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Q. What are various defences which can be pleaded by a defendant. (2002) (2003)
(2004)
1. Introduction:
Specific performance is an actual performance of a contract. the plaintiff is entitled to have the
specific thing wherefore he has contracted. there are some circumstances when a contract can
not be specifically enforced.
According to Doemory:
Specific performance of contract consists in the contracting party is exact fulfillment of the
obligation which he has assumed in his doing or omitting the very act which he has undertaken
to do or not to do.
2. Relevant Provisions:
3. General rule:
It is a general rule that the plaintiff is entitled for the thing for which he has contract and court
can specifically enforce such contract.
4. Case law:
19 CLC 625.
It was held that where a part of agreement can not be specifically perfumed such part being
interlined with the rest of agreement, then whole of the agreement would be hit by the same
disability.
Exception to the general rule all contained in Sec. 21 all the specific relief act.
V. Uncertainty of terms:
A contract the term of which the court can not find with reasonable certainly.
VI. Revokable:
A contract made by trustees either in excess of their power or in breach of their trust.
IX. Contracts of performance of a contitnuous duty existing over a longer period than
three years:
A contract, the performance of which involves the performance of a continuous duty extending
over a longer period than three years from its date.
A contract of which a material part of the subject matter, supposed by both parties to exist, has,
before it has been made, ceased to exist.
I. Meaning:
It means a denial by the defendant of the truth or validity of the plaintiff's claim. so it is denial of
plaintiff claim.
The plaintiff has not performed the whole of his part of contract and that part left unperformed
forms a considerable portion of the whole which does not admit for compensation in money.
Defendant may set up a defence that compensation in money would be an adequate relief to the
plaintiff.
The terms of the contract cannot be fined with certainty. so want of certainty is a ground for
resisting specific of the contract.
The plaintiff can not make good title to the property in accordance with the contract.
(vii) Misrepresentation:
Contract made by the company in excess of its powers is defence for the defendant.
The contract when made gave the plaintiff an unfair advantage to the plaintiff.
Suit for specific performance must be filed within three years if is filed after prescribed period it
will be a defence for defendant.
8. Conclusion:
To conclude I can say that, the specific performance of the contract is its actual execution. the
remedy of specific performance is discretionary remedy. the court will not allow the specific
performance when compensation in money is a sufficient remedy. under Sec. 21 of the specific
relief act contract same be specifically enforced. the defence against performance of the
contract.