Ritu Saxena vs J.S.Grover And Anr
2018 Latest Caselaw 5149 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  Review Petition 328/2018 in RFA 518/2018

%                                              29th August, 2018

RITU SAXENA                                              ..... Appellant
                          Through:       Mr. Mandeep Singh Vinaik,
                                         Ms. Anjali Sharma and Mr.
                                         Deepak Bashta, Advocates.
                                         (9810001275)
                          versus

J.S.GROVER AND ANR.                                    ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

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

1. 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.

2. 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.

3. Let me take up the aspect of correction of the clerical

mistakes first.

4. 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 final".

5. 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.

6. 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."

7. 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.

8. 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."

9. 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.

10. 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.

AUGUST 29, 2018/ib                           VALMIKI J. MEHTA, J