What is the importance of "ready and willingness to perform" in a suit for specific performance?

"Ready and Willing" in a Suit for Specific Performance

Few doctrines in the law of specific performance carry as much practical weight as the requirement that the plaintiff must have been, and must remain, ready and willing to perform his part of the contract. It is not merely a procedural formality — it is the very heart of the plaintiff's cause of action. Without it, no decree of specific performance can be obtained, however strong the rest of the case might appear on paper.

The Statutory Foundation

The requirement finds its home in section 16(c) of the Specific Relief Act, 1963, which lays down a personal bar to relief. The section, read along with its Explanation, provides that a plaintiff seeking specific performance must aver and prove that he has performed, or has always been and is ready and willing to perform, the essential terms of the contract that were to be performed by him — other than those the performance of which has been prevented or waived by the defendant. This provision converted what was previously an unwritten equitable principle into a mandatory statutory condition. The Law Commission, in its Ninth Report, had specifically recommended this insertion to give clarity and rigidity to what courts had already been applying as a rule of equity.

It is important to note that this requirement survived the 2018 Amendment. The Amendment made specific performance mandatory rather than discretionary by changing "may" to "shall" in section 10, and it removed the threshold test of inadequacy of damages. But it left section 16 entirely intact. The Supreme Court confirmed in Mehboob-Ur-Rehman v. Ahsanul Ghani (AIR 2019 SC 1178) that what is not pleaded cannot be proved, and therefore the twin requirement of averment and proof under section 16(c) remains as critical as ever.

What "Ready" and "Willing" Mean

The two words are not synonymous — they address distinct dimensions of the plaintiff's position, and the courts have been careful to draw the line. As articulated in JP Builders v. A. Ramadas Rao (2011) 1 SCC 429, readiness refers to financial capacity — the ability of the plaintiff to pay the consideration stipulated in the contract — while willingness refers to conduct — the mental and behavioural posture of the plaintiff towards performance.

This distinction was explained elegantly in Bijai Bahadur v. Shiv Kumar (AIR 1985 All 223): willingness is primarily a mental process, the intention to perform; readiness is the translation of that intention into action, the actual equipment and preparation to perform. There may be a person who is willing but lacks the money — he is not ready. There may also be a person who has the funds but has shown no intention to honour the contract — he is not willing. Both elements must coexist. Generally, readiness is backed by willingness, and where financial capacity is present, it evidences willingness as well — but the two are not always interchangeable.

The Requirement of Continuity

Perhaps the most significant aspect of this requirement is its continuity. The plaintiff must not merely be ready and willing at the time of filing the suit. He must prove that he was ready and willing from the date of the contract all the way to the date of the decree. The Privy Council firmly established this principle in Ardeshir Mama v. Flora Sassoon (AIR 1928 PC 208), holding that the plaintiff must maintain his readiness and willingness throughout the period of litigation, and not merely at the threshold. Indian courts have consistently followed this position. The Supreme Court in NP Thirugnanam v. R. Jagan Mohan Rao (AIR 1996 SC 116) reiterated that this continuous readiness and willingness is a condition precedent to the grant of the relief, and its absence at any material point is fatal to the plaintiff's case.

The practical consequence of this rule is severe. Even if the plaintiff was ready at the inception and ready at the date of hearing, if there was a period in between when he demonstrably lacked funds or showed conduct inconsistent with performance, the court will refuse the decree. In Ajiab Singh v. Tulsi Devi (2000) 6 SCC 566, where the plaintiff failed to pay instalments as agreed, the court held that she could not be said to have been continuously ready and willing, and the suit was dismissed.

Pleading the Requirement

Section 16(c) imposes an obligation at the pleading stage itself. The plaintiff must aver in the plaint that he has been and is ready and willing to perform his part of the contract. This is not a technicality that can be overlooked by the court. The Supreme Court in Ouseph Varghese v. Joseph Aley (1970) 1 SCR 921 held that without such an averment, the suit is not maintainable. Even where the defendant has not appeared or has not specifically pleaded lack of readiness as a defence, it is the statutory duty of the court to satisfy itself on this requirement. As the Madras High Court put it in HG Krishna Reddy & Co. v. MM Thimmiah (AIR 1983 Mad 169): "The language of the section being prohibitory, it is the duty of the Court not to grant specific performance, unless the plaintiff has averred, and proved his readiness and willingness."

That said, the courts have gradually moved toward a more pragmatic view. No particular phraseology is required. The Supreme Court in Ramesh Chandra Chandiok v. Chuni Lal Sabharwal (AIR 1971 SC 1238) held that a literal compliance with the language of Forms 47 and 48 of the CPC Appendix is not imperative. If from the totality of the averments in the plaint it is manifest that the plaintiff was continuously ready and willing to perform his obligations, the requirement of section 16(c) will be treated as satisfied in spirit and substance, even if the exact statutory words are absent. The Supreme Court in Manjunath Anandappa v. Tammanasa (2003) 10 SCC 390 affirmed that readiness and willingness cannot be treated as a strait-jacket formula — it must be gathered from the entirety of the facts, circumstances, and conduct of the party.

The Burden of Proof

The burden of proving readiness and willingness lies squarely on the plaintiff, and it does not shift. This means the plaintiff must not only make the averment but must step into the witness box and give evidence. A mere statement in the plaint, unsupported by proof, will not suffice. A party who does not enter the witness box to prove his readiness and willingness runs a serious risk of dismissal. Importantly, readiness in the financial sense must be concretely proved — it is not enough for the plaintiff to say he was ready; he must demonstrate that he had the funds available throughout the relevant period. In NP Thirugnanam (above), the Supreme Court held that oral testimony of readiness without corroborating documentary evidence establishing availability of funds is insufficient.

Where the defendant has repudiated the contract, the plaintiff may be excused from making a formal tender, since a tender would be futile. But this does not absolve him from the obligation to show that he was continuously ready and willing — as the court noted in International Contractors Ltd v. Prasanta Kumar Sur (AIR 1962 SC 77), even in the face of repudiation, the plaintiff must prove the subsistence of his intention and capacity to perform.

Consequences of Non-Compliance

The failure to aver and prove readiness and willingness is invariably fatal to the suit. Courts have consistently held that where this mandatory statutory requirement is not met, the court has no discretion — it must dismiss the suit. In Balraj Taneja v. Sunil Madan (1999) 8 SCC 396, the Supreme Court held that even where the defendant had not filed a written statement, the absence of the averment was still a ground to deny specific performance. Similarly, in Susheela v. TM Muhammedkunhi (2012) 1 KLJ 780, it was held that an averment which merely states the plaintiff "is ready and willing to perform" at the time of institution without demonstrating continuous readiness from the date of the contract does not discharge the statutory obligation under section 16(c), and the suit is liable to dismissal on that ground alone.

A Nuanced Principle: The Conduct Test

Courts do not examine readiness and willingness in a vacuum. They look at the entire conduct of the plaintiff — before the suit, during the suit, and up to the date of the decree. Unreasonable delays in filing the suit, silence after the defendant's refusal, failure to send a notice calling upon the other party to perform, and inconsistent conduct such as first treating the contract as subsisting and then denying its terms — all of these bear upon the question of whether the plaintiff was truly ready and willing throughout. The Supreme Court in Saradamani Kandappan v. S. Rajalakshmi (AIR 2011 SC 3234) observed that where the plaintiff failed to take any steps to enforce the agreement for a protracted period without adequate explanation, an inference of lack of readiness and willingness could legitimately be drawn, notwithstanding that the suit was filed within limitation.

Where the Requirement Does Not Apply

There is one important situation where the averment of readiness and willingness becomes unnecessary — where the plaintiff has already performed his part of the contract. If the entire consideration has been paid, possession delivered, and all that remains is the formal execution of the conveyance by the defendant, there is nothing for the plaintiff to perform, and no occasion arises to aver or prove readiness and willingness. As the Supreme Court made clear in Shivdayal Mahajan v. Banwari Lal Mahajan (2018 SCC OnLine Raj 2396), there is no need to demonstrate readiness and willingness when performance under the contract is already complete.