Permanand Verma And Anr. vs Vimal Chand Jain
1995 Latest Caselaw 381 Del

JUDGMENT

Arun Kumar, J.

(1) With the consent of learned Counsel for both the parties I have heard the main petition on merits since only a short point is involved.

(2) Briefly the facts are that the premises was let out on 1/11/1988 to the petitioner herein at a monthly rent of Rs. 2000.00. A sum of Rs. 33,000.00 was given as security deposit by the tenant to the landlord. The landlord issued a notice of demand on 1/8/1989 claiming arrears of rent with effect from 1/2/1989. The eviction petition was filed on 31/10/1990 under clause (a) of the proviso to Sub- section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as the Act). An order under Section 15(1) of the Act was passed on 28/4/1992 directing led appeals against the said order before Rent Control Tribunal. The landlord's appeal was allowed on 30/1/1993 and the tenant was directed to pay or deposit arrears of rent with effect from 1 /2/1989 in stead of 1 /8/1989 as directed by the Additional Rent Controller. The appeal of the tenant was dismissed. The tenant challenged the said order further in this Court byway of a petition under Article 227 of the Constitution of India which was dismissed on 30/12/1993.

(3) In the meanwhile the defense of the tenant was struck off by the Additional Rent Controller on 14/1 /1993. Appeal against the said order was dismissed by the Rent Control Tribunal on 11/3/1993. A petition on behalf of the tenant further challenging the said order in this Court met the same fate. Ultimately the eviction order was passed on merits against the tenant on 29/9/1993. The Rent Control Tribunal dismissed the tenant's appeal against the said eviction order on 10/12/ 1993. The present petition under Art. 227 of the Constitution of India is directed against the said order of the Rent Control Tribunal.

(4) The only point urged before me on behalf of the petitioner tenant is based on the fact that a sum of Rs. 33,000.00 was deposited by the tenant with the landlord by way of security. The said amount was not to bear any interest. The contention of the learned Counsel for the petitioner is that on the date of the notice at best it could be said that a sum of about Rs.12,000.00 was due to the landlord on account of arrears of rent. The landlord was liable to adjust the said amount against the amount of security deposit lying with the landlord and if the adjustment had been made there would have been no arrears of rent and the very cause of action for a petition under Section 14(1)(a) would be non-existent. The argument of the learned counsel further suggests that under the law the tenant is not even bound to ask the landlord to make adjustment from the amount lying in deposit with the landlord. It is for the landlord himself to make such adjustments. In this connection the learned Counsel for the petitioner has relied on a judgment of the Supreme Court in Kranti Swaroop Machine Tools Pvt. Ltd. 6" Anr. v. Smt. Kanta Bai Asawa & Ors., 1994(1) Rent Law Reporter 217. On the face of it is appears that the said judgment supports the contention of the learned Counsel for the petitioner. However, a closer look shows that it is not so. The said judgment is in the context of the Andhra Pradesh Builders (Lease, Rent & Eviction) Control Act, 1960, which contains provision regarding adjustment of amounts paid by a tenant to the landlord by way of advance rent, in excess of one month's rent or any amount paid towards premium etc. contrary to the provisions of the said Act. The present case is in the context of the Delhi Rent Control Act which does not contain any such provision. There is nothing in the Delhi Rent Control Act requiring adjustment of any advance rent or other amounts paid by the tenant to the landlord contrary to the provisions of the Act.

(5) The learned Counsel for the respondent landlord has brought to my notice certain decisions of this Court which hold that the amount lying by way of security deposit with the landlord on behalf of the tenant is not liable to be adjusted against arrears of rent. These decisions are Manmohan Chawla v. Jaswant Singh, 1969 Vol.V 375; and Babu Ram Verma v. Sohan Devi, 1972 (Vol.2) Rlr Note 47. Apart from this an unreported Division Bench judgment of this Court in Sao 508 of 1968, entitled Hakumat Rai v. Jagdish Chander Ahuja, decided on 5/9/1973 has been brought to my notice. The question which arose for consideration in the said case was whether if at the time of the letting a sum of money is paid to the landlord by the tenant to serve as security for rent, it would amount to consideration in addition to the rent within the meaning of clause (a) of Sub-section (2) of Section 5 of the Delhi Rent Control Act, 1958, hereinafter referred to as "the Act". It was held by the Division Bench that the deposit of amount by way of security was not in violation of the statutory provision contained in Section 5 of the Delhi Rent Control Act.

(6) In view of the aforesaid decisions of this Court I am of the view that the amount which was placed by the tenant with the landlord as security deposit is not liable for adjustment particularly at the stage when notice claiming arrears of rent is served by the landlord on the tenant or the eviction petition on account of non-payment of rent is filed. Same will be the situation qua an order under Section 15(1) of the Act passed against such a tenant. The purpose of a security deposit is totally different. The same is generally meant to secure the landlord against various defaults of the tenant at the time of final determination of the lease. Such defaults may include damage to the property, arrears of rent, arrears on account of electricity or water charges, telephone bills etc. etc. Therefore, the security deposit is not liable to be adjusted at interim stages as in the present case when notice of demanding arrears was issued, unless there is a stipulation between the parties to the contrary.

(7) Learned Counsel for the petitioner further urged that as per order dated 16/2/1994 passed by this Court the tenant had deposited all arrears of rent and, therefore, the tenant could not be said to be in default. The said deposit was made as a condition precedent for stay of execution of the decree passed in favor of the respondent landlord. Therefore, that does not ensure for purposes of displacing the case of the landlord on merits.

(8) The result is that the petition fails and is hereby dismissed. However, in the facts and circumstances of the case there will be no order as to costs.