The Weekly Obiter

SUIT FOR SPECIFIC PERFORMANCE: PLAINTIFF HAS TO PROVE AND ESTABLISH HIS READINESS AND WILLINGNESS TO PERFORM HIS PART OF CONTRACT THROUGHOUT: SC : OCTOBER 03, 2018

November 26, 2018

The Hon’ble 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 Hon’ble SC in Vijay Kumar Versus Om Prakash bearing Civil Appeal No. 10191 of 2018 has 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 the Appellate Court did not properly appreciate the evidence and the conduct of the parties. In the case, though the respondent plain-tiff had filed the suit for specific performance on 29th April, 2008, the respondent-plaintiff had 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 re-spondent-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, the Hon’ble SC agreed with 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. 

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