SC denied specific performance as the buyer failed to deposit the remaining agreed money in court before seeking an order against the seller
You Can’t Ask the Court to Enforce a Contract If You Haven’t Fulfilled Your Own Part
The Supreme Court recently held that anyone asking for a court order to enforce a contract, known as ‘specific performance’, must first prove they have done, or are ready to do, what they themselves agreed to under that contract. In this case, the agreement to sell clearly stated that before asking the court to enforce the sale, the buyer had to deposit the remaining payment in court. Since this was not done, the Court held that the party could not seek specific performance.
The dispute began over an agreement to sell a property where the buyer paid an advance but failed to deposit the balance in court as required under Clause 6 of the contract. Both the District Court and the High Court dismissed the action, finding that the party seeking enforcement had not met this clear condition.
The Supreme Court agreed, explaining that under the long-standing principles of Roman-Dutch law, a person cannot expect the other side to perform their obligations if they themselves have not done so. The Court emphasized that this rule also protects defendants from unnecessary and costly lawsuits when the claimant has not shown readiness or ability to perform their part of the deal.
“….it is a fundamental legal principle in RomanDutch law that the party seeking to enforce a contract must be ready and willing to perform his part of the bargain. This necessarily leads to the conclusion that a party seeking to obtain specific performance of a contractual stipulation which is conditional upon the payment of a sum of money, must bring the amount due to Court and deposit it to the credit of the action at the time of filing the plaint. Imposing such a requirement certainly meets the interest of justice. In addition to the principle that a party seeking to obtain specific performance must be willing and able to perform his part of the bargain, it ensures that a defendant is not dragged through a time consuming and costly litigation only to find at the end of the trial that the plaintiff is not in a position to perform his part of the bargain which is conditional to the obligation of the defendant….” – Justice Janak De Silva
Rule Behind Seeking “Specific Performance”
Examining a line of case law from both Sri Lanka and South Africa, Justice Janak de Silva explained in this case the rule behind specific performance in contracts of sale and how parties can be entitled to seek such a remedy from court. He stated first that: “…a party ready and willing to perform their contractual obligations has a prima facie legal right to specific performance against the other party, subject only to the discretion of the Court in the interests of justice…” Justice Janak de Silva also explained the instances where this remedy would not be available under the exception of non-performance of contract in civil law. He said: “…A plaintiff who has failed to perform his obligation, which is conditional upon requiring the defendant to perform his obligation, will not be granted the remedy of specific performance. The civil law recognized this principle through the exceptio non adimpleti contractus (‘exception of non-performance of contract’), which was available against a party claiming performance who had himself not performed [Voet 19.1.23]…”
Case No: SC Appeal No. 49/2017 [Decided on: 08.10.2025]
Before: S. Thurairaja PC, J., Janak de Silva, J., and Mahinda Samayawardhena, J.
