1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.168 of 2025 Date of Decision : 11.08.2025 Durga Singh Jaret …… Appellant Versus Naveen Lakhanpal ……Respondent Coram: The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 No For the appellant : Mr. B.M. Chauhan, Senior Advocate with Ms. Kamakshi Tarlokta, Advocate. For the respondent : Nemo. Bipin Chander Negi, Judge (oral) The Appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, “the CPC”), has assailed the judgment and decree dated 27.02.2025 passed by the learned District Judge, Shimla, District Shimla, Himachal Pradesh, in Civil Appeal No.18-S/13 of 2022, affirming the judgment and decree dated 22.08.2022, passed by learned Civil Judge, Court No.3, Shimla, Himachal Pradesh, in Civil Suit No.9009131 of 2013. 2. The plaintiff had instituted a suit against the defendant before the learned Trial Court, seeking specific performance of the agreement dated 07.05.2013 and 20.06.2013 under Sections 5 and 17 of the Delhi High Court Act, as applicable to Himachal Pradesh, read with Order 7 Rules 1 & 2 and Section 26 of the Code of Civil Procedure. The plaintiff also sought a 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 permanent prohibitory injunction restraining the defendant from handing over possession or creating a lease of the non-residential premises comprising Shop No. A-1 on the second floor and part of Unit-D and Unit-E on the third floor of the building Inder Palace in the main market Sanjauli, Shimla, measuring approximately 500 square feet of Unit-D and 700 square feet of Unit-E. Alternatively, the plaintiff prayed for recovery of 6,00,000/- with ₹ interest @ 18% per annum from the date of payment, along with damages of 3,00,000/-. ₹ 3. The plaintiff, a businessman running a sweet shop under the name and style of M/s Mehar Chand & Brothers at Lower Bazar, Shimla, alleged that an agreement was executed between the parties on 07.05.2013/20.06.2013, whereby the defendant agreed to let out the aforementioned premises for a monthly rent of 90,000/- for running a sweet ₹ shop. As per the agreement, the plaintiff paid 2,00,000/- on 25.05.2013 and ₹ ₹4,00,000/- on 03.06.2013 as security deposit. The defendant was obligated to carry out certain additions and alterations, including tile flooring in Unit-D and E, widening the existing toilet in Unit-E, constructing a brick wall to separate Unit-D from other rented premises, repairing windows, painting, and reconstructing the staircase connecting Shop A-1 with Unit-E as per the plaintiff’s architect’s plan. The plaintiff claimed that on 19.07.2013, his architect provided the necessary drawings to the defendant, but the defendant failed to execute the agreed-upon work. The defendant, instead, issued legal notices dated 14.08.2013 and 08.11.2013, allegedly with malafide intent to avoid his contractual obligations, thereby causing financial 3 loss to the plaintiff, who had intended to utilize the premises during the festive season. 4. The defendant contested the suit, admitting the execution of the agreement and receipt of 6,00,000/- as security but denying any default on ₹ his part. He asserted that he had commenced construction work as per the agreement, including raising a staircase in Unit-D, constructing a separating wall, and widening the toilet in Unit-E. However, the plaintiff failed to provide the requisite architectural drawings for the reconstruction of the staircase and widening of the toilet, thereby stalling further progress. The defendant further alleged that the plaintiff breached the agreement by failing to issue rent cheques as stipulated, leading to the termination of the agreement via notice dated 08.11.2013. The defendant claimed that the security deposit stood forfeited due to the plaintiff’s breach and that he had incurred expenses of approximately 50,000/- for partial construction, reserving his right to recover ₹ the same. 5. Upon consideration of the pleadings, the learned trial court framed the following issues: 1. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction, as prayed for?...OPP 2. Whether the plaintiff is entitled for a decree of specific performance of contract, as prayed for?...OPP 3. If issue No. 2 is not proved in the affirmative, whether the plaintiff, in the alternative, is entitled for recovery of ₹6,00,000/- along with up-to-date interest, as prayed for?...OPP 4. Whether the plaintiff is entitled for damages to the tune of ₹3,00,000/- along with interest, against the defendant, as prayed for?...OPP 5. Whether the present suit is neither competent nor maintainable in the present form, as alleged?...OPD 4 6. Whether the plaintiff has suppressed material facts from this Court and as such has not come to the Court with clean hands, as alleged?...OPD 7. Whether the plaintiff has no cause of action against the defendant, as alleged?...OPD 8. Whether the plaintiff is estopped from filing the present suit, as alleged?...OPD 9. Whether the plaintiff himself is a wrongdoer and the present suit has been filed as a pressure tactic to defeat the legal right of the defendant, as alleged?...OPD 10. Whether the present suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged?...OPD 11. Relief ? 6. After evaluating the evidence, the trial court decided issues No. 1 and 2 against the plaintiff, holding that he was not entitled to specific performance or injunction. However, issue No. 3 was decided in favour of the plaintiff, granting him a decree for recovery of 6,00,000/- with interest. Issues No. 4 ₹ to 10 were decided against the defendant. 7. The appellant/defendant, aggrieved by the judgment and decree of the learned trial court, had preferred the first appeal, contending that the impugned judgment was erroneous and contrary to law. The defendant had argued that the trial court committed a grave error by decreeing the suit for recovery of 6,00,000/- while rejecting the prayer for specific performance, ₹ creating an inherent inconsistency. The trial court had ignored material evidence, particularly the plaintiff’s failure to furnish the requisite architectural drawings, which was a precondition for the defendant’s performance. The plaintiff’s own breach—not issuing rent cheques and stopping payment—had been overlooked. Additionally, the security deposit was contractually interest- 5 free, yet the trial court had awarded interest. The judgment was thus based on misappreciation of evidence and incorrect application of law. 8. The first appellate court, however, dismissed the appeal and upheld the trial court’s decree. Therefore, the present second appeal. 9. Heard Counsel for the appellant and perused the impugned judgment. 10. Upon a meticulous review of the record, including the agreement dated 07.05.2013/20.06.2013 (Ext. PW-1/A), notices issued by the defendant (Ext. DW-3/A and Ext. DW-3/C), receipts evidencing payment of security amounts (Ext.PW-1/B and Ext. PW-1/C), and photographs (Ext. PX-1 to PX- 3), it is evident that the trial court and the first appellate court have correctly applied the law and appreciated the facts. The plaintiff, Sh. Naveen Lakhanpal (PW-1), in his testimony, affirmed the execution of the agreement and the payment of the security deposit and monthly rent cheques, except for the first cheque (No. 37005). PW-1 also admitted that possession was never delivered and denied the requirement to supply a site plan, a position supported by clause (x) of the agreement. PW-2, Sh. Nishu Kant Sharma, a property dealer who introduced the parties, corroborated the plaintiff's claim that possession was to be delivered on 31.08.2013 and that the defendant failed to carry out the necessary alterations. He further confirmed that part of the property was leased to a third party during the pendency of the suit. 11. The defendant, Sh. D.S. Jaret (DW-4), admitted receipt of Rs.6,00,000/- in cash and various post-dated cheques but contended forfeiture of the security amount due to non-performance by the plaintiff and failure to deliver possession. DW-4 admitted not handing over possession as per the agreement and that the premises were leased out to another party 6 during litigation. DW-1, Sh. Dipesh Singh, and DW-2, Sh. Gaurav, supported the defendant's assertion regarding prior use of the property and partial construction works but could not substantiate losses or expenses with documentary evidence. DW-3, Ms. Veena Devi, court official, authenticated the notices and postal receipts. 12. The Courts below correctly found that specific performance was not permissible since the plaintiff failed to demonstrate absolute readiness and willingness, especially concerning issuance of the first rent cheque (No. 37005), which remains un-issued as per record. Moreover, the tenancy never commenced due to non-delivery of possession, rendering the forfeiture clause inapplicable as it applied only if the tenant vacates prior to the agreed ten-year period. The defendant's argument that the security deposit was interest-free during tenancy was rightly rejected as tenancy never began. 13. The trial court and the first appellate court granted the plaintiff recovery of the security deposit of Rs.,6,00,000/- with interest at the statutory rate of 6% per annum, rejecting the contractual interest rate of 18% due to lack of evidence. 14. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) August 11, 2025 (KS/T.B.) Judge