Kamal Kumar v. Premlata Joshi: the checklist a plaintiff must plead and prove for specific performance

Why a small appeal became a much-cited restatement

Kamal Kumar v. Premlata Joshi is not a long judgment, and on its facts it is unremarkable: a buyer's suit for specific performance had been dismissed by the trial court, that dismissal had been affirmed by the first appellate court and again by the High Court of Madhya Pradesh at Jabalpur, and the Supreme Court — a Bench of Abhay Manohar Sapre, J. and Indu Malhotra, J. — declined to disturb the concurrent findings. What has made the decision a routine citation in specific-performance litigation is the way the Court paused, before deciding, to set out the framework every such suit must run through.

The value of the judgment is therefore structural rather than factual. It gives trial courts, and the advocates who plead before them, a short and orderly list of the issues that must be decided in a suit for specific performance of an agreement to sell — and it locates each issue in the settled law that governs it.

The material questions the Court restated

The Court explained that a suit for specific performance of a contract for the sale of immovable property is not decided at large. It turns on a defined set of material questions, and a decree can follow only if each is answered in the plaintiff's favour.

Two features of this list repay attention. First, the questions are cumulative, not alternative: a buyer who establishes a concluded contract still loses if he cannot prove readiness and willingness, and a buyer who proves both may still be refused a decree if the court, in the exercise of its equitable discretion, considers specific performance inappropriate. Second, the list carries its own fallback — the fourth question ensures that a plaintiff who fails to secure conveyance is not left empty-handed where he is entitled to restitution of what he has paid.

Readiness and willingness: the pivot of the case

Of the four questions, the Court singled out the second as decisive in practice.

That emphasis reflects the statutory scheme. Under Section 16(c) of the Specific Relief Act, 1963 as it stood before the 2018 amendment, a plaintiff could not obtain specific performance unless he averred and proved that he had performed, or had always been ready and willing to perform, the essential terms of the contract that were to be performed by him. The requirement is continuous: readiness and willingness must exist at the date of the contract, must persist through the litigation, and must be established as a matter of pleading and of proof, not asserted in the abstract.

Readiness and willingness are also distinct ideas that a plaintiff must satisfy together. Readiness is the buyer's capacity to perform — most obviously his financial ability to find and pay the balance consideration. Willingness is a matter of conduct — the buyer's genuine and continuing intention to carry the bargain through. A buyer who had the money but resiled from the deal, or who wanted the property but never had the means to pay for it, fails the test in either case. On the concurrent findings before it, the Court was satisfied that the buyer had established neither, and that finding was sufficient to defeat the suit.

Discretion that is principled, not arbitrary

The third question anchors the relief in the discretionary regime that governed specific performance before 2018. Under Section 20 of the unamended Act, the jurisdiction to decree specific performance was discretionary: a court was not bound to grant the relief merely because it was lawful to do so. But the discretion was never a licence for caprice — it had to be exercised soundly and reasonably, guided by settled judicial principles and capable of correction on appeal. Delay short of limitation, hardship, conduct, the adequacy of damages and the equities between the parties all feed into that assessment.

This is the feature of the decision most affected by later law reform. The Specific Relief (Amendment) Act, 2018 recast the remedy: with effect from 1 October 2018, specific performance ceased to be a discretionary relief of exception and became one that a court must ordinarily grant, subject to the limited statutory bars. Kamal Kumar was decided under, and states, the earlier discretionary regime, and it should be read with that transition in mind. Its first, second and fourth questions — a concluded contract, continuous readiness and willingness, and alternative relief — survive the amendment largely intact; its treatment of the third, the equitable discretion under Section 20, belongs to the pre-2018 world.

What practitioners take from the case

For a plaintiff drafting a plaint, the judgment reads almost as a pleading checklist. The plaint must set out a concluded and enforceable agreement with certainty; it must contain a clear averment of readiness and willingness in the statutory form, backed by facts showing both financial capacity and consistent conduct from the date of the agreement; and it should, in the alternative, claim refund of earnest money and any other restitutionary relief so that the fourth question is not lost by omission. A defendant, correspondingly, resists most effectively by attacking the concluded-contract question or by demonstrating that the buyer's readiness and willingness lapsed at some point in the chronology.

The decision's enduring utility is its economy. It does not announce new doctrine; it organises existing doctrine into a sequence a court can apply and an advocate can plead to. That is why it continues to be cited whenever a suit for specific performance of an agreement to sell is tried.

Related reading

• Mohammed Khaleel v. Jayamma: readiness and willingness as a continuing condition
• B. Santoshamma v. D. Sarala: part-performance and the subsequent purchaser
• Katta Sujatha Reddy v. Siddamsetty Infra: how the 2018 amendment changed specific performance

Sources

• Supreme Court of India, Kamal Kumar v. Premlata Joshi & Ors., Civil Appeal No. 4453 of 2009, decided 7 January 2019
• LiveLaw: "SC Explains Material Questions To Be Answered In Specific Performance Suit"
• Bar & Bench: "Suit for Specific Performance – Proper Form of Decree"
• Specific Relief Act, 1963 (India Code)