treitel, The Law Of Contract, Second ed. (1966), p.688.

6 Buxton v. Lister,(1746) 3 Atk. 383,384.

7 Tailby v. Official Receiver, (1888) 13 App.Cas. 523, 548.

8 Re Schwabacher (1908) 98 L.T. 127.

9 Whiteley Ltd. v. Hilt [1918] 2 K.B. 808.

10 Collier v. Brown [1788] 1 Cox CC 428.

11 Lavery v. Pursell (1888), 39 Ch.D. 508, at p.519.

12 Re Smith & Service and Nelson & Sons (1890), 25 Q.B.D. 545.

13 Re Parkin, [1892] 3 Ch. 510.

14 Odessa Tramways Co. v. Mendel (1878) , 8 Ch. D. 235.

15 Post v. Marsh (1880) , 16 Ch.D. 395.

16 Lewis v. Bond (1853) , 18 Beav. 85.

17 Walrond v. Walrond (1858) , Johns. 18.

18 Supreme Court of Judicature (Consolidation) Act, 1925, s. 56 (I) (b).

19 Sale of Goods Act, 1893, s.52.

20 Duncuft v. Albrecht (1841), 12 Sim. 189.

21 Stevens v. Benning (1855), 6 De G. M. & G. 223.

22 Foster v. Reeves, [1892] 2 Q.B. 255.

23 Ashton v. Corrigan (1871), L.R. 13 Eq. 76.

24 Wilson v. Wilson (1848), I. H.L. Cas. 538.

25 Pravudayal v. Ramkumar, AIR 1956 Cal. 41.

26 Mir Hasnat Ali v. Birendra Kumar Ghosh, PLD 1965 Dacca 56.

27 Hiralal v. Shanker, 64 IC 637.

28 Griffith v. Spartle, 1 Cox. 30.

29 1996 SCMR 137.

30 2002 YLR 2242.

31 Paul H. Richards, Law Of Contract, Third ed., p.317.

32 M. Krishnan Nair, The Law Of Contracts,Fourth edn., p.249

33 Tito v. Waddel (No.2), [1977] Ch.106, at p.322.

34 Fry, Specific Performance, 6th ed., s. 72.

35 Cud v. Rutter (1719) 1 P.Wms. 570.

36 c.54.

37 Holroyd v. Marshall(1862), 10 H.L. Cas. 191, at p.209

38 Cohen v. Roche, [1927] 1 K.B. 169. at p. 181.

39 Pusey v. Pusey (1684) 1 Vern. 273.

40 Nutbrown v. Thorton (1804) 10 Ves. 159.

41 Adderley v. Dixon (1824) 1 S. & S. 607.

42 Fothergill v. Rowland (18730 L.R. 17 Eq. 137.

43 Flint v. Brandon (1803) 8 Ves. 159.

44 Beswick v. Beswick [1968] AC 58.

45 Australian Hardwoods Pty Ltd. v. Railways Comr. [1961] 1 All ER 737.

46 McGowin v. Remington, 12 Pa. St. (2 Jones) 56.

47 Ramji Patel v. Rao Kishore Singh, AIR 1929 P.C. 190.

48 Story’s Equity, 2nd ed. para.746.

49 Jamal Ahmad v. Zakaria 1987 M.L.D. 295.

50 Barij Ballar v. Mahabir, 78 I C 167 (A).

51 Larios v. Bovany, L R 5 P C 346.

52 South African Territories Ltd. v. Wellington (1898) A C 309.

53 Meenakshisundra v. Rathnasami, 41 Mad. 959.

54 Zafar Ahmad v. Hajran Bibi, PLD 1986 Lah. 399.

55 Sale of Goods Act, 1893, s. 52.

56 [1921] 1 K.B. 635.

57 Sale of Goods Act, 1893, s. 62 (1).

58 Re Wait [1927] 1 Ch. 606, 630.

59 Nawab Meah. v. Ezazuddin, PLD 1962 Dacca 655.

60 Abdul Hamid v. Abbas Bari, PLD 1962 S.C.1.

61 Skinner v. Skinner,AIR 1930 Lah. 1004.

62 Venkateswara v.M. Subbayya,A.I.R. 1958 Andh. PRA.99.

63 Haywood v. Cope, 25 Beav.140.

64 Ghulam Muhammad v. Qutub Ali Raza Khan, 1988 M.L.D. 1299.

65 Swarath v. Ram Ballbah, AIR 1925 All. 595.

66 Sheikh Ahmed v. Lallaram, 13 W R 426.

67 PLD 1991 SC 905.

68 Shib Lal v. Collector of Bareilly, ILR 16 All.423.

69 Muhammad Hussain Khan v. Muhammad Din, 1987 S.CM.R. 1211.

70 Rambhai v. Khimji Hirji, A.I.R. 1950 Kutch 86.

71 Sardar Muhammad Iqbal Khan Mokal, The Specific Relief Act, 1877, fourth ed. (1987), p.455.

72 Genda v. Ram Ch., 73 I.C. 1013.

73 Hall v. Warren, 1804, 9 Ves. 605, 608.

74 Habibar v. Ali Azahar, 44 C.L.J. 162.

75 Mir hasnat Ali v. Birendra Kumar Ghosh, PLD 1965 Dacca 56.

76 PLD 1994 SC 326.

77 Patel v. Ali, [1984] Ch 283.

78 Hasham v. Zenab [1960] AC 316.

79 Quadrant Visual Communications Ltd. v. Hutchinson Telephone UK Ltd., The Times 4 December.

80 Wroth v.Tyler [1974] Ch 30.

81 Webster v. Cecil (1861) 30 Beav 62.

82 Stickney v. Keeble[1915] A.C. 386, 419.

83 Lamare v. Dixon (1873) L.R. 6 H. L. 414, 423.

84 Danne v. Light,(1857) 8 D.M. & G. 774.

85 Duke of Bedford v. British Museum Trustees (1822) 2 My & K 552.

86 Dowson v. Solomon,(1859) 1 Dress & Sm.1.

87 Rum Prakash v. Tulsi Charan, AIR 1949Cal. 510.

88 Paul H.Richards, Law Of Contract, Third edn., p.320.

89 Lazard Bros & Co. Ltd. v. Fairfield Properties (Mayfair ) Ltd. (1977) 121 Sol Jo 793.

90 Story’s Equity, 2nd ed. 120n; 151n

91 Walters v. Morgan, (1861) 3 D.F. & J. 718.

92 Dyster v. Randall [1926] Ch. 932.

93 Malins v. Freeman (1837) 2 Keen 25, 34.

94 Dyster v. Randall [1926] Ch. 932.

95 Lamare v. Dixon (1873) L.R. 6 H.L. 414, 423.

96 Martin v. Pycroft (1852) 2 D.M. & G. 785.

97 Mortlock v. Buller (1804), Ves. 292.

98 Sang Lee Investment Co. v. Wing Kwai investment Co., The Times, March 29, 1983.

99 Muhammad Yaqub v. Muhammad Nasrullah Khan, PLD 1986 S.C. 497.

100 Ardeshir v. Flora Sassoon, AIR 1928 P C 208.

101 Maharaj Das v. Gian Singh, 27 I C 640.

102 Davis v. Maung Shwe Co.,38 I A 115.

103 Abdul Rahim v. Irfan Gazi, AIR 1928 Cal. 484.

104 Calinji v. Narsi, ILR 18 Bom. 702.

105 1985 S.C.M.R. 236.

106 Maksud Ali v. Eskandar Ali, PLD 1964 S.C. 381.

107 PLD 1962 Kar. 390.

108 Gostho Behari v. Omiya Prasad, AIR 1960 Cal. 361.

109 Baskcomb v. Backwith, L R 6 Ch. 1.

110 Manon v. Armitage, 13 Ves. 25.

111 Administrator-General of Bengal v.Juggeswar, ILR 3 Cal. 192 (P C).

112 Story’s Equity, 2nd edn., pp. 244-251.

113 Polhill v. Walter, 3 B. & Ad. 114.

114 Tafuzzal v. Maung, AIR 1929 Rang. 335.

115 (1895) 2 Ch. 205.i

116 Mullens v.Miller, 22 Ch. D 194 Bacon V C.

117 Cutts v. Brown, 6 Cal.328.

118 Revell v. Hussey, 1813, 2 Ball. & B. 280, 288.

119 Emery v. Wase, 1803,8 Ves. 505.

120 Willingham v. Joyce, 3 Ves. 168.

121 Halsbury Law of England, Vol. 27, Sec. 63.

122 Bindeshri Prasad v. Jairam Gir, 9 All. 705 P.C.

123 Penn v. Lord Baltimore (1750) 1 Ves Sen 444.

124 Banerji’s Specific Relief Act, 2nd Ed., p. 47.

125 Halsbury, Vol. 27, para. 95, p. 56.

126 Seshadri Iyengar v. Ramanuja, 6 M.L.J. 375.

127 Halsbury’s Law of England, Vol. 27, para. 88, pp.50, 51.

128 AIR 1945 All. 39 (DB).

129 AIR 1918 Cal. 108 (DB)

130 PLD 1983 FSC 113.

132 1994 CLC 733.

133 Johnson v. Shrewsbury and Brimingham Ry. (1853) 3 D.M. & G. 358.

134 Merchant Shipping Act, 1894, ss. 222,224.

135 Ridge v. Baldwin, [1964] A.C. 40.

136 Chinnock v. Sainsbury (1861) 30 L.J. Ch.409.

137 England v. Curling (1844) 8 Beav. 129, 137.

138 Barrow v. Chappell & Co. (unrep.), Cited in Joseph v. National Magazine Co. Ltd. [1959] Ch. 116.

139 Employment protection (Consolidation) Act 1978 (c.44), ss. 69-80.

140 Rigby v. Connol (1880) 14 Ch.D. 482, Ch.D.

141 Giles & Co. Ltd. v. Morris and Others [1972] 1 W.L.R. 307.

142 Banerjee, pp. 111,112, (1873) L.R. 16 Eq. 433.

143Cossard & Co. v. Cassby, 132 Lowa 145.

144 A.George v. P.I.A. Corporation, PLD 1971 Lah. 748.

145 Azizur Rahman v. Burmah Oil Co., PLD 1960 Dacca 759.

146 Ryan v. Mutual Tontine Westminister Chambers of Assiociation, [1893] 1 Ch.116.

147 Powell Duffryn Steam Coal Co. v. Taff Vale Ry. (1874) L.R. 9 Ch. App.331.

148 Blackett v. Bates (1865) L.R. 1 Ch. App. 177.

149 De mattos v. Gibsons (1858) 4 D. & J. 276.

150 Posner v. Scott-Lewis(1987) The Times 12 December.

151 Wilson v.Northampton and Banbury Ry. Co. (1874), 9 Ch. App. 279.

152 Gajkumar v. Lachman, 14 CLJ 627; PLD 1981 Lah. 623, 632.

153 South Wales Ry. Co. v. Wythes, (1854) 5 De G. M. & G. 880.

154 Cooper v. Hood, 26 Beav. 293.

155 Lord James Stewart v. L & N Western Ry. Co., 15 Beav.

156Zehri Khan v. Warasat Hussain, 1986 MLD 90.

157 Gopal Sirdhar Mahadeb v. Sashi Bhusan Sarkar, AIR 1933 Cal. 109.

158 New Beerbhoom Coal Co. v. Balaram, 5 Cal. 932 F C.

159 Patter v. Duffield L R 18 Eq. 4.

160 Rossiter v. Miller, 3 App. Cas. 1124.

161 Squire v. Whitton, (1848) 1 H L C 333, 358.

162 Stowart v. Elliston, 1 Mer. 26.

163 Kennedy v. Lee, 3 Mer. 441.

164 Giribala Dasi v. Kalidas, AIR 1921 P C 71.

165 Halsbury, Vol. XXXI, paras. 396, 397 p.354-355.

166 Halsbury, Vol. 27, paras. 31, 32, p. 22.

167 Bromley v. Jeffries, 1701 2 Vern. 415.

168 Fry, Specific Performance, 6th ed., p.219.

169 Blackett v. Bates (1865) L.R. 1 Ch. App.117.

170 Cheshire, Fifoot, Furmston, Law of Contract, Twelfth ed. (1991), p. 630.

171 Flight v. Bolland (1828) 4 Russ 298.

172 Stocker v. Wedderburn (1857) 3 K & J 393.

173 Pricev. Strange, {1978} Ch.337, at p. 361.

174 Lumely v. Ravenscroft [1895] 1 Q.B. 683, C.A.

175 Zeebunnisa Begum v. Mrs. H. B. Danagher, AIR 1936 Mad.564.

176 Mohori Bibi v. Dharmadas, 30 C. 530.

177 Fry, Specific Performance (6th ed. ), p. 219.