Can the following contracts be specifically enforced: (i) contract to execute mortgage; (ii) contract to lend money; (iii) contract to construct building; (iv) contract to translate book; (v) hotel accommodation contract?

Specific Enforceability of Five Contracts

The question of whether a contract can be specifically enforced turns, after the Specific Relief (Amendment) Act, 2018, not on whether damages are adequate, but on whether the contract falls outside the bars of sections 14 and 16. Section 10 now mandates specific performance — it is no longer a matter of discretion. Yet this mandate operates against the backdrop of certain enduring principles, and each of the five contracts in question occupies a distinct position in that landscape.

Contract to Execute a Mortgage

This is the most nuanced of the five. The foundational rule, long settled by the courts, is that a contract to execute a mortgage is not, as a general rule, specifically enforceable. The rationale historically was that damages would be an adequate remedy in such cases. However, the courts carved out a significant and important exception. As the Privy Council held in Jewan Lal Daga v. Nilmani Chaudhuri (AIR 1928 PC 80), where the lender has already advanced the money — in whole or in part — and the borrower refuses to execute the mortgage, specific performance can be decreed, provided the borrower is not willing to immediately repay the loan. The principle is straightforward: the lender who has parted with funds should not be left without security when he bargained for it. Where only part of the loan has been advanced, the lender must demonstrate readiness and willingness to advance the remainder.

Following the 2018 Amendment, with the removal of section 14(3) of the unamended Act, the earlier sub-clause that expressly dealt with mortgage agreements no longer restricts enforceability. A suit to enforce a contract to execute a mortgage is now maintainable as long as it meets the conditions of sections 10, 11, 14 and 16 of the Act. A bare agreement to mortgage — where no money has yet been advanced — remains difficult to enforce, since its breach ordinarily sounds in damages. But where money has moved, the agreement stands on firm ground.

Contract to Lend Money

A contract to lend money cannot be specifically enforced — this is a rule of long standing, recognised by the courts and codified in the unamended Act. The reason is plain: money is fungible. If a lender refuses to advance the promised loan, the borrower can ordinarily seek funds elsewhere, and any loss arising from the breach can be measured and compensated in money. As has been observed, the principle on which equity refuses to specifically enforce an agreement to lend or mortgage is that damages would be an adequate remedy in such cases.

Where money promised as a loan by a mortgagee is not advanced in full, the mortgagor is entitled to recover damages for non-payment, but he cannot sue for specific performance of the agreement to lend the full sum promised. The distinction between a contract to lend (executory on the lender's side) and a contract to execute a mortgage after the loan has been advanced (where the lender's side has already been performed) is crucial — the former remains unenforceable by way of specific performance; the latter may be enforced.

Contract to Construct a Building

A building contract is ordinarily not specifically enforceable. The court does not enforce specific performance of contracts which involve continuous acts and require the watching and supervision of the court. A contract to build or repair a structure falls squarely within this category, as affirmed in Zeebunnissa v. Danagher (AIR 1936 Mad 564). Compelling a contractor to construct under court supervision — with the court called upon to adjudicate every dispute about materials, workmanship and progress — is simply not a role the court can practically discharge.

However, the law recognises a well-defined exception. Specific performance of a building contract may be decreed if three cumulative conditions are satisfied: (i) the building work is sufficiently defined by the contract, enabling the court to know exactly what has to be done; (ii) the plaintiff has a substantial interest in performance that cannot be adequately compensated in damages; and (iii) the defendant has, by virtue of the contract, obtained possession of the land on which the work is to be done. These conditions are codified in section 14(3)(c) of the unamended Act and continue to inform the law post-amendment. The court in KM Jaina Beevi v. MK Govindaswami (AIR 1967 Mad 369) granted specific performance of a building contract where, by the time of the appeal, the construction was practically complete — a practical recognition that the supervision difficulty had dissolved.

Contract to Translate a Book

A contract to translate a book belongs to the class of contracts involving personal service and the exercise of skill and individual judgment. Such contracts are not specifically enforceable. Translation is not a mechanical act — it requires the translator's literary sensibility, linguistic command, and interpretive choices. Courts will not compel a person to render creative intellectual labour; to do so would be to press them into a form of forced personal service that equity consistently refuses.

Furthermore, the performance of such a contract would require the court to supervise the quality and faithfulness of the translation — an indefinite succession of rulings on creative choices — which is precisely the kind of unsupervisable continuous duty that the law excludes from the domain of specific performance. The plaintiff's remedy in such a case lies in damages for the loss caused by non-performance, including loss of opportunity or profit, as the court observed in Joseph v. National Magazine Co. Ltd. (1958 3 All ER 52), where specific performance was refused for similar reasons while damages remained available.

Hotel Accommodation Contract

A contract for hotel accommodation is also not specifically enforceable. The roots of this rule lie in the concept of the contract being determinable in nature, and involving the provision of personal services that require ongoing supervision. A hotel's obligation to accommodate a guest involves continuous duties — housekeeping, service, maintenance of facilities — all of which require constant monitoring that a court cannot undertake. In Krishnarao Hampanna Lokray v. Patvekar Hotels Pvt. Ltd. (2016 5 Mah LJ 648), the court declined specific performance in a contract involving hotel premises, reflecting the principle that contracts for hospitality and occupation do not lend themselves to enforcement in specie.

Moreover, such contracts are typically determinable at the will of one party or by notice — a feature that, under the continuing thrust of section 14, makes specific enforcement unavailable. The party aggrieved by the cancellation of hotel accommodation must ordinarily seek compensation in damages, which is an adequate and calculable remedy in such cases.

In Summary, the position can be stated compactly: