Q. What are the cases where rescission of a contract may be adjudged. (2002) (2004)

[vustudents]

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1. Introduction:
Rescission is an equitable remedy which is converse to that of specific performance. it is a right which a party to transaction sometimes has to set the which a party to transaction sometimes has to set the transaction aside and restored to his former position. when a innocent part who has become the victim of the transaction can challenge the contract in order to avoid it.
2. Relevant Provisions:
Sec. 25 to 38 specific relief act.
3. Meaning of recission:
Recission means to avoid the contract or withdrawal or revocation.
4. Nature of recission:
Recission is not strictly a judicial remedy but the act of the party to rescind while adjuding rescission of contract the court is concerned with the question whether the person rescinding the contract was justified in doing so.
5. Application:
Recission is not applicable to the contracts which are void but contracts which are voidable.
6. Grounds for recission:
(i) Voidability
(ii) Mistaken of law
(iii) Mistake of fact.
(iv) Constructive fraud.
(v) Fraudulent misrepresentation.
7. Cases when rescission is adjudged:
Following are the cases when rescission is adjudged.
I. Where the contracts is voidable or terminable by the plaintiff:
Where the contract is voidable or terminable by the plaintiff, the rescission is adjudged.
Illustration:
A sells a field to B. there is a right of way over the field of which A has direct personal knowledge but which fact the conceals from B in this case B right to contract rescinded.
II. Where the contract is unlawful for causes not apparent on its face and the plaintiff is more to blame than the plaintiff:
Where such unlawfulness arises, the party can rescined the contract.
Illustration:
A, an attorney induces his client B a Hindu widow to transfer property to him for purpose of defrauding B, s creditors. here the blame lies on A. B can get rescission of the contract.
III. Default in the payment:
Where a court passes a decree for specific performance of a contract of sale or of a lease and the perform his part i.e makes default in the payment of purchase money or that of lease the vendor or lessor may sue for rescission of the contract.
Case law
1998 M.L.D 1771
it was held after execution of lease of immoution property a valuable right is created in favour of transferee which cannot be taken away by a unilateral act of cancellation in case of delivery of physical possession and approval of building plan in favour of lessee it can not be cancelled without the intervention of court of law.
IV. Alternative prayer for recission:
A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, it 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 to be rescinded and delivered up accordingly.
8. Court may require party rescinding to do equity:
On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require.
9. Effect of recission:
Its effect of rescission is restoration of the plaintiff to his original position as if the contract had not been made.
10. Scope:
Specific relief act is an adjective law and substantive law is to be looked for elsewhere it presents a codification of principles derived form long series of precedents and pactices of English court of equity. in sec 35 the procedure for rescission of contract have been described for written contracts it applies to both vender and vendee. any one of such party may move the court by motion in the action for an order for putting an end of contract.
11. Conclusion:
To conclude i can say that when the contract is required by law to be couched in writing or has since been registered its recission or modification must be possible by another written agreement. rescission may be adjudge where the contract is voidable terminable by the plaintiff unlawful for the causes not apparent on its face and when there is alternative prayer of rescission.

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