R. Shama Naik vs G. Srinivasiah

Court: Supreme Court
Case type: Special Leave To Petition Civil
Decided on: 28-11-2024

<pre> SLP(C) No.13933/2021
2024 INSC 927
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
rd
on agreement of sale dated 3 March 2005.
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2024.12.03
18:50:35 IST
Reason:
3. The total sale consideration fixed in the Agreement of
sale is Rs.30,00,000/-(Rupees Thirty lakh only).
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SLP(C) No.13933/2021
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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SLP(C) No.13933/2021
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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SLP(C) No.13933/2021
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, 
th
NOVEMBER 28 , 2024
4</pre>