IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.69 of 2015 Reserved on: 11.03.2025 Decided on: 20.03.2025 Sahi Ram Arya ...Appellant Versus Uma Devi Sood ...Respondent Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? No. For the appellants: Mr. G.D. Verma, Senior Advocate with Mr. Sumit Sharma, Advocate. For the respondents: Mr. B.M. Chauhan, Senior Advocate with Mr. Pranav Shyam, Advocate. Satyen Vaidya, Judge This regular second appeal has been filed by the appellant against the judgment and decree dated 11.07.2014 passed by the learned District Judge, Solan in Civil Appeal No.53- S/13 of 2013, whereby the judgment and decree dated 01.04.2013, passed by learned Civil Judge, Senior Division, Solan in Civil Suit No.28/1 of 2005 has been affirmed. 2. The appellant was defendant and respondent was plaintiff in original suit. The parties hereafter shall be referred by the status as they held before the learned trial Court. 2 3. Plaintiff filed a suit for recovery of Rs.1,04,000/- against the defendant and claimed future interest thereon at the rate of 12% per annum. It was alleged that the defendant had taken a sum of Rs.1,00,000/- from the plaintiff and had executed a writing/receipt dated 06.09.2004. As per plaintiff, defendant had promised to sell two rooms set in the basement floor of building Arya Niwas Jaunaji road, Shakti Nagar, Solan to plaintiff for a consideration of Rs.3,00,000/-. He had received a sum of Rs.1,00,000/- as advance and had further promised to execute a sale agreement within 2-3 days. As per plaintiff, the defendant had also agreed to accept another sum of Rs.1,00,000/- from the plaintiff within 15-20 days of the execution of agreement of sale and the balance Rs.1,00,000/- at the time of registration of sale deed. 4. The plaintiff further alleged that she being a simple lady was allured by the defendant to pay him Rs.1,00,000/- and the defendant thereafter did not execute any agreement to sell. 5. It was also the case of plaintiff that the property in respect of which receipt dated 06.09.2004 was executed, was not free from encumbrances. The same was not only under a mortgage, but had been attached to secure the loans availed by defendant. 3 6. Before filing the suit, the plaintiff issued a legal notice dated 29.09.2004 to the defendant claiming Rs.1,00,000/- along with interest at the rate of 12% per annum, but the defendant failed to oblige and hence the suit. 7. The defendant filed the written statement and raised the objections as to the maintainability of suit and estoppel. The defendant termed the receipt/writing dated 06.09.2004 as an agreement to sell. He pleaded his readiness and willingness to execute the sale deed in favour of the plaintiff. He alleged that it was plaintiff who backed out from the deal and as such, the plaintiff was not entitled for reimbursement of Rs.1,00,000/-. 8. Learned trial Court framed the following issues: “1. Whether the plaintiff paid Rs.1 lac to the defendant on 6.9.2004, pursuant to the writing executed between the parties for the sale of two rooms set, as alleged? OPP 2. Whether the plaintiff is entitled to recover Rs.1 lac from the defendant along with interest of 5% as prayed> OPP 3. Whether the suit is not maintainable? OPD 4. Whether plaintiff is estopped to file the suit as alleged? OPD 5. Whether plaintiff has no cause of action, as alleged? OPD. 6. Relief.” 4 9. Issues No.1 and 2 were decided in affirmative and remaining issues were decided in negative. The suit of the plaintiff was accordingly decreed for a sum of Rs.1,04,000/- with future interest at the rate of 12% per annum w.e.f. 24.03.2005 till the actual date of realization. 10. The first appeal filed by the defendant has also been dismissed vide judgment and decree impugned by way of this appeal. 11. The appeal was admitted on 24.06.2015 on following substantial question of law: “Whether on account of misappreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?” 12. I have heard learned counsel for the parties and have also gone through the record carefully. 13. The receipt/writing dated 06.09.2004 has been proved on record as Ext. PX. Indisputably, the plaintiff and defendant both are signatories to the document. Its reading 5 reveals that the defendant had acknowledged receipt Rs.1,00,000/- in cash as advance against the price of two rooms set in the basement floor of Arya Niwas, Solan. The defendant had agreed to execute the sale agreement within 1-2 days and thereafter to handover a copy thereof to the plaintiff. Out of balance amount of Rs.2,00,000/-, Rs.1,00,000/- was agreed to be accepted by plaintiff within 15-20 days and the rest was agreed to be payable at the time of registration of sale deed. The defendant further agreed to execute the sale deed in favour of the plaintiff latest by December 2004 after receipt of the entire consideration amount. 14. The execution of Ext. PX has been admitted by both the parties. As per defendant, Ext. PX was the concluded contract between the parties and since the plaintiff herself had failed to perform her part of agreement by withholding the subsequent payments, she herself was guilty of resiling from the agreement and thus, was not entitled to the suit amount. 15. Both the courts (trial court and appellate Court) have concurrently held that the defendant did not execute the agreement of sale in terms of writing Ext. PX. The findings of fact so recorded by learned Courts below cannot be faulted with as such findings are clearly borne from the material on record. 6 16. It is not the case of the defendant that he had taken any step to execute the agreement to sell or had invited the plaintiff for the purpose. In absence of execution of any agreement to sell between the parties, the document Ext. PX could not be considered to be an agreement of sale for the inherent uncertainties. Even otherwise, the plaintiff cannot be said to be unjustified in saying that in absence of execution of an agreement to sell, she was not under an obligation to pay further amount to the defendant. 17. When the defendant had failed to take steps to execute an agreement to sell, the plaintiff in terms of document Ext. PX was within her right to claim from plaintiff the amount paid by her to him. 18. As regards the claim of defendant with respect to his readiness and willingness to perform his part of contract, the same has been rendered meaningless in absence of any concluded contract between the parties. 19. Further, both the Courts have concurrently held that the property, in respect of which, document Ext. PX was executed was not free from encumbrances and the defendant was not in a position to transfer the title to plaintiff. To this effect reliance has been placed on the cross-examination of the defendant in which 7 the defendant admitted about the property in question being under charge at the relevant time. 20. In light of above discussion, I do not find anything illegal or perverse in the findings recorded by learned Courts below. The substantial question of law is answered accordingly. 21. In result, there is no merit in the appeal and the same is dismissed along with pending application(s), if any. (Satyen Vaidya) Judge 20th March, 2025 (vt)