Unfortunate incidents happen, accidents happen, illness happens and we as human beings have only so much control over them even if we have the right resources. This is why having a power of attorney is important and helpful. One can be at peace if they know that they have someone who will take care of their legal and financial matters when they might not be capable anymore. The power of attorneys helps protect us and our loved ones.
The Specific Relief Act similarly is very helpful when there has been a breach of contract and merely giving monetary compensation won’t suffice. Specific Relief helps the party to gain damages in the form of the specific duty the breaching party had to perform.
The Specific Relief Act, 1963 ( hereafter referred to as the ‘Act’) enacted by the government of India came into force on 1st March 1964. It repealed its earlier version, Specific Relief Act, 1887 on the recommendation of the Law Commission in its ninth report. The Act was also recently amended in 2018. The Act deals with civil and contractual remedies when there has been a breach of contract between parties. It deals with specific remedies. Specific Relief means ‘relief in specie’ which means ‘in the actual specified form’. So, the Act is basically about fulfilling the exact particular obligation or that specific performance which the breaching party was supposed to do. The Act sets forth the types of remedies available to a person when there has been a breach of contract.
The Act was enacted to take care of situations where damages or compensation cannot be determined or are adequate and only specific performance of the act could be considered sufficient. The Indian Contract Act, 1872 only provides remedies for breach in the form of compensation or damages. The Specific Relief Act is somewhat an extension of it.
Types of remedies under the Act-
The power of attorney is a written authorized document that gives one the right to appoint another person to represent him in his private, business, or legal matters on his behalf. The person who is appointed is known as the ‘agent’ and the person appointing him/her is chiefly known as the ‘principal’ but can also be referred to as the ‘grantor or donor’. The appointed person is also known as ‘attorney-in-fact’ in some jurisdictions. The agent can be a regular layperson and not someone with a legal background or knowledge.
There are two types of powers of attorney-
A general power of attorney has very broad legal authority and covers a wide range of transactions. This expires when the principal dies, becomes mentally unfit, or revoked the power of attorney in writing.
”Inasmuch as human beings become busier, it becomes more necessary for him to depend on others for getting his things done. Owing to this reason, the power of attorney is now playing vital role.”
We know that the Power of Attorney is a document where one person (the principal) appoints another (the agent) to perform certain acts or deeds on his behalf.
The Powers of Attorneys Act, 1882 defines the Power of Attorney as an instrument empowering a specified person to act for and in the name of the person executing it.
Perhaps the most precise meaning of Power of Attorney is found in the Indian Contract Act of 1872. The law of Agency governs the principles of Power of Attorney. Section 182 elaborates on the definition of agent and principal.
The act further defines and explains the duties and rights of an agent and its authority, including the various types of authority.
The Indian Stamps Act, 1889 defines it “any instrument empowering any specified person to act for and in the name of the person executing it.”
Despite being in practice, the power of attorney is not a valid instrument to conduct a valid sale deed.
A sale deed executed between a buyer and the seller involves payment of Registration Fees and Stamp Duty by the buyer and Capital Gains Tax by the seller. However, if the transaction is done through power of attorney, these charges can be avoided as the transaction is legally not completed and the seller is still considered as the buyer. This is the reason why this practice is very much in vogue all over India as it offers the monetary benefits to both the buyer and the seller. Though officially there is no transfer of title, both parties agree to such a practice for this monetary gain.
Taking exception to this practice, the Supreme Court in Suraj Lamp & Industries Pvt. Ltd. Vs State of Haryana & Anr (2011) held that power of attorney is not a legal instrument of transfer of immovable property concerning its right, title, and interest as any sale deed executed through a power of attorney i is an incomplete transfer where the rights of the property would still belong to the original owner.
The Supreme Court also ordered the municipal authorities not to register and mutate properties based on such documents. However genuine transactions through general Power OF Attorney were kept out of the purview of the judgement.
This is the legal position but needless to say the practice is still very much in vogue all over the country.
The Act provides wide discretionary authority on the courts to award damages as a general rule and grant specific performance as an exception. It is thus a codification in relation to grant of relief for specific non-performance.
This means that the provisions of the act are attracted when a contract has not been performed. The aggrieved party is liberty under this act to seek judicial intervention, compelling the performance of a contract. This is known as specific performance. However, instead of performance, the party can also ask for monetary compensation.
Thus, the provisions of the act entitle a person in the recovery of property, specific performance of a contract, the rectification of instruments, rescinding of contracts, and cancellation of instruments. All these issues attract the provisions of the act, whenever there is a failure in the performance of the act.
Before the 2018 amendment, the remedy of specific performance was not available to the aggrieved party as a matter of right. The Court applied its discretion. Now, the courts are bound to enforce performance as promised or specified in the contract as a rule, with limited exceptions.
Chapter I of the Act deals with recovering possession of the property. Any person dispossessed of his movable or immovable property may seek relief for possession of the same under the provisions of this act.
However, there are 2 limitations – the appeal has to be made within 6 months of dispossession and no suit can be preferred against the Government.
Section 7 of the act entitles to the possession of a specific movable property in the manner as provided in the Code of Civil Procedure, 1908. Trustees are also allowed to sue, claiming possession.
Section 8 compels a person in possession or control of a particular article of movable property, not being the owner to deliver it to the person entitled for his immediate possession, provided that the defendant is the agent or trustee of the plaintiff, when monetary compensation would not provide adequate compensation when the actual damage caused is difficult to find out and when the article has been wrongfully transferred from the plaintiff.
As discussed, the Power of Attorney is a legal instrument that empowers an individual (agent, attorney, or donee) to act for and in the name of another person (principal or doner) who executes the instrument. The mechanism helps people, who are unable to execute legal acts or proceedings on account of their physical unavailability, to get such jobs done through another person. The provisions relating to the Power of Attorney need to be governed by the Power of Attorney Act, 1882.
If the agent/attorney/donee fails to perform the duties assigned to him by the principal or doner he is said to have breached the contract of Power of Attorney. The Principal can then sue the agent under the Specific Relief Act, 1963 for the performance of the specific duty which the second party has failed to perform. Thus by providing a remedy, the Specific Relief Act, 1963, complements the Power of Attorney Act, 1882, and comes to the aid of the Principal, when the agent fails to execute his duties and responsibilities as stipulated in the Power of Attorney.
