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SPECIAL RELIEF ACT, 1963 (AMENDMENT BILL, 2018)

SPECIAL RELIEF ACT, 1963 (AMENDMENT BILL, 2018)

INTRODUCTION

The basic purpose behind the enactment of the act was to provide for specific reliefs. In accordance with the act, it means, providing relief of certain specific species, i.e. a particular or exact, a named, fixed or determined relief. The term specific relief is used for providing relief of a specific kind, to the aggrieved party, rather than a general relief or compensation for damages.

The Specific Relief Act is the end result of the effort made by the law commission of India and got accepted by the Central Government as well.

The Specific Relief Act, 1963 extends to the whole of India, except the state of Jammu & Kashmir. The act covers the following fields, dealing with specific kind of reliefs, which are as follows:

  • Recovery of  possession of the property

  • Specific performances of a contract.

  • Rectifications of instruments.

  • Rescission of contracts.

  • Cancellation of instruments.

  • Declaratory decrees.

  • Injunctions.

BACKGROUND OF AMENDMENTS:

An expert committee was constituted for the purpose of the brief examination of the Specific Relief Act,1963. It was appointed by the Legislative department of Ministry of law and Justice on, 28 January 2016. This committee was headed by Mr. Anand  Desai,  to give away some suggestions on the amendment of the Act.

The act was passed by both the houses of parliament after making the proposed amendments in the act. It received presidential assent on 1st August 2018, but its provision is yet to be brought into effect.

KEY AMENDMENTS OF THE ACT:

SPECIFIC PERFORMANCE AS MANDATORY RULE  U/S 10:

In this amendment, one of the major key features is that it makes the grant of specific performance of contracts compulsory, by taking away the discretionary power of courts. As per Section 10 of the Act (as it stands now), specific performance of a contract ‘may’ be enforced by the court in its discretion.  As a result of wide discretionary powers, the courts often award damages as a general rule and grant specific performance as an exception.

The purpose of the change is to provide wider protection to contractual workings between the parties, by ensuring that the non-defaulting party can obtain the performance he bargained for. This amendment will act as a deterrent for the defaulting parties.

Reduction in the category of contracts not specifically enforceable U/S 14:

In line with the shift to a pro-performance regime, the newly substituted Section 14 has reduced the categories of contracts that are not specifically enforceable. Notably, (i) contracts where non-performance could be monetarily compensated; (ii) contracts running into minute details or dependent on the volition of the parties; and (iii) contracts which from their nature are such that the court cannot enforce specific performance of material terms, have been deleted.

The amended Section 14 now recognizes only 4 categories of contracts that cannot be specifically enforced, i.e., (i) contract where a party has obtained 'substituted performance' under Section 20; (ii) contract involving performance of a continuous duty which cannot be supervised by courts; (iii) contract so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of material terms; and (iv) contract of a determinable nature.

CONCEPT OF SUBSTITUTED PERFORMANCE:

The amendment introduces the concept of ‘substituted performance’. As per this, a party who is affected by the breach of contract can choose to get the contract performed by a third party, or by its own agency, at the cost of the contracting party at default. The affected party has to give prior notice of thirty days to the other party expressing his intention to seek substituted performance.  This concept is sought to be introduced in the Act by substituted Section 20.  It is also clarified that a party by obtaining substituted performance forfeits his right to get specific performance of the contract through the court.

INFRASTRUCTURE PROJECTS:

The amendment introduces a special categorization of ‘infrastructure projects’.  The new provision introduced by the amendment consists of the list of activities that will be treated as ‘infrastructure projects’. Such activities should be in the sectors of transportation, energy, water & sanitation, communication, and social & commercial infrastructure. The Department of Economic Affairs is the related agency for specifying various categories of projects and infrastructure sub-sectors, which is provided as Schedule to the Bill and it is proposed that the said Department may amend the Schedule relating to any such category or sub-sectors.

NO INJUNCTION TO BE GRANTED AGAINST INFRASTRUCTURE PROJECT U/S 20A:

The provision of no injunction to be granted against infrastructure projects Under Section 20A has been proposed, to be introduced by the amendment.  It restrains courts from granting an injunction in a suit involved in the contracts relating to an infrastructure project, where granting the injunction would cause impediment or delay in the progress or completion of such an infrastructure project.

TIME BOUND ADJUDICATION U/S 20C:

The amendment made into this section refers to the Fixing of the time limit of 12 months for the disposal of the case, from the date of the issue of the summon to the defaulting party. The amendment seeks to fix a time limit of twelve months for disposal of cases under the Act, through the newly proposed section 20C.

POWER OF COURT TO ENGAGE EXPERT U/S 14A:

The amendment made into the Section 14A gives power to the courts to involve experts, to give away its opinion on any issues in the suit filed in the court of laws. As per the Statement of Objects and Reasons of the Amendment Bill, the Act is not in tune with the rapid economic growth happening in our country and the infrastructure activities expansion that is needed for the overall development of the country. The Bill, which was passed by the Lok Sabha on 15th March, now awaits passing by the Rajya Sabha.

PROCEDURE FOR THE APPEARANCE OF THE DEFENDANT:

The procedure for the appearance of the defendant has been laid down under, order 37 Rule-3 of the CPC Act; it provides a systematic way for the defendant party to put-up his argument against the allegations raised by the plaintiff, in the court of laws.

Author:

eStartIndia Team



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