Filing a Suit for specific performance of a contract.

A suit for specific performance can be filed by any party, in a court of competent jurisdiction, who has suffered loss due to non-performance of contract on part of the other party to the contract.

A party to a contract who is aggrieved because the contract is breached by another party has the option to file a suit for specific performance compelling to perform his part of contract. Before an equity court will compel specific performance, however, the contract must be one which can be specifically performed.

Can a representative or agent file the suit for specific performance on behalf of a party?

The representative in interest or the principal, of any party to the contract can also file the suit for specific performance. However, where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party.

Against whom can one claim specific relief of contract?

The general rule is that specific performance of a contract may be enforced against—

  • either party thereto;
  • any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
  • any person claiming under a title which, though prior to the contract and known to the
  • plaintiff, might have been displaced by the defendant;
  • when a limited liability partnership has entered into a contract and subsequently becomes amalgamated with another limited liability partnership, the new limited liability partnership which arises out of the amalgamation.
  • when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
  • when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.

What defenses can be taken in a suit for specific performance?

A defendant in a suit for specific performance may raise the following defenses:-

  1. Incapacity of parties
  2. Uncertainty of contract
  3. Absence of concluded contract
  4. Fraud
  5. Misrepresentation
  6. Mistake
  7. Illegality or want of authority to enter into contract

These will be as per the general principles of contract law.

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