Introduction
In the second part of this series, the discussion focused on the first essential for seeking specific performance of a contract. Building upon that foundation, the second part examines the remaining essential requirements for obtaining such relief, including the plaintiff’s readiness and willingness to perform his contractual obligations, the necessity of claiming the appropriate relief, and the importance of maintaining an unblemished course of conduct. The discussion also addresses the practical situations that frequently arise in the application of these principles. Further, it will be examined how, in changing circumstances, time may assume the essence of a contract even where the subject matter of the agreement is immovable property. The discussion will also consider the manner in which these principles operate in real-world contractual disputes. The remaining aspects of this evolving area of law will be taken up in the subsequent parts.
Essentials required to be proved to claim the remedy of specific performance
In the previous part we have discussed the first and foremost essential i.e., execution of a valid agreement and the various objections that are raised in the course of tendering this agreement in evidence. Now coming to the next essential which is:
2. Readiness and willingness
The second important essential in a suit for specific performance is plaintiff’s readiness and willingness. A separate issue needs to be framed regarding plaintiff’s readiness and willingness even though defendant had not objected to plaintiff’s readiness and willingness in his written statement. The onus to prove this issue also lies specifically on the plaintiff. Section 16(c) of the Specific Relief Act puts the onus on the plaintiff of a suit for specific performance to demonstrate that the plaintiff was always ready and willing to fulfil the contractual obligations that fall within the plaintiff’s part. There is no straightjacket formula to determine whether a plaintiff was ready and willing to perform his part of the bargain. The factum of readiness and willingness of the plaintiff to perform their part of the agreement is to be decided with reference to the conduct of the parties, attendant circumstances, and the evidence on record of the Court. (Shenbagam v. K.K. Rathinavel, 2022 SCC OnLine SC 71; Ravi Setia v. Madan Lal, (2019) 9 SCC 381; Narinderjit Singh v. North Star Estate Promoters Ltd., (2012) 5 SCC 712)
In C.S. Venkatesh v. A.S.C. Murthy(2020) 3 SCC 280, the Supreme Court relied upon a catena of decisions and observed that the words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The Supreme Court observed that the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, they must fail. To adjudge whether the plaintiff is ready and willing to perform their part of the contract, the court must consider the plaintiff’s conduct prior and subsequent to the filing of the suit along with other attending circumstances.
The Supreme Court in VN A S Chandran vs S Venilla And Others, has held that a plaintiff seeking specific performance of a contract must continuously plead and prove their readiness and willingness to perform their part of the agreement, from the date of the contract until the decree. A Bench of Justices A plaintiff who fails to establish the availability of funds or demonstrate diligent performance of contractual obligations cannot claim the equitable relief of specific performance
Why did the Supreme Court refuse specific performance?
Court found that Venilla had failed to establish her continuous readiness and willingness to perform the contract. Among other things, her bank account did not have sufficient funds, resulting in the dishonour of cheques. Court also noted that she did not enter the witness box to support her case. Hon’ble Supreme Court Bench said specific performance is a discretionary and equitable relief and cannot be granted as a matter of right, particularly where the plaintiff’s conduct lacks bona fides. “Courts must consider the totality of circumstances, including the conduct of parties and potential hardship to the defendant, before exercising such jurisdiction,” it said. In the present case, Court found Venilla’s conduct to be inconsistent and noted that the filing of retributive criminal complaints showed that she had approached the court with unclean hands. This, the Court held, disentitled her from seeking discretionary equitable relief. The long delay in the matter also weighed against her. The Bench noted that nearly two decades had passed since the agreement to sell and said such a significant lapse of time was a relevant consideration, particularly when granting the relief could cause undue hardship to an ageing defendant.
Before and after amendment changes to readiness and willingness
Prior to the amendment, the expression “who fails to aver and prove” was on the statute book and its substitution by the words “who fails to prove” does not bring about any drastic change to the object and intent of the clause. This is because failing to prove readiness and willingness to perform the essential terms of the contract would first require averments to that effect to be made in the plaint by the plaintiff. The absence of such averments regarding readiness and willingness to perform the essential terms of the contract by the plaintiff would not permit him to let in any evidence on that aspect. It is a settled principle of law that no evidence can be permitted to be let in in the absence of averments in the plaint / pleadings vide Bachhaj Nahar vs. Nilima Mandal and Ors., (2008) 17 SCC 491. In the said case, a Bench of this this Court speaking through Raveendran J. laid down as follows:
- No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did not arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the Court.
- A Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
Therefore, notwithstanding the amendment to Section 16 of the Act whereby the expression “who fails to aver and prove” has been substituted with the phrase “who fails to prove,” the law remains that no evidence can be let in on a plea that was never put forward in the plaint/pleadings. But, it is necessary to sound a caveat. Even the absence of the words “ready and willing to perform the contract” in the plaint would now not have an adverse impact on the plaintiff’s case, so long as plaintiff’s readiness and willingness to perform the essential terms of the contract could be gathered on a holistic reading of the plaint.
In Mehboob-Ur-Rehman v. Ahsanul Ghani2019) 19 SCC 415, the Supreme Court pointed out that post the 2018 Amendment, the expression “who fails to aver and prove” was replaced by “who fails to prove” under Section 16(c) of the Specific Relief Act. In this regard, the Supreme Court held that despite this legislative change, the position on all material aspects remains the same that specific performance of a contract cannot be enforced in favour of a person who fails to prove that he had already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than those terms, the performance of which has been prevented or waived by the other party.
Readiness and willingness have to be specifically mentioned in the plaint and affidavit
It is pertinent to note that the effect of amendments made to Section 16© of the Specific Relief Act are rendered somewhat redundant since it is a settled principle of law that no evidence can be permitted to be led in the absence of averments in plaint or pleadings. Hence, to prove readiness and willingness to perform essential terms of contract, the plaintiff would first be required under law to make averments to that effect in the plaint. The absence of such averments would not permit the plaintiff to lead any evidence on that aspect. (Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491)
Distinction between Readiness and Willingness
In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar(1996) 4 SCC 526, the Supreme Court made a distinction between “readiness” and “willingness” and the manner in which the said parameters were to be scrutinised in determining a suit for specific performance. The Supreme Court observed that readiness refers to the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. Willingness on the other hand is a matter of conduct. The Supreme Court reiterated that a court may infer from the facts and circumstances whether the plaintiff was and continues to be ready willing to perform his part of the contract.
Mere proving agreement is not enough until and unless readiness and willingness are proved
In AIR 2016 SC 1438 Dheeraj Developers Pvt. Ltd. Vs Kailash Agarwal in a suit for specific performance of contract, it was held that decreeing suit only on the basis of finding of genuineness of agreement to sell was not proper. Several other aspects including aspect of readiness & willingness are also require consideration.
Readiness and willingness has to be proved even if the other party is not taking any objection to it
In J.P. Builders vs. A. Ramdas Rao, (2011) 1 SCC 429, this Court held as under, as regards the onus on a plaintiff claiming the relief of specific performance, to prove that he had complied with Section 16 (c) of the Act and had demonstrated ‘readiness’ and ‘willingness’ to carry out his obligations under the agreement of sale: Section 16(c) of the Specific Relief Act, 1963 mandates “readiness and willingness” on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous “readiness and willingness” to perform the contract on his part from the date of the contract. The onus is on the plaintiff. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c) of the Specific Relief Actand when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. “Readiness and willingness” to perform the part of the contract has to be determined/ascertained from the conduct of the parties.”
3. Unblemished conduct of the plaintiff
While making a plea for specific performance, the plaintiff must show that he constantly had an unwavering commitment and intention to fulfil the essential terms of its part of the bargain.
In Aniglase Yohannan v. Ramlatha (2005) 7 SCC 534, the Supreme Court held that any person seeking benefit of the specific performance of a contract must manifest that their conduct has been blemishless throughout, entitling him to the specific relief. A court is to grant specific relief based on the conduct of the person seeking relief.If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint, he should not be denied the relief.
In Shenbagam v. K.K. Rathinavel 2022 SCC OnLine SC 71, the Supreme Court reiterated that in deciding whether or not to grant the relief of specific performance, the courts must be cognizant of the conduct of the parties and consider whether one party will unfairly benefit from the decree.
4. Appropriate Relief has to be sought
It often happens that when a contract is terminated and that fact gives rise to a cause of action to file a suit for specific performance. In such cases the failure to apply to have the termination set aside would be fatal to performance as without an appropriate relief to set aside the termination it would be deemed the plaintiff has accepted the same and then cannot sue for performance of a contract treated as at an end by his conduct.
In I.S. Sikandar v. K. Subramani,the Supreme Court held that on failure to pray for and seek to declare that a termination was wrongful the further relief to perform the terminated agreement could not be granted:
“37. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit scheduled property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law.”
The provisions of Section 22 must also be considered when seeking relief in cases where the plaintiff is not in possession of the land or property in dispute.
In a suit for specific performance the relief of Declaration has to be claimed when contract is terminated based on some clause and no need of declaration when without any basis it has been wrongfully repudiated
The Supreme Court in the case of ANNAMALAI VERSUS VASANTHI AND OTHERS, 2025 LiveLaw (SC) 1041, delivered a significant judgment which explained when should a plaintiff seeking specific performance of contract must also seek a declaration that the termination of the contract by the other party was invalid.
The Court distinguished between termination and wrongful repudiation of the contract, clarifying when a declaration seeking invalidation of the contract needs to be sought by the plaintiff before seeking specific performance of the contract.
The Court explained that when a contract expressly confers a right to terminate, and one party exercises that right (for instance, due to delayed payment or breach), the termination carries prima facie legal validity. This creates a “doubt” on whether the contract still subsists. In such cases, the plaintiff must first seek a declaration that the termination is invalid before asking for specific performance. Without clearing this cloud, the Court cannot compel performance of a possibly terminated contract.
Conversely, when a termination is issued without any contractual basis or when the terminating party has waived its right to terminate through subsequent conduct, for example accepting additional consideration from the party, the act of termination is merely a wrongful repudiation, legally void and ineffective. In such instances, the plaintiff can treat the contract as subsisting and directly file a suit for specific performance without seeking declaratory relief. The Court explained that a void act does not generate a legal cloud because it never had legal existence to begin with.
“In our view, a declaratory relief would be required where a doubt or a cloud is there on the right of the plaintiff and grant of relief to the plaintiff is dependent on removal of that doubt or cloud. However, whether there is a doubt or cloud on the right of the plaintiff to seek consequential relief, the same is to be determined on the facts of each case. For example, a contract may give right to the parties, or any one of the parties, to terminate the contract on existence of certain conditions. In terms thereof, the contract is terminated, a doubt over subsistence of the contract is created and, therefore, without seeking a declaration that termination is bad in law, a decree for specific performance may not be available. However, where there is no such right conferred on any party to terminate the contract, or the right so conferred is waived, yet the contract is terminated unilaterally, such termination may be taken as a breach of contract by repudiation and the party aggrieved may, by treating the contract as subsisting, sue for specific performance without seeking a declaratory relief qua validity of such termination.”, the court observed.
Setting aside the High Court’s decision and restoring the First Appellate Court’s decision, the judgment authored by Justice Manoj Misra observed that the Respondent-vendors, after the lapse of the six-month contract period, accepted an additional payment from the buyer, conduct amounting to a waiver of the right to terminate.
“In our view, acceptance of additional money not only signified waiver of the right to forfeit advance money /consideration but also acknowledged subsistence of the agreement.”, the court said, pointing out that the subsequent notice of termination was therefore a wrongful repudiation, not a valid exercise of contractual right. The buyer was thus entitled to sue directly for specific performance without first seeking a declaration.
Can a buyer sue for specific performance after unilateral termination?
The Supreme Court also clarified the legal position where a vendor terminates an agreement for sale without having a contractual right to do so. It held that such termination amounts to repudiation of the contract. The aggrieved buyer can treat the agreement as continuing and sue for specific performance without separately seeking a declaration that the termination was invalid, provided the issue of maintainability has been tried.
When other relief of possession need not be claimed
In Adcon Electronics (P) Ltd. v. Daulat the following paras are noteworthy:
“16. In a suit for specific performance of contract for sale of immovable property containing a stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963. ……….
17. It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for.”
Value of time
Time is not of essence in specific performance of contracts relating to immovable property does’nt hold field now in view of changing circumstances and ever increasing inflation.
In Saradamani Kandappan vs. S. Rajalakshmi, (2011) 12 SCC 18 wherein Court had an occasion to consider the aspect of payment of a nominal advance by the plaintiff and effect of the amount of advance paid on the decision of the Court to grant the discretionary relief of specific performance. This Court has authoritatively laid down that it would amount to injustice to hold that a vendor who took a very meagre sum as earnest money, and agreed that the rest of the consideration would be paid within a stipulated period of time, did not intend that time was of essence to the contract. The relevant portion of the said judgment is usefully extracted as under:
“37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and “non-readiness”. The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for rupees one lakh and received rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees.”
When buyer doesn’t adhere to timeline provided under agreement to sale, then specific performance can’t be allowed in his favour
Decision: Supreme Court of India Alagammal v. Ganesan
The Court, observing that when an agreement provides for a specific time period for making payments, a party that has defaulted in adhering to such time frame, cannot be granted the relief of specific performance of the agreement, set aside the Impugned Judgment. The present judgment reemphasizes on the importance of time being the essence of a contract and shall act as a safeguard for vendors/sellers in suits for specific performance filed by defaulting vendees/purchasers that have failed to adhere to the time period determined under an agreement.
Factors that ought to guide the court’s discretion in decreeing specific performance-When the agreement to sale has not be given effect to within the stipulated time
Factors that ought to guide the Court’s decision in decreeing a suit for specific performance, particularly when the agreement of sale has not been given effect to within the time stipulated therein, the following directions issued in K.S. Vidyanadam vs. Vairavan (1997) 3 SCC 1, were reiterated:
- The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
- The courts will apply greater scrutiny and strictness when considering whether the purchaser was “ready and willing” to perform his part of the contract.
- Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time limits stipulated in the agreement. The courts will also “frown” upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part- performance, where equity shifts in favour of the purchaser.
More to follow in the next parts