14. Contracts which cannot be specifically enforceable.- 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 provision 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.
(i) Contract where a party to the contract has obtained substituted performance [Section 14(a)]: First contract where specific performance can be refused is where the party has obtained substituted performance. It is important to mention that substituted performance is a new concept incorporated by the Specific Relief Amendment Act 2018.
Example- A enters into a contract to sell his IMP to B for 50 lac. A makes breach. B got substituted performance form C and purchase the IMP from him. If B files a suit for specific performance no specific relief shall be granted.
(ii) Contract involving performance of a continuous duty which the court cannot supervise [Section 14(b)]- A contract which involves the performance of a continuous duty which the court cannot supervise cannot be specifically enforced. The Specific Relief Act, 1963 does not mention any time limit of the performance of a continuous duty. Therefore, section 14(1) (b) provides that a contract which involves performance of a continuous duty which the court cannot supervise cannot be specifically enforced. Significantly, under the Specific Relief (Amendment) Act 2018 position remains the same.
Example 1- A contracts with B to execute certain works or to build or repair a structure which the Court cannot supervise. Hence it cannot be enforced:
Example 2- A lets land to B and B contracts to cultivate it in a particular manner for three years next after the date of the lease. If B makes breach no specific relief shall be granted to A.
Example 3- A and B contract where A agrees to give his land to B. A agreed to make annual advances to B. For three years next after date of the contract B will grow particular crops on the land in his possession and deliver them to A when cut and ready for delivery. If breach is made by B no specific relief shall be granted to A.
In Kuldeep Chander v Chief Inspector of Shops, an injunction requiring the tenant to follow rules of opening and closing shop shall open and close shop cannot be granted since it will involve constant supervision, and something which court cannot monitor.
(iii) Contract dependent on personal qualification or volition [Section 14(c)- A contract of service depends on the personal volition of the parties and, therefore, the same cannot be specifically enforced either by the master or the servant.
Example 1- A contracts to give her singing or dance performance twice a week for coming two months in B’s hotel for Rs. 50,000/- per night. A makes breach of contract. No specific relief shall be granted to B.
Example 2- A contracts with B that he will paint a picture for B for Rs. 50,000/-. A makes breach of contract. No specific relief shall be granted to B.
Contract of employment-
Significantly, contracts of employment, contracts of personal service, contracts involving performance of artistic skill like contracts to sing, to paint, to act, contracts of authorship, are ordinary examples of things requiring personal skill and, therefore beyond the capacity of the judicial process to enforce their actual performance. The only choice in is to claim damages.
Services under the Statute-
In case of Sirsi Muncipality v Cecelia Kom Francis Tellis, the Court is of the view that normally Court would not give a declaration that the contract of personal service subsists and the employee, ever after having been removed from service, can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well-recognised exceptions:
(i) Where a public servant is sought to be removed in contravention of the provisions of Article 311 of the Constitution;
(ii) Where a worker is sought to be reinstated on being dismissed, under the industrial law, and
(iii) Where a statutory body acts in breach of violation of the mandatory provisions. However, A statutory body is one which is established or created by a statute e.g. Indian Airlines Corporation and similar bodies, but a body which is only governed or administered by certain statutory provision is not a statutory body, e.g. executive Council of a college.
- The law relating to dismissals and relief against illegal exercise of power, therefore, may be stated thus:
(i) Under Section 14(1) (b) of the Specific Relief Act the contract of personal service cannot be specifically enforceable.
(ii) Where service of an employee of the statutory body is terminated in breach of the requirement of a statute, the Court may declare that the dismissal is ineffective, and the servant continues to be in service. The Apex Court Ram Sahan Rai v. Sachiv Samanaya Prabandhak, has held that in the case of statutory bodies, a dismissal which is without jurisdiction, mala fide or in breach of natural justice so as to be in contravention of the doctrine of ex debito justiciae, the Court will give a declaration.
(iii) In the case of such non-statutory bodies, a dismissed employee cannot specifically enforce his contract of personal service.
- In Executive Committee of Vaish Degree College v. Lakshmi Narain, the Supreme Court made a distinction between statutory body, which is a creation of a statute, and other bodies governed by certain statutory provisions of their proper administration which is not sufficient to make them statutory bodies; and held that the executive Committee of a college constituted under a Co-Operative Societies Act was not such a body. It observed that a contract of personal service cannot be enforced, except in the three exceptions mentioned above.
(iv) Contract which is determinable [Section 14(d)]- A contract which is of determinable nature cannot be enforced. However, moot question is what is determinable contract? In general, determinable means revocable. It means a contract which can be determined or put to an end by a party to the contract. Therefore, when a contract is determinable or revocable by a party to the contract it cannot obviously be enforced.
Example- A and b contract to become partners in a certain business, the contract not specifying the duration of the proposed partnership. This contract cannot be specifically performed, for, if it were so performed, either A or B might at once dissolve the partnership.
In case of partnership at will as defined by section 7, Indian Partnership Act, 1932, any partner can put to an end the relation of partnership or he can retire by giving a notice in writing to all the other partners of his intention to retire.