Ritu Saxena vs J.S. Grover

2) The husband of the appellant, who as an employee of M/s. GE Capital Services India Ltd., was in occupation of the said residential premises on a monthly rent of Rs.13,000/- to be paid by the tenant i.e. M/s. GE Capital Services India Ltd. since September 2002 to the landlord. On the expiry of the existing lease, the Agreement of Lease was extended for 11 months from September 01, 2004 but before the expiry of the lease, the appellant claims to have entered into an Agreement of Purchase the said property for a total sum of Rs.50 lakhs. A sum of Rs.1 lakh by cheque was paid to the 1 defendants. It was agreed that all further relevant documents such as Agreement to Sell, Sale Deed, Will, Possession Certificate and No Objection Certificate for the purpose of transferring the said property shall be executed. The Agreement reads thus:

6) In support of her claim, the appellant tendered her evidence on affidavit and made herself available for cross-examination as PW-1. PW-2 is her husband whereas PW-3 is the official from the ICICI who has deposed regarding the loan sought by the appellant and/or her husband. The appellant relied upon sanction letter dated July 30, 2004 (Ex.PW3/1) issued by ICICI. She stated that she had sufficient funds and resources which she can draw and is in a position to complete the transaction in her favour. She also stated that the combined annual income of her and her husband is about Rs.80 lakhs per annum and they can easily avail a loan of upto Rs.1 crore from any bank and a sum of Rs.50 lakhs is very easy to muster. Similar is the affidavit of PW-2 Vishnu Kant, husband of the appellant. PW-3 is Anil Kumar Shrivastava, Zonal Head (North), ICICI who confirmed that the letter dated July 30, 2004 shown to him from judicial file was issued by his Company though, his Company does not have any copy of this letter in the record. In cross-examination, he stated that 2-3 months prior to the said approval, Vishnu Kant and the appellant were sanctioned home loan to the tune of Rs.13 lakhs though they were entitled for the loan to the extent of Rs.90 lakhs keeping in view their solvency. They had applied for a loan of Rs.60 lakhs but later on, down sized their requirement to about Rs.13 lakhs for purchasing the property other than the suit property and that they have never received the papers related to Flat No. 272, Ground Floor, Gulmohar Enclave, 4 New Delhi.

Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law.” xx xx xx

12) The argument of the appellant that the capacity to pay is proved by the approval of loan by ICICI and the fact that the appellant and her husband have substantial income of Rs.80 lakhs per annum, therefore, the findings recorded by both the Courts below are not sustainable.

14) We do not find any merit in the present appeals. The judgment in A. Kanthamani was in an appeal filed by the defendant against the concurrent finding of fact recorded by the courts below granting decree of specific performance of the Agreement. This Court has not interfered with the findings of fact recorded even after reappreciation of evidence.

16) In view of the said fact, we do not find, even on reappreciation of evidence, that the finding recorded by the High Court suffers from any illegality which may warrant interference in the present appeals. Consequently, the appeals are dismissed.

17) The amount of Rs. 3.5 crores deposited by the appellant in terms of order dated November 19, 2018 of this Court, which has been invested in the FDR, may be returned to her, along with the interest accrued thereon, as per rules.

SEPTEMBER 17, 2019.