Section 16 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 16 lists three kinds of person in whose favour specific performance of a contract cannot be enforced: one who has obtained substituted performance, one who is at fault in the ways the section describes, and one who fails to prove readiness and willingness to perform. An Explanation adds two rules about money and about the true construction of the contract.
This article follows the consolidated text of the Act consulted (amendments shown up to Act 18 of 2018). Later amendments should be checked before you rely on any provision.
Specific performance cannot be enforced in favour of a person (a) who has obtained substituted performance under section 20, (b) who has become incapable of performing, violates an essential term, acts in fraud of the contract or wilfully acts at variance with it, or (c) who fails to prove that he has performed or has always been ready and willing to perform the essential terms. The plaintiff must prove readiness and willingness, but need not tender or deposit money unless the court directs.
The opening words and the three 2018 changes
Section 16 begins "Specific performance of a contract cannot be enforced in favour of a person—". The footnotes show three changes made by the Specific Relief (Amendment) Act, 2018 (Act 18 of 2018, section 7, with effect from 1 October 2018):
- Clause (a) was substituted. The footnote says only "for clause (a)", so the earlier clause is not in the text consulted and is not described here.
- In clause (c), "who fails to prove" was substituted for "who fails to aver and prove".
- In Explanation (ii), "must prove" was substituted for "must aver".
Because the footnotes quote the replaced words for clause (c) and Explanation (ii), those two can be stated: the earlier words were "who fails to aver and prove" and "must aver". For clause (a), nothing earlier is printed.
If your claim for performance may meet one of these bars, it is useful to talk through your commercial suit before you file.
Clause (a): a person who has obtained substituted performance
"who has obtained substituted performance of contract under section 20". Section 20 lets the party who suffers a breach get the contract performed through a third party or his own agency and recover the expenses; the details are in our article on section 20 on substituted performance. Once a person has obtained that substituted performance, section 16(a) shuts the door on specific performance in his favour. This ties to section 14(a), which says a contract cannot be specifically enforced where a party has obtained substituted performance in accordance with section 20; see our post on section 14.
Clause (b): incapacity, violation, fraud or subversion
Specific performance cannot be enforced in favour of a person "who has become 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".
The clause names four conduct bars:
- becoming incapable of performing the part that remains to be performed;
- violating an essential term of the contract that on his part remains to be performed;
- acting in fraud of the contract; or
- wilfully acting at variance with, or in subversion of, the relation intended to be established by the contract.
An invented example: Vivek agrees to buy a flat and pay in instalments. Before the last instalment, he sublets the flat to a third party in breach of an essential term that prohibited it. Section 16(b) is aimed at conduct of this kind, where the person asking for performance has himself departed from the contract.
Clause (c): failure to prove readiness and willingness
Specific performance cannot be enforced in favour of a person "who fails to 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."
Break it down:
- Who must prove: the person seeking performance (the plaintiff).
- What must be proved: either that he has performed the essential terms or that he has always been ready and willing to perform them.
- Which terms: the essential terms to be performed by him.
- What is excluded: terms whose performance "has been prevented or waived by the defendant". If the defendant stopped him or waived the term, the plaintiff need not prove performance of that term.
The 2018 change replaced "aver and prove" by "prove". Under the text now consulted, the clause speaks of failing "to prove". The Act does not define "ready and willing"; it asks for proof.
The Explanation to section 16
"For the purposes of clause (c),—
(i) where a contract involves 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 prove performance of, or readiness and willingness to perform, the contract according to its true construction."
Explanation (i) is a relief for plaintiffs: where the contract involves the payment of money, it is not essential to actually tender money to the defendant or deposit it in court, except when the court directs. So a buyer who says he is ready to pay need not physically hand over the price at the start, unless the court directs it.
Explanation (ii) states the standard: the plaintiff must prove performance or readiness and willingness "according to its true construction", meaning the contract as properly read. The 2018 Act replaced "must aver" with "must prove".
| Clause | Bar | Key words |
|---|---|---|
| (a) | Person who has obtained substituted performance under section 20 | Substituted by Act 18 of 2018 |
| (b) | Person incapable, in violation of an essential term, acting in fraud or wilfully at variance | Applies to the part that "remains to be performed" |
| (c) | Person who fails to prove performance or that he has always been ready and willing | "fails to prove" (2018); terms prevented or waived by defendant excluded |
| Explanation (i) | Money payment | No need to tender or deposit unless the court directs |
| Explanation (ii) | True construction | Plaintiff "must prove" (2018) |
Practical points
Keep a dated record of your own performance of every essential term: payments, deliveries, correspondence. Be able to show that you were ready and willing at all times, not only at the date of the suit. If the other side stopped you or waived a term, keep proof of that. Remember that the Explanation does not remove the need to prove readiness and willingness; it only relaxes the need to tender or deposit money unless directed.
The Act prints no period for a suit for specific performance; for the time to sue, see the Limitation Act article on specific performance and compensation for breach of contract. For the mirror question of who may seek performance, see section 15, and for the contract principles on performing or offering to perform, see our post on the Indian Contract Act, 1872 on the obligation of parties to perform or offer to perform.
Need help building a specific performance claim?
A claim for performance rests on records of what you did and when. We can go through your file with you and identify the proof you will need on readiness and willingness before the plaint is drafted.
Key takeaways
- Section 16 lists persons in whose favour specific performance cannot be enforced.
- Clause (a), substituted in 2018, bars a person who has obtained substituted performance under section 20.
- Clause (b) bars incapacity, violation of an essential term, fraud on the contract and wilful subversion.
- Clause (c) bars a person who fails to prove performance or readiness and willingness; the 2018 Act replaced "aver and prove" with "prove".
- No tender or deposit of money is essential unless the court directs.
- The plaintiff must prove readiness and willingness according to the true construction of the contract.
Read next
- Section 15 of the Specific Relief Act, 1963: who may obtain specific performance
- Section 20 of the Specific Relief Act, 1963: substituted performance of contract
- Sections 9-11 of the Specific Relief Act, 1963: specific performance, defences and trusts
Disclaimer: Based on a consolidated text of the Specific Relief Act, 1963 showing amendments up to the Specific Relief (Amendment) Act, 2018 (in force from 1 October 2018), as consulted on 2 October 2026. Later amendments, notifications under the Act and the law of limitation should be checked. This article is general information, not legal advice; check the official text before acting.