A party to a contract has to show and establish his willingness and readiness to perform his part of contract throughout, including the day when the suit for specific performance was filed. This was held by the Hon’ble Supreme Court of India in the matter of Vijay Kumar & Ors. v. Om Prakash, Civil Appeal No. 10191 of 2018, on 3rd October, 2018.
The Appellant/Defendant and Respondent/Plaintiff entered into an agreement to sell for a property on 09.11.2007 for a total sale consideration of Rs. 26,00,000/-. That Rs. 4,00,000/- was paid by the Respondent/Plaintiff on 09.11.2007 and as the balance of Rs. 22,00,000/- was to be paid at the time of execution the registration of sale deed on 31.03.2008. However, on the said date, sale deed was not executed, and the Respondent/Plaintiff filed a suit for specific performance on 29.04.2008. The Trial Court, upon appreciating the oral and documentary evidence, dismissed the suit as the Respondent had failed to prove his readiness and willingness. The First Appellate Court had set aside the order of the trial court, later also affirmed by the High Court, granting specific performance in favour of the Respondent on the ground that Respondent had deposited Rs. 22,00,000/- in 2015. The question before the Hon’ble Supreme Court was whether, by depositing the balance amount in 2015, the Respondent was able to show his readiness and willingness to perform the contract.
The Hon’ble Court held that the in order to obtain a decree for specific performance, the Plaintiff has to show and establish his readiness and willingness to perform his part of the contract throughout. In the present case, it was observed that the Respondent failed to show his readiness and willingness to perform his part of the contract on 29.04.2008, i.e. the day on which the suit was instituted by him. The Respondent had taken the plea that he had borrowed the said amount from friends and had kept the money to pay balance amount. However, he was not able to name any of these friends and nor did he produce them as witnesses. Readiness and willingness could have been shown by placing on record his account books, passbook or statement of accounts or any other negotiable instrument to establish that the Respondent had the money with him at the relevant point of time to perform his part of the contract. As there was nothing on record to show the readiness and willingness of the Respondent to perform his part of contract on the day of filing of this suit, the decision of the Trial Court was upheld, appeal allowed and the Appellant/Defendant was directed to refund the earnest money amounting to Rs. 4,00,000/- with interest back to the Respondent/Plaintiff.