(v) Where the Builder / Developer or any other Seller of any immovable property is evading in performing his part of the Contract, thereby seriously prejudicing the interests of the Purchaser, the Purchaser, may by filing a Suit / Arbitration, seeks the Specific performance of the Contract, and
(a) cause the said defaulting Builder / Developer to perform his part of the contract; and
(b) may also seek damages in addition to Specific performance; or
(c) may seek damages in lieu of Specific performance; and
(d) can also seek additional damages for breach of Contract.
(e) The party enforcing specific performance of the contract, by virtue of section 29 of the Specific Relief Act, in the alternative of specific performance, may seek rescission (cancellation) of the contract, in case the specific performance is refused by the court.
Where despite a decree for specific performance, the purchaser fails to pay the purchase money, or any other sum which the court has ordered him to pay, the Builder / Developer, by aid of section 28 of the Specific Relief Act, may apply in the same Suit to declare the contract rescinded / cancelled.
In cases where the dispute relating to immovable properties has attributes of commercial transaction, then, the Suit of Specific performance stated hereinbefore, or any other Suit, may be filed before the Commercial Courts / Division. In order to ensure speedy disposal of disputes which arises from commercial transactions involving high value, the Parliament of India has come out with a unique legislation namely, The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015; wherein Commercial Courts / Divisions are to be constituted in the existing district Courts and in High Courts; and wherein disputes arising from specified commercial dealings involving claim of Rs.1.00 Crore or above would be adjudicated by these newly constituted commercial Courts / Divisions.
And accordingly, the Code of Civil Procedure, 1908, is substantially amended, wherein new Order XIII-A (Provides for Summary Judgment) and XV-A (Provides for Case Management Hearing) are inserted, apart from new Order XI, Sections 35 for costs, Verification of Pleadings as contained in Order VI Rule 15A, Order VIII which prescribes the time limit within which the Written Statement must be filed, failing which the Defendant loses his right to file his Defense.
Among other things, the outstanding feature of adjudication by these newly constituted Commercial Courts / Division is that, the powers of these Courts to adjudicate commercial disputes before them in a Summary fashion, without formal leading of evidences, and also provides for the time bound disposal of these cases.
The other outstanding feature of this new law is, the manner in which the pleadings are to be filed by both the litigating parties; and thereby Order VI Rule 15A of CPC, 1908, inter alia, provides the strict manner in which the Verification of pleading is to be done by both the litigating parties. The profound object of Verification of Pleading is to prevent or cease frivolous claims and meritless defenses, and thus this newly inserted Order VI Rule 15A makes a solid ground to discourage frivolous claims and meritless defenses.
It is expressly provided in the definition of Commercial dispute u/s 2(1)(c) of the said Act, that a commercial dispute (a) involving the recovery of immovable property; or (b) involving the realization of Monies out of immovable property which were given as security; or (c) involving any other relief pertaining to immovable property, may still be considered as a “commercial dispute”, and may be adjudicated under this special jurisdiction.
Further, these newly constituted Commercial Courts / Division would also have the jurisdiction to adjudicate upon Arbitration Applications which arises in the backdrop of Arbitration proceedings, but of course the Arbitration proceedings must be relating to commercial dispute and involves a claim of Rs.1.00 Crore or above.