Q Short note on rectification of instrument
Q What is rectification of instrument and what conditions to be satisfied before invoking the remedy?
Q Discuss the remedy of rectification of instrument exists to correct, but not to improve an instrument.
Rectification literally means to correct that is to say to rectify. It is based on the concept of bringing the contract/agreement/instrument to its original form as intended by the parties. Section 31 of specific relief define rectification of instrument as, when through fraud or a mutual mistake of the parties a contract or other instrument in writing does not truly express their intention, either party or his representative-in-interest, may institute a suit to have the instrument rectified. The fundamental assumption is that there exists in truth between the parties a complete and perfectly objectionable contract, but the writing designed to embody it, either from fraud or mutual mistake, is incorrect or imperfect and the relief sought is to rectify the writing so as to bring it into conformity with the true intent. In such a case to enforce the instrument as it stands must be to injure atleast one party to it, to rescind (cancel) it altogether must be to injure both, but to rectify it and then enforce it is to injure neither but to carry out the intention of both. In cases of rectification the court does not put it to the other party to submit to the variation alleged but makes the instrument comfortable to the intention of the parties without any such offer or submission.
‘What is rectified is not the agreement but the mistaken expression of it.’
Parties whom can sue for rectification: A court interferes only as between the orginal parties or those claiming under them, e.g heirs, assigness with notice, etc.
Conditions/requisite/ingredient of rectification: section 31 contemplates procedure to invoke equitable jurisdiction for rectification of instrument. In order to attract sec 31, the following ingredients are necessary;
Written document: there must be an instrument, it measn an agreement/ contract/ promisory note bill of exchange/deed etc in a written concluded form
Fraud or mutual mistake: its requires a clear evidence of mistake common to both the parties or fraud in a prior contract.
In case of fraud rectification would be granted where, though there was a consensus between the parties as to the contract, but through the fraud of one of the parties, instrument did not correctly express the contract as agreed upon.
In case of mutual mistake it will be granted at the instance of either party where both the parties are equally innocent but owing to a common mistake, the instrument does not express their intention.
It is to be noted here that clear evidence of a mistake common to both the parties must be adduced and the burden of proofing this lies on the parties who seeks rectification. It must be either mistake of fact or mistake of law but there must be mutual mistake unilateral mistake will both be justified rectification. Mistake of law may crept due to carelessness of bad drafting or mistake of law may occur due to misconception any provision of law.
Intention of parties: . section 32 defines the presumption as to intent of parties, for the purpose of rectifying a contract in writing, the court must be satisfied that all the parties thereto intended to make an equitable and conscientious agreement.
Rectification must be claimed distinctively in other words in clear manner
Bonafidy purchaser in good faith be protected under the law (exception): Section 31 lays down that rectification of instrument is done if it is without prejudice to rights acquired by third person in good faith and for value. It says that rectification will not be allowed if the third party had acquired right in good faith and for valuable consideration that is to any if a person acquires rights an interest in a certain transaction carried out by him with an element of honesty, integrity coupled with good faith in a prudent business.
Limitation of time: limitation for filing suit for rectification is for three years from the date knowledge of the fraud or mutual mistake when it comes to the knowledge of the party
Locus standi to SUE: any party to the instrument or his legal representative, a third person has no right to sue for rectification. the rectification of instrument is based on the doctrine of reformation of a contract where neither party to the contract is in error as to the method in respect of which they are contracting, but there is an error common to both the parties in the reduction of contract in writing, there the court of equity interferes for the purpose of, reforming the contract and not rescinding it, such a reform of contract is called rectification of instrument and it can bring the document in confirmty with the actual prior arrangement as agreed between the parties entering the spirit of the rectification of instrument. Its object is to keep the document alive and not to burry it by way of cancellation. the real test in a suit for rectification is whether the prove of error is clear and conclusive if so whether the same has been prove if so the rectification may be granted by the court.
Specific enforcement of rectified contract: according to section 34, A contract in writing may be first rectified and then, if the plaintiff has so prayed in his plaint and the court thinks fit, specifically enforced.
