Partial Specific Performance of Contract
According to S.17 there can be no partial specific performance of a contract except in cases mentioned in ss. 14,15 and 16 Specific Relief Act. It is clear that law envisages performance of a contract in its entirety unless for some reasons it be not capable of such specific performance at all. Sections 14 to 16 deal with cases where such reason exists, where the case is not covered by the provisions of ss. 14 to 16 of the S.R.A 1877, partial specific performance of agreement to sell could not be made.
Contracts of which subject matter has partially ceased to exist:
Under section 13, a contract is not wholly impossible of performance because of the subsequent destruction of a portion of its subject matter. In such a case, if there is a suit for specific performance of the contract, the party suing would be bound be by sections 14 and 15, the former relating to specific performance of a contract where the unperformed part is small and latter to case where the part unperformed is proportionately large.
S.13 is an exception to S.56 contract Act, and principles laid down therein is not open to any objection.
Specific Performance of Part of Contract where part unperformed is small:
Where the seller is unable to convey whole of the property agreed to be sold, specific performance U/S 14 can be claimed of so much part of the contact as can be performed and in addition the purchaser can also claim compensation in money for the deficiency provided that the deficiency bears only a small proportion in value to the entirety of the contract.
In awarding specific performance the court should look at the substance and not the form of the contract. If the vendor sues, and is in a position to convey substantially, the court will decree specific performance with compensation for the small deficiency. If the purchaser is suing, he may elect subject to the condition of hardship to take all that he can get, and to have proportionate abatement from the purchase money. This right applies only to deficiency in subject matter described in the contract and not to a collateral agreement.
Specific Performance of part of Contract where part unperformed is large:
15 S.R.A 1877 relates to the situation where the portion which is incapable of performance forms a considerable portion. In such a case the purchaser can claim specific performance of so much part of the contract as can be performed, but he must agree to relinquish all claims to further performance and all rights to compensation either for deficiency or for the loss or damage sustained by him through the default of the vendor.
Contract must be in existence:
The question of specific performance of a contract in whole or in part can arise only when it is found that the contract itself subsists as a valid and legally enforceable contract.
Where a contract is divisible, the rule that specific performance will not be granted of a part only of the contract is inapplicable. Therefore, if a contract is severable the specific performance of agreement may be granted u/s 16 for that part which ought to be performed. Where a contract consists of several parts which are separate from and independent of each other and some of which cannot or ought not to be performed, such parts as can and ought to be performed, may be specifically performed.