LEGAL REMEDIES Legal Remedies Remedies under Specific Relief

LEGAL REMEDIES

Legal Remedies • • • Remedies under Specific Relief Act, 1963 Remedies under the Contract Law Remedies under Tort Law Remedies under Matrimonial Laws Remedies under the Constitution Remedies under the Arbitration and Conciliation Act, 1996

Remedies under Specific Relief Act, 1963 • Recovery of possession of immoveable property • Recovery of possession of moveable property • Specific performance of contract • Rectification of contract • Rescission of contract • Cancellation of an instrument • Declaratory decree • Injunctions

• A is in possession of a house taken on lease for a period of 9 months from its owner B. But before the period of lease expired, A was dispossessed of it by B. What is the remedy available to A? • A pledges some family jewels to B to secure a loan which has to be repaid within a year. After 6 months, A goes to B and offers to repay the loan. B refuses to return the jewels. What is the remedy available to A?

Recovery of possession of immoveable property: • Where a person in possession of immoveable property is dispossessed without his consent and otherwise than in due course of law, he is entitled to recover possession if he comes to court within 6 months.

Recovery of possession of movable property: § Specific and immediate recovery of movable property can be obtained by the plaintiff § when the defendant holds it as a trustee or agent of the plaintiff or § when compensation is not an adequate relief or § when assessment of damages is difficult

• A agrees to sell to B a silver tobacco box which belonged to B’s father. It was sold outside B’s family sometime in distress. Subsequently, A refuses to sell it to B. What is the remedy available to B?

• A agrees with B to sell his house together with one of the three godowns adjacent to it. But, in the deed of agreement purporting to incorporate this agreement, all the three go-downs were included under the terms of sale due to the common mistake. What is the remedy available to A?

Specific performance of Contract – Specific performance of contract may be enforced – when the actual damage is not ascertainable and – when compensation is not an adequate relief. Rectification of Contract – Rectification of a contract or instrument which does not represent the actual intention of the parties because of fraud or mutual mistake can be ordered to be rectified by the court at the instance of either parties to the agreement.

• A sells a field to B. There is a right to way over the field of which A has direct personal knowledge. He conceals this from B. What is the remedy available to B? • A conveys land to B, who bequeaths it to C and dies. D is in possession of a forged instrument which purports to establish that A conveyed the land to B in trust for D. What is the remedy available to C?

Rescission of Contract – Rescission is a specific relief to enable the plaintiff to free himself from any obligation arising out of a voidable agreement at his option. Cancellation of an instrument – Cancellation of instrument can be sought by the plaintiff if the agreement is void or voidable and he has an apprehension that if it is left outstanding, it may cause him serious injury.

• A is not the wife of B. But she persistently boasts of marriage falsely alleged to have taken place between A and B. What is the remedy available to B?

Declaratory decree – Declaratory decree is a specific relief that can be obtained by the plaintiff against the defendant – when the plaintiff is entitled to any right and – the defendant denies or is interested to deny the plaintiff’s title to such right.

• ‘A’, a trustee for B is about to make an imprudent sale of trust property. What is the remedy available to B? • ‘A’, a lady agrees to sing at theatre of B for one month, during which period, she would not sing at any other theatre. After giving two performances, she refused to sing at B’s theatre. What is the remedy available to B?

Injunctions – Injunctions may be perpetual or temporary. – Perpetual – granted to prevent breach of an obligation existing in favour of a plaintiff. – Temporary – granted for a specific time or until further orders of the court to maintain status quo.

Remedies under the Contract • Liquidated damages or Pre-estimated damages: – Liquidated damages are the damages payable to the party suffering a breach of a contract. • Specific performance of contract: – (Dealt with under the Specific Relief Act, 1963) • Injunctions: – (Dealt with under the Specific Relief Act, 1963)

Remedies under Tort Law • Unliquidated damages: – Unliquidated damages are damages awarded to the party suffering a violation of a right or breach of duty – which may be general, special, nominal, contemptuous or exemplary – based on the facts and circumstances of the case. • Specific Restitution of the Property: – (Provided under the Specific Relief Act, 1963) • Injunctions: – (Provided under the Specific Relief Act, 1963)

Remedies under Matrimonial Laws • (Hindu Marriage Act, Muslim Law, Indian Divorce Act & Special Marriage Act) • Restitution of Conjugal Rights: – Direction by the court to the wife/husband to resume conjugal relationship • Judicial Separation: – Direction by the court to the wife and husband to live separately before divorce is granted • Divorce: – Dissolution of marriage on various grounds like cruelty, desertion, adultery, etc.

• Repudiation of Marriage: – When the parties to the marriage are below 15 years, they are given a right to repudiate the marriage after attaining 15 years but before 18 years. • Maintenance: – Given to the wife or husband by the other spouse during judicial separation and after divorce. • Nullity of Marriage: – On application by a party, marriage, declared null and void on the ground that it has taken place between relatives of prohibited degree, impotency, pregnancy of woman before marriage, etc.

Remedies under the Constitution • Writs under Articles 32 and 226 in the form of – Habeas Corpus – Mandamus – Certiorari – Prohibition – Quo Warranto

Remedies under the Arbitration and Conciliation Act, 1996 Arbitration • Agreement by parties to submit to arbitration all or certain disputes which have arisen or which may arise between them out of a contract or a defined legal relationship. • Number of arbitrations to be determined by parties but should not be even.

• Appointment of an Arbitrator to be challenged only on the ground of doubt on independence or impartiality or does not possess qualifications prescribed by the parties. • Statement of claim and defence to be submitted to the arbitrator.

• After hearing the parties orally or through written arguments, passes the award in writing, giving reason and sign it. • Application to set aside the award to be preferred within 3 months from the date of receipt of award. • On the award becoming final, it shall be enforced as if it is a decree of the court.

Conciliation • Parties may apply to conciliation of disputes arising out of legal relationships including contract. • Any party to an agreement can write to the other party to conciliate any dispute • Proceedings commence when the other party accepts the invitation to conciliate.

• There shall be one or more conciliators appointed by the parties to the dispute. • Parties to submit brief written statement regarding the nature of dispute and points at issue. • He assists the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.

• Parties reaching agreement on a settlement of dispute have to draw up and sign written settlement agreement and it has to be authenticated by the conciliator. • Settlement award has the same status and effect as if it were an arbitral award.

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