Specific Relief Act (SRA)
Readiness and Willingness: A Complete Note
No requirement in the law of specific performance is litigated more often than readiness and willingness. It is the plaintiff's passport to the decree: he must show that he was, and remained, both able and willing to perform his own part of the contract. This note takes the requirement apart: the difference between readiness and willingness, the need for it to be continuous, how financial capacity is proved, what defeats it, and how the 2018 Amendment restated it. It expands the Section 16(c) discussion into a note in its own right.
Figure: Readiness as capacity and willingness as conduct, the continuous requirement, how readiness is proved, what defeats it, and the 2018 change
1. The Two Elements
Readiness and willingness distinguished ▪ Readiness is capacity. 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 that can be raised. ▪ Willingness is conduct. The intention and conduct of the plaintiff: that he was, and remained, prepared to do his part according to the contract, shown by his letters, notices and dealings. ▪ Both are needed. A plaintiff with the money but no willingness, or the will but no means, fails. He must have both, together, throughout. |
2. It Must Be Continuous, and It Is a Condition Precedent
The temporal and procedural rules ▪ 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. ▪ A condition precedent. It is not a defence for the other side to raise; it is a condition the plaintiff must plead and prove to obtain relief. |
N. P. Thirugnanam v Dr R. Jagan Mohan Rao (1995) 5 SCC 115 The Supreme Court held that continuous readiness and willingness from the date of the contract until the hearing is essential, and that its absence disentitles the plaintiff to the discretionary relief of specific performance. The plaintiff must prove it; a bare statement in the plaint, unsupported by conduct and capacity, will not do. |
3. How Readiness Is Proved
Evidence of financial capacity ▪ Bank statements, deposits and passbooks showing available funds. ▪ A sanctioned loan or credit facility, or the capacity to borrow. ▪ An arrangement to sell other property to raise the price. ▪ Deposit of the balance in court, where the court so directs. ▪ Tender is not always necessary. By the Explanation to Section 16(c), the plaintiff need not actually tender the money or deposit it in court unless the court directs; capacity to pay when required is enough, not cash kept ready throughout. |
4. What Defeats Readiness and Willingness
Factor | How it tells against the plaintiff |
|---|---|
No proof of funds | Failure to show the capacity to pay the balance |
Absence at completion | Not attending the Sub-Registrar's office to complete when required |
Delay | Unexplained delay in issuing a notice or in filing the suit |
Conditional willingness | Insisting on new terms not in the contract, or offering to perform only on conditions |
Abandonment | Conduct showing the plaintiff had given up the contract |
Defendant's own default | Terms the defendant prevented or waived are not counted against the plaintiff |
5. Section 16(c) Before and After 2018
From aver to prove ▪ Before 2018. The plaintiff had to aver and prove readiness and willingness; the Explanation softened the rule so that actual tender was not always necessary. ▪ After 2018. The words changed to has proved that he has performed or has always been ready and willing; the Explanation is retained, so tender is still not always required. ▪ Substance unchanged. The requirement remains a condition precedent that must be pleaded and proved on the evidence; the change is one of wording, not of substance. |
6. Frequently Asked Questions
Q. What is the difference between readiness and willingness?
A. Readiness is the capacity, chiefly financial, to perform; willingness is the intention and conduct showing the plaintiff was prepared to do his part. Both are required.
Q. Does the plaintiff have to keep the whole price ready in cash?
A. No. He must show the capacity to pay when required, proved by bank balances, loan arrangements or the ability to raise funds; actual tender is not always necessary.
Q. From when to when must readiness and willingness be shown?
A. Continuously, from the date of the contract to the hearing of the suit, as N. P. Thirugnanam holds.
Q. Did the 2018 Amendment lower the requirement?
A. No. It changed the wording from aver and prove to prove, but the requirement remains a condition precedent to be established on the evidence.
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