Exceptional Nature of Specific Performance in the Indian Law

27 Pages Posted: 1 Apr 2013

Date Written: March 9, 2013

Abstract

In Indian law, specific relief giving enforced performance of a contract is by way of a decree of specific performance, or injunction – prohibitory or mandatory. But it is granted as an exception, in cases where compensation either is not ascertainable or is inadequate, and where it is possible of effective enforcement.

A plaintiff seeking specific performance must satisfy ‘the inadequacy test’ at the threshold, which makes specific performance an exceptional remedy. Although other factors, viz. plaintiff’s conduct, and exercise of discretion by the Court affect availability of specific performance, this article discusses the role of the inadequacy test in the grant of specific relief. Even though the inadequacy test is fulfilled, the Court must be able to make its decree enforceable. This limitation on court’s power is also discussed. The article supports the view that specific performance must be available as a routine remedy, so that a promisee can choose specific performance.

Keywords: contract, specific performance, specific relief, inadequacy test, adequacy test, India, Malaysia, Kenya, Pakistan, contract remedies

JEL Classification: K12, K41

Suggested Citation

Bhadbhade, Nilima, Exceptional Nature of Specific Performance in the Indian Law (March 9, 2013). Available at SSRN: https://ssrn.com/abstract=2238909 or http://dx.doi.org/10.2139/ssrn.2238909

Nilima Bhadbhade (Contact Author)

ILS Law College, Pune, India ( email )

Law College Road
Erandavane
Pune, Maharashtra 411004
India
+91 97679 16540 (Phone)
+91 20 25658665 (Fax)

HOME PAGE: http://www.ilslaw.edu

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
1,485
Abstract Views
5,834
Rank
23,691
PlumX Metrics