Kewal Krishan Ahuja vs Jagdeep Singh
2006 Latest Caselaw 2000 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner is a tenant in respect of the suit property. There were perennial disputes between the tenant and the landlord inter alia in respect of the payment of rent which even resulted in proceedings filed for eviction against the petitioner under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) for non-payment of rent. These proceedings, however, culminated in the Tribunal upholding the stand of the petitioner/tenant.

2. The problem even thereafter persisted and the controversy in question relates to the payment of rent from 1.4.1993 to 30.6.1993 payable @ Rs. 55/- per month. It is the claim of the petitioner that the rent for the month of April, 1993 was initially tendered and on refusal a money order was sent, which was refused. Thereafter when the rent became due for the month of May, 1993, the position was the same when rent was tendered both for the months of April & May, 1993. There was an identical position for the month of June 1993 when three months rent was tendered. The petitioner thereafter filed an application under Section 27 of the said Act.

3. The application filed by the petitioner has been dismissed by the Additional Rent Controller holding that the same was barred by time and that order has been upheld by the Tribunal in terms of the impugned order dated 23.7.1994 resulting in the present proceedings being filed under Article 227 of the Constitution of India.

4. The scheme for deposit of rent is contained in Chapter IV of the said Act. Section 26 of the said Act deals with the requirement of a tenant to pay rent month by month by 15th day of the month next following the month for which it is payable and the landlord is liable to give a receipt for the same. On failure of the landlord to accept rent the procedure prescribed under Section 27 of the said Act has to be followed. It will suffice to reproduce Sub-section (1) of Section 27 of the said Act as under:

27. Deposit of rent by the tenant (1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner.

5. Section 28 provides time limit for making deposits and reads as under:

28. Time limit for making deposit and consequences of incorrect particulars in application for deposit

(1) No rent deposited under Section 27 shall be considered to have been validly deposited under that section, unless the deposit is made within twenty-one days of the time referred to in Section 26 for payment of the rent.

(2) No such deposit shall be considered to have been validly made, if the tenant willfully makes any false statement in his application for depositing the rent, unless the landlord has withdrawn the amount deposited before the date of filing an application the recovery of possession of the premises from the tenant.

(3) If the rent is deposited within the time mentioned in Sub-section (1) and does not cease to be a valid deposit for the reason mentioned in Sub-section (2), the deposit shall constitute payment of rent to the landlord, as if the amount deposited had been validly tendered.

6. The courts below have taken a view that Sub-section (1) of Section 28 of the said Act prescribes a time period of 21 days for depositing the rent from the time referred to in Section 26 of the said Act for payment of rent and, thus, the application filed by the petitioner was not maintainable as for two of the months of April and May, 1993, the same was beyond the said stipulated period of 21 days.

7. Learned Counsel for the petitioner contends that firstly such a provision is directory and not mandatory. Secondly, since the tender was made for the rent due for three months, and that is what had to be actually tendered, the time period should start from the tender of rent for the month of June, 1993.

8. Insofar as the first aspect is concerned, learned Counsel for the petitioner has relied upon the judgment of the Apex Court in Ganesh Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta . That was a case where a tenant has failed to deposit the rent under the provisions of the said Act and it was held that the period of 15 days was directory in nature and the court has discretion to extend the period in suitable cases. This judgment has been followed subsequently by the Supreme Court in Topline Shoes Ltd. v. Corporation Bank .

9. Learned Counsel for the petitioner has drawn the attention of this Court to the judgment of the learned single Judge of this Court in S.L. Kapur v. Dr. Mrs. P.D. Lal 1975 All India Rent Control Journal 322. It was observed in para 11 as under:

11. Considered from another point of view, the notice of demand required the amount to be paid within two months and the tenant was legally bound to pay the arrears of rent due till then including the previous period as well as for the notice period and subsequently till the date of deposit. The limitation of 21 days for deposit of rent mentioned in Section 28(1) of the Act must, therefore, be treated as directory. It would lead to an absurd result if in response to a notice of demand the tenant validly deposits one month's rent within 21 days of its becoming due, but along with it does not deposit the arrears for the preceding period on the ground that 21 days had expired. I am, therefore, of the opinion that the deposit of entire arrears of rent with the Controller amounts to a tender of the same to the landlord, but whether or not the same is valid and legally complies with the notice of demand would depend on the other facts and circumstances of each case. Consequently, I hold that the amount deposited by the tenant with the Controller for payment to the landlord was a tender to the landlord in the facts and circumstances of this case, although it had been made more than 21 days of its becoming due, yet within two months of notice of demand.

10. A perusal of the aforesaid observation shows that all the arrears due as on that date were required to be tendered. An observation was also made that the period of limitation 21 days provided in Sub-section (1) of Section 28 of the said Act must be treated as directory.

11. Learned Counsel has also referred to another judgment of the same learned single Judge, B.C. Misra, J., in Jag Ram Nathu Ram v. Shri Surinder Kumar 1978 (2) RCR 439, where it was observed in para 6 as under:

6. I have, therefore, to consider whether the deposits and tenders made by the appellant satisfy the requirements of law. Clause (a) of the proviso to Sub-section (1) of Section 14 of the Act reads as follows:

(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882);

The material portions of Sections 27 and 28 of the Act are to the effect that where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26... the tenant may deposit such rent with the Controller in the prescribed manner. On deposit a copy of the application will be served on the landlord. (Section 6 lays down that no rent deposited under Section) 27 shall be considered to have been validly deposited unless the deposit is made within twenty one days of the time referred to in Section 26 for payment of rent. I had occasion to construe the provisions of Sections 27 and 28 of the Act in S.L. Kapur v. P.D. Lal 1975 RLR 335. I had held that limitation of 21 days for deposit of rent mentioned in Section 28(1) of the Act was directory and the deposit of entire arrears of rent with the Controller amounts to a tender of the same to the landlord, although it had been made more than 21 days of its becoming due provided it was deposited within two months of the notice of demand. I am told that a Special Leave Petition against the said judgment has been dismissed by the Supreme Court and no authority contrary to the view taken by me has been cited before me. I will, therefore, proceed on the assumption that in a case under Clause (a) of the proviso to Sub-section (1) of Section 14 of the Act, the period of 21 days provided by Section 28 is directory and if the amount has been deposited with the Controller it would amount to a tender to the landlord.

12. Another learned single Judge of this Court in Kartar Singh v. Dr. P.C. Mukherjee 1987 (1) All India Rent Control Journal 81 has once again reiterated that the period of 21 days stipulated in Sub-section (1) of Section 28 of the said Act was directory.

13. In view of the aforesaid clear pronouncements there can be really no doubt that the judicial view is that the period of 21 days in Sub-section (1) of Section 28 of the said Act is directory and not mandatory. It has also been held that where rent has been demanded complete arrears have to be tendered.

14. I fail to see how both the courts below could have distinguished the aforesaid judgments by coming to the conclusion that those were cases where rents have been demanded while in the present case it was a voluntary tender of rent. Whether a provision is directory or mandatory is a question of law and it cannot be said that in a particular situation the same provision would be mandatory while in another situation it would be directory.

15. The petitioner rightly tendered the complete arrears of rent and acted with caution in view of the past disputes between the parties. Undisputedly the application has been filed within the stipulated period of 21 days, at least in the tender made in June, 1993, which included the rent payable for the months of April and May, 1993. In such a situation the trial court could not have rejected the application and that too without even issuing notice to the respondent.

16. In my considered view, the trial court and the appellate tribunal committed a patent error and failed to exercise the jurisdiction vested in them by law. The impugned order of the Additional Rent Controller dated 18.3.1994 and of the Rent Control Tribunal dated 23.7.1994 are accordingly set aside and the application filed by the petitioner under Section 27 of the said Act is restored to its original number to be decided on merits in accordance with law.

17. It may be noticed that by an interim order of this Court the rent for these three months already stands deposited.

18. The petitioner to appear before the Additional Rent Controller on 4.12.2006.

19. The petition is allowed leaving the parties to bear their own costs.

20. The trial court record be sent back expeditiously.