The Calcutta High Court has held that a plaintiff seeking specific performance of a contract must prove continuous readiness and willingness to perform his contractual obligations, and a Power of Attorney holder cannot substitute the plaintiff's testimony on matters within the latter's personal knowledge.

A Division Bench of Justice Ravi Krishan Kapur and Justice Atarup Banerjee made the observation while dismissing an appeal challenging a trial court's refusal to grant specific performance of an agreement for sale of a property in Bankura.

The Bench upheld the trial court's finding that the plaintiff had failed to prove his continuous readiness and willingness to perform his part of the contract. It held that the evidence of his Power of Attorney holder was insufficient to discharge this burden.

The Court observed that under Section 16(c) of the Specific Relief Act, 1963, a party seeking specific performance must establish that he has performed or has always been ready and willing to perform the essential terms of the contract.

“Continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance,” the Court observed, adding that the plaintiff must establish this requirement from the date of execution of the agreement until the decree.

The Bench further explained that Order III Rules 1 and 2 of the Code of Civil Procedure, 1908, permit a Power of Attorney holder to act on behalf of the principal, but this authority does not automatically extend to testifying in place of the principal on matters within the latter's personal knowledge.

“The authority to act on behalf of a party does not, by itself, entitle the attorney holder to substitute himself for the principal as a witness,” the Court observed, relying on the Supreme Court's decision in Janki Vashdeo Bhojwani v. IndusInd Bank Ltd.

The Court clarified that a Power of Attorney holder may depose regarding acts performed by him under the authority conferred by the instrument. However, he cannot testify in place of the principal regarding acts performed by the principal or matters of which only the principal has personal knowledge and for which the principal may be cross-examined.

Case: SRI MANOJ KUMAR AGARWALA Vs. SRI OMPRAKASH BRAJABASI & ANOTHER.