- The Hon’ble SC has observed, in the case of Shenbagam vs KK Rathinavel that the conduct of the plaintiff is very important in a suit for specific performance of a contract and the same has to be assessed by the Courts.
- In the instant case, the appellant and her spouse entered into an agreement with the respondent by which they agreed to sell the suit property for a consideration of 1,25,000/-. The respondent paid a sum of Rs. 25,000 as an advance and agreed to pay the balance in the coming six months and on the full payment, the appellants were to execute the sale deed, free from all encumbrances.
- It was also agreed that in case of a failure to execute the sale deed, the advance would be forfeited and if the appellants refused to honour the contract and the appellant was ready and willing to perform his part of the contract then he would get the right to institute a suit for the specific performance of the contract.
- The suit property was also subject to a mortgage in favour of one Janaki Amma. The respondents alleged that the appellant had received the advance to discharge the mortgage while the appellants alleged that the respondent knew of the mortgage and agreed to discharge it from the sale consideration.
- The appellants rescinded the contract on the ground that the respondent was not ready and willing to perform his part of the contract. The respondent obtained an interim injunction, restraining the appellants from alienating the suit property. The respondent also obtained a decree for the specific performance of the contract from the trial Court. The same was confirmed by the HC.
- The Supreme Court, in the instant appeal from the order of the HC observed that the trial Court had failed to appreciate the issue as to whether the plaintiff was ready and willing to perform his part of the contract. Instead the trial Court only assessed whether he was entitled to the relief of specific performance.
- The Court also referred to the case of His Holiness Acharya Swami Ganesh Das Ji vs. Sita Ram Thapar where it was held that the readiness means the capacity of the plaintiff to perform the contract, which refers to the financial condition of the plaintiff, whereas to ascertain the ‘willingness’ of the plaintiff, the conduct of the plaintiff has to be scrutinised.
- The various precedents set by the Apex Court would suggest that the plaintiff must establish that he was ‘ready and willing’ to perform his part of the contract.
- Thus, the appeal was allowed and the respondents were directed to return the sum of Rs.35,000 advanced by the plaintiff.
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