Personal Bars to Relief

What the 2018 amendment changed

Section 7 of the Specific Relief (Amendment) Act 2018 made three changes, all with effect from 1 October 2018, and the bare Act's footnotes record each.

The significance of dropping "aver". Under the old law the plaintiff had to plead readiness and willingness in the plaint in terms, and suits failed on the pleading alone. The requirement is now to prove it. Do not overstate the change: proof remains essential, and a plaintiff who has not pleaded the substance of his case will still find it hard to prove. What has gone is the formal averment as a separate hurdle.

The new clause (a) could not have existed before 2018, because substituted performance did not exist. It matches section 14(a), and the Act therefore says the same thing twice, once as a class of contract that cannot be enforced and once as a personal bar.

Clause (b): the plaintiff's own conduct

Four separate grounds, and each is enough on its own.

Become incapable of performing. The plaintiff can no longer do his side, for instance having sold on the property he was to convey.

Violates any essential term that on his part remains to be performed. Note the two qualifications: the term must be essential, and it must be one still to be performed by him.

Acts in fraud of the contract. Conduct designed to defeat its purpose.

Wilfully acts at variance with, or in subversion of, the relation intended to be established. The widest ground, aimed at conduct that destroys the footing on which the parties dealt.

Clause (c): readiness and willingness

This is the heart of the section and it is where suits are lost.

The two limbs

The plaintiff must prove either that he has performed, or that he has always been ready and willing to perform, the essential terms to be performed by him.

"Always" is a strong word. The readiness must be continuous, from the date of the contract down to the hearing. A plaintiff who was ready in year one, drifted in years two and three, and revived when prices rose has not satisfied it.

Readiness and willingness are two things. Readiness is capacity, chiefly financial: the plaintiff must show he had, or could command, the means. Willingness is intention: his conduct must show he meant to go through with it.

The exception in the clause itself

The plaintiff need not prove readiness as to terms "the performance of which has been prevented or waived by the defendant". A defendant who obstructed performance, or told the plaintiff not to bother, cannot then complain that it did not happen. This connects with section 53 of the Contract Act.

Explanation (i): no need to tender or deposit

Where the contract involves the payment of money, it is not essential for the plaintiff actually to tender the money to the defendant, or to deposit it in court, except when the court so directs.

This is a valuable point and it is often misunderstood. A plaintiff does not fail merely because he did not produce the money or pay it in. What he must show is capacity: that he had the funds, or arrangements to obtain them. Bank statements, sanctioned loans and evidence of assets are the usual proof.

Explanation (ii): according to its true construction

The plaintiff must prove performance, or readiness and willingness, according to the contract's true construction. He is not required to be ready for obligations the contract does not impose, and it is no answer that he was ready to do something different.

The leading case

Ram Awadh v. Achhaibar Dubey, AIR 2000 SC 860, Supreme Court, three Judges, 1 February 2000.

Facts. The appellants were the legal representatives of a subsequent purchaser of property, defendants to a suit for specific performance of an earlier agreement to sell it. The plaintiff had not pleaded readiness and willingness in her plaint and introduced the plea later by amendment. The first appellate court, following Jugraj Singh v. Labh Singh, refused to let the subsequent purchasers contend that she had never been ready and willing, on the footing that the plea was personal to the vendor. The High Court affirmed, and the appeal was referred to three Judges.

Held. The obligation imposed by section 16 is upon the COURT not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c). It is therefore not a plea personal to the vendor which a subsequent purchaser is barred from raising: any defendant may point to the plaintiff's failure, and the court must in any event satisfy itself. Jugraj Singh was disapproved.

Why it matters here. It settles two things. Readiness and willingness is not merely a defence that a particular defendant may or may not choose to take; it is a condition the court must be satisfied about. And a subsequent purchaser may raise it.

The judgment quotes clause (c) in its pre 2018 form, "who fails to aver and prove". The words were changed in 2018 to "who fails to prove". The principle, that the bar operates on the court, is unaffected.

A worked example

Nikita agrees on 1 March 2024 to buy a shop from Ojas for ninety lakh rupees, ten lakh paid on signing and the balance on conveyance within six months. Ojas refuses to convey and she sues in 2026.

• What must she prove? Under section 16(c), that she has performed or has always been ready and willing to perform the essential terms on her part, that is that she has been in a position to pay the eighty lakh balance continuously since the contract.
• Must she have tendered the eighty lakh, or deposited it in court? No. Explanation (i) says it is not essential to tender or deposit, except when the court so directs. But she must prove capacity, by bank statements, a sanctioned loan, or evidence of realisable assets.
• She had no funds at all until 2026, when she sold other land. She fails clause (c). Her readiness was not continuous, and the word "always" is not satisfied.
• Ojas told her in month two not to arrange the money because he would not sell. The exception in clause (c) applies: she need not prove readiness as to terms whose performance the defendant prevented or waived.
• In 2025 Nikita let the shop premises deteriorate in a way that breached an essential term she was to perform. Clause (b): she violates an essential term remaining to be performed by her, and the bar applies.
• She had earlier served notice under section 20, had the work done and recovered the cost. Clause (a) bars her, and section 14(a) says the same thing from the other direction.
• Ojas sold the shop to Pranav, who now defends the suit and says Nikita was never ready. On Ram Awadh Pranav may raise it: the obligation under section 16 is on the court, and the plea is not personal to the vendor.

What it does NOT mean

"Section 16 is discretionary." It is not. The bars are absolute, and Ram Awadh holds that the obligation is on the court.

"The plaintiff must deposit the price in court." Explanation (i) says the contrary, except where the court directs it. He must prove capacity, not payment.

"Since 2018 readiness and willingness need not be pleaded." The words "aver and" were dropped, so the formal averment is no longer a separate requirement, but the plaintiff must still prove it, and a case not pleaded in substance is hard to prove.

"Only the vendor may plead want of readiness." Ram Awadh disapproved that view. A subsequent purchaser may plead it, and the court must satisfy itself in any event.

"Readiness means only having the money." It has two limbs: readiness, which is capacity, and willingness, which is intention shown by conduct.

"A plaintiff must be ready for every term." Explanation (ii) confines it to the contract's true construction, and the clause excepts terms the defendant prevented or waived.

Quick revision

• s.16: specific performance cannot be enforced in favour of a person who (a) has obtained substituted performance under s.20; (b) has become incapable of performing, or violates an essential term remaining to be performed by him, or acts in fraud of the contract, or wilfully acts at variance with or in subversion of the relation intended; or (c) fails to PROVE performance, or that he has ALWAYS been ready and willing to perform the essential terms on his part.
• Exception in (c): not terms whose performance the defendant prevented or waived.
• Explanation (i): where money is payable, it is not essential to tender or to deposit in court, unless the court directs. Prove capacity.
• Explanation (ii): readiness is judged on the contract's true construction.
• 2018 changes, by s.7 of the amending Act: clause (a) substituted (was: a person not entitled to recover compensation); "aver and prove" became "prove"; Explanation (ii) "must aver" became "must prove".
• Ram Awadh v. Achhaibar Dubey, AIR 2000 SC 860 (three Judges): the obligation under s.16 is on the COURT; the plea is not personal to the vendor, and a subsequent purchaser may raise it. Jugraj Singh disapproved.
• Readiness = capacity. Willingness = intention. Both, and continuously.

Test yourself

1. State the three personal bars in section 16. Specific performance cannot be enforced in favour of a person who has obtained substituted performance of the contract under section 20; who has become incapable of performing, or violates any essential term of the contract remaining to be performed on his part, or acts in fraud of the contract, or wilfully acts at variance with or in subversion of the relation intended to be established by it; or who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract to be performed by him, other than terms whose performance has been prevented or waived by the defendant.

2. What did the 2018 amendment change in section 16? Clause (a) was substituted, so that the bar is now on a person who has obtained substituted performance under section 20 rather than on one who would not be entitled to recover compensation. In clause (c) the words "who fails to aver and prove" were replaced by "who fails to prove". And in Explanation (ii) "must aver" became "must prove". All three changes took effect on 1 October 2018.

3. Must a plaintiff tender or deposit the purchase money? No. Explanation (i) to section 16 provides that where a contract involves the payment of money it is not essential for the plaintiff actually to tender it to the defendant or to deposit it in court, except when the court so directs. What he must establish is his capacity to pay, which is proved by evidence of funds, sanctioned finance or realisable assets.

4. What did Ram Awadh decide? That the obligation imposed by section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c). It is therefore not a plea personal to the vendor, and a subsequent purchaser defending the suit may contend that the plaintiff was never ready and willing. The contrary view in Jugraj Singh v. Labh Singh was disapproved by the three Judge Bench.

5. Explain "always ready and willing". Readiness refers to the plaintiff's capacity, principally financial, to perform his side; willingness refers to his intention to do so, shown by his conduct. The word "always" requires both to be continuous, from the date of the contract until the hearing, so a plaintiff who was able and intending only at the beginning and again when the market moved in his favour does not satisfy clause (c).