The Specific Relief (Amendment) Act, 2018 rewrote the grammar of contract enforcement in India. Specific performance, once a discretionary exception to damages, became an enforceable rule; a new Section 14 narrowed the contracts that cannot be specifically enforced; Section 20 introduced substituted performance — the promisee’s right to have the contract performed by a third party or its own agency and recover the costs from the defaulting promisor; and special machinery was created for infrastructure contracts, including the bar on injunctions that would delay infrastructure projects. For businesses in Delhi dealing with defaulting contractors and vendors, Section 20 is the provision with the most day-to-day use — and the most missable procedural trap.
The 2018 inversion, in one table
| Question | Before 2018 | After 2018 |
|---|---|---|
| Is specific performance available? | Discretionary; damages the norm, specific relief the exception | Enforceable as a rule, subject to the narrowed exclusions in Section 14 and the limitations in Sections 11(2), 14 and 16 |
| Defaulting contractor, work incomplete | Sue for damages; prove loss with expert evidence; wait years | Serve the Section 20 notice, complete through a third party, sue for the actual costs — plus damages under Section 20(4) |
| Injunctions against infrastructure projects | General injunction principles | Section 20A bars injunctions where delay to an infrastructure project would result; special courts designated under Section 20B |
| Expert assistance | Court-appointed commissioners under general procedure | Section 14A permits engagement of experts in specific performance suits |
Using Section 20 without losing the recovery
1. Record the breach
Contemporaneous documentation — site reports, delivery failures, defect notices — establishing that the contract was broken. Substituted performance presupposes breach, and the record will be tested.
2. Serve the statutory notice
A written notice of not less than thirty days calling on the promisor to perform, stating the intention to obtain substituted performance on failure. Send it to the contractual notice address, prove delivery, and let the full period run.
3. Procure the substitute commercially
Competitive quotations or a reasoned selection, scope matching the unperformed obligations, and a clean paper trail of what was paid for what. Recovery is of expenses "actually incurred" — inflation or scope creep will be cut down.
4. Sue for costs and damages
A suit — ordinarily a commercial suit where the value qualifies — for the substituted-performance costs, plus damages for delay and other losses preserved by Section 20(4). Pre-institution mediation applies unless urgent interim relief is sought.
Defending a substituted performance claim
For the alleged defaulter, the statute\'s discipline is the defence checklist. Was there a breach at all, or was the claimant itself in default of reciprocal obligations — access, drawings, payments? Was the notice given, adequate in period and content, and did it precede the substitute engagement? Are the costs claimed genuine, reasonable and confined to the original scope — or has the claimant used the default to procure an upgrade at the defendant\'s expense? Substituted performance transfers the cost of completion, not the cost of improvement; the comparison of scopes is where these suits are usually fought and often won.
Drafting after the amendment
- Mirror the statutory notice in the contract — one notice regime, with a defined cure period, addresses and mode of service, avoids the two-track confusion.
- Define completion cost accounting — how substitute costs are computed, certified and set off against unpaid contract balances.
- Preserve damages expressly, including liquidated damages for delay, alongside the risk-purchase remedy.
- For infrastructure players: plead and prove the project\'s character early where Section 20A\'s injunction bar assists — or confront it candidly where it obstructs.
Practice note: The thirty-day notice is where substituted-performance recoveries are lost. Commercial teams complete works through substitutes in urgency and call the lawyers afterwards; by then Section 20\'s condition has been missed and the claim must be re-founded on general damages with its heavier burden of proof. The notice costs nothing and preserves everything — build it into the standard escalation protocol for every defaulting contract.
Frequently Asked Questions
What exactly does Section 20 permit?
Where a contract is broken, the promisee may have the work performed through a third party or its own agency and recover the expenses and costs actually incurred, spent or suffered from the promisor. The remedy substitutes performance for litigation about performance: instead of suing to compel the defaulter, the promisee completes the work commercially and sues for the bill.
Is prior notice mandatory?
Yes — this is the trap. Section 20(2) requires a written notice of not less than thirty days calling upon the promisor to perform, and substituted performance may be obtained only after the promisor refuses or fails to comply. Costs incurred without the statutory notice are not recoverable under Section 20, whatever the contract says, though contractual risk-purchase clauses operate on their own terms.
Does choosing substituted performance forfeit other remedies?
Once the promisee obtains substituted performance, specific performance against the promisor is no longer available — the election is final on that front. But Section 20(4) preserves the claim for damages: the promisee can still recover compensation for the loss the breach caused, beyond the substituted-performance costs recovered.
How does this interact with risk-purchase clauses?
Risk-purchase clauses in supply and works contracts contract for the same commercial outcome. Section 20 supplies a statutory default where the contract is silent and a discipline — the 30-day notice — that prudent parties now mirror in their clauses. Where both exist, comply with both: the statutory notice and the contractual procedure, because recovery will be tested against each.