SYNOPSIS

ON

LAW RELATING TO SPECIFIC RELIEF IN INDIA

INTRODUCTION

 History of Specific Relief Act, 1963-

In India, the common law doctrine of equity had traditionally been followed even after it
became independent in 1947. However it was in 1963 that the ―Specific Relief Act‖ was
passed by the Parliament of India following the recommendation of the Law Commission of
India in its ninth report on the act, the specific relief bill 1962 was introduced in Lok Sabha in
June 1962 and repealing the earlier ―Specific Relief Act‖ of 1877.

 Developed in England by Equity Courts

 In England, before the invent of Specific Relief, the only remedy was that of ‗damages‘
under which the party in breach need not to perform the promise

 Sometimes, the damages would prove to be insufficient

 So, in order to obviate such hardships, the Equity Court developed certain reliefs called

‗Specific Relief‘

 Originally drafted upon the lines of the draft New York Civil Code, 1862

 passed in 1877

 Amended by Acts of 1882, 1891, 1899, 1929, 1940, 1951, and was repealed in 1963

 Embodies the doctrines evolved by the English Equity Courts

 Principles of Equity, Justice & Good Conscience

 Required to be pleaded specifically to be enforced

 In the event of situation not covered under the 1963 Act, the Indian Courts can exercise their
inherent powers in term of Sec. 151 of C.P.C.

 Meaning of specific performance

Laws fall into three categories.—

 Those which define Rights.

 Those which define Remedies.

 Those which define Procedure.

The Law of Specific Relief belongs to the second category. It is a law which deals
with

‗Remedies‘.

The expression Specific Relief means a relief in specie. It is a remedy which aims at exact
fulfillment of an obligation. The suit under Specific Relief Act may be brought to compel the
performance of the contract by the person in default. Such relief may be either positive or
negative. It is positive when a claim to the performance of it and negative when it is desired
to prevent the doing of thing enjoined or undertaken as not to be done.

The Specific Relief Act explains and enunciates the various reliefs which can be granted
under its provisions, provides the law with respect to them. It provides for the exact
fulfilment of the obligation or the specific performance of contract. It is directed to the
obtaining of the very thing which a person is deprived of and ought to be entitled to ask for. It
is a remedy by which party to a contract is compelled to do or omits the very acts which he
has undertaken to do or omit. The remedies which has been administered by Civil Courts of
Justice against any wrong or injury fall broadly into two classes,

(i) those by which the suitor obtains the very thing to which he is entitled, and
(ii) those by which he obtains not that very thing, but compensation for the loss of it.

• The former is the specific relief. Thus specific relief is a remedy which aims at the exact
fulfilment of an obligation. It is remedial when the court directs the specific performance of
contract and protective when the court makes a declaration or grants an injunction.

Reliefs regarding possession of movable and immovable property

 Immovable Property-

Section 5 of the Specific Relief Act deals with the recovery of specific immovable
property.

Recovery of specific immovable property.—A person entitled to the possession of specific

immovable property may recover it in the manner provided by the Code of Civil Procedure,
1908 (5 of 1908).

The section in simple words provides that any person who is lawful owner of immovable
property can get the possession of such property by due course of law. It means that when a
person is entitled to the possession of specific immovable property he can recover the same
by filing the suit as per provisions of CPC. He may file suit for ejectment on the strength of
his title and can get a decree for ejectment on the basis of title within 12 years of the date of
possession. Section 5 of the Act declares that in a suit for recovery of immovable
property by person
‗entitled to‘ provisions Order XXI, Rule 35 and 36 of CPC would apply.

There are three types of actions which can be brought in law for the recovery of specific
immovable property:

a) A suit based on title by ownership;

 b) A suit based on possessory title;

c) A suit based merely on the previous possession of the plaintiff where he has been
dispossessed without his consent otherwise than in due course of law.

The last remedy is provided in Section 6 of the Act. The suits of the first two types can be
filed under the provisions of CPC.

The word ‗entitled to possession‘ means having a legal right to title to possession on the
basis of ownership of which the claimant has been dispossessed. Plaintiff must show that he
had possession before the alleged trespasser got possession. In Ismail Ariff v. Mohammed
Ghouse, the Privy Council held, ―the possession of the plaintiff was sufficient evidence a
title of owner against the defendant by section 6 of the Specific Relief Act, 1962, if the
plaintiff has been dispossessed otherwise than in due course of law.‖ there may be title by
contract, and prescription or even by possession and the last will prevail where no preferable
title is shown.

Section 6 Suit by person dispossessed of immovable property.—

1. If any person is dispossessed without his consent of immovable property otherwise than in
due course of law, he or any person claiming through him may, by suit, recover possession
thereof, notwithstanding any other title that may be set up in such suit.
2. No suit under this section shall be brought—

a. after the expiry of six months from the date of dispossession; or

b. against the Government.

3. No appeal shall lie from any order or decree passed in any suit instituted under this section,
nor shall any review of any such order or decree be allowed.
4. Nothing in this section shall bar any person from suing to establish his title to such property
and to recover possession thereof.

The main object of Section 6 is to discourage forcible dispossession on the principle that
disputed rights are to be decided by due process of law and no one should be allowed to take
law into his own hands, however good his title may be. Section 6 provides summary remedy
through the medium of Civil Courts for the restoration of possession to a party dispossessed
 by another within 6 months of its dispossession leaving them to fight out the question of their
respective title in a competent Court if they are so advised.

The object of this section appears to have been to give special remedy to the party illegally
dispossessed by depriving the dispossessor of the privilege proving a better title to the land in
dispute. Section 6 should be read as part of the Limitation Act and its object to put an
additional restraint upon illegal dispossession with a view to prevent the applicant of that
dispossession, from getting rid of the operation of the Act by his unlawful conduct. If the suit
is brought within the period prescribed by that Section, even the right of the land is precluded
from showing his title.

Difference between section 5 and 6-

 Movable Property-

Section 7 - Recovery of specific movable property —A person entitled to the possession of

specific movable property may recover it in the manner provided by the Code of Civil
Procedure, 1908.

Explanation 1.—A trustee may sue under this section for the possession of movable property
to the beneficial interest in which the person for whom he is trustee is entitled.

Explanation 2.—A special or temporary right to the present possession of movable property
is sufficient to support a suit under this section.

Property of every description except immovable property is movable property. Example:

Government Securities, share certificates are movable property but not money. For
application of the section it must be specific i.e. ascertained and ascertainable capable of
being seized and delivered. The remedy of recovery of specific movable property means the
property itself and not its equivalent.

Section 7 provides for the recovery of movable property in specie i.e. the things itself. The
things to be recovered must be specific in the sense they are ascertained and capable of
identification. The nature of things must continue without alteration.

Section 7 and 8 embody the English Rules as to detinue. An action in detinue would lie only
for some specific article of movable property capable of being recovered in species and of
being seized and delivered up to the party entitled. A person can seek recovery of his
personal belongings under this section. The cases in which movable property can be
recovered in specie are given under Section 8. However if the goods have ceased to be
recoverable the remedy lies in compensation .

Who can sue under Sec 7-

To succeed under this section it is sufficient if the plaintiff seeking possession has a right to
present or immediate possession or by way of special or temporary right to present
possession
i.e. of a bailee, Pawnee, finder of lost goods. A trustee can sue under this section possession
of movable property to protect the beneficial interest of the beneficiary and it is not necessary
to make the beneficiaries, parties to the suit.

The concept of contract has been known to man since the dawn of human civilization.
Contract law is invariably used every day, in every manner of transaction be it large or small
every now and then. The growth of commercial and industrial culture, law of contract
acquired significance. Original contract law was designed to handle agreements that was
reached by persons knowing well to each another and in case of contract between person at a
distance, problems posed by contract formation was evolved over time, thus contract law
apparently developed to handle oral transactions were slowly replaced by written documents,
then telegraphic, and finally telephonic communications. It has handled those changes
amicably. In its present form, contract law can be traced back to the middle of the nineteenth
century. At that time, the new worlds of the telegraph and the railroad led to the adoption of
such novel doctrines as the law of consequential damages and the law of third-party
beneficiaries.

Sir Henry Maine in his first documented work on concept of contract named as ‘Ancient Law’
and according to it, in early societies, both static and progressive, the legal condition of the
individual was determined by status and the march of progressive societies witnessed the
dismantling of status and determination of the legal condition of the individual by free
negotiation on his part. This was expressed in the dictum, “The movement of progressive
societies has hitherto been a movement from status to contract”. 1 He also propositioned that
family was the unit of ancient society which in the present society shifted to individual. The
disintegration in the family system and end of the dependency on the pater familias hurled
emergence of contractual relations among individual. Further development in society brought
in different classification amongst persons based on their class. With this, there was change in
perception of one‘s rights and such rights varied from person to person based on their class or
status. Most of the times, transactions between persons were mainly based on trust, faith and
goodwill. The society was very simple and people carried on their transaction orally with
absolute belief in other person. Performance of one‘s role was considered as highest moral
conduct and society always appreciated such high moral conduct. On the other hand, non-
performance of one‘s role was considered as out of low morality. People believed in high
moral conduct and any person not showing such high moral conduct was looked down by
other members. Law gradually and accordingly recognized the individual as the sole subject
matter of rights and duties instead of pater familias which was previously the sole repository
of power.

Now coming to contracts, it is treated as right in personam. Generally, a contract is a promise

or a set or promises for the breach of which the law gives a remedy, or the performance of
which the law in some way recognizes as a duty. The correlation between contracts and title
has been described by Salmond as acts in the law ‘and whereas Paton described such relation
as juristic act. According to Paton, by juristic acts, legal persons create, modify, or destroy
rights and duties and there by affect legal persons.2

In the 1990s, however, things began to change. The period since then witnessed use of

1
As cited in Nancy S. Kim, “Two Alternate Visions of Contract Law in 2025”, 52 Duquesne Law Review 303-
321 (2014).
2
G.W. Paton, A Textbook of Jurisprudence, 4th Ed., Oxford University Press, London, 1972, p. 308.
computers by individuals. Presently, almost each and every home owns a personal computer
or laptop. In the developed world, the present generation cannot imagine life without
computers and internet. Presently, large chunk of population is fastened to social networking
sites (SNS), a future is about to come where in a baby of a year old will own an account on
social networking sites. Every departmental work is carried out online, either it may be
procurement contracts or announcing of exam results. Computers have invaded every aspects
of the human life and the impact has been so quick that it caught the institutions of law and
justice unprepared. The new developments in information and communication technologies
are posing challenges to the fundamental principles of law, which worked well before the
advent of this technology. The problems have been compounded by the introduction of World
Wide Web. The advent of the internet gave rise to two parallel developments, both of them
challenged the law of contract formation.

It may be safely presumed that in 1932, when contract law was codified in the First
Restatement to year 2000 when contract law saw a petite change. To say it in other words, a
person who could pass a contracts exam in 1932 may possibly pass the exam in year 2000. As
this period (1932 to 2000) did not witness any disruptive technology resulting law did not
have to respond to technological changes. But in the fast changing scenario since 2000,
contract law of yesteryears has not been able to handle changing social and economic
circumstances, changes that are occurring at an ever speed.

Increase in the use of computers initiated demand for software programs that were designed
for users commonly transferred by way of standard-form licenses were packaged with the
software and the consumer first paid for it and then it was made available to them.

There are two categories of contracts viz., unilateral and bilateral. Unilateral acts are those
where will or consent of one of the parties is essential where as in bilateral acts it is will or
consent of both parties is essential. These bilateral acts are called as agreements. These
bilateral acts between persons play very significant role in day today life. Swift changes in
information and communication technologies (ICT), influenced every walk of life and
contract law was not an exception. These developments in information and communication
technologies were used for commercial activities. Thus, law of contract is the base for
electronic transactions without there being any specific law to deal with e-contracts. The
basic principles of law of contract govern these electronic transactions. The pace of
development in information and communication technologies is aptly described by Cosmos
the villain in the movie Sneaker.3

Origin of Internet can be attributed to setup of joint venture of the Massachusetts‘s Institute
of Technology and the American Department of Defence Advance Research Project
Administration which was setup in September, 1969 as a source to establish continued
communication between remote computer resources in the event of war. The Advance
Research Projects Agency Network (ARPANET) connected 40 computers by a web of links
and lines. This network slowly grew and the Internet saw the light of the day. By 1981, over
200 computers were connected with each other around the world and now the figure runs into
millions and growing ever.4

In 1995, US Federal Networking Council5 defined Internet as follows:

‘Internet’ refers to the global information system that - (i) is logically linked together by a
globally unique address space based on the Internet Protocol (IP) or its subsequent
extensions/follow-ons; (ii) is able to support communications using the Transmission Control
Protocol/Internet Protocol (TCP/IP) suite or its subsequent extensions/follow-ons, and/or
other IP-compatible protocols; and (iii) provides, uses or makes accessible, either publicly or
privately, high level services layered on the communications and related infrastructure
described herein.6

Today’s internet is available to anyone with a computer and a telephone line or even on
mobile phone. This immense and invaluable power of information and communication has
been placed on an individual’s hand by internet. There has been significant increase in
internet usage over the last few years. There is definite surge in number of data packets
flowing through the internet. With gaining so much of popularity it is highly unlikely that this
trend will ever reverse.

The administration of the internet involves many people i.e. is not in the hands of any
individual, be it Government Corporation, University, NGO, firm or a person. In literal terms,
it is like a net in which hundreds of thousands of separate operators of computers and

3
Sneaker (Universal Studios, Sept. 11, 1992 US); as cited in Farooq Ahmad, Cyber Law In India, 2ndEd., New
Era Law Publications, Delhi, 2005, p. 4.
4
Pavan Duggal, Cyber Law - The Indian Perspective, Saakshar Law Publication, New Delhi, 2nd Ed., 2004, p. 1.
5
Known as FNC.
6
Alwyn Didar Singh, E-Commerce in India: Assessments and Strategies for the Developing World (New Delhi:
Lexis Nexis Buttersworth, 2008), at 7.
computer networks use common data transfer protocol to exchange information among
computers. It goes like a chain in which one computer is connected to another and that
computer to some another. This linking of computer in series over networks is commonly
known as internet in today’s parlance. It has quality of rapidly transmitting data or
communication with an automatic facility to change the route where transmission is not
possible due to damage or non-availability of links. Internet uses a language (common
communication protocol) called Internet Protocol (IP). The information available at any link
means information available to all connected with that link as there is no control unit or
central storage location and it is worthy to repeat here that any individual cannot control all
the information available.7

Internet and online services (new media services) is similar to the traditional media as it also
includes production oriented material such as music, audio, video, graphics, text and games.
It performs communication functions also like, messaging, conferencing, research and
conduct of commerce. However, it differs from the traditional media in two respects:

Firstly, internet and online services are communicated through digits (commonly called
digitized information). Digitization is the expression of the information in the computer
known language called binary language. Binary language has two characters, i. e., 0 and 1.
The great advantage of binary language is its overwhelming simplicity. The characters of
binary language known as bits ‘where initially expressed in combination and alteration of any
two distinct conditions. The presence of light and absence of light, a positive electrical charge
and negative electrical charge, the peak of a wave and trough of a wave, and many other
observable states of matter suffice to record and transmit information in binary language.
This binary language being only two characters makes it highly cumbersome medium of
expression.8

Secondly, there services are not one way but both ways i.e., they are interactive. The user has
a choice of the contents and time. He can also share his own information with other users
depending upon the service which may be one-on-one, chat or group conferencing or real
time basis.

Generally three methods are available for a user to access to internet. These are:
7
American Civil Liberties Union v. Johnson, United States District Court for the District of New Mexico, 4 F.
Supp. 2d 1029.
8
Farooq Ahmad, Cyber Law In India, 2nd Ed., New Era Law Publications, Delhi, 2005 p. 9.
 Direct Access: As the expression itself suggests, a user can be directly linked to internet
without any intermediary. Generally government offices, educational institutions, research
centres, libraries and even business establishments, corporations and companies maintain a
computer network linked directly. These establishments then issue an account number with a
secret key called password. The account number together with the password enables a user to
have an access directly to internet.

 Internet Service Provider: Service providers are generally commercial entities making
commercial use of internet by making available internet facility to general public in lieu of
the fee that an user has to pay. Service providers have direct access to internet and any
personal computer holder can have access to internet via direct link holder. It works just like
a home telephone without STD facility.

 Commercial Online Service: Commercial online service provides direct access to users
without any fee. However, the commercial online service provides extensive content of the
information within their proprietary networks. These services are commercial entities and
provide their own content to the user of their service.

The exchange of communication and retrieving of information on internet is possible through

many modes. However, these modes are constantly changing so an exhaustive list cannot be
expected. The popular methods of communication are grouped as follows:

 One to one communication (such as e-mail)

 One to many communication (such as listserv)

 Sharing of information data base(such as USENET news groups)

 Real time communication (such as internet relay chat)

 Real time remote computer utilization (such as telnet)

 Remote information retrieval (such as ftp, gopher and World Wide Web)

Parties on large scale began to use electronic means - the computer - to enter into bargained-
for relationships. Year ahead 2000 saw two electronic contracting statutes, the Electronic
Signatures in Global and National Commerce Act (“E-Sign”) 12 and the Uniform Electronic
Transactions Act (“UETA”) encouraged the certainty, businesses on internet started offering
contract terms on their websites, asking customers to consent to terms by clicking an icon, or
by not seeking express assent at all by presenting terms of use through hyperlink.15

Further description of the Internet as a shopping mall or supermarket, depicts the Internet as a
place where users can shop for goods, information and services. This description reveals the
commercial features of the Internet as a place to purchase goods and services. The Internet
can also be viewed as a telephone system for computers by which databases of information
can be downloaded by users, as if all the information existed in the users’ computers disk
drives.9

Electronic commerce is at the leading edge of the technological forces shaping the world
economy. These forces are related and mutually reinforcing: improvements in information
and communication technologies, globalization of markets and investment, and the shift to a
knowledge-based economy. Its potential was summed up more than a decade ago by the
Canada’s Minister of Revenue’s Advisory Committee on electronic commerce which stated
that electronic commerce:

“...represents the most radical force of change that nations have encountered since the
Industrial Revolution”.10

Since the opening of the Internet to commercial activities, the number of new Internet
companies that never before existed has increased dramatically and barriers to engage in
electronic commerce have progressively fallen for both buyers and sellers.11

Earlier forms of e-commerce were mostly custom-made, complex, expensive and the
province of large firms. Today, with a small investment, anyone can become a global
merchant and reach millions of consumers world-wide. What used to be business-to-business
transactions between known parties has become a complex web of commercial activities
which can involve vast numbers of individuals who may never actually meet. In this sense,
the Internet has done for electronic commerce what Henry Ford did for the automobile-
converted a luxury for the few into a relatively simple and inexpensive device for the many.12
9
Barry B. Sookman, Sookman: Computer, Internet and Electronic Commerce Law (Thomson Reuters Canada,
2010).
10
Electronic Commerce and Canada’s Tax Administration, A Report to the Minister of National Revenue from
the Minister’s Advisory Committee on Electronic Commerce, April 1998, Revenue Canada, as cited in
Sookman, Supra note 9.
11
Michael D. Scott, Scott on Information Technology, Vol. II, Chapter 8, 3rd ed. (USA: Aspen Publishers, 2007),
8.01.
12
The Economic and Social Impact of Electronic Commerce, OECD Publications, 1999
www.oecd.org/dataoecd/3/12/1944883.pdf (Last accessed 2 June, 2015).
 Question to be answered what is meant by electronic commerce? Is a phenomenon can be
explained further by separately understanding the two words “electronic” and “commerce”.

The term “electronic” can be taken to refer to the global infrastructure of computer and
telecommunication technologies and networks upon which the processing and transmission of
digitized data takes place.13 There are two types of networks:

(1) Private and proprietary networks such as electronic data interchange, on which electronic
transactions have been commonplace for several decades,

(2) Open networks with non-proprietary protocols, such as the Internet.

The difference is that proprietary networks are operated for specifically defined purposes and
managed exclusively for the designated participants, whereas non-proprietary ones enjoy a
more decentralized architecture. The Internet, for example, allows communications and
transactions to take place over an open network, between a potentially unlimited numbers of
participants who may have had no pre-existing contacts. It is the open nature of Internet,
along with its multifunctional character and increasingly low-cost access, which has released
its potential for electronic commerce.

The word “commerce” in the context of e-commerce refers to an expanding array of activities
taking place on the open networks-buying selling, trading, advertising and transactions of all
kinds that lead to an exchange of value between two parties. Some common examples include
online auctions, banking and other financial services, sales of software, and an ever-
increasing diversity of Internet sites offering a broad range of consumer goods or services.
Any business offering goods or services on the Internet need not target a specific
geographical market. The establishment of a commercial Web site can provide even a small
business with access to worldwide markets via the Internet.14

The term e-commerce is used loosely to describe almost all commercial activities that are
performed online. The term “e-commerce” seems to have been coined in the mid-1990s when
the Internet had just begun to capture the attention of a larger public. 15 Over the years some
13
Primer on Electronic Commerce and Intellectual Property Issues (Geneva: World Intellectual Property
Organization (WIPO) Publications, 2000). 3, <http://www.ictdevlibrar.org/downloads/ 01WIPOprimerintro.pdf
(Last accessed 2 June, 2015).
14
Ibid.
15
One of the first uses of the term E-commerce appeared in Sam Whitmore’s in U.S. Encryption Policy Hurting
E-Commerce, PC Week, December 5, 1994, at 81 as cited in Jane K. Winn and Benjamin Wright, Law of
Electronic Commerce, 4th Ed. (New York: Wolters Kluwer business, 2010), 1.02.
consensus has emerged over the advantages, disadvantages, impact and ramifications of e-
commerce, but there is still no universally accepted definition of the term. The reason for this
can be traced to the dynamic nature of internet market place, where the participants are
numerous and their intricate relationships evolve rapidly.16

Keeping in consideration the above background and moving ahead with the topic, it can be
said that technology has over passed living style of man. It is not same as paper or traditional
contract. The validity of e-contract is similar that to paper contract. There was time where in
contracts were entered through exchanges of letters. Now the situation is changed, contracts
are being entered through various electronic communication. It was Entores Ltd. v. Miles Far
East Corporation17, which recognized contracts made through instantaneous mode of
communication. The principle of the Entores case has been endorsed by the Supreme Court in
Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas & Co18. E-contract are
attributed in Sections 10A, 11, 12 and 13 of Information Technology Act, 2000. These
sections state about attribution of electronic records, acknowledgement of receipt and time &
place of dispatch and receipt of electronic record. Here it can be mentioned that provisions of
the Information Technology Act, 2000 do not specifically speak about e-contracts. Rather
they merely lay down provisions for transfer of electronic records. This absence of provisions
relating to e-contracts in the Information Technology Act, 2000 has prompted for this
research.

1.1 Problem of Study

It is argued that legal enforceability of electronic contracts is open to challenge and legal
jurisdiction of electronic contracts is nascent. The jurisdiction of e-commerce transactions is
also not clarified. There is no explicit provision for dual-key pairs for individuals and
businesses which can create some difficulties for confidentiality of e-transactions. Legal
enforceability of electronic contracts involving international parties is also not defined.

In cyber space assessing where a potential customer is merely nine years or ninety old proves
to be difficult for on-line merchant resulting in two complications. Firstly, because the sale of
certain goods and content to minor is unlawful, such as alcohol and pornography, for

16
Subhajit Basu, Global Perspective on E-commerce Taxation Law (Cornwall, Great Britain: Ashgate
Publishing Company, 2007), 14.
17
(1955) 2 AllER 493
18
AIR 1966 SC 543
example. Website owners might find themselves liable to civil or criminal sanction, if they do
not ensure that their consumer are adult or minor with the aid of adequate security measures.
Secondly, Indian law stipulates that contracts made by minors for things other than necessities
are void and although these contracts are unenforceable against the minor they are
enforceable against the merchant. Thus on-line companies have to fulfill their contractual
obligations but have title remedy if the minor defaults on payment.

In the context of e-commerce, intent normally automatically exists as it usually involves

commercial contracts. A possible exception, however, is where an unclear or possibly
deceptive website induces a consumer into making an unwanted contract. In commercial
transaction on-line, consideration will not figure as a problem but a complication may arise
where a website requires a customer to agree to certain terms and conditions before
delivering a digitized service as in the case of “click-wrap” agreements. In this respect it is
very important it that the purchaser is major and generally the purchaser is needed to confirm
detail of his age in the website which is commitment of his behalf. Minors, under the law
would include any one under the age of 18.

As parties to online contract rarely meet, the establishment and acceptance of the identities of
such parties involved is a core issue that is at the heart of e-commerce. Such issues of
mistaken identity can easily occur in a medium such as the computer. The global and
borderless nature of electronic commerce means that contracting parties and customers are
likely to be from any part of the world resulting in jurisdictional issues relating to contractual
disputes being inevitable. Thus it is necessary to keep in mind the distinction at the same time
innate similarity, between contractual relationships in the real and the virtual world.

It is generally accepted that both natural persons and legal persons are capable of entering
contracts. Computers are clearly not natural persons and neither American nor English
contract law, at present, deem them to be legal persons. Computers, therefore, are not capable
of being parties to contracts. In our scenario, both the buyer and the seller are natural persons,
and consequently, are capable of being parties to the transaction. The autonomous computer,
however, clearly cannot be a contractual party as the law now stands.

An agreement is a consensus ad idem - a meeting of minds. According to our definition, the

minds in question have to be the minds of the parties to the agreement. In our scenario, can it
be said that there is a meeting of the parties' minds in any meaningful sense? In both
American and English contract law, the normal analytical tool used to test for such a meeting
of minds is that of offer and acceptance. To be precise, the key question that the court must
answer is, "what was the mechanism for offer and acceptance? What, therefore, constitutes
an offer? It is, a communication by an offeror addressed to an offeree where: (1) the
words or conduct used are detailed and certain enough to be capable of forming an agreement
by the mere fact of acceptance; and (2) the words or conduct, when objectively interpreted,
evince an intention to be bound by mere acceptance.

If the document is shown to be authentic, the next query for the adducer is to look into
whether it constitutes ‘primary evidence’19 or ‘secondary evidence’.20 Internet technology, as
with computer technology, at every stage of the transaction, transmits only a copy of the data
package. There no original. Primary evidence envisages the existence of a single original, and
this is an impossible proposition as regards computer documents. Since the glaring dangers of
“manufactured evidence” are inherent in computer documents, and the divisive benchmark
between primary and secondary evidence is the issue of original versus copy, presently,
computer evidence should not be regarded as primary evidence.21

Ordinary data records do not have a meaningful “original”, and certainly do not have an
original that is distinguishable from their display on a screen or by printout. (Neither is
“closer” to the electronic record than the other, any more than one printout is more original
than another from the same electronic data.) Second, those who transfer paper records to
electronic images often want to destroy the paper originals, to save storage costs. (They also
seek easier document management.) Some people worry that deliberate destruction of
originals may lose the sympathy of a court for presenting electronic images of them, because
the originals are not available as a result of a deliberate act of the party wanting to rely on the

19
Section 62, Evidence Act, 1872. It only restricts itself to the document in its original form.
20
Section 63, Evidence Act, 1872. The common thread running through the different types of secondary
evidence throughout sub-sections 1 to 5 are that they are not the original document, that is, they are all copies.
21
However, Indian law has not resolved the issue as to original versus copies. However, in the American case of
King v. State ex rel. Murdock Acceptance Corp., 222. So 2d. 393 (Miss., 1969), the issue was whether a printout
satisfied the requirement of being an original record. It was held that the printouts were admissible evidence of a
permanent record on magnetic tape (and therefore by analogy other primary storage devices such as floppy
disks, hard disks, compact discs, etc.) This was because of the obvious fact that records stored on magnetic tape
were unavailable and useless except by means of printouts.
The New Brunswick Evidence Act on Electronically Stored Documents, 1996 provides that a printout of
a document is admissible for all purposes, as is the original document if it is proved that the original document is
copied by a process of electronic imaging or similar process and is electronically stored in the course of an
established practice to keep a permanent record of the document. Additionally, it must be proved that the
original document no longer exists and that the printout is a true copy of the original document.
 record.22 Both these circumstances pose many questions of what is conventionally known as
the Best Evidence Rule in common law evidence law.

The conventional law relating to contract is not sufficient to address all the issues that arise in
electronic contract. Information Technology Act, 2000 solves some of the peculiar issues
which arise the formation and authentication of electronic contract. As early 19th century
standard forms emerged in the form of rail road tickets, insurance contract lottery tickets and
mail order sales contract. Again the introduction of the internet and electronic contract has
revolutionized the way business is translated around the world. Significant legal issues have
arisen as a result of applying traditional legal principles to a borderless and paperless
electronic environment.

1.2 Objective of the Study

The object of proposed study is limited to inquire and study of development of contract law
in India. The proposed study veers around and is connected with the issue relating to effect of
e-contract law on traditional law of contract. The main object of this research work is:

1. To trace out the origin, development and importance and general provisions of Indian
Contract Act.

2. To understand international developments concerning E-contracts.

3. To provide a review of international and national legislative framework for E-contract.

4. To study the effectiveness of E-contract and identify the legal issues related to identification
of contractual parties and attribution.

5. To explore the factors responsible for admissibility and authenticity of electronic evidence
(E-contract).

6. To find out the problems of jurisdiction in case of e-contract.

7. To understand how principles of traditional contract evolved in Indian context and can be
made applicable to E-contracts.

22
However, the Companies Act 1956 prescribes 8 years for the retention of original records of the books of
accounts by a company [Section 209(4)(A)]. Before destroying the originals, the person must check if he is
required by law to retain such records. After the expiration period, the electronic record’s validity may be
strengthened by such argument.
8. To understand adequacy of Information Technology Act, 2000 and Indian Contract Act, 1872
to deal with E-contracts in India.

9. To understand overall legal framework and issues likely to arise before Indian judiciary while
deciding disputes relating to e-contracts.

10. To understand whether same principle of law is applicable to E-contracts executed using
different mode of electronic communication.

1.3 Hypothesis

The traditional legal regime dealing with the Indian Contact Act, 1872 is insufficient to
address the new challenges posed by the electronic contract, a new legal regime is required to
tackle the problem. Therefore a fresh thinking over the existing law of contract and e-contract
law is the need of time.

1.4 Scope of the Study

E-commerce proposes brought new challenges to legal system. The present day Indian legal
framework is not in position to deal with these emerging issues. Hence, this research is
undertaken to study the possible issues concerning e-contracts in India. This research focuses
on the Indian laws mainly the Information Technology Act, 2000 and Indian Contract Act,
1872 for the regularization of electronic contract. Further, the scope of this research is limited
to studying the basic principles of Indian Contract Law focusing on electronic contract.

The study examines important international convention and treaties. It also examines
Information Technology Act, 2000 and its adequacy or inadequacy to deal with E-
contracts. Other related Indian legislations are analyzed only from perspective of E-contract.
Further, the study would also examine issues likely to counter Indian legal framework and
possible challenges before it.

1.5 Review of Literature

However, there is scant literature available on the present study, the research topic is relying
more on the policies of the Government and theories expounded by the renowned jurists, the
method adopted for the research is substantially doctrinal one. The research in question is to
derive its materials for its investigation from both primary and secondary resources. For the
analysis of law relating to E-contract primary resources such as, Information Technology Act,
2000, Indian Contract Act, 1972, Sale of Goods Act, 1930 have been considered. In addition
to these laws, the Model Law on Electronic Commerce, the United Nations Convention on
the Use of Electronic Communications in International Contracts, the United Nations
Convention on Contracts for the International Sale of Goods & UNCITRAL Model Law on
Electronic Signatures have been considered.

Apart from above primary resources the research is much relied on secondary resources. The
secondary resources like books including e-books, journals and study reports, seminar papers
have been used in this research. Even some Indian and foreign case laws have been examined
for this research. However, the laws concerned with e-commerce and allied laws of contract
have largely facilitated to understand crux of e-contract.

1.6 Research Methodology

For conducting this research work, researcher has adopted descriptive method to analysis and
examines the provisions of various enactment judicial decisions relating to these provisions.
The researcher has analyzed the documentary materials for the research work. This material
has been consulted in the form of secondary data for the purpose of analysis suggestion and
concluding the research work. The study has also been realized on relevant provisions of the
related laws, judgments of the open courts, other legislation, juristic writing, books, articles,
journals and website materials.

1.7 Structure of Research Work

The present study is therefore divided into eight chapters.

Chapter I deals with Introduction of the research report. It includes the relevance,
importance, problem, objective, hypotheses, methodology and a brief outline of the chapter
forming part of this thesis.
Chapter II is named as Historical Development of Contract Law and specific relief Law
in India. It describes the historical development in different period viz. ancient, medieval
period, fifteenth to eighteenth centuries and present time.

Chapter III entitled as specific relief: Concept, Nature and Scope, describes the meaning,
definition, nature and concept of contract and E-contract etc. The general provisions of
contract and E-contract is also discussed in this chapter.

Chapter IV is named Standard Form of Contract and E-contract. This chapter is

concerned with the standard form contracting in the electronic age. Under this chapter focus
has been made in analyzing the basic issues of standard form of contract and governing law
to standard form contract and also comparative study of the standard form of contract and
electronic standard form of contract.

Chapter V is the final chapter entitled as Conclusion and Suggestion. Under this chapter the
concluding observations have been made and various suggestions have been given.