In a recent Judgment, the Hon'ble Supreme Court held for a decree of specific to be passed, readiness and willingness has to be established and proved and this is a relevant consideration for passing a decree for specific performance.

Facts

1. The Plaintiff and the Defendant had entered into an Agreement for Sale in respect of an immovable property for a total consideration of Rs.16.20 lakhs. The Defendant/Vendor, as per this agreement was required to evict tenants occupying the property and then execute a sale deed in favour of the Plaintiff/Purchaser on receipt of full consideration. The Plaintiff had paid part consideration of Rs.3,60,000/- to the Defendant. The Plaintiff issued a legal notice to the Defendant calling upon him to evict the tenants from the property, receive balance consideration and to execute a sale deed in favour of Plaintiff.
2. 2The Plaintiff thereafter filed a Suit for specific performance wherein it was averred that the Defendant had to evict tenants and come forward to execute a sale deed. It was pleaded on behalf of the Plaintiff that he was ready with the cash in his savings account and was therefore ready and willing to perform his part of the contract.
3. The Trial Court held the issue of readiness and willingness on the part of the Plaintiff against the Plaintiff as the Plaintiff had not pleaded that he was willing to execute a sale deed for the property the way it was. Hence, of the Trial Court ordered refund of the part consideration with interest at 18 % per annum.
4. To Plaintiff challenged the judgement of the Trial Court before the Madras High Court. I the First Appeal, the Plainitff filed an Affidavit before the Madras High Court stating the he was willing to execute a sale deed in respect of the property with the tenants still occupying the property. The Madras High Court accordingly reversed the judgment of the Trial Court and passed a decree of specific performance in favour of the original Plaintiff.
5. Being dissatisfied by the judgement of the Madras High Court the original Defendant filed a Civil Appeal before the Hon'ble Supreme Court.

The Hon'ble Supreme Court reversed the judgment of the Madras High Court for specific performance and reinstated the judgment of the Trial Court for refund with interest. While doing so, the Hon'ble Supreme Court held as under:-

"The Plaintiff was never ready and willing to purchase the property and/or get the sale deed executed of the property with tenants. It was for the first time before the High Court in the affidavit filed before the High Court and subsequently when the learned Trial Court held the issue of willingness against the Plaintiff, the Plaintiff came out with a case that he is ready and willing to purchase the property with tenants. For the purpose of passing the decree for specific performance, the Plaintiff has to prove both the readiness and willingness. Therefore, once it is found on appreciation of evidence that there was no willingness on the part of the Plaintiff, the Plaintiff is not entitled to the decree for specific performance. Therefore, in the present case, the learned Trial Court was justified in refusing to pass the decree for specific performance.

9. The submission on behalf of the Plaintiff that in the agreement a duty was cast upon the Defendant to evict the tenants and to handover the vacant and peaceful possession, which the Defendant failed and, therefore, in such a situation, not to pass a decree for specific performance in favour of the Plaintiff would be giving a premium to the Defendant despite he having failed to perform his part of the contract. The aforesaid seems to be attractive but for the purpose of passing a decree for specific performance, readiness and willingness has to be established and proved and that is the relevant consideration for the purpose of passing a decree for specific performance."¹

By - Chaitanyaa Bhandarkar