 and on Zoom itself to understand the same and his sessions as we always speak upon that they're always well received. And today we thought to take a session on rectification of instruments, decision of contracts and cancellation of instruments. The interplay within the section 26 to 23 would be more emphasis as such. And since it is a Sunday evening and life is limping back to normalcy without giving more details about Mr. Esar Soma Shekhar, who's a well-known resource person and who also teaches in the Karnataka Judicial Academy. And his way of taking things forward has always been very well received and the way he can take interplay of the various sections as he takes the sessions is quite heartening. But before we take and make request to Mr. Soma Shekhar, I would request, I'd just forgotten to post it on the group, kindly keep the specific relief act with you so that it becomes quite easy to understand the sections and how the legal journey has travelled forward. And how do you serve? It's always a pleasure connecting to you though on a virtual platform so far. Good evening Mr. Esar Soma Shekhar, good evening friends. On the first day when I spoke about specific relief act, I had told that they had contemplated seven kinds of specific reliefs, not just specific performance alone. So seven being possession, specific performance, rectification of instruments, precision of contracts, cancellation of instruments, declaratory decrees and inventions. Of the seven kinds of specific reliefs, we have covered four. The remaining three namely rectification, precision of contracts and cancellation of instruments are what are remaining and today we should be able to complete it. Please go to chapter three of the specific relief act with the title rectification of instruments. What does this mean at all? A executes a sale deed in favour of B in respect of a particular property. By a mutual mistake between the parties, the property number is wrongly mentioned or the extent is wrongly mentioned or the boundaries is wrongly mentioned. The intention was to convey land-bearing survey number 100 but by mistake the survey number is shown as 100, 101 or 10 or like this. It is by a mutual mistake. The second situation is through fraud. One of them plays fraud on the other. Fraud has defined under the Indian National Act. The addition as a fact of that which is not true by one who does not believe it to be true, knowing fully well that the fact is untrue, he still makes the other person to believe that it is true. So an instrument comes into existence. If the parties realise the mistake that they have, they bear mutual mistake, they can without approaching the court, have a rectified instrument and get it registered. That is the end of the matter. If they do not mutually agree for such a rectification of a mutual mistake, obviously one has to approach the court with a relief for rectification. The other situation is fraud. When by fraud an instrument has come into existence, naturally the other side would not agree for rectifying it. The agreed person is forced to come to the court. Now, what is the manner in which a suit has to be filed for rectification? What is the prayer to be made? What is the limitation for filing the suit? Fourthly, I am deliberately avoiding because fourthly is not uniform in all states, therefore I am deliberately avoiding. Let us go to section 26. When instrument may be rectified? When through fraud or a mutual mistake of the parties, a contract or other instrument in writing, not being the articles of association of the company to which the company is at 1956 supplies, does not express their real intention. The intention was that a market deed should have been executed. Defendant prevails upon the plaintiff to say, well, you execute a document in the nature of a sale deed. He plays some fraud or he says, all right, you execute it. I don't dispute that it is a market. It is only a loan. It is only a security for the loan advance. Such a fraud is played as I said by mutual mistake. There is some wrong entry somewhere with the document which does not express the real intention. Then either party or is representative in interest may institute a suit to have the instrument rectified. Here a problem would certainly arise. How a representative in interest can plead that it is by mutual mistake such as it has happened. Representative in interest normally will take it as legal representatives or through agents. Well, it may be a difficult task. Anyway law provides for them also to plead that by a mutual mistake of the S file parties to the document such a thing has corrupted or some fraud was played. But normally for a legal representative to establish that fraud or mutual mistake is really a difficult task. Anyway legislature has recognized such a right in them also. We will leave it there. See class A does not require any explanation. The suit itself is for rectification of the instrument. There is nothing in that section except saying that he may institute a suit to have the instrument rectified. But in the pleadings it must be very clearly stated that the mistake has corrupted either an account of the fraud played by the defendant or an account of a mutual mistake of both the parties. If no such pleading is there, ultimately the relief cannot be given at all. There must be a clear argument in the plead that an account of the fraud played by the defendant such a mistake has come in and the instrument needs to be rectified or by a mutual mistake of the plaintiff and the defendant such a mistake has occurred and that it needs to be corrected. Otherwise the relief cannot be given. In this regard straight away I am referring to the decision of the Supreme Court reported in 2007, Volume 6 SCC 484. In 2007, Volume 6 SCC 484 is a judgment of Justice P. K. Barsupramanyam sharing the bench with Justice A. K. Mokher. Please read this judgment. There are 70 at paid 491 and 492 in the judgment SCC. Under section 26 of the specifically fat an instrument or contract may be rectified when through fraud or a mutual mistake of the parties a contract or other instrument in writing does not express the real intention. Of course this section expresses it reflects what is stated in section 26. According to Dr. Banerjee in his Dagokal address in the law specifically the parties had deliberately left out something from the written instrument that cannot be put in by resort to the remedy of rectification. Deliberately they have omitted to mention something. Then they cannot plead when it needs to be rectified. Here the parties have entered into written contracts and of course they refers to the facts we case. Here the parties have entered into written contracts and admittedly no term is incorporated therein regarding enforcement of the ban on trade of toddy to the public in the district of District of Canada. Nor is there any case pleaded in the plaint of any nor is there any case pleaded in the plaint of any mutual mistake in the matter of setting down the terms of the contract. There is also no plea of fraud on the part of the state in entering into the contract. On the terms of the contract the plaintiffs had obtained the right to when to erect for the exercise here so on so on their obligation to pay the bit amount in monthly installments. In the absence of any foundation the pleading being laid by the plaintiffs and establishing a ground for the grant of the relief of rectification the mere adding of a prayer by a government would not be considered sufficient to grant them the relief of cancellation. Therefore lawyers who file a suit for rectification will kindly see that there is a specific argument in the plaint that an account of a fraud played by the defendant the mistake has come in or an account of a mutual mistake of the plaintiff and the defendant the instrument reads this. So A contemplates a suit for rectification itself. Go to B. The plaintiff made any suit in which any right arising under the instrument is an issue. Climb in his pleading that the instrument were rectified. The suit is for some other relief. Let me go back to the same example. According to the plaintiff the lander proposed to be sold to him. He is survey number 100. By a mistake survey number 101 it is shown in the mistake the survey number is shown as 101 in the document. The plaintiff may in any suit in which any right arising under the instrument is an issue. Plaintiff files a suit for declaration of title in respect of land variance survey number 100. Survey number 101. But the document shows the survey number as 101. Climb in his pleading that the instrument be rectified. So he may say in the plaint that the instrument will be rectified. Maybe an additional relief that the instrument will also be rectified because without rectifying the instrument that declaration cannot be given. Declaration of ownership cannot be given. So here relates to a case where the prayer itself is for rectification. B relates to a case where the prayer is for some other relief and in such a suit an ornament is also made that this instrument be rectified before granting relief of declaration. A defendant in any such suit I am now reading 6. A defendant in any such suit as is referred to in class B may in addition to any other defense open to him as for rectification of the instrument. See the suit is filed by the plaintiff. Let us say for declaration that he is the owner of property bearing survey number 101. The document also reads as 101. According to the defendant what is shown to the plaintiff is survey number 100 and not 101. So the defendant may also in his written statement in addition to any other defense open to him as for rectification of the instrument. May be by way of a though it is not specifically stated that it is not that it should be by way of a counterclaim. You can infer that the defendant can set up a counterclaim. To me it appears even without seeking the relief of counterclaim even without setting it up as a counterclaim because 26 C enables the defendant to ask for rectification. To me it appears even without setting it as a counterclaim he could make a prayer that the instrument be rectified. If in any such suit in which I am reading subsection 2 if in any such suit in which a contractor as an instrument is sought to be rectified under subsection 1. The court finds that the instrument through fraud or mistake does not express the real intention of the parties. The court may in its discretion direct rectification of the instrument so as to express that intention so far as this can be done without prejudice to rights acquired by third persons in good faith and for value. Now there is some mention of the extent of the property or the survey number of the property or the boundaries. Subsequently the property has changed hands. Now by granting this relief of rectification third party rights may be affected. Therefore the court has to take care to see that third persons are not privileged by granting a decree of this time. A contract in writing may first be rectified and then due to party claiming rectification has so prayed in its reading and the court thinks it may be specifically enforced. Again go back to the same example. The property agreed to be sold is land bearing survey number 101. In the agreement of sale it is mentioned as survey number 100. Suit is for specific performance. Plaintiff may say first rectify the agreement of sale showing it as survey number 101 and then grant this relief. No relief for the rectification of an instrument should be granted to any party under this section unless it has been specifically inclined because the prayer is for declaration. There is no prayer for rectification of the instrument. Therefore there must be a specific prayer for rectification of the instrument. Provided that where a party has not claimed any sexual relief in its reading the court shall at any state of the proceeding allow him to amend the bleeding on such terms as we just for including such claim. When I spoke about two months back about suits for specific performance I had drawn the attention of the audience to sections 21 and 22 specifically in fact. 21 says in a suit for specific performance compensation also can be given provided there is a prayer. If there is no prayer the plaintiff can be permitted to amend the complaint at any state. So too if there is no prayer for refund of earnest money the plaintiff can be permitted to amend the complaint to seek the relief of refund of earnest money. And as I have already told you the proviso to order suits rule 17 which precludes the court from liberally allowing amendments subsequent to the commencement of the trail will not be a bar when the amendment is sought either under 21 or under 22 or under 26. In fact there are a host of provisions in the specifically fact which say that such an amendment has to be allowed. Beyond this there is nothing in section 26 of the specifically fact to explain. Now there is no specific article in the limitation act which says within what time a suit for rectification has to be filed. In the absence of a specific provision it is article 113 of the limitation act that would apply. Article 113 is the residuary article any suit for which no period of limitation is provided elsewhere in this schedule three years from the time when the right to suit approves well here it has to be very carefully when that right to suit approves probably the day on which the document is executed it doesn't say when the plaintiff comes to know if you mistake or anything because 113 is a residuary article it cannot provide for any specific thing when the right to suit approves too may it appears the right to suit approves on the very day the document is executed therefore we may take it subject of course to the availability of a decision to be contrary my own view is that the suit has to be filed with three years from that time. Now let us go to the decision of contract chapter 4 if you have a contract act with you please go to section 39 when a party to your contract has refused to perform or disabled himself from performing his promise in its entirety the promise he may put an end to the contract unless he has specified by words of contract his acquisitions in its convenience though the word received is not used it is an indication that the promise he will receive the contract then go to section 62 contracts need not be performed in section 62 if the parties to your contract agree to substitute a new contract for it or rescind or alter it the original contract need not be performed therefore before coming to the court itself the contract is rescinded and the other party just accepts it there is no need to file a suit well for every relief contemplated and specifically pat or any other act if things do not happen outside the court then only the parties have to move the court the only thing the only relief which cannot be granted outside the court is dissolution of marriage for dissolution of marriage the parties have to necessarily approach the court of course there also there may be a few exceptions like customary divorce and other things that is not relevant to that subject today what I am telling is for every relief party has to approach the court provided the parties are not able to settle the matter outside the court the exception is dissolution of marriage let us read section 27 now any person interested in a contract may sue it to have it rescinded and such rescission may be adjudged by the court in any of the following cases namely who is interested in the contract a person who is privy to the contract not outsiders may sue it to have it rescinded and such rescission may be adjudged by the court in any of the following cases namely where the contract is voidable or terminable by the plaintiff the contract is voidable at the instance of the plaintiff he may sue for rescission where the contract is unlawful for causes not apparent in its face and the defendant is more to blame than the plaintiff if you just peruse the contract it will not be clear to you that it is unlawful some evidence is required to be let in to show that the contract is unlawful and the defendant is more guilty than the plaintiff notwithstanding anything contained in subsection 1 the court may refuse to rescind the contract where the plaintiff has expressly or implently ratified the contract he has stood by he has ratified the contract he has done certain acts he has allowed the defendant to go on with the terms of the contract to work in terms of the contract in such an event the plaintiff cannot sue for rescission notwithstanding anything contained in subsection 1 the court may refuse to rescind the contract where the plaintiff has expressly or implently ratified the contract he keeps quiet by his inaction the defendant gets an indication that the plaintiff has no objection for the defendant here of course the principle of estoppel would apply here supposing the defendant does something contrary to the statute statutes or some law then the defendant cannot contend with the plaintiff has stood by the principle of estoppel there is no estoppel against the statute that basic principle will have to be kept in view where going to the change of circumstances which has taken place since the making of the contract not being due to any act of the defendant himself the parties cannot be substantially restored to the position in which they stood when the contract was made going to the change of the circumstances which has taken place since the making of the contract not being due to any act of the defendant himself the property falls down or the property is acquired nothing can be done in such a situation the contract needs to be rescinded or where third parties have during the subsistence of the contract acquired rights in good faith and without notice and for value so without notice of the existence of the contract between the plaintiff and the defendant third parties have acquired some rights they are bona fide transferes where only a part of the contract is sought to be rescinded and such part is not severable from the rest of the contract the entire contract cannot be set aside unless the part which is sought to be rectified sought to be rescinded cannot be separated and if the entire contract is required to be rescinded the whole of it has to be rescinded in this section contract in relation to the territories to which the DPI does not extend means the contract in writing so now 27 contemplates the suit for rescission so first is there could be rescission outside the court in terms of section 39 and 62 of the contract act 27 contemplates a suit for rescission what is the case? I think I had referred to 28 when I spoke about suit for specific performance let me refer to it in some more detail rescission in certain circumstances of contracts for the sale or lease of the mobile property the specific performance of which has been granted has been decreed where in any suit a decree for specific performance of a contract for the sale or lease of the mobile property has been made and the purchaser or less see does not within the period allowed by the decree or such further period as the court may allow pay the purchase money or other some which the court has ordered to pay the vendor or lessor may apply in the same suit in which the decree is made to have the contract rescindent and on such application the court may by order rescind contract either so far as regards to 14 default or altogether as the case may require you find in most suits for specific performance in the operative portion a direction is given to the plaintiff to deposit the balance sale consideration within a particular time if the entire sale consideration is already paid before the filing of the suit such a situation would not arise in most of the cases the plaintiff would not have paid the entire sale consideration therefore a direction is given to him to pay the balance sale consideration within a given time if within that given time he does not do it it is open to him in that very suit to make an application seeking the extension of time let us say the court grants that extension even after extension is given the plaintiff does not deposit the balance sale consideration then what is the remedy of the defendant he can apply in that very suit for rescission of the contract so 27 contemplates the suit for rescission the provisions of the contract had provided give a right for rescission then 28 says even after a decree for specific performance is passed it is open to the court in that very suit to direct rescission of the contract there is no need to file a separate suit the precitation is that there must be a decree for specific performance and the plaintiff has not complied with the decree for specific performance where a contract is rescinded under subsection 1 the court shall directly purchase or fill a seat if he has obtained the possession of the property under the contract to restore that possession to the vendor or lesser if the plaintiff has taken possession of the property under the agreement then after the contract she is rescinded by the court he has to deliver back possession to the defendant and by direct payment to the vendor or lesser of all the registered properties which have a throughly respect to the property from the date on which possession was so obtained by the purchasing or lessing until restoration of possession to the vendor or lesser and if the justice of the case so request the refund of any sum paid by the vendor or lesser as registered money or deposit in connection with the contract now under the agreement of sale possession is delivered the plaintiff who has taken possession lets out the property to someone else therefore he has issued rents from his tenant it is an agricultural land he has cultivated the land he has grown crops he has issued some profits on recision of the contract the court may direct the plaintiff to pay back the same to the defendant to see that the rent that he has accrued or the profits that he has issued are given to the defendant three, if the purchaser or lesser pays the purchase money or the person which he is ordered to pay under the decree within the period referred to in subsection one the court may on application made in the same suit award the purchaser or lessing such further relief has to be entitled to including in appropriate cases all or any of the following reliefs namely supposing between the time stipulated or within the time extended the plaintiff pays the purchase money or any other sum which he was directed to pay what are the reliefs to which he is entitled A, the execution of the proper conveyance or lease by the vendor or lesser well, now that the entire purchase money is paid defendant shall execute a sale deed in third of the plaintiff the delivery of possession or partition and separate possession of the property and the execution of such conveyance or lease on the last occasion when I spoke about section 22 it is specifically that I have told that in an appropriate case the plaintiff in a suit for partition can also seek the relief of in a suit for specific performance can also seek the relief of possession and partition that needs to be kept in view to understand subsection 3 of section 28 the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease no separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor or chaser lesser or lessy as the case may be so there is a clear bar for maintaining a separate suit in the very suit that relief has to be sought the task of any proceeding under this section shall be in the discretion of the court that does not call for any explanation let us go to section 29 a plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that if the contract cannot be specifically enforced it may be rescinded and delivered up to be cancelled normally nobody does it the alternative relief that the plaintiff seeks is only to direct the defendant to pay refund of earnest money very very rarely damages as provided by section 21 the yet another alternative relief although it is not covered by the provisions of 21 and 22 well to me it appears some provisions similar to 29 should have been there after 22 are the specifically fact plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that if the contract cannot be specifically enforced it may be rescinded and delivered up to be cancelled and the court if it refuses to enforce the contract specifically may direct may direct it to be rescinded and delivered up accordingly well here a question would arise under 21 and 22 if there is no prayer for award of compensation or for refund of earnest money or for partition or possession the court cannot give it there can be an application for amendment we do not find a similar proviso to section 29 therefore well the question might arise without a prayer it could be given but to be on the safer side if a prayer is made your client will be in a better state 30 on adjudging the decision of a contract the court may require the party to whom such relief is granted to restore so far as may be any benefit which he may have received from the other party and to make any compensation to him which justice may require there are a host of provisions in the contract that it says that if a contract is terminated or if the contract fails for any reason the person who has received benefit under the contract must restore it to the other side that is a basic principle that is reflected in many provisions of the specific impact also now with regard to this rectification you may read an amendment precision of contracts you may read 1972 volume 3 SCC 684 1972 volume 3 SCC 684 in this decision it is held that specifically fact is not exhaustive of the various things specifically we also agree with the finding of the division bench that since section 28 of the specifically fact provides only for an application for decision of a decree for specific performance for the sale or lease of the mobile property no application to rescind a decree for specific performance of an agreement to sell mobiles would lie under that section the question then is whether the application was maintainable under any other provision of the law specifically fact 1963 is not an exhaustive enactment it does not consolidate the whole law on the subject as the preamble would indicate it it is an act to define and amend the law relating to certain fines specifically it does not purport to lay down the law relating to specifically in all its ramifications and proceeding further the supreme court goes to the extent of sale that what is passed to the decree that is passed in a suit for specific performance is in the nature of the primary decree because something more needs to be done sale date has to be executed position has to be delivered it is settled by a long course of decisions of the Indian high courts that the court which passes a decree for specific performance retains control over the decree even after the decree has been passed in Muhammad Ali Saheb versus Abdul Thadir Saheb it was said that the court which passes the decree for specific performance has the power to extend the time which did the decree for the reason that the court retains control over the decree that the contract between the parties is not extinguished by the passing of a decree for specific performance and the contract subsists not extended the possible decree so this is a very important decision please read this judgment this is by justice K. K. Mathew chair in the bench with justice K. S. Hebron another decision under section 28 which you may read is 1980 volume 1 SCC 630 1980 volume 1 SCC 630 this is by justice V. R. Krishnam I am tempted to read the first line in this judgment as I am always tempted to read judgments of justice Krishnam this is how he starts the judgment writes A. G. Gardner if he may start off with a strange flourish of course he has got a strange he has got a natural flourish for the English language that the supreme art is to achieve the maximum result with the minimum effort so therefore your reading should be brief you should achieve the maximum with minimum rating I am using this in a different context it is the art of the great HR who with a line reveals infinity it is the art of the great dramatist who with a significant work shakes the soul of course what I am reading may not be very relevant for today's session but I am carried away by the language of justice Sushnayam Schiller said all it burns the city to create his effect of terror Shakespeare drops a handkerchief and freezes our blood for this explicit reason brevity is the soul of art and justice including judgment writing must practice the art of brevity especially where no great issue of legal moment doubles law gets position therefore we need to be brief to the bare bones with a few facts here and a brief expression of law there by adopting the technique it is simply the perfect ethanomy of means to an end ethanomy of means to an end for another reason also the need for parsimony exists the court is in crisis dotted law and petty if in 1980 itself the court was dotted law and petty what should be the position for 21 years thereafter a judgment can be brief but not a blank and there is no reason to repeat the details of a case where there is an exhaustive statement to the judgment and a repeat as in this case we adopt those long pages of judicial manuscript and abbreviate our conclusion into a few pages now with regard to section 28 this is what his lordship has said a red in the light of section 28 with the specific impact and the rulings of the point which were cited before us the proper course in this situation was to pass a degree for specific performance which would for all practical purposes be a preliminary degree the suit would continue and be under the control of the court until appropriate motion was made by either party for passing the final degree it is perfectly open to the court in control of the suit for specific performance to extend the time for deposit course and valid reasons will have to be given for such extension then large sentence large sentence in the penitimate part of the judgment it is for my own pleasure I am reading it natural justice necessitates full hearing not a flood of words of forbidding length yet another decision under section 28 is 1994 2 SCC 642 1994 volume 2 SCC 642 I have read section 28 that gives an indication in that very suit the application has to be filed in this decision it is held technicality should not come in the way of doing justice even on the institution side this application under section 28 can be entertained is what is stated in this decision judgment by justice here arms one can read it yet another judgment under section 28 is 1997 9 SCC 1997 9 SCC 217 1997 9 SCC 217 I am reading para 4 of the judgment from the language of subsection 1 of section 28 it could be seen that the court does not lose its jurisdiction after the grant of the decree I have seen many lawyers writing the given the spelling as L-O-O-S-C it is loose loose means losing we lose something means I am not able to put it in English we are losing something don't lose L-O-O-S-C we are at loss L-O-S-C is loss not something L-O-O-S-C that will be lose language it could be seen that the court does not lose its jurisdiction after the grant of the decree for specific performance nor it becomes fun test efficient the very fact that section 28 itself gives the power to grant order of precision of the decree would indicate that till the sale date is executed till the sale date is executed in execution of the decree the trial court retains its power and jurisdiction to deal with the decree for specific performance it would also be it would also be clear that the court has told to enlarge the time in favor of the judgment data to pay the amount or to perform the conditions mentioned in the decree for specific performance in spite of an application for decision of the decree having been filed by the judgment data and rejected in other words the court has the discretion to explain time the compliance of the conditional decree as mentioned in the decree for specific performance it is true that the respondent has not given that is with regard to condemnation of the decree yet another judgment is 1999 4 SCC 702 1999 4 SCC 702 Para 60 in view of the decision of the court in Raman 50 when the court and the executing court are the same the executing court can entertain the application for extension of time though the application is to be treated as one file in the main suit so therefore on the execution side also the application could be entered yet another judgment which you may read is 2005 9 SCC 262 2005 9 SCC 262 well this contains number of earlier decisions on the point so it is satisfied and digest so you can read this though most of this lies right now since it makes reference to a good number of earlier decisions you can just read it then a recent decision in 2019 volume 9 SCC 381 2019 volume 9 SCC 381 this also refers to one of the earlier decisions the grant of extension of time cannot in so fact to be construed as otherwise demonstrating readiness and willingness now the question is when the court grants time to the plaintiff to make payment of the balance sale consideration that doesn't mean that the plaintiff first ready and willing to perform his part of the content the plaintiff was required to make sufficient substantial and urgent reasons to seek extension of time for deposit because otherwise it becomes a question of his content along with all other attendance around itself of this in the maximum case you may also read a judgment of honorable justice M Kumar in ILR 2014 4.035 ILR 2014 Karnataka 4.035 here again that Ramakutty's case has been referred to and two more decisions have been referred to now section 28 of the specifically fact corresponds to world section 35C therefore we have an old judgment of the Karnataka high court at this point in AR 1960 Mysore 175 AR 1960 Mysore 175 in view of this provision the right is conferred on the unsuccessful defendant in a suit for specific performance to apply to the court with faster degree and that in the same case to rescind the contract and the court may so rescind the contract the true effect of this provision is that the court will pass the degree for specific performance is given power to rescind the contract and consequently set aside the degree which it had passed earlier in the successful plaintiff phase to comply with the terms of the decree then 29 of the act corresponds to world section 37 in that regard in my report to AR 1968 Supreme Court 1355 AR 1968 Supreme Court 1355 the sole question involved in this appeal is whether a plaintiff suing for a declaration that a certain contract against him is void and inoperative having been obtained by NU influence can in the same suit in the alternative ask for the relief for specific performance to the same contract the court can be one for specific performance their decision can also be sought as we have seen alternatively the relief for specific performance cannot be sought is what is stated in this section now we will go to Chapter 5 dealing with cancellation of the instrument when cancellation may be altered any person against who may return instrument is void or voidable and who has reasonable apprehension that such instrument if left outstanding may cause him serious injury serious injury may suing to have it adjusted void or voidable and the court may in this situation so adjudge it and order it to be delivered up at cancer now plaintiff is an old woman defendant is her grandson one fine day the defendant takes her to some office saying your signature is required or your thumb mark is required for some change of some theta or I am getting you old attention please come to with me to a particular office he made some misrepresentation to her or place fraud and obtains her signature or thumb mark their document ultimately turns out to be a gift deed in such an event before I forget limitation for filing a suit for decision is Article 158 that I had forgotten to mention limitation for filing a suit for precision is Article 158 it reads when the facts entitle the plaintiff to have the instrument or decree or the contract rescinded first become known to him in for cancellation also Article 159 is applicable when the facts entitle the plaintiff to have the instrument or decree cancelled or set aside becomes first known to him one fine day that old woman comes to know that the defendant has obtained a gift deed from her by playing fraud on this representation if the instrument is left outstanding it would cause serious prejudice to the plaintiff old woman therefore she can file a suit for cancellation of that instrument and what is other prayer order it to be delivered but cancelled so he shall give back the document to be deliver back the document to me and also cancel it if the instrument has been registered under the Indian Registration Act the court shall also send a copy of its decree to the officer whose office the instrument has been so registered so the decree does not require registration don't be under that confusion decree does not require registration only a copy of the decree has to be sent to the sub-register shall note on the copy of the instrument contained in his books the fact of its cancellation so he will make an entry in his book that this document is cancelled because the instrument is already registered it is public notice anybody can have a certified copy of it so therefore the fact that the instrument has been cancelled also has to be brought to the notice of the sub-register in which event he will make an entry probably that could be reflected in the income and certificate also correct so that a person can when he obtains a certified copy of that instrument he will be knowing that it is already cancelled what instruments will be partially cancelled where an instrument is evidence of different rights and different obligations the court may in a proper case cancel it in part and allow it to stand for the receipt before I go to section 33 let me refer to a few more aspects of section 31 there is some confusion as to when a suit for declaration has to be filed and when a suit for cancellation has to be filed I had referred to when I spoke about partition suits you know that the manager of a family has got absolute right to alienate the entire joint family property for legal necessity the only prayer in such a suit that the first defendant manager was not compelled by an illegal city to institute that sale deed declare that sale deed to have an absolutely no effect that is sufficient there is no need to seek cancellation because the plaintiff is not a party to that the second is a situation where the father who has special powers of alienation executes a sale deed even there there is no need for cancellation because the plaintiff is not a party to it third is a situation where one of the co-partners who is not a manager has alienated the property usually the prayer is declare that the sale deed executed by such and such a defendant in favor of such and such a defendant does not bind the plaintiff to the extent of his share there also cancellation is not sought because the plaintiff is not a party to the document cancellation is required when a person is a party to the document otherwise a mere declaration that the document is either void or voidable and does not bind the plaintiff is sufficient I believe I had referred to this decision when I spoke about when I spoke about partition suits but anyway repetition starts nothing please make a note of this decision 2010 volume 12 SCC 112 2010 volume 12 SCC 112 Suherit Singh SUH RAD Suherit Singh vs Ranjir Singh Suherit Singh vs Ranjir Singh however a matter of interest Mr. Ritaz Chetrak also because the suit was filed in the court of the senior civil guard at Chandigarh so Ritaz Chetrak should be happy to take a decision from his place the case relates to Chandigarh the author of the document is from Tarnadaka just his R.V. Ravindran sitting in the supreme court his lordship has given an illustration as to when cancellation is required to be sought and when a mere declaration is sufficient it is a matter of pride for us that the very illustration given by his lordship is found in Murlaa's specifically fact 14th edition obviously it will not be available in the world edition because this document is of the year 2010 in the 14th edition of Murlaa and Murlaa specifically fact this very illustration given by his lordship is referred to and I noticed in the footnote a reference to this judgment also I don't think that I need I can do better than read what actually his lordship has said about this it is very simple and clear where the executant of a deed wants it to be annulled he has to seek cancellation of the deed that is what he says if a person is a party to a document he has to seek cancellation but if a non-executed development of a deed he has to seek a declaration that the deed is invalid or non-est or illegal or that it is not binding on him the difference between a prayer for cancellation and declaration in regard to a deed of transfer of conveyance can be brought out by the following illustration relating to A and B two brothers A executes a sale deed in favor of C subsequently A wants to avoid the sale A and B are brothers A executes a sale deed in favor of some third person C subsequently A wants to avoid the sale A has to seek for cancellation of the deed because he himself has executed the deed on the other hand if B who is not the executant of the deed wants to avoid it he has to seek for a declaration that the deed executed by A is invalid or void and non-est illegal and he is not bound by it in essence both may be suing to have the deed's exercise or declared as non-binding but the form is different and the court fee is also different of course with regard to court fee I am not referring to this gentleman because this is in the context of the court fees act of that state of course different states have different court fee enactments and therefore with regard to court fee I do not want to tell anything or tell into this decision anyway the principle is laid down in my read this decision one other judgment with regard to section 31 of the specifically applied which you may read is 2006 volume 5 SCC 3 by 3 2006 volume 5 SCC 3 by 3 this is a judgment by Gishti's SP Sinha sharing the bench with Gishti's PK Balu Subramaniam Sinha has written the judgment article 59 of the limitation act up applies specially when a relief is climbed at the ground of fraud or mistake it only impact passes within its word fraudulent transactions which are voidable transactions section 31 of the specifically applied reference goes to valid a voidable instrument it provides for a discretionary relief almost every relief under this specifically impact except perhaps the relief of possession is a discretionary relief when a document is valid no question arises of its cancellation when a document is void ab initio a decree for setting aside the same would not be necessary as the same is non yes in the IAF law as it would be an illegal once however a suit is filed by a plaintiff for cancellation of a transaction it would be done by article 59 even if article 59 is not attracted the recidivary article would be attracted article 59 would be attracted when coercion vindue influence misappropriation or fraud which the plaintiff asserts is required to be proved article 59 would apply to the case of such instruments it would therefore apply where a decree is a valid it would not apply only to instruments which are presumed to prove me which are presumed to presumably invalid if the plaintiff is in possession of a property he may file a suit for a declaration that the deed is not binding upon him but if he is not in possession there are even under a void transaction the right by way of adverse possession may be inclined it is not correct to contend because it deals with a different situation anyway you can raise this statement then one other judgment which you may read is a judgment of Justice Yan Kumar of Karnataka High Court in ILR 2008 Karnataka 2245 ILR 2008 Karnataka 2245 Binni Mill Labour Welfare Housing Building Cooperative Society Binni Mill Labour Welfare Housing House Building Cooperative Society versus D. R. R. Ardhya in Paras 26 and 27 distinction between valid void and voidable agreements is given in Paras 26 and 27 distinction between valid void and voidable agreements is given in Paras 36 to 38 the scope of section 31 of the specifically fact has been highlighted you can read this statement a fairly long statement but a very enlightening one we can read this then to know the difference between to know what actually is a void transaction you may also refer to 1991 SCC 1991 or SCC page 1 in the judgment of Justice Yan Kumar there is reference to a supreme court judgment in IAR 2001 SC 2552 to marry that statement in fact almost everything stated therein has been extracted in this statement IAR 2001 SC 2552 to marry that statement also now in the plane there should be very clear amendment why cancellation is done is instrument void and voidable let it be very clear don't leave it to the court declare that the instrument is void, voidable void, non-est and all that you should be very clear as a lawyer when you appear for the plaintiff or for the defendant you should be clear whether the transaction is void or voidable of course the several decisions which I have cited will tell you the difference between a void transaction and a voidable transaction void is something which has no effect in law voidable is something which loses its effect after the plaintiff or the defendant avoids it when once a party to the document avoids it then in the case of voidable means avoidable what can be avoided it is in that sense the expression is used so your pleading should be very clear in this Rida please make a definite prayer to avoid payment of court fee don't seek declaration when cancellation is really required if the plaintiff is a party to the document he should necessarily seek for cancellation of the instrument therefore to avoid court fee a mere declaration may not be sufficient ultimately you may lose a very good case by a bad drafting a good case should not be lost now go to section 33 on adjudging the cancellation of an instrument the court may require the party to whom such relief is granted to restore so far as may be any benefit which you may have received from the other party and to make any compensation which the justice may require this is on the principle that whenever a person has issued some benefit under a contract if ultimately the contract is rescinded or terminated for whatever reason he should a Rida he should talk and say the other he should pay back what he has received he should restore what he has issued under the contract is a very basic principle under the Indian contract act in this context in this context of course I will read subsection 2 also I have a question to answer one of the participants through Mr. Vithas Chhatrat has sent this question to me after reading subsection 2 I will answer that question where a defendant successfully resists any suit on the ground that the instrument sought to be enforced and instrumented suit is voidable vote may if the defendant has received any benefit under the instrument from the other party requiring to restore so far as may be such benefit to that party or to make compensation for it the question raised by the participant is if the defendant does not successfully resist in the sense that the suit is decreed but if it is seen that the defendant has taken some benefit under it cannot the plaintiff get it back though section 33 applied reading of it does not give that indication as I said it is a basic principle that he who has received some benefit under a contract should give it back to the other person when the contract is rescinded you may in this connection refer to the commentary this is actually a taboo law lecture series the SCA banner is law specifically law series I am reading from the 12th edition 12th edition of SCA Banerjee law specifically taboo law lecture series at page 716 in this book page 716 in the 12th edition of the law specifically by SCA Banerjee taboo law lecture series relief in a plaintiff is required to be sought or it may be sought in a suit under section 31 in a suit under this chapter of course suit under this chapter means the suit into 31 because all the three sections in this chapter relate to cancellation of instruments only in a suit under this chapter the relief that the court can grant is of a limited character it may adjust the instrument to be either wide or wideable therefore apart from seeking the relief that the instrument be cancelled and delivered up and the plaintiff may also say directly refer to the section 1 where the plaintiff asks for further and authority the suit is not for cancellation which reliefs the court can always grant of its own motion though not asked for if it adjudges an instrument to be either wide or wider the plaintiff may also say directly refer to restore ban this too because the traditional prayer can certainly be made you may also refer to order 2 rule 3 CPC here joiner of causes of action save as other ways provided the plaintiff may unite in the same suit several causes of action against the same defendant therefore this is one other cause of action which the plaintiff gets and certainly in my opinion there can be no bar for timing that relief the next question by this participant is it is in the context of 33 to be where a defendant successfully resists any suit on the ground that the agreement sought to be enforced against him in this suit is void by reason of his not having been competent to contract under section 11 of the Indian contract that the court may if the defendant has issued any benefit under the agreement from the other party requiring to restore so far as may be that benefit to that party to the extent to which he to which he or his estate has benefited thereby of course since he being a minor compensation cannot be ordered to his court to be perfect to the release the question is in section 33 1B defendant is asked only to restore and not for compensation because law protects the minor but what will happen if the plaintiff is a minor in my opinion the same applies to a minor also so though normally I would have continued up to 7.45 and extended 2 until 8 o'clock today for the first time I have finished the session in 1 hour 10 minutes if you have not any questions you may ask in fact I also thought that the session would be for a longer time the one who was handling the this thing I had sent him to for some work oh I see yeah this is by M Wadiwill when the plaintiff filed application under section 28 1 seeking extension of time for balance of payment a balance of balance consideration is it necessary to issue notice to the other side yes definitely please read section 28 subclass 1 yeah where in a suit a decree for specific performance the contract for the sale or lease of the mobile property has been made and the purchaser or receipt does not within the period allowed by the decree as such further tweeted as the court may allow pay the purchase money or the sum which the court has ordered into pay the vendor or lessor may apply in the same suit in which the decree is made to have a contract received and on such application the court may order within the contract either so far as regards the party in the part are all together as the justice of the case may require you will have to read subsection 2 also where a contract is received into subsection 1 the court shall directly purchase or will see if he has applied therefore the defendant has sought a right to oppose that application he may say well normally the court would liberally extend the time but the principles of natural justice do require the defendant is put on notice suit for cancellation of sale deed in possession if possession was been taken unlawfully through criminal force during cross examination fraud played on the court well without there being a prayer in the suit merely because in the cross examination it is disclosed that possession was taken unlawfully you can't expect the court to give that relief we can see the amendment of the complaint fraud played on the court all statements and misstatements suppression of material facts no fraud played on the parties that would be a ground for cancellation at this stage itself can the judge decree the plaintiff's favor is there a provision to provide the judgment in the final argument state if in spite of giving sufficient time the lawyer does not turn up the court has certainly no option except to pass a judgment if you do not turn up for arguments well no judge does it he gives enough time but if you do not argue the matter at all the court is perfectly justified in proceeding to go for judgment if a document is forward can it be required to be cancelled under section 35 only if fraud is played or if it is a void document if a document is forward we can ignore that document when a suit not specifically enforced filed by the plaintiff who got position plaintiff is at fault do the defendant earnest money to be returned by the defendant when a suit not specifically enforced filed by the plaintiff who got position can you reframe the question Mr. Tharn hello yes M.E.I. Tharn he will reframe meanwhile K.V.M. Pavan says can you please give an example for section 27 27 you see as I said before coming to the court itself the parties may rescind the contract there may be some mistake in the contract when the contract is voidable or terminable by the plaintiff you know when a contract becomes voidable under the provisions of the Indian contract at 15, 16, 17, 18, 19 etc when does the contract become voidable let us go to section 19 8 correct 19 19 19 then consent to an agreement is caused by coercion fraud or misrepresentation the agreement is a contract voidable at the option of the party whose consent was so cost then under 19A then consent to an agreement is caused by undue influence the agreement is a contract voidable at the option of the party whose consent was so cost therefore your client should disclose that the agreement is a result of coercion fraud or misrepresentation or undue influence of course 19A appears to be subsequently insulted I don't know why in fact undue influence was there in section 19 it was removed and again a separate section 19A is insulted whatever it be 19 and 19A they don't make much difference we can say when consent to an agreement is caused by coercion undue influence fraud or misrepresentation and if the agreement is a contract you read 19 and 19A together in the 19 itself we can insert undue influence itself for that I don't say anything different in the two sections this is when when it is executed as a sale date in favour of A subsequently when are sold to properties in collusion with the third parties shows a boundary in between shows a boundary in between as a way and third party files a suit for a way is rectification of a deed a proper remedy when are executed a sale agreement in favour of when the when are sold to properties in collusion with third party shows a boundary in between as way and third party files a suit for way of a rectification see it is only a party to the document we can seek the rectification where is the question of third party filing a suit for rectification when are sold to properties in collusion with the third party showing a boundary in between as way and third party files a suit for rectification he has to file a suit for a declaration that the property belongs to him there is no question of he filing a suit for rectification because it is not a party to the document Chandrasekhar when are executed a sale agreement in favour of A subsequently when are executed a registered GPA in favour of B is it necessary to add B as a party at a time of filing a suit for specific performance in favour of B if the GPA is not by way of a sale no GPA sales are prohibited may be to be on the safer side you can impede him he is not a necessary party he may at first be a proper party to be on the safer side you will impede him also when you bring the application to seek partition and separate position such what would be the code fee now of course it depends upon the particular state because I am not aware of the code fee payable for a suit for rectification for decision to contract in other states even in Karnataka I really do not know what exactly is the code fee payable without looking to the provision I can't say it the suit is by plaintiff for specific performance but he is not enforceable because of the fault on the at user side as plaintiff. He has been given position but he passed position to third party is demanding his earnest money and the code directed to refund the earnest money the suit is by with the plaintiff for specific performance but he is not enforceable because of the fault on the side of the plaintiff he has been given position but he passed the position to third party is demanding his earnest money depends upon the facts of the case where first of all the agreement is food is the question whether he has paid any earnest money is the question well food is for specific performance alternative if there is a prayer for refund of earnest money that can be all but the fact that he has given possession to third party that may not come in the way here why he has given possession has he let it out to has he just let it out or has he transferred it that is the question what if the lower court passes an exporter order cancelling a settlement document based on work with GBA what if the lower court passes an exporter degree there are two remedies one under order 9 rule 13 and another one by way of entropy when for feature of earnest money or security deposit allowed by court this requires a separate session because there is actually a difference between a advanced amount and earnest money that requires a lot of explanation I also need to study no sale certificate does not require registration I have clarified it on the other day itself under registration at section 17 it says a sale certificate does not require registration when are sold to properties in pollution that's already answered is ratification of when are sold to properties in pollution the third party shows the boundary in between a way a third party places this I have already answered then any other question sir one question equal suit for cancellation of suggested suit for cancellation of sale a sale deed in position party who fraudulently created a sale deed instead of mortgage deed unlawfully took position and during the list knowingly demolish the entire building sold his property equal who has built a building taking rents for last seven years during this acting as he was aware of the suit for cancellation of sale deed in this situation how to claim the means profit as he expects mean profit cannot be granted on any improvements first of all it's a lispendent a transferee so a lispendent a transferee cannot be said to be a bona fide purchaser well suit for cancellation is perfectly maintainable because you see some fraud was paid and the document was executed now with position has been unlawfully taken certainly after the suit is decreed under order 20 rule 12 there can be an inquiry if we're a partition decree if this if the court fails to declare shares of the all parties what is the remedy for the defendant whether to file a separate suit yes I did not follow the question sir this is if in the partition decree the suit the court has failed to declare shares of all parties what is the remedy for the defendants whether they would have to file separate suit no no not necessary during final decree proceedings he can pay court fee that is required to be paid because to declare the share of the plaintiff necessarily the court has to examine what is the share of the defendant please read order 20 rule 18 in fact it says the shares of all the parties will have to be declared is what is stated if by some mistake the share of the defendant is not to declare certainly during final decree proceedings the defendant can say that I am also prepared to pay court fee but the plaintiff share is one-third the remaining two-thirds is mine even to me there is no need to file a separate suit but the mesh in a suit for rectification of sale lead is it necessary to file the original sale lead to get a degree of rectification yes yes it is necessary unless of course it is lost in which event he has to make out a case and the 65 the evidence that is the plaintiff if the plaintiff seeks to avoid an instrument on the ground of nonnest factum is he required to sue for cancellation to seek a declaration if he is a party to the document he has to speak for cancellation only if he is a party to the document he has to seek for cancellation if he is not a party to the document if mere declaration is sufficient. I think we have taken the questions from the, I will just check it on the Facebook, YouTube we have already taken. Thank you sir. So we had an excellent session and as usual, Mr Somashaykar has been able to explain the things in a much subtle manner than what we could have expected and it is always a pleasure connecting with him and thank you sir. Stay blessed and tomorrow friends, the basic topic which we all do, filing of the plane, curing the defects pointed out by the registry while returning the plane. That is tomorrow at 430 by Mr Shingar Murli. He also has been taking a lot of webinars on Apple. Thank you everyone. Stay blessed. Stay safe. Thank you.