Specific Relief Act (SRA)
Personal Bars to Specific Performance: Section 16
A valid, enforceable contract that clears Sections 10, 11 and 14 may still fail for a reason personal to the claimant. Section 16 sets out these personal bars. Relief cannot be granted to a person who has obtained substituted performance, who has become incapable or has broken an essential term, who acts in fraud of the contract or at variance with it, or, most importantly, who fails to prove that he was ready and willing to perform his own part. This last requirement, in Section 16(c), is the one most often litigated, and the 2018 Amendment refined its wording. This note works through all three clauses.
Figure: Section 16: the three personal bars, and how the 2018 Amendment changed Section 16(c) from 'aver' to 'prove'
1. The Three Bars: Section 16(a) to (c)
Relief cannot be granted in favour of a person ▪ 16(a): who has obtained substituted performance. A person who has already obtained substituted performance of the contract under Section 20 cannot also demand specific performance. This clause was added by the 2018 Amendment. ▪ 16(b): who is incapable, in breach, or acting in fraud or variance. A person who has become incapable of performing, or who violates an essential term that on his part remains to be performed, or who acts in fraud of the contract, or who wilfully acts at variance with, or in subversion of, the relationship intended by the contract. ▪ 16(c): who fails to prove readiness and willingness. A person who fails to prove that he has performed, or has always been ready and willing to perform, the essential terms of the contract on his part, other than terms whose performance the defendant prevented or waived. |
2. Section 16(c): Readiness and Willingness
The most important personal bar ▪ A condition precedent. Readiness and willingness is not a defence to be raised by the defendant; it is a condition the plaintiff must plead and prove to get relief. ▪ Readiness. The capacity to perform, chiefly the financial ability to pay the balance of the price. It looks to means: funds in hand, in the bank, or capable of being raised. ▪ Willingness. The intention and conduct of the plaintiff: that he was, and remained, prepared to do his part according to the contract. ▪ Continuous. Readiness and willingness must exist throughout, from the date of the contract to the hearing of the suit, not merely at the moment of filing. |
N. P. Thirugnanam v Dr R. Jagan Mohan Rao (1995) 5 SCC 115 The Supreme Court held that readiness and willingness is a condition precedent to specific performance, and that the plaintiff must prove it from the date of the contract until the hearing. Continuous readiness and willingness to perform the essential terms on his part is essential; its absence disentitles the plaintiff to the discretionary relief of specific performance. |
3. Proving Readiness: Financial Capacity
How readiness is established ▪ Capacity, not cash in hand. The plaintiff need not show that he kept the whole price ready in cash at all times; he must show he had the capacity to find it when required. ▪ Evidence. Bank statements, deposits, arrangements for a loan, or other proof of available funds or borrowing capacity are accepted as evidence of readiness. ▪ Tender not always necessary. By the Explanation to Section 16(c), the plaintiff need not actually tender the money to the defendant or deposit it in court, except when the court so directs. ▪ Deposit on direction. Where the court directs, the plaintiff may be required to deposit the balance consideration in court as proof of his readiness and good faith. |
4. Willingness: Conduct and Intention
- Conduct before suit. The plaintiff's letters, notices and dealings should show he pressed for performance and was prepared to do his part.
- Conduct during the suit. Willingness must continue; abandoning the contract, or delaying without reason, tells against it.
- Conditional or altered willingness. A plaintiff who insists on new conditions, or offers to perform only on terms not in the contract, is not willing in the sense the section requires.
5. What the 2018 Amendment Changed
Point | Before 2018 | After 2018 |
|---|---|---|
Wording of 16(c) | The plaintiff had to 'aver' and prove readiness and willingness | The plaintiff must 'prove' that he has performed or has always been ready and willing |
The Explanation | Actual tender was not always necessary | Retained: tender is still not always necessary |
Core requirement | A condition precedent to relief | Unchanged: still a condition precedent |
The shift from 'aver and prove' to 'prove' does not lower the bar. Readiness and willingness must still be established on the evidence; the amendment simply states the obligation as one of proof. Pleading it remains good practice, and proving it, by conduct and financial capacity, remains essential.
6. Frequently Asked Questions
Q. What are the personal bars to specific performance?
A. Under Section 16, relief cannot be granted to a person who has obtained substituted performance; who is incapable, in breach of an essential term, or acting in fraud or variance; or who fails to prove readiness and willingness.
Q. What is readiness and willingness under Section 16(c)?
A. Readiness is the capacity, chiefly financial, to perform; willingness is the intention and conduct. Both must be proved, and must be continuous from the contract to the hearing.
Q. Must the plaintiff deposit the purchase money in court?
A. Not as a rule. By the Explanation to Section 16(c), actual tender or deposit is not always necessary; but the court may direct a deposit as proof of readiness.
Q. Did the 2018 Amendment change the readiness and willingness requirement?
A. Only in wording: from 'aver and prove' to 'prove'. The requirement remains a condition precedent that the plaintiff must establish on the evidence.
SEO METADATA URL slug: personal-bars-specific-performance-section-16-specific-relief-act SEO title: Personal Bars to Specific Performance: Section 16 of the Specific Relief Act Meta description: Section 16 of the Specific Relief Act 1963: the personal bars to relief, including substituted performance, incapacity, breach, fraud and variance, and the readiness and willingness requirement in Section 16(c) after the 2018 Amendment. Keywords: Section 16 Specific Relief Act, readiness and willingness Section 16(c), personal bars specific performance, N P Thirugnanam, aver to prove 2018 amendment |