Ritu Saxena vs J.S.Grover And Anr

VALMIKI J. MEHTA, J (ORAL)

CM No. 35096/2018 (Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

Review Petition 328/2018 in RFA 518/2018

This Review Petition is filed by the appellant/plaintiff seeking review of the Judgment passed by this Court on 17.7.2018, and as corrected vide

order dated 1.8.2018, and thereby for allowing the first appeal filed by the appellant/plaintiff, and which was dismissed by the impugned Judgment

dated 17.7.2018.

Actually, the present review petition is, besides being a Review Petition, also a petition seeking correction of clerical errors in the Judgment dated

17.7.2018 and as corrected vide order dated 1.8.2018 as regards para 16 of the Judgment dated 17.7.2018.

Let me take up the aspect of correction of the clerical mistakes first.

The first aspect which requires correction is in para 16 of the impugned Judgment dated 17.7.2018 and as corrected by the order dated 1.8.2018. It

is rightly pointed out that it was not the appellant/plaintiff who was the employee of the M/s GE Capital India Services India Ltd i.e there is a typing

mistake in para 16 because in para 16 instead of stating that appellant’s/plaintiff’s husband was the employee it is stated that appellant/plaintiff

was the employee. Also, in this very para the factum with respect to a judgment and decree passed in another suit filed for possession filed by the

respondents/defendants, it has been written as the judgment in that suit for possession being sustained right till the Apex Court, whereas it had to be

stated that that judgment became final. Therefore, now para 16 of the impugned Judgment dated 17.7.2018 will read as under:-

“16. Finally, I would like to add that the respondents/defendants were forced to file a suit for possession against the lessee company M/s GE

Capital India Services Ltd. and in which company the appellant’s/plaintiff’s husband was the employee, and had stayed in the suit premises.

On account of the suit premises which was leased premises being not vacated, the respondents/defendants had to file a suit for possession and the

judgment and decree passed in the suit for possession has become finalâ€​.

Accordingly, the aforesaid para 16 as amended and stated above will now be read as para 16 of the impugned Judgment dated 17.7.2018.

The second factual aspect mistakenly written is in para 13 of the impugned judgment where it is mentioned that the rent was increased in terms of

the second Lease Agreement of the lessee company M/s GE Capital India Services Ltd whereas there was no increase of rent but only extension of

the lease. Para 13 of the impugned judgment therefore will now stand amended and will read as under:-

“13. Learned counsel for the appellant/plaintiff then argued that since after the agreement to sell a fresh lease was entered into and existing lease

was extended for 11 months ending on 30.7.2005, and therefore continuous payment of rent should be held to be a factor for granting discretionary

relief of specific performance. This argument is misconceived because extension of lease and payment of rent to stay in the premises is an aspect

which has nothing to do with the specific performance of an Agreement to Sell with respect to the property. In fact, I must note at this stage the

dishonesty of the appellant/plaintiff because she falsely pleaded that respondent/defendant had put the appellant/plaintiff in possession of the suit

property under the Agreement to Sell, whereas there is no such fact which is mentioned in the Agreement to Sell, and which argument of the

appellant/plaintiff was also rightly negated by the trial court in terms of the observations which have already been reproduced above. I may also add

that in case the appellant/plaintiff and her husband who were staying in the suit premises on behalf of the tenant/employer company, were put in

possession under an Agreement to Sell, then there would not have arisen payment of rent every month after the Agreement to Sell was entered into,

but the fact of the matter is that not only payment of rent continued to the respondent/defendant but also that the lease was extended for 11 months

ending on 30.7.2005. This argument of the appellant/plaintiff is therefore rejected.â€​

I would also like to note that correcting of the clerical errors in para 13 of the impugned judgment will not in any manner have the effect of

changing the conclusion of the impugned judgment.

On the aspect of the appellant/plaintiff seeking review on the ground that it is erroneously noted in the impugned judgment in para 9(ii)(B), and

similar observation found in para 10(ii), that it is wrongly noted that loan was sanctioned only for Rs.13 lacs and not for Rs.50 lacs, this aspect is

correct because the cross-examination of the witness of ICICI Home Finance Company Ltd. namely PW-3 Sh. Anil Kumar Srivastava was with

respect to loan of Rs.13 lacs for another property which was purchased by the appellant/plaintiff/her husband and was not the loan which was

sanctioned by ICICI Home Finance Company Ltd for the subject suit property. It is rightly pointed out that the amount of loan written in the letter

Ex.PW3/1 is Rs.50 lacs and not Rs.13 lacs. However, even taking that this error in the judgment is corrected, and it is held that the loan which was

sanctioned in terms of the letter Ex.PW3/1 dated 30.7.2004 was not Rs.13 lacs but was Rs.50 lacs, this will however not change the conclusion of the

judgment, because it has been otherwise held in paras 9(i), 9(ii)(A) and 9(ii)(C) of the impugned judgment that the trial court had held as per its

judgment, and which finding and conclusion was upheld by this Court in its Judgment dated 17.7.2018, that procedural requirements were not complied

with by the husband of the appellant/plaintiff for disbursement/release of the loan of Rs.50 lacs. Also, the contention raised in the review petition is

misconceived that loan was sanctioned for both appellant/plaintiff and her husband Sh. Vishnu Kant because in the loan application allegedly it is

shown that the loan was applied by both the appellant/plaintiff and her husband, inasmuch as this loan application cannot be relied upon as this loan

application is not a filed and proved document in the trial court, and further that even if that document being the loan application to ICICI Home

Finance Company is to be taken note of, then it is seen that though the appellant/plaintiff was a co-applicant, however the sanction of the loan vide

Ex.PW3/1 dated 30.7.2004 was ultimately only in the name of the husband of the appellant/plaintiff Sh. Vishnu Kant vide Ex.PW3/1 dated 30.7.2004,

and not in the name of the appellant/plaintiff. Therefore, though the factual errors in the impugned judgment of the loan not being of a sum of Rs.13

lacs to Sh. Vishnu Kant but being of Rs.50 lacs, will now stand corrected by deleting para 9(ii)(B) of the impugned judgment, with similar observations

contained in para 10(ii) of the impugned judgment being also deleted, yet, the conclusions in the impugned judgment will remain that the

appellant/plaintiff failed to prove her financial capacity/readiness because the terms and conditions for disbursal of the loan were not complied with by

Sh. Vishnu Kant with the fact that the loan was sanctioned not to the appellant/plaintiff but her husband Sh. Vishnu Kant, and which loan amount

therefore was not available to the appellant/plaintiff for performance of her obligations of payment of balance sale consideration under the subject

Agreement to Sell. Para 10(ii) of the impugned judgment will therefore stand amended by deleting lines in the same starting from the expression “

Admittedly, though it is not written in the letter …………..sanctioned only for a sum of Rs.13 lacs†and this para 10(ii) of the impugned judgment

will now read as under:-

“10 (ii) I cannot agree with this argument urged on behalf of the appellant/plaintiff for various reasons which are stated hereinafter. Indubitably the

sanction Letter dated 30.7.2004 specifically stated that the loan would only be disbursed after the husband of the appellant/plaintiff gave all income

documents and property documents to the finance company as stated in the Letter dated 30.7.2004 but admittedly there is no evidence whatsoever led

on behalf of the appellant/plaintiff that her husband gave to the finance company his income documents or property documents as are referred to in

the letter of the finance company dated 30.7.2004. At this stage the relevant observations of the trial court, already reproduced above are referred to,

that only vague deposition was made of ownership of property of appellant's/plaintiff's husband without giving any details or documents of the alleged

property. Therefore on the basis of the letter of the finance company dated 30.7.2004, it cannot be held that the appellant/plaintiff had available with

her necessary finances to pay the balance sale consideration and that too of a sum of Rs.49 lacs. Though this witness has stated that the

appellant/plaintiff and her husband were entitled to the loan of Rs.90 lacs keeping in view their solvency but how this self-serving oral statement is

made i.e on the basis of which record this was so, was not deposed to by the witness PW-3, and therefore such a self-serving statement without being

co-related with the record from the finance company, cannot be believed.â€​

There are various other grounds urged in the review petition which are only an endeavour to re-argue the matter for changing the conclusions in the

impugned judgment, but the scope of a review petition is not for rearguing a case for changing the conclusions arrived at therein containing reasons,

inasmuch as if according to the appellant/plaintiff/review petitioner the conclusions have been wrongly arrived at by this Court, a challenge to such

alleged erroneous conclusions in the impugned judgment passed by this Court on 17.7.2018 will have to be before a higher court as this Court cannot

sit in an appeal over its own judgment once there are no errors apparent on the face of the record. Taking one view and arriving at a plausible

conclusion by giving appropriate reasoning cannot be said to be an error apparent on the face of the record. Therefore, all other grounds urged in the

review petition for reviewing of the impugned Judgment 17.7.2018 are rejected as they do not point out any errors apparent on the face of the record

and these grounds are only an endeavour to re-argue the case for this Court to arrive at different conclusions then the reasoned conclusions already

arrived at.

In view of the aforesaid discussion, this review petition is dismissed, but the clerical errors and other factual errors which have occurred in the

impugned judgment dated 17.7.2018, are corrected by making the corrections in the judgment, and as stated in the present order. A fresh print-out of

the Judgment dated 17.7.2018 incorporating the above changes is taken out and after being signed by me is attached to this order.