35. When rescission may be
adjudged.
36. Rescission for mistake.
37. Alternative prayer for
rescission in suit for specific
performance.
38. Court may require party
rescinding to do equity.
Details :
35. When rescission may be
adjudged .– Any person interested
in a contract in writing[32] may
sue to have it rescinded, and such
rescission may be adjudged by the
Court in any of the following
cases, namely:-
(a) where the contract is voidable
or terminable by the plaintiff;
(b) where the contract is unlawful
for causes not apparent on its
face, and the defendant is more to
blame than the plaintiff;
(c) where a decree for specific
performance of a contract of sale,
or of a contract to take a lease,
has been made, and the purchaser
or lessee makes default in
payment of the purchase-money
or other sums which the Court
has ordered him to pay.
When the purchaser or lessee is in
possession of the subject-matter,
and the Court finds that such
possession is wrongful, the Court
may also order him to pay to the
vendor or lessor the rents and
profits, if any, received by him as
such possessor.
In the same case, the Court may,
by order in the suit in which the
decree has been made and not
complied with, rescind the
contract, either so far as regards
the party in default, or altogether
as the justice of the case may
require.
Illustrations
to (a)–
A sells a field to B. There is a right
of way over the field of which A
has direct personal knowledge,
but which he conceals from B. B is
entitled to have the contract
rescinded.
to (b)–
A, an Attorney, induces his client
B, a Hindu widow, to transfer
property to him for the purpose of
defrauding B’s creditors. Here the
parties are not equally in fault,
and B is entitled to have the
instrument of transfer rescinded.
36. Rescission for mistake .–
Rescission of a contract in writing
[33] cannot be adjudged for mere
mistake, unless the party against
whom it is adjudged can be
restored to substantially the same
position as if the contract had not
been made.
37. Alternative prayer for
rescission in suit for specific
performance.– A plaintiff
instituting a suit for the specific
performance of a contract in
writing may pray in the alternative
that, if 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rescinded and delivered up to be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 it to be
rescinded and delivered up
accordingly.
38. 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.
adjudged.
36. Rescission for mistake.
37. Alternative prayer for
rescission in suit for specific
performance.
38. Court may require party
rescinding to do equity.
Details :
35. When rescission may be
adjudged .– Any person interested
in a contract in writing[32] may
sue to have it rescinded, and such
rescission may be adjudged by the
Court in any of the following
cases, namely:-
(a) where the contract is voidable
or terminable by the plaintiff;
(b) where the contract is unlawful
for causes not apparent on its
face, and the defendant is more to
blame than the plaintiff;
(c) where a decree for specific
performance of a contract of sale,
or of a contract to take a lease,
has been made, and the purchaser
or lessee makes default in
payment of the purchase-money
or other sums which the Court
has ordered him to pay.
When the purchaser or lessee is in
possession of the subject-matter,
and the Court finds that such
possession is wrongful, the Court
may also order him to pay to the
vendor or lessor the rents and
profits, if any, received by him as
such possessor.
In the same case, the Court may,
by order in the suit in which the
decree has been made and not
complied with, rescind the
contract, either so far as regards
the party in default, or altogether
as the justice of the case may
require.
Illustrations
to (a)–
A sells a field to B. There is a right
of way over the field of which A
has direct personal knowledge,
but which he conceals from B. B is
entitled to have the contract
rescinded.
to (b)–
A, an Attorney, induces his client
B, a Hindu widow, to transfer
property to him for the purpose of
defrauding B’s creditors. Here the
parties are not equally in fault,
and B is entitled to have the
instrument of transfer rescinded.
36. Rescission for mistake .–
Rescission of a contract in writing
[33] cannot be adjudged for mere
mistake, unless the party against
whom it is adjudged can be
restored to substantially the same
position as if the contract had not
been made.
37. Alternative prayer for
rescission in suit for specific
performance.– A plaintiff
instituting a suit for the specific
performance of a contract in
writing may pray in the alternative
that, if 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 it to be
rescinded and delivered up
accordingly.
38. 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.
