Kerala High Court: Under Section 16(c) of Specific Relief Act 'Readiness' Does Not Imply 'Willingness'

Kerala High Court: Under Section 16(c) of Specific Relief Act 'Readiness' Does Not Imply 'Willingness'

The division bench of Kerala High Court comprising of Justices K. Vinod Chandran and C. Jayachandran observed that 'readiness' and 'willingness' under Section 16 (c) of the Specific Relief Act, 1963 are distinct and one does not imply the other. The Court observed that while readiness refers to the capacity of the respondent/plaintiff to enforce a contract, willingness refers to the conduct of the respondent/plaintiff warranting performance. According to the Court, specific performance of a contract can only be enforced if readiness is backed by willingness.

An appeal was filed by the appellant/defendant- George M. Mathews against the order of the Sub Court, Pathanamthitta, which directed the appellant/defendant to specifically perform a contract for sale dated 14.10.2010 in favor of the respondent/respondent/plaintiff in the suit. The aggrieved appellant/defendant is the appellant.

The contract for sale was entered into with the appellant/defendant as the vendor and the respondent/plaintiff as the vendee. Learned counsel for the appellant submitted that the respondent/buyer was never ready and willing to purchase the scheduled property and that his readiness and willingness is only in letter and not in spirit. The appellant further submitted that the buyer was never actually ready to purchase the property and that his readiness and willingness do not reflect in his actions or conduct.

Per contra, the counsel appearing for respondent/plaintiff submitted that the appellant/defendant failed to perform his obligations under the sale agreement, which stipulated measurement of the property by the respondent/plaintiff due to which the contract for sale could not be enforced.

The fundamental issue that came for consideration before the High Court was whether 'readiness' implies 'willingness' in the context of Section 16 of the Specific Relief Act, 1963? If there is overall lack of bonafides in the conduct of the plaintiff/vendee, as discernible from the evidence on record, whether the discretion under Section 20 can be exercised in favor of the respondent/plaintiff, even if he was found to have been possessed of the necessary funds for payment of balance consideration?

The Court extensively analyzed all the documents produced before it and was satisfied that the Respondent/plaintiff possessed the financial capacity and readiness to pay balance consideration for the sale of the property.

However, on perusal of the evidence the Court also noted a lack of bonafide in the conduct of the respondent/plaintiff due to several reasons including suppression of several material facts and variance in the pleadings of and proof adduced. Hence the court concluded that the respondent/plaintiff was not willing to perform the contract, even though he was ready with the funds for the sale consideration.

The Court opined that readiness and willingness broadly refer to the capacity and preparedness of a party to a lis to perform his part of the contract.

The bench stated, "readiness insofar as a purchaser/plaintiff is concerned boils down to the question whether he was possessed of the necessary funds to pay the sale consideration. It must be shown that the readiness and willingness on the part of the plaintiff is continuous, right from the date of contract till the decree."

Further, the Court observed that the appellant/defendant had shown the readiness to perform the contract in terms of his financial capacity, but he had failed to prove his willingness to perform the contract through his conduct. According to Section 16(3) of the Specific Relief Act, specific performance of a contract cannot be enforced in favor of a person who fails to prove that he has always been ready and willing to perform the terms of the contract.

In this regard, the Court held, "while readiness refers to the financial capacity of the plaintiff/vendor to pay the sale consideration, willingness is a different component referable to the conduct of the vendor. Therefore, it is not axiomatic that one who is ready is automatically willing to perform the contract. Per contra, one who is ready with the funds can still be unwilling to perform the contract for different reasons altogether, say for example, the vendor deems the transaction not feasible/profitable for commercial reasons."

Additionally, the bench observed that variance between pleadings and proof adduced disentitles the plaintiff for an equitable relief of specific performance and further relied on the judgment passed by the Supreme Court in the case of Ganesh Shet vs. Dr.C.S.G.K. Setty and others, held that the evidence and proof must be absolutely clear and certain in a suit for specific performance.

In context to grant of relief of specific performance under Section 20, the bench held, "Section 20 of the Act stipulates that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. It also stipulates that the discretion, however, should be sound and reasonable guided by judicial principles."

The bench refused to grant relief of specific performance in exercise of its discretion under Section 20 due to the following reasons:

1. The plaintiff approached the court alleging breach on the part of the appellant/defendant in not measuring the scheduled property, as also, alleging shortage of extent, which was found to be untrue.

2. Non-acceptance of the appellant/defendant's offer to sell the property even after the expiry of the period stipulated in the agreement, especially the one specifically pleaded in the written statement.

3. Suppression of several material facts.

4. The controversy as regards the real purchaser, in respect of which no pleading was done in the plaint.

5. The variance between the pleadings and proof.

6. The plaintiff's failure to state in the plaint or at least to depose in evidence of his preparedness to show the actual sale consideration in the sale deed.

Considering the facts and circumstances of the case, the Court refused to exercise its discretion under Section 20 in favor of the plaintiff and set aside the impugned judgment in favor of the appellant/defendant. The Court also ordered the return of the advance of sale consideration to the appellant/defendant along with interest.