PERSONS AGAINST WHOM SPECIFIC PERFORMANCE CANNOT BE ENFORCED :

Under Section 16, specific performance of a contract cannot be enforced in favour of a person — (a) who would not be entitled to recover compensation for its breach, or (b) who has became incapable of performing, or violates any essential term of the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract, or (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. The obligation imposed by Section 16 of the Act is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of clause (a), (b) and (c) thereof.

Thus in a suit for specific performance the plaintiff should not only plead and prove the terms of the agreement but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract.

To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. Right from the date of the execution till the date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. N.P. Thirgnanam v. Dr. R Jagan Mohan Rao, AIR 1996 SC 116, (1995) 5 SCC 115.

The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. The circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either ever or prove the same he must fail.

The explanation states that for the purpose of clause (c), (i) where a contract involved the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court (ii) the plaintiff must ever performance of, or readiness and willingness to perform, the contract according to its construction.

Section 17 sets out two more cases where specific performance cannot be enforced in favour of a vendor or lessor. It states that a contract to sell or let any immovable property cannot be specifically enforced in favour of vendor or lessor (a) who knowing himself not to have any title to the property, has contracted to sell or let the property; (b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the Court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt Sub-section (2) lays down that the provisions of Sub-section (1) shall also apply as far as may be, to contracts for the sale or hire of movable property.

According to this Section, a contract to sell or hire property cannot be specifically enforced in favour of a seller or lessor if he had no title to the property. A person who knows that he has no title to the property but still enters into a contract with regard to that property, he cannot have the remedy of specific performance. It is the duty of the vendor to make a reasonable, clear and marketable title about which there must not be any rational doubt.

Illustration

A without C’s authority contracts to sell to B an estate which A knows to belong to C. A cannot enforce specific performance of this contract even though C is willing to confirm it.