Continuous readiness and willingness to perform the essential terms of a contract are mandatory for seeking specific performance, as per Section 16 (c) of the Specific Relief Act, 1963.

Umeshwar Pandey, J.—Heard Sri B. Malik, learned counsel for the appellants. None has however, appeared on behalf of the respondent.

2. This second appeal arises out of the judgment and decree dated 31.1.1981 passed by the 1st Addl. District Judge, Meerut, whereby he allowed the first appeal and set aside the judgment and decree dated 6.5.1975 passed by the trial court (2nd Addl. Civil Judge).

3. The facts giving rise to this appeal in brief are that the respondent-plaintiff had filed a suit for specific performance of contract of sale, which was hotly contested by the appellants-defendants in the trial court. At the trial stage, it was held that the plaintiff-respondent had failed to establish on record that he was ready to perform the essential terms of the contract, which were to be performed by him and accordingly, the trial court dismissed the suit against which the First Appeal was preferred. The 1st appellate court held that though, it is sufficiently established on record and it is clear from the evidence available that on the date fixed i.e. 28.12.1971, both the parties had visited the office of Sub-Registrar for registration of the sale deed to be executed in pursuance to the agreement in question, but the plaintiff on that date did not possess the required consideration with him as to enable the appellant-defendant to execute the sale deed. As such, the very execution of the sale deed was shelved. Inspite of recording this finding of facts, the 1st appellate court has found favour with the plaintiff and set aside the trial court’s decree on the ground of subsequent notice dated 29.12.1971 given by the plaintiff requesting the appellant-defendant to again visit the office of Sub-Registrar on 7.1.1972 for execution of the sale deed on which date he did not go for registration and execution of the said transfer. Thus, taking no notice of the aforesaid concluded findings of fact that on 28.12.1971, the plaintiff was not ready with sufficient money to get the sale deed executed in his favour when both the parties were present at the Sub-Registrar’s Office and unreasonably giving undue weightage to the subsequent notice the 1st appellate court erroneously found it more justifiable in law to decree the suit and granted the relief for specific performance of the agreement in question.

4. Aggrieved with the aforesaid judgment, the present appeal has been preferred.

5. From the aforementioned facts and circumstances, it so appears that the learned 1st appellant Judge has given scant importance rather no importance to the provisions of Section 16 (c) of the Specific Relief Act, 1963 which enjoins upon the plaintiff seeking the relief of specific performance of contract, to perform his part of the contract, in the following words :

“Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person—

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.”

6. From the aforesaid provision of Section 16 (c), it is quite evident that a plaintiff seeking specific relief of specific performance of contract has to aver and prove that he has performed or has always been ready or willing to perform the essential terms of the contract which are to be performed by him under the agreement. If on a particular date for which notice has been given by the party seeking relief of specific performance of contract, he himself fails to perform his part of the contract, i.e., the payment of sale consideration to the proposed vendor before the Sub-Registrar, it cannot be presumed that the plaintiff seeking such relief has always been ready and willing to perform his part of contract. In this context, the legal position is well-settled.

7. The Privy Council in Ardeshir H. Mama v. Flora Sassoon, AIR 1928 PC 208