R. Shama Naik vs G. Srinivasiah

REPORTABLE

IN THE SUPREME COURT OF INDIA EXTRAORDINARY APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.13933 OF 2021

R. SHAMA NAIK Petitioner(s)

VERSUS

G. SRINIVASIAH Respondent(s)

O R D E R

1. This petition arises from the judgment and order passed

by the High Court of Karnataka at Bengaluru in Regular First

Appeal No. 1017 of 2013 dated 01-07-2021 by which the Regular

First Appeal filed by the original defendant came to be

allowed thereby quashing and setting aside the judgment and

decree of specific performance passed by the trial court in

favour of the petitioner herein-original plaintiff.

2. It appears that the petitioner herein original plaintiff

instituted a suit for specific performance of contract based

on agreement of sale dated 3rd March 2005. Signature Not Verified Digitally signed by

3. CHANDRESH Date: 2024.12.03 18:50:35 IST The total sale consideration fixed in the Agreement of Reason:

sale is Rs.30,00,000/-(Rupees Thirty lakh only).

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Rs.12,50,000/- (Rupees Twelve lakh fifty thousand only) came

to be paid by the petitioner herein towards earnest money at

the time of execution of the agreement of sale.

4. It is the case of the petitioner that he was always ready

and willing to perform his part of the contract but it is the

respondent herein original-defendant who was not inclined to

execute the sale deed despite accepting the amount of

Rs.12,50,000/-(Rupees Twelve lakh fifty thousand only) towards

earnest money.

5. In such circumstances, referred to above, the petitioner

herein instituted Original Suit No.1101 of 2008 praying for a

relief of specific performance or in the alternative for

refund of the earnest money.

6. The trial court allowed the suit and passed a decree for

specific performance. The defendant went in appeal before the

High Court. The High Court allowed the appeal of the defendant

on the issue of readiness and willingness on the part of the

plaintiff in performing his part of the contract.

7. We have heard the learned counsel appearing for the

parties and have also perused the materials on record.

8. Section 16(C) of the Specific Relief Act, 1963 (prior to

amendment w.e.f. 1.10.2018) bars the relief of the specific

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performance of a contract in favour of a person who fails to

aver readiness and willingness to perform his part of the

contract.

9. There is a legion of precedents on the subject of

readiness and willingness.

10. The law is well settled. The plaintiff is obliged not

only to make specific statement and averments in the plaint

but is also obliged to adduce necessary oral and documentary

evidence to show the availability of funds to make payment in

terms of the contract in time.

11. There is a fine distinction between readiness and

willingness to perform the contract. Both the ingredients are

necessary for the relief of specific performance.

12. While readiness means the capacity of the plaintiff to

perform the contract which would include his financial

position, willingness relates to the conduct of the plaintiff.

13. The High Court in first appeal upon appreciation of the

evidence on record both oral and documentary has arrived at

the conclusion that the plaintiff has failed to establish that

he was always ready and willing to perform his part of the

contract.

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14. This being a finding of fact and cannot be termed as

perverse, there is no good reason for us to interfere with the

impugned judgment.

15. In the result, the petition fails and is hereby

dismissed.

16. Pending application(s), if any, stand disposed of.

……………………………………………J. [J.B. PARDIWALA]

……………………………………………J. [R. MAHADEVAN]

NEW DELHI, NOVEMBER 28th, 2024

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