Issues in civil suit
SSng Aulakh
(Querist) 14 August 2013
This query is : Resolved
Sir,
can you answer my this Query for me please, I am in need of your help,
prabhakar singh
(Expert) 14 August 2013
Well Captain Singh!
I replied you to your old query but perhaps you not considered that seriously.
A suit based on CONTRACT can be specifically enforced,as laid down in section 10 of the S.R. Act, only in following conditions:
'10. Cases in which specific performance of contract enforceable.-
Except as otherwise provided in this Chapter, the specific performance
of any contract may, in the discretion of the court, be enforced-
(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequatrelief.
And in this respect there is explanation about what court would necessarily presume in cases of a contract:
" Explanation.-Unless and until the contrary is proved, the courtshall presume-
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:-
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.
Likewise section 12 deals with when can a part of contract be specifically enforced.
"12. Specific performance of part of contract.- (1) Except as
otherwise hereinafter provided in this section, the court shall not
direct the specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of
his part of it, but the part which must be left unperformed bears only
a small proportion to the whole in value and admits of compensation in
money, the court may, at the suit of either party, direct the specific
performance of so much of the contract as can be performed, and award
compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of
his part of it, and the part which must be left unperformed either-
(a) forms a considerable part of the whole, though admitting of compensation in money;or (b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party-
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause
(b), 1*[pays or has paid] the consideration for the whole of the contract without any abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or
for the loss or damage sustained by him through the default of the defendant.
(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.
Explanation.-For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance. "
Then there is section 14 about contracts not specifically enforceable. and runs as
"14. Contracts not specifically enforceable.-(1) The following contracts cannot be specifically enforced, namely:--
(a) a contract for the non-performance of which compensation in money is an adequate relief;
(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise
from its nature is such, that the court cannot enforce specific performance of its material terms;
(c) a contract which is in its nature determinable;
(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.
(2) Save as provided by the Arbitration Act, 1940 (10 of 1940),
no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than
an arbitration agreement to which the provisions of the said Act
apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.
(3) Notwithstanding anything contained in clause (a) or clause
(c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases:- (a) where the suit is for the enforcement of a contract,-
(i) to execute a mortgage or furnish any other security for security for securing the repayment of any loan which the borrower is not willing to repay at once:
Provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
(b) where the suit is for,-
(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or
(ii) the purchase of a share of a partner in a firm,
(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land:
Provided that the following conditions are fulfilled, namely:-
(i) the building or other work is described in the contract
in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance
of the contract is not an adequate relief; and
(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed. "
prabhakar singh
(Expert) 14 August 2013
Then before these sections s.9 is there to read as"9. Defences respecting suits for relief based on contract.-Except
as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts. "
prabhakar singh
(Expert) 14 August 2013
So it was on the basis of these things the defendant is raising issue that his contract with you can not be specifically enforced,for damages may be adequately awarded.
But you could not get my previous reply given in only one sentence.
SSng Aulakh
(Querist) 14 August 2013
Sir, thank you very much.
Devajyoti Barman
(Expert) 14 August 2013
Why are you so bothered about the framing of particular issue? Let it be framed.
Framing of one issue does not mean it is against you. It means that during trial n=both party may tender evidence on this issue. if this not applicable then the court certainly discard the same in final judgement.
SSng Aulakh
(Querist) 14 August 2013
sir,
when it is proved that there is interference in the course of justices been committed by defendants, by giving false submissions:
sir, don't you think that issues for contempt or perjury should also be framed ? this will help me to claim damages for mental agoney and delay and to enable the court to put exemplary cost to the defendants.
Devajyoti Barman
(Expert) 14 August 2013
Relief is granted on the basis of prayer sought for , not on the basis of issue framed.
Devajyoti Barman
(Expert) 14 August 2013
Relief is granted on the basis of prayer sought for , not on the basis of issue framed.
SSng Aulakh
(Querist) 14 August 2013
is there any law that a manager in Public limited company can be legally or illegally terminated at any time and no court can interfere. what is the aim of defendant by giving this issue to the court.
"Whether the defendants prove that the reliefs claimed in the
suit are in the nature of specific performance of contract of
personal employment ? If so, whether the suit lodged is maintainable"
Devajyoti Barman
(Expert) 14 August 2013
I believe you are unnecessarily making a non issue a issue.
I may repeat framing of a particular issue does not make your weaker from any any point of view.
prabhakar singh
(Expert) 14 August 2013
Look Captain !
You are laboring in some confusion.
Your plaint or defendant's written statement is not beforus.
The issue posted by you suggests that you have sought relief to enforce a contract of service to which defendant has objected that you can not get it specifically enforced because of provisions contained in s.14 (a) a contract for the non-performance of which compensation in money is an adequate relief.
