Suit For Specific Performance: Plaintiff Has To Prove And Establish His Readiness And Willingness To Perform His Part Of Contract Throughout: SC [Read Judgment]

The Supreme Court, while restoring a trial court order that dismissed a suit for specific performance of contract, has reiterated that, in order to obtain a decree for specific performance, the plaintiff has to prove and establish his readiness and willingness to perform his part of the contract throughout.

The trial court, in this case, had dismissed the suit for specific performance holding that the plaintiff failed to prove his readiness and willingness to perform the contract. The first appellate court allowed the appeal and decreed the suit, which the high court upheld.

The bench of Justice R. Banumathi and Justice Indira Banerjee (in Vijay Kumar vs. Om Prakash) restored the trial court order dismissing the suit observing that plaintiff has not been able to prove his readiness and willingness on his part.

The bench set aside the appellate courts’ order holding that they ought to have examined first whether the plaintiff was able to show his capacity to pay the balance money. It also observed that they did not properly appreciate the evidence and the conduct of the parties.

Referring to evidence on record, the bench said: “In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff. In the case in hand, though the respondent plaintiff has filed the suit for specific performance on 29th April, 2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs.22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the respondent-plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs.22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Furthermore, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract.”