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: Suggested Citation