Exchange Deed

EXCHANGE DEED
This deed of Exchange is executed on ________ day of ______________ month of _____________ year by Sri./Smt.__________________________, S/o./ W/o.____________________________, occupation____________________, and aged __________ years, residing at_________________________________________________________________ _________________________________________________________________. herein after called the PARTY OF THE FIRST PART. 1 and Sri./Smt.__________________________S/o./W/o._________________________, occupation____________________, aged __________ years, residing at_________________________________________________________________ _________________________________________________________________ Herein referred to as the PARTY OF THE SECOND PART. 2 Whereas, the term the First Party and the Second Party unless repugnant to the context shall mean and include their representatives heirs, successors, executors, administrators, trustees, legal representatives and assigns. Whereas, the First Party herein, is the sole and absolute owner of immovable property 3 bearing No.___________ known as _____________________ situated at morefully described in the First Schedule hereunder written and herein after called the First Schedule property. Whereas, the First Party is the absolute owner, having acquired the property, by ____________________ 4 and since then First Party has been in possession and enjoyment of the First Scheduled property and paying taxes and levies thereon, as sole and absolute owner thereof. Whereas, the Second Party herein, is the sole and absolute owner of immovable property 5 bearing No.___________ known as _____________________ situated at morefully described in the Second Schedule hereunder written and herein after called the Second Scheduled property. Whereas, the Second Party is the absolute owner, having acquired the property, by ____________________ 6 and since then Second Party has been in possession and enjoyment of the Second Scheduled property and paying taxes and levies thereon, as sole and absolute owner thereof. 2 Whereas it has been agreed between the parties hereto to exchange their respective properties viz. First scheduled property written here under unto and to the use of the Second Party in consideration of the Second Scheduled property here under written unto the use of First Party. Where as the market value of the First Scheduled property is assessed at Rs.________ Where as the market value of the Second Scheduled property is assessed at Rs.________ Where as the parties here to have now agreed to execute this deed of exchange. NOW THIS DEED WITNESSETH that in pursuance of the aforesaid agreement and in consideration of the party of the Second Part conveying to the party of the First Part the Second Scheduled property hereunder written and Second Party hereby grant and convey by way of exchange unto the party of the First Part absolutely and for ever all that piece and parcels of the property described in the Second Scheduled together with all the liabilities, easements, profits, privileges, advantages, rights, members and appurtenances whatsoever of the said Second Scheduled property and also together with all the deeds, documents, writings and other evidences of title relating to the said Second Scheduled property and all the estate, right, title, interest, use, possession, benefit, claim and demand whatsoever, both at law and in equity of the party of the First Part TO HAVE AND TO HOLD the said Second Scheduled property hereby granted and conveyed by way of exchange unto and to the use and benefit of the party hereto of the First Part subject to payment of all rents, taxes, assessments, rates, duties, now chargeable upon the same or which may herein after become payable in respect thereof to the local authority. NOW THIS DEED WITNESSETH that in pursuance of the aforesaid agreement and in consideration of the party of the First Part conveying to the party of the Second Part the First Scheduled property hereunder written and First Party hereby grant and convey by way of exchange unto the party of the Second Part absolutely and for ever all that piece and parcels of the property described in the First Scheduled together with all the liabilities, easements, profits, privileges, advantages, rights, members and appurtenances whatsoever of the said First Scheduled property and also together with all the deeds, documents, writings and other evidences of title relating to the said First Scheduled property and all the estate, right, title, interest, use, possession, benefit, claim and demand whatsoever, both at law and in equity of the party of the Second Part TO HAVE AND TO HOLD the said First Scheduled property hereby granted and conveyed by way of exchange unto and to the use and benefit of the party hereto of the Second Part subject to payment of all rents, taxes, assessments, rates, duties, now chargeable upon the same or which may herein after become payable in respect thereof to the local authority. 3 Whereas each of the parties of the First and the Second Part mutually covenants with the other that; (i) He has now in himself, absolute right, full power and absolute authority to grant the scheduled property hereby granted or assured or intended to be by him unto and to the use of the other party in manner aforesaid. (ii) That the other party shall and may at all times hereafter peacefully and quietly enter upon have occupy, possess and enjoy the scheduled property conveyed to him and receive the profits thereof and for his own use and benefit without any suit, eviction, interruption, claim or demand whatsoever from or by him the covenanting party or his heirs, or any of them or any persons lawfully or equitably claiming or to claim by from under or in trust for them or any of them. (iii) The said scheduled property is free from all encumbrances, claim, and attachment of whatsoever in nature. (iv) He the covenanting party and all the persons having or lawfully claiming any estate or interest whatsoever in the scheduled property is conveyed by him shall and will from time to time and at all times herein after at the request and cost of the other of them do and execute or caused to be done and executed such further and other acts deeds, things, conveyances and assurances in the law whatsoever for the better and more perfectly assuring the said land and premises conveyed to him by the other and every part thereof unto and to the use of, the party to whom it is conveyed in the manner aforesaid as by him his heirs, executors, administrators and assigns shall be reasonably require. FIRST SCHEDULE (Property belongs to First Party exchanged to the Second Party) All the piece and parcel of immovable property 7 bearing No.____________ Measuring _______________ Bounded by:- On the East : On the West : On the South : On the North : Market value of the property under this deed is Rs._____________ (Rupees____________________________________only). 4 SECOND SCHEDULE (Property belongs to Second Party exchanged to the First Party) All the piece and parcel of immovable property 7 bearing No.____________ Measuring _______________ Bounded by:- On the East : On the West : On the South : On the North : Market value of the property under this deed is Rs._____________ (Rupees____________________________________only). The Stamp duty is paid on the market value as stated above. IN WITNESS WHEREOF the First Party as well as the Second Party have put their respective hands the day and year first herein above written. WITNESSES: 1. FIRST PARTY 2. SECOND PARTY [ 1 if the First party is represented by his agent such as guardian or general power of attorney holder or special power of attorney holder, then his full name, occupation, age, address and capacity under which he represents the First party shall be entered] [ 2 if the Second party is represented by his agent such as guardian or general power of attorney holder or special power of attorney holder, then his full name, occupation, age, address and capacity under which he represents the Second party shall be entered] [ 3 Full details of the property number such as Khata number, street/road with reference to the local authority records and boundaries shall be furnished. If the land exchanged is an agricultural land, details of the survey number, acre, guntas, revenue assessment and boundaries of the land exchanged with reference to the revenue records should be furnished. If the property exchanged is a Flat / Apartment details of the property on which the Flat / Apartment is constructed, flat number, floor number, name of the apartment etc., full details of the property so as to identify shall be furnished.] 5 [ 4 Described whether the ownership is acquired by inheritance or by partition of joint family property or by release or by gif t or by settlement or by will (bequeath) or by sale deed executed by _______________ registered as document No._____________ of Book No._____, Volume No._____, Page No.______ in the office of the Registrar or Sub-Registrar] [ 5 Full details of the property number such as Khata number, street/road with reference to the local authority records and boundaries shall be furnished. If the land exchanged is an agricultural land, details of the survey number, acre, guntas, revenue assessment and boundaries of the land exchanged with reference to the revenue records should be furnished. If the property exchanged is a Flat / Apartment details of the property on which the Flat / Apartment is constructed, flat number, floor number, name of the apartment etc., full details of the property so as to identify shall be furnished.] [ 6 Described whether the ownership is acquired by inheritance or by partition of joint family property or by release or by gift or by settlement or by will (bequeath) or by sale deed executed by _______________ registered as document No._____________ of Book No._____, Volume No._____, Page No.______ in the office of the Registrar or Sub-Registrar] [ 7 Full details of the property number such as Khata number, street/road with reference to the local authority records and boundaries shall be furnished. If the land exchanged is an agricultural land, details of the survey number, acre, guntas, revenue assessment and boundaries of the land exchanged with reference to the revenue records should be furnished. If the property exchanged is a Flat / Apartment details of the property on which the Flat / Apartment is constructed, flat number, floor number, name of the apartment etc., full details of the property so as to identify shall be furnished.]

Agreement for sale

AGREEMENT FOR SALE
 THIS AGREEMENT FOR SALE is made and executed on this _______ day of ___________month of _____________ year at ___________ BETWEEN Smt./Sri.__________________________ W/o. / Sri.______________ aged _____ years residing at ___________________________________ hereinafter called the “SELLER” (which expression shall mean and include her legal heirs, successors, successors-in-interest, executors, administrators, legal representatives, attorneys and assigns) of ONE PART. AND Smt./Sri.__________________________ W/o. / Sri.______________ aged _____ years residing at ___________________________________ hereinafter called the “PURCHASER” (represented by his _____________ as power of attorney holder) which expression shall mean and include his heirs, successors, executors, administrators, legal representatives, attorneys and assigns) of the OTHER PART. WHERE AS THE SELLER is the absolute owner in possession and enjoyment of the 1 residential / Commercial property bearing No.______________________ measuring East to West _____ feet and North to South _____ feet which is morefully described in the schedule hereunder and hereafter called the “SCHEDULE PROPERTY”. 2WHERE AS the schedule property is the self acquired property of Sri.______________ vide registered Sale deed bearing No.________ Volume No.______ Page _____ to ______ dated ________ registered at Sub-Registrar’s Office, _________________. He having acquired the same without any aid or assistance from his family of any quarters/ built the schedule property entirely with his own earnings. 2WHEREAS said Smt./Sri._____________________ bequeathed the entire schedule property in favour of SELLER _________________ a will dated ________ / a registered will bearing No._________ Book III, Volume ____ Page_____ to _____ dated ___________ registered at Sub-Registrar Office,___________________. WHEREAS there are no encumbrances, liens, charges, Government dues, attachments, acquisition, or requisition, proceedings and whereas the SELLER has clear and marketable title to the Schedule Property and he/she has absolute power to convey the same. 2 WHEREAS the SELLER being in need of funds for the purpose of __________________________________________________________________ has decided to sell the schedule prope rty after obtaining consent of his wife/her husband, sons and daughters. WHEREAS the SELLER offered to sell and transfer the schedule property to the PURCHASER for a sale consideration of Rs.____________ (Rupees_________________ only) and the PURCHASER herein has agreed to purchase the same for the aforesaid consideration on the following terms and conditions: NOW THIS AGREEMENT WITNESSETH AS FOLLOWS: 1. The Sale Value of the Schedule Property is fixed at Rs.___________ (Rupees_____________________only). 2. The PURCHASER has paid a sum of Rs.___________ (Rupees_____________________only) by cash/cheque/D.D. bearing No.____________ drawn on __________ dated ________ as advance, the receipt of which sum the SELLER does hereby acknowledges. 3. The balance payment of Rs.___________ (Rupees_____________________only) will be paid by the PURCHASER to the SELLER at the time of execution of the Absolute Sale Deed and thus complete the Sale transaction. 4. The parties herein covenant to complete the Sale transaction and to execute the Absolute Sale Deed by the end of_________________. 5. The SELLER confirms with the PURCHASER that he/she has not entered into any agreement for sale, mortgage or exchange whatsoever with any other person relating to the Schedule Property of this Agreement. 6. 3 SELLER agrees to put the purchaser in absolute and vacant possession of the schedule property after executing the sale deed and registering the same in the jurisdictional Sub-Registrar’s office. 7. The SELLER covenants with the purchaser that he/she shall not do any act, deed or thing creating any charge, lien or encumbrance in respect of the schedule property during the subsistence of this Agreement. 8. The SELLER has specifically agreed and covenants with the PURCHASER that he/she shall do all acts, deeds and things which are necessary and requisite to convey absolute and marketable title in respect of the schedule property in favour of the PURCHASER or his nominee. 9. IT IS AGREED between the parties that all expenses towards Stamp Duty and Registration charges shall be borne by the PURCHASER only. 10. The SELLER covenant to obtain at her cost necessary permission from the competent Authority, Income Tax Clearance Certificate and such other Certificate / Document as may be required at the time of Registration of Sale Deed in pursuance of this Agreement. 3 11. The PURCHASER shall have the right to nominate or assign his right under this agreement to any person / persons of his choice and the SELLER shall execute the Sale Deed as per terms and conditions of this Agreement in favour of the PURCHASER or his nominee or assignee. 12. The SELLER has agreed to get consent deed duly executed to this Sale transaction from his wife/her husband, sons and daughters on or before date of registration of Sale Deed and assured that they all join to execute sale deed in favour of the purchaser. 13. It is hereby expressly provided and agreed by the parties here to that both parties are entitled to enforce specific performance of the agreement against each other in case of breach of any conditions mentioned in this Agreement. 14. The original of the “AGREEMENT” signed by both the parties shall be with the PURCHASER and copy of the same similarly signed shall be with the SELLER. SCHEDULE All the piece and parcel of 1 ___________ property bearing No.____________ situated at ___________________________________ measuring East to West ________ feet (_________ feet) and North to South _______ feet (___________feet) in all ___________ sq.ft. or ___________sq.mtrs. and bounded on: NORTH : By _______________ SOUTH : By _______________ EAST : By _______________ WEST : By _______________ 4Details of the Building: i) Plinth area of the building ii) Type of Roof. iii) Type of flouring. iv) Type of wood used. v) Amenities available. vi) Year of construction. 4 IN WITNESS WHEREOF the SELLER and the PURCHASER have signed this Agreement of Sale on the day month and year herein above mentioned in the presence of the following witnesses at ________________. WITNESSES: 1. SELLER 2. PURCHASER øNote:- 1 Specify whether the property agreed to be sold is Residential or Commercial or Industrial 2 Strike out whichever is not applicable. 3 10% Stamp duty payable on an agreement to sell if the possession of the property is delivered or is agreed to be delivered without executing the conveyance. Click on Schedule to the Karnataka Stamp Act, 1957, - Article 5(e) (i) 4 If the property agreed to be sold is consisting of a building or buildings then furnish the details of such building or buildings. 5 Click on the Registration Act, 1908, - Of Registerable Documents Section 17 (2) explanation.

Gift Deed

GIFT DEED
This deed of Gift is executed on ________ day of ______________ month of _____________ year by Sri./Smt.__________________________, S/o./ W/o.____________________________, occupation____________________, and aged __________ years, residing at_________________________________________________________________ _________________________________________________________________. herein after called the DONOR. 1 In favour of Sri./Smt.__________________________S/o./W/o._________________________, occupation____________________, aged __________ years, residing at_________________________________________________________________ _________________________________________________________________ Herein referred to as the DONEE. 2 Whereas, the term Donor and Donee unless repugnant to the context shall mean and include their representatives heirs, successors, executors, administrators, trustees, legal representatives and assigns. Whereas, the Donor herein, is the sole and absolute owner of immovable property 3 bearing No.___________ known as _____________________ situated at morefully described in the schedule hereunder written and herein after called the schedule property. Whereas, the Donor is the absolute owner, having acquired the property, by ____________________ 4 and since then Donor has been in possession and enjoyment of the schedule property and paying taxes and levies thereon, as sole and absolute owner thereof. Whereas the Donee is related to the Donor as ____________.* Whereas the Donor desires to grant the said land and premises morefully described in the schedule written hereunder and hereinafter referred as scheduled property to the Donee as gift in consideration of natural love and affection subject to the condition herein after mentioned. NOW THIS DEED WITNESSETH that the Donor, without any monitory consideration and in consideration natural love and affection which the Donor bears to the Donee hereby grant and transfer by way of gift, the scheduled property situated at ___________________________together with all the things permanently attached thereto or standing thereon and all the liberties, privileges, easements and advantages appurtenant thereto and all the estates, rights, title, interest, use, inheritance, possession, benefits, claims and demand whatsoever of the Donor TO HAVE AND TO HOLD the same unto the use of the Donee absolutely but subject to the payment of all taxes, rates, assessments, dues and duties now and here after chargeable thereon to the Government or local authorities. Whereas the Donor hereby covenant with the Donee; (a) That the Donor now has in himself, absolute right, full power, and absolute authority to grant the said scheduled property hereby granted as gift in the manner aforesaid. (b) The Donee may at all times herein after peacefully and quietly enter upon, take possession of the scheduled property and enjoy the said scheduled property as he deems fit without any interruption, claim or demand whatsoever from or by the Donor or his heirs, executors, administrators and assigns or any person or persons lawfully claiming or to claim by from under or in trust for the Donor. (c) AND FURTHER that the Donor and all persons having or lawfully claiming any estate or interest whatsoever to the said scheduled property and premises or any part thereof from under or in trust for the Donor or his heirs, executors, administrators and assigns or any of them shall and will from time to time and at all times hereafter at the request and cost of the Donee do and execute or cause to be done and executed all such further and other acts, deeds, things, conveyances and assurances in law whatsoever for better and more perfectly assuring the said scheduled property and every part thereof unto and to the use of the Donee in the manner aforesaid as by the Donee his heirs, executors, administrators and assigns or counsel in law shall be reasonably required. SCHEDULE OF THE PROPERTY (Gifted under this deed) All the piece and parcel of immovable property 5 bearing No.____________ Measuring _______________ Bounded by:- On the East : On the West : On the South : On the North : Market value of the property gifted under this deed is Rs._____________ (Rupees____________________________________only). The Stamp duty is paid on the market value as computed above. IN WITNESS WHEREOF the Donor as well as the Donee (by way of acceptance of the said gift) have put their respective hands the day and year first herein above written. WITNESSES: 1. DONOR 2. DONEE [ 1 if the Donor is represented by his agent such as guardian or general power of attorney holder or special power of attorney holder, then his full name, occupation, age, address and capacity under which he represents the Donor shall be entered] [ 2 if the Donee is represented by his agent such as guardian or general power of attorney holder or special power of attorney holder, then his full name, occupation, age, address and capacity under which he represents the Donee shall be entered] [ 3 Full details of the property number such as Khata number, street/road with reference to the local authority records and boundaries shall be furnished. If the land donated is an agricultural land, details of the survey number, acre, guntas, revenue assessment and boundaries of the land donated with reference to the revenue records should be furnished. If the property donated is a Flat / Apartment details of the property on which the Flat / Apartment is constructed, flat number, floor number, name of the apartment etc., full details of the property so as to identify shall be furnished.] [ 4 Described whether the ownership is acquired by inheritance or by partition of joint family property or by release or by gift or by settlement or by will (bequeath) or by sale deed executed by _______________ registered as document No._____________ of Book No._____, Volume No._____, Page No.______ in the office of the Registrar or Sub-Registrar] [ 5 Full details of the property number such as Khata number, street/road with reference to the local authority records and boundaries shall be furnished. If the land donated is an agricultural land, details of the survey number, acre, guntas, revenue assessment and boundaries of the land donated with reference to the revenue records should be furnished. If the property gifted is a Flat / Apartment details of the property on which the Flat / Apartment is constructed, flat number, floor number, name of the apartment etc., full details of the property so as to identify shall be furnished.] [*Gift in favour of husband, wife, sons, and daughters a fixed duty of rupees one thousand plus additional duty as applicable is leviable. Click on Article 28 of the Schedule to the Karnataka Stamp Act, 1957.]

Partnership deed

PARTNERSHIP DEED
Note: This is only a draft format and not a format prescribed under any law. This format can be used with modifications suiting to your requirements wherever it is necessary. In case of doubt regarding payment of Stamp duty and Registration fee etc. contact the concerned Sub-Registrar / District Registrar.
PARTNERSHIP DEED This deed of partnership is made on this (date). . . . . . . . . between: 1. . . . . . . .. . .. . . . . … …… . . . . . . . . . . . . . hereinafter referred to as first part. 2. . . . . . . . . . . . . . . . . . . ……. ………………… hereinafter referred to as second party. 3. . . . . . . . . . . . . . . . . . . . . .. . . . . . . .. . . .. .hereinafter referred to as third party and 4. . . . .. .. . . . . . . . . ……………………………….. hereinafter referred to as fourth party. Whereas, the parties hereto have agreed to commence business in partnership and it is expedient to have a written instrument of partnership. NOW THIS PARTNERSHIP WITNESSES AS FOLLOWS: 1) The parties here to have mutually agreed to carry on the business of civil contract like, construction of building, layout formation, land development and builders under the name and style of . . . . . . . .. . . . . . . . . . . . . (Firm Name) 2) PLACE OF BUSINESS: The principal place of partnership business situated at No. 3) DURATION OF PARTNERSHIP: The duration of the partnership will be at will 4) CAPITAL OF THE FIRM: Initially the capital of the firm shall be Rs.. . . . . . . .. . and contributes by all the partners as per their profit sharing ratio. 5) PROFIT SHARING RATIO: The profit or loss of the firm shall be shared equally among all the partners and transferred to partners current account. 6) MANAGEMENT: The first party of the firm shall be the Managing partner and he will look after all the day to day transaction of the firm and any legal activities in the name of the firm and the remaining partners has to co-operate to do so. 7) OPERATION OF BANK ACCOUNTS: The firm shall open a current account in the name of . . . . . . . . . . . . . at any nationalised banks, scheduled Banks or any co-operative Banks and such account shall be operated by first and second partners jointly as declared from time to time to the Banks. 8) BORROWING: The firm shall require any additional capital/working capital, shall being from any financial institutions only with written consent of all the partners. 9) ACCOUNTS: The firm shall regularly maintain in the ordinary course of business, true and correct account of all its in comings and out goings and also of all its assets and liabilities, the proper books of account, which shall ordinarily kept at the firms place of business. The accounting year shall be the financial year from 1st April onwards and the balance sheet shall be properly audited and the same shall be signed by all the partners. Every partner shall have access to the books and the right to verify their corrections. 10) PATIREMANT: If any partner shall at anytime during the subsistence of the partnership, be desirous of retiring from the firm, it shall be competent from his to do so, provided he shall give at least one calendar month notice of his intention of gadding so: The continuing partner shall pay to the retiring partner or his legal representatives of the deceased partner, the purchase money of his share in the assets of the firm. 11) DEATH OF PARTNER: In the event of death of any partner/s, one of the legal represents of the deceased partner shall become the partner of the firm and in the event the legal representative show their denial to point he firm, they shall be paid the part of the purchase amount calculated as on the date of the death of the partner. 12) Whenever there by any difference of opinion or any dispute between the partners the partners shall refer the same to an arbitration of one person. The decision of the arbitrator so nominated shall be final and binding on all partners, such arbitration proceedings shall be governed by Indian arbitration Act, which is in force. In witness whereof, this deed of partnership is singed sealed and delivered this the day of . . . . . . . . . . . at Bangalore. WITHNESSES: 1. 1. 2. 2. 3. 4. 

The Specific Relief (Amendment) Bill, 2018 was passed by the Rajya Sabha on July 23, 2018. Earlier, the Bill amending the Specific Relief Act, 1963.

The Key features of the Amendment are enumerated below:

1.         Substituted Section 10 of the Act- the Amendment substitutes Section 10 of the Act providing for Cases in which specific performance of contract is enforceable with a new Section 10 which states that specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16.

Thus, through the aforesaid amendment, effort has been made to curtail discretionary powers of the Court while making an order for specific performance of the contract as the cases in which specific performance of contract is enforceable would be subject to Section 11(2) relating to contract made by Trustee in excess of his powers and Section 14 (contracts not specifically enforceable) and Section 16 (personal bars to relief).

2.         Amendment of Section 11- Section 11 at present provides that specific performance of contract may in the discretion of Court be agreed to be done in performance of a Trust. The amended Section 11 now provides that specific performance of contract shall in the discretion of Court be agreed to be done in performance of a Trust.

3.         Contracts which cannot be Enforced- The Amendment also seeks to substitute old Section 14 with new Section 14 to state that- The following contracts cannot be specifically enforced, namely:— (a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20; (b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.

4.         Court’s power to engage Experts– Amendment incorporates Section 14A in the Act, which empowers the court to get expert opinion to assist it on any specific issue involved in the suit.

5.         Specific Performance can be obtained by Limited Liability Partnership- The Amendment inserts sub section (fa) in Section 15 which provides that specific performance can be obtained by a limited liability partnership when the 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.

6.         Substituted Performance of Contract- The Amendment seeks to amend the Chapter heading from Discretion and Powers of the Court to Substituted Performance of Contract.

The Amendment replaces old Section 20 (Discretion as to decreeing specific performance with new Section 20).

The amended Section 22 states where the contract is broken due to non-performance of promise by any party, the party who suffers by such breach shall have the option of substituted performance through a third party or by his own agency, and, recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing such breach.

7.         Special provisions for contract relating to infrastructure project- The Amendment incorporates Section 20A which enumerates provision for contract relating to infrastructure project. Section 20A provides that the Court shall not grant any injunction in a suit under this Act involving a contract relating to an infrastructure project, where granting injunction would cause impediment or delay in the progress or completion of such infrastructure project.

In the wake of delay in delivery of possession of flats and cases pertaining to the same, new Section 20A is a relief to distressed homebuyers.

The Specific Relief (Amendment) Act, 2018 (Amendment Act) was recently passed by both Houses of Parliament and subsequently received Presidential assent on 1 August 2018. Notification of the coming into force of the different provisions introduced by the Amendment Act is presently awaited.

The Specific Relief Act, 1963 (Act) codifies the law in relation to grant of the relief of specific performance[1] including injunctions. Under the Act, the remedy of specific performance was not available to a party as a matter of right, but its grant was based on the discretion of the court. The Amendment Act has brought about a substantive change in the substratum and ethos of the Act. As per the Amendment Act, the courts are bound to enforce the specific performance of a contract as a rule, subject to limited exceptions.

The other major changes include:

1.     The introduction of the remedy of substituted performance. Although the duty of mitigating the loss suffered was always cast on the party that suffered a breach, this provision can be seen to be a statutory recognition of the said duty, although framed as an option available to a party who has suffered breach.

2.     A new Section 20A to the principal Act provides that for infrastructure project contracts, the court shall not grant an injunction in any suit, where it would cause hindrance or delay in the continuance or completion of the infrastructure project.

The Amendment Act itself does not provide any guidance on whether the amendments would operate prospectively or retrospectively. A “savings clause” or a “transitory provision” is conspicuous by its absence. A similar controversy in the context of the 2015 amendments to the Arbitration and Conciliation Act, 1996 is still unsettled, in so far as the Arbitration and Conciliation (Amendment) Bill, 2018 is pending approval with the Parliament[2].

Let’s examine the extent and magnitude of the controversy on the basis of some well settled legal principles.

Background and Nature of Amendments

An important element in the examination of whether the Amendment Act is prospective or retrospective in its application is to understand the objectives behind the amendments.

The Amendment Act is based on the recommendations contained in a Report submitted by an Expert Committee to the Government of India in 2016.[3] Giving primacy to specific relief is based on the intent to ensure enforcement of the moral obligation to honour one’s promises, deter a promisor from committing a breach thus affecting contractual behavior and enable a promisee to choose a remedy of his choice. It is recognised that a decree for compensation does not compensate fully, as proving losses with certainty is difficult. Therefore, the Amendment Act removes all restrictions and makes specific performance a general remedy available to a party who wishes to claim it.[4]

What emerges is that the amendments do not purport to be either declaratory or clarificatory. The amendments seek to bring about a substantive change in the law by stating, for the first time, that the remedy of specific performance when sought for breach of contract, would no longer be exceptional or discretionary and would be available to a party as a matter of right. The amendments do away with the discretion of the courts to grant specific performance of contracts.

This is clearly a substantive change in law that is remedial in nature. Remedial statutes are necessarily regarded as prospective unlike declaratory or clarificatory statutes, which are considered retrospective. Therefore, from this perspective, the Amendment Act would need to be construed as not having retrospective effect.[5]

Section 6 of the General Clauses Act  

As the Amendment Act has led to the repeal and substitution of the corresponding provisions of the Act, the general law in relation to repeal of statutory provisions would be applicable, which is to be found in Section 6 of the General Clauses Act. Section 6 inter alia states that a repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It also saves the previous operation of any enactment so repealed or anything duly done or suffered thereunder.[6] Section 6 protects accrued and vested rights by stating that the said rights can still be enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication.

Under the Act (un-amended), there was an obligation cast on the plaintiff seeking specific performance to prove that compensation as a remedy is either inadequate or unascertainable. Specific performance as a remedy was not available to a party as a matter of right, but its grant was dependent on the discretion of the court. This obligation of the plaintiff can be viewed as a corresponding right or privilege enjoyed by a defendant. By virtue of Section 6, the aforementioned right and obligation that accrued when the Act (un-amended) was in force, would stand preserved even after the introduction of the Amendment Act. This is particularly so because the plain language of the Amendment Act (which is the repealing statute in the present case) does not in any way indicate an intendment to take away accrued and vested rights.

When can the right or obligation be said to have accrued or vested upon a party? This right accrues or vests only when a breach of the contract occurs or, in other words, when the dispute arises.[7] In the absence of a breach or a dispute, no right under the Act (un-amended) can be said to have accrued. It does not matter that the contract was entered into prior to the Amendment Act coming into force – i.e. at a time when the Act (un-amended) was in force. Therefore, the applicability of the Amendment Act would extend to all breaches and disputes that have arisen subsequent to the Amendment Act coming into force, regardless of whether those contracts were entered into prior to the Amendment Act coming into force.

One of the main objectives of the Amendment Act is to reduce the intervention of the courts to ensure that public works contracts can function smoothly.[8] Given this, the absence of a specific provision clarifying the applicability of the Amendment Act is a curious oversight by the legislature. The consequent ambiguity is likely to result in a lot of judicial time being spent to quell the controversy. Let us hope that some remedial measures are taken by the legislature to prevent this oversight from blowing up into extensive litigation at the cost of hapless litigants.

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[1] ‘Specific Performance’ is a remedy ordered by courts, that requires precise fulfillment of the contractual or legal obligation. See Specific Performance, Black’s Law Dictionary (10^th ed., 2014).

[2] The Arbitration and Conciliation (Amendment) Bill, 2018 seeks to introduce Section 87 to the principal Act to clarify that the provisions of the Arbitration and Conciliation (Amendment) Act, 2015 are applicable to fresh arbitrations and court proceedings relating thereto viz. arbitration and court proceedings relating to the arbitrations invoked on or after 23.10.2015. In any case, whether the provisions of the Arbitration and Conciliation (Amendment) Act, 2015 would apply to Section 34 application which were pending as on 23.10.2015 is still res integra.

[3] Expert Committee’s Report on Specific Relief Act, 1963 submitted on 26^th May 2016

[4] Pg. 47-52, Expert Committee’s Report

[5] Union of India v. Indusind Bank Limited (2016) 9 SCC 720

[6] The Gujarat Electricity Board v. Shantilal R. Desai AIR 1969 SC 239

[7] Baroda Cement and Chemical Ltd. v. Commissioner of Income Tax, 1986 158 ITR 636 Guj.

[8] Page 18, Expert Committee’s Report

Tags: Infrastructure, Section 20A, Section 6 of the General Clauses Act, the Arbitration and Conciliation (Amendment) Bill 2018, the Arbitration and Conciliation Act 1996, The Specific Relief (Amendment) Act 2018, The Specific Relief Act 1963