IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.30 of 2023 Reserved on: 24.04.2026 Decided on: 30.04.2026 Jyoti Sharma ….Appellant Versus Harish Thakur ...Respondent Coram Hon’ble Mr. Justice Romesh Verma, Judge Whether approved for reporting? For the appellant: Mr. Jagmohan Singh Chandel, Advocate. For the respondents: Mr. Hamender Singh Chandel, Advocate. Romesh Verma, Judge The present appeal arises of judgment and decree, as passed by learned District Judge, Shimla, dated 01.12.2022, whereby the appeal filed by the defendant/respondent was partially accepted and the judgment and decree as passed by learned Senior Civil Judge, Court No.1, Shimla, District Shimla, H.P. dated 13.01.2022 was modified to the extent holding the plaintiff entitled to recover a sum of Rs.15,00,000/- (rupees fifteen lacs only) along with pendente lite and future interest @ 6% per annum from the defendant from the date of filing of the suit till actual realization along with costs of the suit. 2 2. Brief facts of the case are that the present appellant/plaintiff filed a suit for recovery of amount of Rs.20,00,000/- (rupees twenty lakhs) with interest @ 12% per annum from the date of execution of agreement to sell in the Court of learned Senior Civil Judge, Court No.1, Shimla. It was averred in the plaint that the defendant is the owner-in- possession of the property comprised in Khasra Nos.2054/565, 2057/566, 1971/562/2/2, 1974/552/3/14, situated at Up Mohal Sanjauli Chowk, Tehsil and District Shima, H.P. The defendant, being the owner-in-possession of the said Khasra numbers, entered into an agreement to sell dated 14.05.2014. As per the agreement, it was agreed to sell a flat in the ground floor towards Dhalli side with approximate area measuring 700 Sq. feet to 730 Sq. feet comprising two bedrooms, one drawing-cum-dining room, one kitchen, two toilets/bath and one balcony to the plaintiff for a total consideration at the rate of Rs.5,400/- per square multiplied by approximate area at the time of registration of the sale deed. The plaintiff agreed to purchase the same and in that regard, an agreement dated 14.05.2014 was executed between the parties. The defendant agreed to construct and handover the possession of abovementioned flat with all amenities to the plaintiff within two 3 years from the date of execution of agreement to sell. The period of two years has been completed on 14.05.2016. 3. As per the plaintiff, at the time of execution of agreement to sell dated 14.05.2014, the plaintiff paid an amount of Rs.5,00,000/- (rupees five lacs) as earnest money to the defendant. This was paid through cheque bearing No.075091 amounting to Rs.3,00,000/- (rupees three lacs) dated 14.05.2014 and another cheque bearing No.075092 amounting to Rs.2,00,000/- (rupees two lacs) also dated 14.05.2014. Additionally, Rs.6,00,000/- (rupees six lacs) was paid by way of cheque No.365022 dated 16.12.2015 of UCO Bank, Rampur. Further, Rs.2,00,000/- (rupees two lacs) was paid by way of cash and another payment of Rs.2,00,000/- (rupees two lacs) was paid by the plaintiff to the defendant on 18.07.2016 and receipt qua this payment is also issued by the defendant in the presence of witnesses. It was submitted by the plaintiff that he has paid a sum of Rs.20,00,000/- (rupees twenty lacs) to the defendant by way of cheques and cash and the balance consideration was to be paid at the time of execution of sale deed. 4. defendant has failed to execute the sale deed in favour of the plaintiff on or before 14.05.2016 and also changed the nature of the suit property. Though, the plaintiff had requested 4 the defendant several times to complete the construction of the said flat and get the sale deed registered in the name of the plaintiff, but the defendant failed to do so till date. The defendant has changed the nature of the suit property with a view to defeat the legitimate right of the plaintiff. Therefore, the plaintiff has got a right to recover a sum of Rs.20,00,000/- (rupees twenty lacs), which has been paid to the defendant towards the sale consideration along with interest @ 12% per annum. Consequently, a suit was filed for granting a decree for recovery of amount of Rs.20,00,000/- (rupees twenty lacs), along with interest @ 12% per annum before the learned trial Court. 5. The defendant/respondent filed written statement to the suit as preferred by the plaintiff. Various preliminary objections with respect to maintainability, cause of action, limitation, estoppel etc. were taken by the defendant in his defence. On merits, the averments, as made in the plaint were refuted. It has been averred in the written statement that as per terms and conditions of the agreement, which was executed between the parties on 14.05.2014, the plaintiff was entitled to get the flat registered in her name within a period of two years from the date of agreement. The plaintiff failed to adhere to the terms and conditions of the agreement and thereafter, she has levelled false 5 and frivolous allegations against the defendant. The defendant constructed the flat within the stipulated period as per terms and conditions of the agreement. However, it is on account of conduct of the plaintiff that, despite completion of flat before 14.05.2016, the plaintiff failed to make any contact with the defendant regarding the registration of sale deed. Such conduct of the plaintiff shows that she was not willing to perform her part of agreement dated 14.05.2014 and she failed miserably to adhere to the terms and conditions of the agreement. It was specifically denied that the plaintiff paid a sum of Rs.20,00,000/- (rupees twenty lacs) to the defendant on different dates. As the plaintiff failed to perform her part of contract, she is not entitled to get any relief from this Court. Therefore, the defendant prayed for the dismissal of the suit as filed by the plaintiff. 6. Learned trial Court framed issues on 12.06.2018 in the following manner: 1. Whether the defendant has violated the terms and conditions of agreement to sell dated 14.05.2014 so executed with plaintiff? OPP 2. If Issue No.1 is proved in affirmative, whether the plaintiff is entitled for recovery of 20,00,000/- and interest from the defendant? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether there is no cause of action to file the present suit? OPD 5. Whether the suit is barred by limitation? OPD 6 6. Whether the plaintiff is estopped from filing the present suit on account of his own act and con- duct? OPD 7. Whether the plaintiff has not come to the Court with clean hands? OPD 8. Whether the plaintiff has concealed the material facts from the Court? OPD 9. Relief. 7. Learned trial Court directed both the parties to adduce evidence in support of their contentions and vide its judgment and decree dated 13.01.2022, learned trial Court decreed the suit, as filed by the plaintiff by directing the defendant/respondent to pay an amount of Rs.20,00,000/- (rupees twenty lacs) along with interest at the rate of 6% per annum to the plaintiff from the date of filing of the suit till the date of its actual realization. 8. Feeling dissatisfied, the present respondent/defendant filed an appeal under Section 96 of the Code of Civil Procedure, against the judgment and decree as passed by learned trial Court, on 15.02.2022. Learned first appellate Court vide its judgment and decree dated 01.12.2022 partially accepted the appeal and modified the judgment and decree as passed by learned trial Court by holding that the plaintiff is entitled for a decree to recover a sum of Rs.15,00,000/- (rupees fifteen lacs) along with pendente lite and future interest at 7 the rate of 6% per annum from the date of filing of suit till its actual realization along with costs of the suit. 9. Feeling dissatisfied, the plaintiff/appellant has approached this Court by filing the present regular second appeal. 10. It is contended by learned counsel for the plaintiff/appellant that the learned first appellate Court has wrongly determined the point in controversy by modifying the decree as passed by learned trial Court. He has submitted that the plaintiff is entitled to a decree amounting to Rs.20,00,000/- (rupees twenty lacs) along with interest @ 12% per annum and the judgment and decree, whereby the said decree has been modified is erroneous and liable to be quashed and set aside. He further submitted that after setting aside the judgment and decree passed by learned first appellate Court, the judgment and decree as passed by learned trial Court should be restored. 11. On the other hand, Mr. Hamender Singh Chandel, learned counsel for the defendant/respondent has defended the impugned judgment and decree, as passed by learned first appellate Court. He has submitted that the learned trial Court has wrongly decreed the suit filed by the plaintiff/appellant by ordering a decree amounting to Rs.20,00,000/- (rupees twenty lacs) in 8 favour of the plaintiff. He further submitted that the learned first appellate Court, after taking into consideration the evidence placed on record, has rightly come to the conclusion that the plaintiff is entitled only to a sum of Rs.15,00,000/- (rupees fifteen lacs) along with pendente lite and future interest @ 6% per annum. He submitted that the learned first appellate Court has rightly passed the impugned judgment and decree, therefore, no interference of any kind is required and consequently, the present appeal be dismissed. 12. I have heard learned counsel for the parties and have carefully scanned the case file. 13. With the consent of learned counsel for the parties, the appeal is taken up for final hearing at an admission stage on the substantial question of law, which reads as under: “1. Whether the judgment and decree passed by Ld. District Judge, Shimla is based on conjectures and surmises?” 14. The case as set up by the plaintiff/appellant is that an agreement to sell was executed between the parties on 14.05.2014 with the terms and conditions that the plaintiff agreed to purchase a flat in the ground floor towards Dhalli side a flat measuring approximately 700 Sq. feet to 730 Sq. feet comprising two bedrooms, one drawing-cum-dining room, one kitchen, two 9 toilets/bath and one balcony to the plaintiff for a total consideration at the rate of Rs.5,400/- per square multiplied by approximate area. It is the case of the plaintiff that she agreed to purchase the same vide agreement entered into between the parties on 14.05.2014. Though, in para-4 of the plaint the details of the payment as given by the plaintiff indicate that Rs.15,00,000/- (rupees fifteen lacs) was paid to the defendant in the presence of the witnesses, however, in the subsequent paras, the plaintiff has come with story that she paid a sum of Rs.20,00,000/- (rupees twenty lacs) to the defendant on different dates, which was duly acknowledged by the defendants. Therefore, the plaintiff filed a suit for recovery of an amount of Rs.20,00,000/- (rupees twenty lacs) along with interest @ 12% per annum. 15. On the other hand, the defendant has not disputed the execution of the agreement. However there is a specific denial with respect to the payment of Rs.20,00,000/- (rupees twenty lacs) alleged to have been paid by the plaintiff to the defendant. 16. In the written statement, it has been stated by the defendant that all the terms and conditions of agreement were fulfilled by the defendant. Rather, it is the plaintiff who has failed 10 to perform her part of agreement. He submitted that the defendant had completed the flat as per the terms, conditions and requirements made in the agreement within the stipulated period, but it is the plaintiff who failed to perform her part of contract. It was specifically denied by the defendant that the plaintiff paid a sum of Rs.20,00,000/- (rupees twenty lacs) to him on different dates. 17. In order to corroborate its case, the plaintiff herself appeared in the witness box as PW-1. She reiterated the averments as made in the plaint and stated that an agreement was entered into between the parties for the sale/purchase of a flat. The agreement was executed in the presence of the witnesses. She further stated that she was supposed to pay a sum of Rs.20,00,000/- (rupees twenty lacs) to the defendant as sale consideration and vide receipts Ext. PW-1/B and Ext.PW- 1/C, Rs.5,00,000/- (rupees five lacs) was paid to the defendant on 03.04.2016. As per the agreement, the defendant was supposed to give a built up area consisting of 700-730 Sq. feet. As per terms and conditions of the agreement, the defendant had agreed to construct and handover the flat within a period of two years from the date of execution of agreement, but till date the defendant has failed to handover the flat to her and that 11 Rs.20,00,000/- (rupees twenty lacs) which has been paid by her to the defendant be refunded to her along with interest at the rate of 12% per annum. 18. In the examination-in-chief, she has stated that she paid the entire sale consideration of Rs.20,00,000/- (rupees twenty lacs) to the defendant, and that out of the same, certain payments were made by her and her husband. In the cross- examination, she has admitted that on 03.04.2016, the agreement Ext. PW-1/A was signed by the defendant Harish Kumar Thakur only, and that on the said date, the said agreement was not signed by her. With respect to the payments, they were written by the defendant himself. She admitted that on the said day, there was no witness. She admitted that on receipt Ext. PW-1/C, no date has been inserted. In the cross-examination, she has stated that the payment had been made by her husband on her behalf and that she had also made the payment after closing her FD. How much payment has been paid by her husband, she does not know? She stated that she made a payment of Rs.5,00,000/- (rupees five lacs) from her FD and the remaining payment was made by her husband. 19. The plaintiff examined Harish Negi, the husband of the plaintiff, as PW-2. He reiterated the contents of the plaint and 12 stated that the defendant was raising construction of flats near the house of uncle (Mama) of his wife (PW-1). An agreement was entered into between the parties Ext. PW-1/A on 14.05.2014. His signatures are encircled and marked as ‘D’ over the same. He stated that at the time of agreement, the plaintiff (PW-1) paid a sum of Rs.5,00,000/- (rupees five lacs) as earnest money and the said payment was made through cheques. One cheque was amounting to Rs.3,00,000/- (rupees three lacs) and other cheque was amounting to Rs.2,00,000/- (rupees two lacs). As per agreement, the defendant, Harish Thakur, has agreed to build a flat comprising of area 730 Sq. feet in its dimension. He stated that the payment about the agreement was made in his presence. The said payment was made by his wife, but the cheques which were issued were in the name of PW-2 and were given with the implied and express consent of the defendant and this witness. He stated that from his account, first time sum of Rs.5,00,000/- (rupees five lacs) and second time Rs.6,00,000/- (rupees six lacs) were withdrawn through cheque and the remaining amount was paid by his wife. He stated that on the agreement encircled Mark ‘C’ has been written by him, but it was duly signed by the defendant and written at the behest of Harish Thakur, defendant, as he stated that he does not know how to write. 13 20. In order to rebut the case of the plaintiff, the defendant, Harish Thakur, filed an affidavit Ext. DW-1/A. He reiterated the averments as made in the written statement and denied the payment. He stated that he had agreed to construct and handover the possession of a flat to the plaintiff within two years from the date of execution of the agreement to sell. At the time of execution of agreement to sell on 14.05.2014, the plaintiff paid a sum of Rs.5,00,000/- (rupees five lacs) as earnest month through cheque bearing No.075091 amounting to Rs.3,00,000 (rupees three lacs) and another cheque bearing No.075092 amounting to Rs.2,00,000 (rupees two lacs) both dated 14.05.2014. Further, Rs.6,00,000/- ( rupees six lacs) was paid to him on 16.12.2015 by way of cheque. He stated that the plaintiff did not pay full and final payment of sale consideration to him till date, despite making repeated requests and notice to the plaintiff. He stated that he is ready and willing to get the sale deed registered in the name of the plaintiff, provided the plaintiff pay balance payment of sale consideration to him along with interest @ 12% per annum. 21. The plaintiff in order to prove her case, placed on record an agreement to sell (Ext. PW-1/A). Similarly, a copy of receipt dated 18.07.2016 (Ext. PW-1/B) has been placed on 14 record. According to receipt, a sum of Rs.2,00,000/- (rupees two lacs) was paid to the defendant. Ext. PW-1/C is a receipt, acknowledging that the defendant received a sum of Rs.8,00,000/- (rupees eight lacs). Ext. D-X is the copy of reply to the legal notice issued by the plaintiff, dated 12.12.2016. Ext. D- Y is a copy of letter issued to the plaintiff. 22. Para-4 of the plaint reveals that the plaintiff paid an amount of Rs.5,00,000/- (rupees five lacs) as earnest money to the defendant. This was paid through cheque bearing No.075091 amounting to Rs.3,00,000/- (rupees three lacs) dated 14.05.2014 and another cheque bearing No.07592 amounting to Rs.2,00,000/- (rupees two lacs) also dated 14.05.2014. Additionally, Rs.6,00,000/- (rupees six lacs) was paid by way of cheque No.365022 dated 16.12.2015 of UCO Bank, Rampur. Further, Rs.2,00,000/- (rupees two lacs) was paid by way of cash and another payment of Rs.2,00,000/- (rupees two lacs) was paid by the plaintiff to the defendant on 18.07.2016. The plaint itself shows that a sum of Rs.15,00,000/- (rupees fifteen lacs) was paid by the plaintiff to the defendant. 23. Ext. PW-1/B shows that a sum of Rs.2,00,000/- (rupees two lacs) was paid to the defendant, and Ext PW-1/C shows that a sum of Rs.8,00,000/- (rupees eight lacs) was paid to 15 the defendant. The remaining Rs.5,00,000 (rupees five lacs) was paid by the plaintiff vide two cheques dated 14.05.2014 for a sum of Rs.3,00,000/- (rupees three lacs) and Rs.2,00,000/- (rupees two lacs). This means that the plaintiff has paid a sum of Rs.15,00,000/- (rupees fifteen lacs) to the defendant, and the story, as projected that a sum of Rs.20,00,000/- (rupees twenty lacs) has been paid to the defendant, is not proved. Learned first appellate Court has rightly come to the conclusion that in all a sum of Rs.15,00,000/- (rupees fifteen lacs) was paid by the plaintiff to the defendant. Therefore, the plaintiff is entitled for the said amount along with interest @ 6% per annum. Learned trial Court failed to determine and assess the amount in its right perspective and wrongly came to the conclusion, merely on the bald assertion of the plaintiff, that she is entitled for a sum of Rs.20,00,000/- (rupees twenty lacs), whereas the record speaks otherwise. The documentary evidence clearly shows that the plaintiff had paid a sum of Rs.15,00,000/- (rupees fifteen lacs) to the defendant and not Rs.20,00,000/- (rupees twenty lacs). Therefore, the judgment and decree as passed by learned first appellate Court is legal, valid and sustainable. 24. Even otherwise, in case the evidence of PW-1 plaintiff and her husband PW-2 is scanned, it shows that there are 16 material contradictions in the statements of said witnesses. PW-1, in her examination-in-chief, stated that she paid the sale consideration of Rs.20,00,000/- (rupees twenty lacs) and out of that, some payments were made by her husband on her behalf. However, in the cross-examination, she stated that the aforesaid payment was made by her husband on her behalf and that she made the payment after closing her FD. She stated that she does not know how much amount was paid by her husband. She paid a sum of Rs.5,00,000/- (rupees five lacs) from her FD and the remaining amount was paid by her husband PW-2. When the testimony of PW-2 is seen, he has a different version. He stated that at the time of agreement to sell, the plaintiff made a payment of Rs.5,00,000/- (rupees five lacs) through cheques. On the contrary, the plaintiff has stated that she made the payment after closing her FD. PW-2, the husband of the plaintiff, stated that he made a payment of Rs.5,00,000/- (rupees five lacs) once, followed by a second payment of Rs.6,00,000/- (rupees six lacs) and the remaining amount of payment was made by the plaintiff, meaning thereby that PW-2, husband of the plaintiff, made payment of Rs.11,00,000/- (rupees eleven lacs) and the remaining amount was paid by the plaintiff. The said testimony is contrary to the statement of PW-1, whereby she stated that she 17 made only payment of Rs.5,00,000/- (rupees five lacs) and the remaining amount was paid by her husband PW-2. Thus, the case as set up by the plaintiff for payment of Rs.20,00,000/- (rupees twenty lacs) does not inspire confidence. The plaintiff has failed to plead and establish that she paid Rs.20,00,000/- (rupees twenty lacs) instead of Rs.15,00,000/- (rupees fifteen lacs). 25. Learned first appellate Court has rightly adjudicated and determined the point in controversy, and the same does call for any interference. Learned appellate Court, being the last Court of fact, has rightly accepted the appeal filed by the defendant/respondent and has rightly modified the decree as passed by learned trial Court. 26. The substantial question of law is answered accordingly. 27. In view of above discussion, the present appeal being devoid of any merit is dismissed. Pending application(s), if any, shall also stand disposed of. ( Romesh Verma ) Judge April 30, 2026 (vt)