Specific Performance: Contracts That Can and Cannot Be Enforced
Section 9. Defences respecting suits for relief based on contract.
If someone seeks specific relief based on a contract, then:
The defendant can use any defence available under contract law to show why the relief should not be granted.
The defendant can rely on any legal ground under the Indian Contract Act, 1872 or other contract-related laws, such as:
Lack of capacity
Absence of free consent (coercion, undue influence, fraud, misrepresentation)
Mistake
Illegality or void agreements
Uncertainty of terms
Failure of consideration
Contract being voidable or void
Prior breach by the plaintiff
Impossibility or frustration
Any other statutory defence relating to contracts
These defences can be raised even though the remedy sought is specific relief, not damages.
Section 10. Specific performance in respect of contracts.
Specific performance means the court orders a party to perform the exact terms of a contract rather than paying damages.
Specific performance can be granted, but only if the requirements and restrictions under the following sections are satisfied:
Section 11(2)
Deals with cases where the trustee’s duties may require the court to enforce specific performance.
It identifies situations where specific performance must or may be granted in relation to trusts.
Section 14
Lists the types of contracts that cannot be specifically enforced.
Examples include:
Contracts with uncertain terms
Contracts depending on personal qualifications or volition
Contracts that are determinable in nature
Contracts involving continuous duties that courts cannot supervise
These limitations act as exceptions to specific performance.
Section 16
Specifies personal bars to relief.
A plaintiff cannot obtain specific performance if:
He has not performed or is not willing to perform essential terms of the contract
He has acted fraudulently
He has violated essential obligations
He cannot prove readiness and willingness
Essentially, the plaintiff must come with clean hands and show continuous readiness and willingness.
Section 11. Cases in which specific performance of contracts connected with trusts enforceable.
11(1).
As a general rule under this Act, specific performance of a contract can be enforced.
When the contract involves performing an act that is part of a trust (whether fully or partially) the court will enforce specific performance.
If the duty under the contract is connected to the execution of a trust, then the court is more inclined to order specific performance.
This is because trustees are obligated to act according to the terms of the trust, and enforcing such duties promotes the proper administration of the trust.
This rule applies unless the Act provides an exception to specific performance in that scenario.
Trust obligations are treated with higher seriousness because trustees hold property for beneficiaries, not for themselves.
Therefore, courts ensure that trust-related duties are carried out exactly as required, not substituted with monetary compensation.
11(2).
A trustee must act within the powers given to him under the trust deed or the law.
If a trustee enters into a contract that exceeds those powers, or enters into a contract in breach of trust, then the court will not specifically enforce such a contract.
Contracts beyond trustee’s authority are invalid for specific performance.
The trustee cannot bind the trust or the beneficiaries to something he had no legal power to agree to.
Contracts made in breach of trust are not enforceable
If the agreement harms beneficiaries or violates trust duties, courts will not compel performance.
Section 12. Specific performance of part of contract.
12(1).
As a general rule, the court will not order specific performance of only a part of a contract.
This means that the court will normally not compel a party to perform only some terms while leaving the rest unperformed.
The intention is to prevent:
Fragmented enforcement of agreements.
Situations where a contract is carried out incomplete or unevenly, which could be unfair to either party.
Exceptions to this rule are provided, which allow partial specific performance in certain defined situations.
For example. Where the unperformed part is small or easily compensable).
12(2).
If one party to a contract cannot perform the entire contract, but
The unperformed part is small in value compared to the whole.
The unperformed part can be compensated with money, then the court may intervene.
The court may order specific performance of the part of the contract that can be performed.
For the part that cannot be performed, the court may award monetary compensation.
Either party to the contract may file a suit seeking such relief.
12(3).
When a party is unable to perform the entire contract, and some part must remain unperformed, the following rules apply:
(a).
If the unperformed part forms a substantial or considerable portion of the whole contract, even if monetary compensation is possible then:
The defaulting party cannot seek specific performance.
(b).
If the unperformed part cannot be compensated in money then the defaulting party also cannot seek specific performance.
However:
The non-defaulting party may still request partial specific performance.
If they do, the court may direct the defaulting party to perform as much of the contract as can be performed, but only if the non-defaulting party satisfies the following conditions:
(i). Payment Requirement
In a case under clause (a):
The non-defaulting party must pay (or must have already paid) the agreed consideration for the whole contract, minus the value of the part that cannot be performed.
In a case under clause (b):
The non-defaulting party must pay (or must have already paid) the entire agreed consideration for the whole contract, with no reduction.
(ii) Relinquishment Requirement
The non-defaulting party must relinquish (give up):
All claims to the performance of the remaining unperformed part.
All rights to claim compensation for:
The deficiency.
Any loss or damage caused by the defendant’s default.
12(4).
Sometimes a contract contains two or more parts, and:
One part can and should be specifically performed.
Another part cannot or should not be specifically performed.
If the part that can be performed is:
Separate.
Independent, and Not dependent on the part that cannot be performed, then the court may order specific performance of that separable part.
The enforceable portion must be:
Capable of stand-alone performance.
Meant to be performed independently of the other part.
The unenforceable portion might be:
Legally invalid.
Too uncertain.
Impossible to perform.
Not suitable for specific performance.
Courts avoid enforcing the whole contract if part of it is defective, but they may enforce the good portion if it is genuinely independent.
Explanation
This provision defines when a party is considered unable to perform the whole of his part of the contract.
A party will be deemed unable to perform the entire contract if:
A part of the subject-matter of the contract.
Which existed when the contract was made.
Has ceased to exist by the time performance is due.
The rule applies even if only a portion of the subject-matter is destroyed or no longer available.
Since that portion no longer exists, the party cannot perform the contract in full.
Section 13. Rights of purchaser or lessee against person with no title or imperfect title.
13(1).
This rule applies when someone enters into a contract to sell or lease immovable property.
The seller/lessor does not have a valid title or has only an imperfect title to the property.
Even in such a situation, the purchaser or lessee is given certain rights.
These rights can be exercised subject to the other provisions of this Chapter.
(a).
If the seller/lessor did not fully own the property interest at the time of contracting, but later acquires it, the buyer/lessee can enforce specific performance against that newly acquired interest.
The law prevents the vendor/lessor from escaping the contract by saying: “I did not own the full interest when we made the contract.”
Once the missing interest is later obtained, the contract can be enforced in full against the vendor/lessor.
(b).
Where the vendor or lessor alone cannot give a valid title, because other persons’ concurrence or conveyance is required.
If those other persons are legally bound to act at the request of the vendor/lessor, then:
1. When concurrence is required
If some other person’s agreement, signature, or consent is necessary to make the title valid.
That person is bound to concur (i.e., must give their consent) at the vendor’s or lessor’s request, then:
The purchaser or lessee may compel the vendor/lessor to obtain that concurrence.
2. When a conveyance by others is required
If a valid title requires that someone else must execute a conveyance (i.e., transfer their interest).
That person is bound to convey the property at the vendor’s or lessor’s request, then:
The purchaser or lessee may compel the vendor/lessor to procure that conveyance.
Meaning of Conveyance and Concurrence
Concurrence
Concurrence refers to the requirement that two or more persons, bodies, or authorities must jointly agree, consent, or act before a legal transaction, decision, or instrument becomes effective.
It is more than simple consent.
The law specifically mandates that multiple legally relevant actors must participate.
If any one required person does not assent, the act may become invalid, voidable, or legally ineffective.
Common Situations Where Concurrence Commonly Applies
Property Law
Applies where rights or powers are shared (Co-owners, joint tenants, tenants-in-common).
No transfer, mortgage, lease, or encumbrance can be validly executed unless all co-owners concur.
Without concurrence, the instrument cannot convey full and valid title.
Contract Law
Certain agreements require concurrence not only from the contracting parties but also from third parties whose rights or obligations may be affected.
Examples include guarantors, partners in a partnership, or any person with a legal stake in the contract.
Conveyance
Conveyance refers to the legal transfer of ownership or any interest in immovable property (such as land, buildings, or rights attached to land) from one person to another.
It typically takes place through a written and executed instrument, which becomes legally effective once properly signed, stamped, and registered (where required by law).
A conveyance results in the passing of title, meaning the transferee becomes the lawful owner or holder of the interest conveyed.
It formalizes the transfer of rights, including ownership, possession, or interests like easements or mortgages.
It must comply with statutory requirements under laws such as the Transfer of Property Act, Registration Act, and Stamp Act.
Conveyance is proof that the transfer is legally recognized, protecting the transferee’s rights against third parties.
Common Types of Conveyance Instruments
Sale deed – transfers ownership for a price.
Gift deed – transfers property without consideration.
Mortgage deed – transfers an interest in property as security.
Lease deed – transfers limited rights for a specified term.
Exchange deed – transfers ownership of one property in exchange for another.
(c).
When a vendor represents that he is selling unencumbered property, but the property is in fact mortgaged, then:
The purchaser is not bound to accept the title as it stands.
If the mortgage amount does not exceed the purchase money, the purchaser is entitled to insist on full clearance of the encumbrance.
Where the vendor only has a right to redeem the mortgage, the purchaser may require him to exercise that right.
The purchaser may compel the vendor to redeem the mortgage and clear the charge on the property.
The purchaser may also compel the vendor to obtain a valid discharge from the mortgagee, confirming that the mortgage has been satisfied.
Where completion of the title requires further action, the purchaser may compel the vendor to secure a conveyance from the mortgagee as well.
(d).
When a vendor or lessor files a suit for specific performance of the contract, he must be able to show that he has a valid and complete title to the property.
If the suit is dismissed because the vendor or lessor has no title or only an imperfect title, the defendant is not required to proceed with the contract.
In such a case, the defendant has a right to the return of any deposit he has paid under the contract.
The defendant is also entitled to interest on the returned deposit, compensating him for the period the money remained with the vendor or lessor.
The defendant is further entitled to his costs of the suit, meaning all reasonable litigation expenses incurred in defending the action.
To secure these amounts, the defendant has a lien on whatever interest the vendor or lessor holds in the property that was the subject of the contract.
This lien continues until the vendor or lessor repays the deposit, the interest, and the costs owed to the defendant.
13(2).
The rule stated 11(1) is not limited to immovable property; it extends to movable property as well.
Contracts for the sale of movable property are covered by the same principles wherever they can be applied.
Contracts for the hire of movable property are also included within the scope of these provisions.
The principles will be applied to movable-property contracts to the extent that the nature of such property allows.
So, parties dealing with movable property receive similar rights and protections as those dealing with immovable property, wherever the context permits.
Section 14. Contracts not specifically enforceable.
Certain contracts are not capable of being specifically enforced.
(a).
If a party has already obtained substituted performance of the contract under section 20, then:
The original contract cannot be specifically enforced because the remedy has already been taken.
Substituted Performance
Substituted performance means that when one party fails to perform their part of a contract then:
The other party can get the work done through someone else and then recover the cost of that work from the party who defaulted.
(b).
A contract that requires the performance of a continuous duty.
This continuous duty cannot by supervised by the court.
Because it cannot be supervised , the contract cannot be specifically enforced by the court.
(c)
A contract that depends on the personal qualifications, skills or discretion of the parties:
Those contracts cannot be specifically enforced when its essential terms require personal involvement that the court cannot compel.
(d).
A contract that is determinable in its nature :
Determinable in nature means it can be terminated at the choice of one party.
Those contracts cannot be specifically enforced because it could be ended immediately even if performance were ordered.
Section 14A. Power of court to engage experts.
14(1).
The court’s power under this Act is in addition to the general powers it already has under the Code of Civil Procedure, 1908.
In any suit under this Act, the court may decide that expert opinion is necessary to help it understand or decide a specific issue.
Then, the court may engage one or more experts for that purpose.
The court may direct the expert or experts to give a report on the specific issue involved in the suit.
The court may also require the expert to attend and provide evidence in court.
This includes the power to require the expert to produce documents related to the issue being examined.
14(2).
The court may require or direct any person to give/produce the:
Expert relevant information.
Relevant documents for the expert's use.
Access to relevant documents for the expert.
Access to relevant goods or property so the expert can inspect them.
14(3).
The expert’s opinion or report becomes part of the official record of the suit.
The court may examine the expert personally in open court.
With the court’s permission, any party to the suit may also examine the expert.
The examination may relate to any matter referred to the expert for his opinion.
The examination may relate to anything mentioned in the expert’s opinion or report.
The examination may also relate to the manner in which the expert carried out the inspection.
14(4).
The expert is entitled to receive a fee, cost or expense for the work done.
The amount of such fee, cost or expense is fixed by the court.
The court will decide which parties must pay the expert.
The court will also decide in what proportion the parties must share the payment.
The court will further decide when the payment must be made.
Section 15. Who may obtain specific performance.
Specific performance of a contract may be obtained unless where this Chapter provides otherwise.
It may be obtained by:
(a).
Any party to the contract.
(b).
A person who is a representative in interest (An heir, assignee, or legal successor) or a principal (Someone on whose behalf the contract was made)
These persons can ask the court for specific performance of the contract.
However, this is not allowed when the contract depends on the special abilities or qualities of the original person.
This includes cases where the contract relies on the original party’s:
Learning.
Skill.
Financial ability (solvency),
or any personal quality that is important for the contract.
If the contract is based on these personal qualities, then only that person can perform it, not their representative or principal.
This is also not allowed when the contract clearly states that the original person’s interest cannot be assigned or transferred to someone else.
In that situation, the representative or principal has no right to ask the court to force specific performance.
But the representative or principal can ask for specific performance if the original party has already completed his part of the contract.
Since the essential personal element is already performed, the remaining part can be enforced through the representative.
The representative or principal can also ask for specific performance if the other party has accepted the performance done by them.
If the other party has shown acceptance, the court will allow them to continue with enforcement even though they are not the original contracting person.
Example:
1.
A is a famous artist who signs a contract with B to create a custom painting.
Before completing the painting, A dies.
A's son (C) becomes A’s representative in interest.
C cannot demand specific performance from B, because the contract depended entirely on A’s personal skill and artistic ability, which no one else can replace.
The contract is based on a personal quality, so specific performance cannot be enforced by the representative.
2.
P signs a contract to sell land to Q.
Before the sale is completed, Q dies, but Q had already paid his part & P accepted the payment and signed necessary documents.
Q’s legal heir R steps in.
R can demand specific performance from Q because:
The contract does not depend on Q’s personal skill or qualities.
Q had already performed his part.
The remaining performance does not require anything personal from P.
(c).
Contracts that operate as marriage settlements are covered here.
Contracts that function as family settlements or compromises of doubtful or disputed rights within a family are also included.
Any person who is beneficially entitled under such a marriage settlement or family arrangement is allowed to seek specific performance.
A person may enforce the agreement even if they were not one of the original contracting parties, as long as they receive a benefit under the settlement.
Example:
Two brothers (B1 and B2) enter into a family settlement about their father’s property.
They agree that a particular portion will be held for the benefit of B1’s son (S).
Later, B1 refuses to transfer that portion for S’s benefit.
S, though not a party to the contract, is beneficially entitled under the family settlement.
S can sue for specific performance to claim the property promised to him.
(d).
A contract may be made by a tenant for life, who has authority to deal with the property during his lifetime.
When the tenant for life enters into such a contract in proper exercise of his legal power, the person who holds the remainder interest (the remainderman) becomes eligible to enforce specific performance.
The remainderman can seek specific performance even though he was not the one who made the contract, because the contract was entered into by someone legally authorised to bind the future interest.
Example:
L is a tenant for life of a piece of land.
R is the remainderman, who will get the land after L’s lifetime.
L has legal power to grant leases during his lifetime.
L enters into a valid contract to lease the land to P.
P later refuses to complete the lease.
R, the remainderman, may sue for specific performance of the contract L made, because L acted within his legal authority and the contract binds the property beyond L’s lifetime.
(e).
A reversioner in possession is someone who now owns or holds the property after the earlier owner’s rights have ended.
(For example, when a life estate ends and the next person in line gets the property.)
The earlier owner (the predecessor in title) had entered into a covenant/a promise/agreement connected to the property.
This covenant was made in a way that its benefit passes to whoever becomes the next owner, not just to the person who originally made it.
If the reversioner is entitled to enjoy the benefit of that covenant, he can ask the court to enforce it, even though he personally did not sign the agreement.
(f).
A reversioner in remainder is a person who will get the property in the future, after the current estate ends.
The earlier owner entered into a covenant / a promise connected to the property that is meant to benefit whoever eventually gets the remainder interest.
The reversioner must be entitled to the benefit of that covenant.
This means the covenant was made in a way that the future owner (the remainderman) is supposed to gain something from it.
The reversioner must also be someone who will suffer material injury if the covenant is broken.
Material injury means real, meaningful harm, not just a small inconvenience or a minor issue.
When these conditions exist, the reversioner in remainder may ask the court to specifically enforce the covenant, even though he does not yet have possession and did not personally enter into the agreement.
(fa)
A limited liability partnership (LLP) may enter into a contract while it exists as a separate entity.
Later, that LLP may amalgamate (merge or combine) with another LLP.
After the amalgamation, a new LLP comes into existence as the result of the merger.
This new LLP steps into the position of the old LLP that made the contract.
It carries the rights and obligations connected to that earlier contract.
Because it inherits the legal position of the previous LLP, the new LLP can obtain specific performance of that contract.
(g).
A company may enter into a contract while it exists as its own separate entity.
Later, that company may amalgamate (merge or combine) with another company.
After the merger, a new company is formed as a result of that amalgamation.
This new company takes over the legal position of the old company that made the contract.
It inherits the rights and obligations connected to that earlier contract.
Because the new company now stands in place of the original company, it can ask the court for specific performance of the contract.
(h).
Before a company legally comes into existence, its promoters may enter into a contract on behalf of the future company.
Promoters act to set up the company and arrange things the company will need once incorporated.
The contract must be made for the purposes of the company.
The contract must be intended to benefit or support the company’s future business or operations.
The contract must also be warranted by the terms of incorporation.
The company’s incorporation documents (like its memorandum or articles) must allow or approve such a type of contract.
The contract should fall within the objects or powers the company is formed to carry out.
If these conditions are satisfied, then the company itself (after it is incorporated) may seek specific performance of that contract.
For the company to enforce a contract made by its promoters before it was incorporated, the company must first accept that contract after it comes into existence.
This acceptance must be real and intentional, meaning the company must agree to take over the responsibilities and benefits of the contract.
The company must then communicate its acceptance to the other party to the contract.
This means the company must inform the other party clearly that:
It adopts the contract, and
It agrees to be bound by it.
Until the company accepts and communicates this acceptance, the contract does not become binding on the company, and the company cannot enforce it.
Section 16. Personal bars to relief.
Specific performance cannot be enforced in favour of a person when any of the following conditions apply.
(a).
A person cannot get specific performance if he has already taken substituted performance under section 20.
This is because he has already chosen the alternative remedy of getting the work done through someone else and recovering the cost.
Once substituted performance is taken, specific performance is no longer available.
(b).
A person cannot get specific performance if he has become incapable of performing his part of the contract.
He also cannot get specific performance if he has violated an essential term of the contract that he was supposed to perform.
He is barred if he has acted fraudulently in relation to the contract.
He is also barred if he has wilfully acted in a way that goes against, damages, or undermines the relationship or arrangement that the contract was meant to create.
(c).
A person cannot get specific performance if he fails to prove that he has:
Performed the essential terms he was supposed to perform.
Has always been ready and willing to perform those essential terms.
The only exception is when the defendant has prevented performance or has waived the requirement.
Explanation for clause (c):
(i).
When the contract requires payment of money, the plaintiff does not need to actually hand over the money to the defendant before filing the suit.
The plaintiff also does not need to deposit the money in court unless the court specifically orders it.
(ii).
The plaintiff must prove that he has performed the contract according to how it is truly meant to be understood.
If the contract is not yet fully performed, the plaintiff must prove that he has always been ready and willing to perform it according to its true meaning and intention.
Section 17. Contract to sell or let property by one who has no title, not specifically enforceable.
17(1).
A vendor or lessor cannot obtain specific performance of a contract to sell or lease immovable property in the situations described below.
(a)
A vendor or lessor cannot get specific performance if he knew that he had no title to the property at the time he made the contract.
So , If he knowingly agreed to sell or lease something he did not own, he cannot ask the court to enforce the contract in his favour.
(b)
A vendor or lessor also cannot get specific performance if he believed he had good title when making the contract but, at the time fixed for completing the sale or lease, cannot give the purchaser or lessee a clear and reliable title.
The title must be free from reasonable doubt.
Even if he honestly thought he owned the property, he cannot enforce the contract if he later cannot provide proper ownership papers or a good marketable title when it is time to complete the deal.
17(2).
The rule stated in sub-section (1) does not apply only to immovable property.
The same rule also applies to contracts for selling movable property, as long as the nature of the contract allows it.
It also applies to contracts for hiring movable property, again only to the extent that it makes sense to apply those rules.
Section 18. Non-enforcement except with variation.
A plaintiff may file a suit asking the court to specifically enforce a written contract.
The defendant may then claim that the actual agreement is different from what is written, and may assert a variation (a change or alteration) to the written terms.
When the defendant raises such a variation, the plaintiff cannot get the contract enforced in its original written form.
The plaintiff can obtain specific performance only with the variation that the defendant has asserted, but only in certain situations, which will be listed in the clauses that follow.
(a).
This applies when the written contract is not the real agreement between the parties because of fraud, a mistake of fact, or misrepresentation.
The written contract may be different in its wording, or it may be different in its actual effect, from what both parties had genuinely agreed to.
The written contract may also be incomplete, meaning it does not include all the terms that the parties had actually agreed upon.
The missing or altered terms must be terms that were important enough that the defendant agreed to the contract because of those terms.
In such a case, the plaintiff cannot enforce the written contract as it appears on paper.
The plaintiff may enforce it only with the variation that corrects the fraud, mistake, or misrepresentation.
(b).
This applies when both parties had a specific legal result in mind when they made the agreement.
The parties intended the contract to achieve a particular legal effect or create a specific legal position.
However, the written contract, as it is drafted, is not capable of producing that legal result.
In other words, the document is written in a way that fails to create the outcome both parties wanted.
Because the written contract does not achieve the intended legal effect & the plaintiff cannot enforce the contract as it is written.
The plaintiff can only seek enforcement with the variation that reflects the true intention of the parties.
So , If both sides wanted the contract to legally do something, but the written document does not actually do it, then the plaintiff can only enforce the corrected version, not the faulty written one.
Example:
Two companies agree to create a 10-year lease, but the contract incorrectly states “1 year” due to a clerical mistake.
Neither party intended a 1-year term.
The tenant cannot enforce the written 1-year lease but may enforce the corrected 10-year lease through rectification.
(c).
This applies when the parties have changed the terms of the contract after it was originally signed.
The variation must be a mutual change, meaning both parties agreed to modify the contract after its execution.
Because the terms have been altered later, the original written contract no longer represents the actual agreement between the parties.
In such a situation, the plaintiff cannot seek specific performance of the original written contract.
The plaintiff may only seek specific performance with the updated terms that both parties agreed to later.
Section 19. Relief against parties and persons claiming under them by subsequent title.
Except where this Chapter says otherwise, specific performance can be enforced against the following persons.
(a).
Specific performance may be enforced against either party to the contract.
Either of the two people who made the contract can be required to perform it.
(b).
Specific performance may also be enforced against any person who claims under a party, if that person acquired his title after the contract was made.
This includes people who received the property from the original party through transfer, inheritance, assignment, etc.
But there is an important exception:
A transferee for value, who paid money in good faith and without knowing about the earlier contract, cannot be forced to perform the original contract.
(c).
Specific performance may be enforced against a person who has a title that existed before the contract, even if the plaintiff knew about that title.
This is allowed only when the defendant could have legally displaced or defeated that earlier title.
If the defendant had power to remove or override the earlier title, the earlier title-holder can also be bound by specific performance.
(ca).
When an LLP enters into a contract and later gets amalgamated with another LLP, specific performance may be enforced against the new LLP created from the merger.
So, The merged LLP takes over the obligations of the old one.
(d)
When a company enters into a contract and then becomes amalgamated with another company, specific performance may be enforced against the new company formed from the amalgamation.
So, The new merged company must honour the old company’s contracts.
(e)
When promoters make a contract before incorporation, and the contract is valid under the terms of incorporation, specific performance may be enforced against the company after it is formed.
This works only if the company later accepts the contract and communicates that acceptance to the other party.
If the promoters made a proper pre-incorporation contract, and the company adopts it after being formed, the company can be held to that contract.
