Pre-2018, specific performance was a discretionary remedy in India — courts awarded damages by default and granted specific enforcement only in exceptional cases. The Specific Relief (Amendment) Act 2018 inverted that. Specific performance is now the default remedy. For commercial contracts, this changes the strategic calculus of breach.
The original Specific Relief Act 1963 made specific performance discretionary: Section 10 said the court 'may' grant it; Section 14 enumerated cases where SP couldn't be granted (personal services, contracts requiring continuous supervision, certain construction matters); Section 20 grounded discretion in equity, reasonableness and hardship. Result: in contested cases, courts routinely declined SP and awarded damages. Buyer of land got compensated; seller kept the property. Service contracts were almost never enforced.
Section 10 (substituted): specific performance 'shall' be enforced — subject only to Sections 11, 14, and 16. The discretion is gone. The new mandate makes SP the default remedy for breach of contracts for sale of property, services that can be objectively performed, and supply contracts.
A breakthrough provision. Where the contract is breached and the other party has not obtained specific performance, that party may by notice get the contract performed through a third party — at the cost of the breaching party. The most powerful new tool in the toolkit. Example: a contractor abandons a partially-completed construction; you hire an alternative contractor; you recover the cost differential from the original.
Where specific performance is ordered, the court can appoint one or more experts to assist in proper execution. For complex performances — technical builds, software delivery, intellectual property handovers — this addresses the historical concern that courts couldn't supervise enforcement.
- Contracts where compensation is adequate (rare under the new framework).
- Contracts dependent on personal qualifications of parties.
- Contracts of perpetual nature.
- Contracts revocable at will.
Specific performance orders trend — pre/post 2018 (illustrative)
Indicative trajectory based on reported commercial-court decisions. Methodology varies between courts; the directional shift is consistent.
For B2B contracts post-2018: supply contract default — SP can compel delivery, not just damages. Real estate transaction — SP is now routinely granted to buyer or seller. Service contracts (non-personal) — SP available. Software or IP licence breach — SP available. The damages calculation isn't gone, but there's now a parallel remedy that often produces better commercial outcomes.
- Specify whether SP is available (and not just damages) on breach.
- Include a substituted performance clause specifying the notice period.
- Identify objective performance criteria so SP eligibility is clear.
- Specify the forum — courts and arbitrators can now grant SP in India.
Where pre-2018 a breach led to a damages negotiation, post-2018 it can lead to a court-ordered performance — or third-party performance funded by the breaching party. Most lawyers haven't recalibrated. Counterparties who breach assuming damages will be the worst-case scenario are increasingly finding themselves staring at specific enforcement orders. The strategic value of contract enforcement has grown materially. Most contracts haven't.