Section 14 of Specific Relief Act contemplates the first exception to the general rule laid down in section 17. For application of the provisions of section 14 of the S.R Act two conditions must co-exist, namely, (1) the part left unperformed bears only a small portion to the whole in value and (2) the part performed admits of compensation in money. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

Section 16 of the Specific Relief Act assumes that the parts of the contract are severable, and that performance of one part has become either impossible or unlawful. Section 16 differs from sections 14 and 15 in including the element of illegality. In sections 14 and 15 only inability is contemplated as to a part of the contract. On the other hand, in section 16 is included the case where a part of the contract though it can be, but ought not to be specifically performed. This section recognizes the distinction between divisible and indivisible illegal contracts. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

Under section 15 of the Specific Relief Act, if the unperformed part is large, or does not admit of compensation in money, the case falls under second exception as employed in section 15 of the Act. Under this section if the part of a contract left unperformed is considerably large or does not admit of compensation in money, the party (vendor) who cannot perform his promise in full is not entitled to a decree for specific performance of contract. But the other party (purchaser) can sue for specific performance on payment of full consideration without abatement of price provided he relinquishes all claims to further performance and all rights to compensation either for the deficiency, or for the loss or damage sustained by him due to the defendant’s fault. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

In this case, the plaintiff filed the suit for specific performance of part of the contract where part unperformed is large. As per claim of the plaintiff the defendant is unable to perform the whole of his part because the quantum of land, after measurement, was found less and that substantial part of the contract can be performed and the part unperformed is a considerable portion of the whole. Accordingly, this suit obviously comes under the second exception provided in section 15 of the Specific relief Act. As such, to get a decree of specific performance of the part of the contract (i.e for .2123 acre land), the plaintiff must be willing to pay total consideration of Tk. 12.75 crore for said .2123 acre land though as per contract said amount was fixed as the value of entire .2825 acre land. But the plaintiff unilaterally measured the suit land as .2123 acre instead of .2825 acre as was agreed to purchase by him and he is willing to pay part consideration of Tk. 9,58,16,814.16 as value of .2123 acre land instead of entire consideration of Tk. 12.75 crore and with such calculation the plaintiff deposited balance consideration of Tk. 6,08,16,814.23 instead of agreed balance of Tk. 9.25 crore. As per section 15 of the Specific Relief Act the plaintiff was required to file the suit for specific performance of the part of the contract for .2123 acre land by depositing Taka 9.25 crore out of total consideration of Tk. 12.75 crore and being failed to do so, the suit is barred under section 15 of the Specific Relief Act. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130
It is now well settled that if the balance consideration is not deposited in Court at the time of filing of a suit for specific performance of the contract, the plaint must be rejected. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

It is of the essence of specific performance that except under special circumstances the court shall not direct specific performance of a part of a contract (Ref. Cutts v. Brown ILR 6 Cal. 398). The general rule is that a contract is either to be performed in its entirety or not to be performed at all. This General rule of law is embodied in section 17 of the Specific Relief Act. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

It is to be mentioned that admittedly, the plaintiff did not deposit the balance consideration money at the time of filing of the suit for specific performance of contract on 12.10.2022. Though the trial Court registered the suit but it fixed the next date on 20.10.2022 for admission hearing of the suit and withheld service of summons upon the defendants. This type of practice in original jurisdiction is unknown to law. Since balance consideration was not deposited at the time of filing of the suit, the trial Court should have refused to register the suit for noncompliance of the provisions under section 21A(b) of the Specific Relief Act and returned the plaint to the plaintiff. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

The plaintiffs filed the present suit for mere declaration that impugned registered kabala deed was collusively made and obtained by forgery and not binding upon them. The plaintiffs filed the suit as the disputed kabala cast cloud upon title of the plaintiffs to the suit land and on the basis of the deed in question, the defendant claimed title to the suit land. Since, before filing of the suit, a cloud has been cast upon the plaintiffs’ title to the suit land and that the defendant denied their title therein by dint of a registered kabala, the plaintiffs should have filed the suit for a decree of declaration of title to the suit land as principal relief along with other consequential relief that impugned registered kabala deed was collusively made and obtained by forgery and not binding upon them, as provided under section 42 of the Specific Relief Act. Accordingly, this suit as framed is not maintainable. ...Abul Kasem & anr Vs. Asfaque Ahmed & anr, (Civil), 17 SCOB [2023] HCD 93 ....View Full Judgment