Raghbir Singh vs Sheela Wanti & Anr.
2009 Latest Caselaw 582 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of Reserve: December 11, 2008
                                                    Date of Order: February 18, 2009
+ CM(M) 133/1999
%                                                                      18.02.2009
     Raghbir Singh                                              ...Petitioner
     Through: Mr. K.D. Kaushal, Advocate

         Versus

         Sheela Wanti & Anr                                   ...Respondents
         Through: Mr. G.D. Chopra, Advocate

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the
         judgment?                                            Yes.

2.       To be referred to the reporter or not?                                Yes.

3.       Whether judgment should be reported in Digest?                        Yes.


         JUDGMENT

1. The petitioner is aggrieved by an order dated 15 th September 1998

passed by learned Rent Control Tribunal (RCT) whereby an appeal filed by the

respondent against the order of learned Additional Rent Controller (ARC)

dated 17th January 1998 was allowed and the eviction order passed by

learned ARC was set aside.

2. Brief facts relevant for the purpose of deciding this petition are that

that the tenant/respondent had suffered an order under Section 14(1) (a) of

Delhi Rent Control Act (DRC Act), however, the eviction order was not passed

against the tenant giving him benefit of Section 14(2) of the Act vide

judgment dated 22nd January 1981 of the Court of RCT. This judgment

became final as far as tenant was concerned, although the landlord was

aggrieved by other part of the judgment and had preferred an appeal against

that judgment. After this judgment, tenant again committed a default in

payment of the rent and he failed to pay the rent from 1st January 1992

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 1 Of 11 onwards. The landlord issued a demand notice dated 7th October 1992 calling

upon the tenant that he was in arrears with effect from 1 st January 1992 and

he should pay and tender arrears @ Rs.80 per month with effect from 1st

January 1992 up to 30th September 1992 within a week of receipt of notice

and pay rent @ Rs.88 per month (being 10% statutory increase) thereafter.

The landlord also called upon the tenant to pay above arrears of rent along

with 15% simple interest per annum as permissible under Section 26 of DRC

Act. After receipt of this notice, the tenant sent a bank draft of Rs.720/- dated

1st November 1992, i.e. rent of 9 months to Mr. Vijay Tandon, advocate of the

landlord along with a letter dated 7th November 1992 specifying that the rent

was being sent for a period from 1st January 1992 to 30th September 1992.

The tenant subsequently sent another draft of Rs.528/- on 11th May 1993

stating that it was rent from 1st October 1992 to 31st March 1993 at the

enhanced rate of Rs.88/- per month. However, Mr. Vijay Tandon, Advocate of

the landlord to whom the draft was sent, returned the draft saying that he

was not authorized to accept the rent and the same should be paid directly to

the landlord (petitioner herein). On the drafts being returned, the tenant got

the drafts revalidated and deposited the same in the bank account of the

landlord (account number was already with tenant) with Indian Overseas

Bank, Punjabi Bagh, Delhi on 21st June 1993. Another bank draft for

subsequent period amounting to Rs.1056/- was also deposited in the bank

account of the landlord towards rent from 1st April 1993 to 31st March 1994.

The landlord had filed this eviction petition against the tenant (respondent

herein) on the ground that the tenant was a habitual defaulter and after

passing of the first order under Section 14(1) (a) and gaining advantage of

Section 14(2), he had committed three consecutive defaults and hence

landlord was entitled to a decree of eviction. Learned ARC came to conclusion

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 2 Of 11 that the tendering of rent to Mr. Vijay Tandon, Advocate for the landlord, was

in order and no default could be found with the tendering of rent. However,

learned ARC observed that irrespective of the tendering of rent, the tendering

made by the tenant was not a complete tendering in accordance with law and

the tenant had failed to clear the arrears of the rent and had only partially

tendered the rent despite notice of the landlord.

3. There is no dispute that the tenant was in arrears of rent from 1st

January 1992. In the notice of demand served by the landlord, the landlord

had not only demanded the arrears of rent from 1st January 1992 till 30th

September 1992 @ Rs.80/- per month and thereafter @ Rs.88/-, but had also

demanded simple interest payable @ 15% per annum as per Section 26 of

DRC Act over the unpaid rent. The learned ARC found that there was no

compliance of the notice of demand of the landlord and the tenant had failed

to pay the rent due within two months of the receipt of the notice of demand

to the landlord. The tenant had tendered rent only up to September 1992

while sending a cover letter dated 7th November 1992. The rent for the month

of October 1992 had also become due and payable to the landlord. Learned

ARC observed that it was not sufficient to send the rent after notice of

demand only up to September 1992 but the tenant was obliged to send all

arrears of rent up to date and non sending of tendering of rent up-to-date

amounted to second default. Since it was the second default of the tenant

and he had not tendered the entire arrears of rent, learned ARC allowed the

eviction petition.

4. Learned RCT observed that arrears of rent as envisaged in Section

14(1)(a) of DRC Act are arrears demanded by notice and 'arrears due' cannot

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 3 Of 11 be extended to the amount which has fallen due after service of demand

notice.

5. Learned counsel for the landlord had also raised an issue before the

learned RCT that in view of Section 26 of the said Act, the tenant was not

only obliged to pay the arrears of rent but was obliged to pay interest @ 15%

per annum over the period for which the rent was not paid. The interest over

the unpaid rent would form part and parcel of the rent. Once a notice

demanding arrears along with statutory interest is served upon the tenant,

the tenant was obliged to tender arrears of rent along with interest of 15%

per annum. Mere tendering of rent was not a legal discharge of the liability of

the tenant under Section 14(1) (a) of the DRC Act. The learned RCT, however,

did not agree with this contention of the landlord and observed that

consequent to Section 26 of the DRC Act, the legislature made no

amendment in Section 14 (1)(a) or Section 15 including the liability of interest

as part of rent or as part and parcel of the arrears of rent. Non-tendering of

the interest, as per RCT did not amount to a violation of Section 14(1) (a) and

the landlord would not be entitled to a decree of eviction on this ground. He,

therefore, allowed the appeal.

6. It is contended by learned counsel for the landlord that though the

tender of rent to the advocate was not a legal tender, however, even if it is

considered as a legal tender, the tenant had not made tender of rent due on

the date of tender. The rent due would have included rent up to October

1992 plus interest @ 15% per annum as provided under Section 26 of DRC

Act. The landlord was not supposed to serve a notice on the tenant after

every few months demanding arrears of rent. Once the tenant has suffered

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 4 Of 11 an order, Section 14(1) (a) but the eviction order is not passed and the tenant

is given benefit of Section 14(2), it became obligatory upon the tenant to

continue to pay the rent every month and tenant should not be allowed the

liberty to accumulate the rent and pay it only after service of a notice by the

landlord calling upon the tenant to pay arrears of rent. If this interpretation is

given to Section 14(2), then the sole purpose of proviso to Section 14(2)

stands defeated. Section 14(2) of the DRC Act reads as under:

                 14.   Protection      of    tenant      against    eviction.       -
                 (1)xxxxxxxxxxxxxxx         xxxxxxxxxxxxxx

                 (2)   No order for the recovery of possession of any

premises shall be made on the ground specified in clause

(a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15:

Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months."

(emphasis added)

7. A perusal of this Section makes it abundantly clear that in case of first

default, where learned ARC finds that a ground under Section 14(1) (a) is

made out, no order is passed against the tenant if the tenant makes the

payment or deposits the rent as required by Section 15 of DRC Act. The

proviso to above section would also make it clear that the tenant would not

be entitled to this benefit if after obtaining such a benefit once in respect of

any premises, he continues to make a default in payment of rent of the same

premises for three consecutive months. The Court cannot ignore the

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 5 Of 11 significance of three consecutive months. It only implies that the tenant is

obliged to pay the rent thereafter every month and if he does not pay rent

continuously for three months, the landlord gets a right for eviction of the

tenant and the tenant is not given benefit of tendering of rent under Section

14(2) of the said Act.

8. There is no doubt that even in case of second default, the eviction of

tenant can be sought by the landlord only under Section 14(1) (a) and 14(1)

(a) provides that eviction petition can be filed where the tenant has neither

paid nor tendered 'whole of the arrears of rent' legally recoverable from him

within two months of the date on which the notice of demand for the arrears

of the rent has been served. Thus, even in case of second default, the notice

of demand becomes necessary in view of the fact that the landlord can resort

to eviction only under Section 14(1) (a). However, the approach of the Court

in case of second default has to be different from the approach in case of first

default. In case of first default, the tenant is given benefit of Section 14(2) as

a matter of warning that he should not commit second default and if he

commits second default, the landlord would be entitled for his eviction. It

must be understood that the Delhi Rent Control Act is a special statute which

takes away certain rights of the landlord and gives protection to the tenants

against eviction and the eviction cannot be sought by the landlord in

accordance with Transfer of Properties Act exercising his rights over the

property but that can be sought only in those circumstances which are

enumerated under Delhi Rent Control Act. While this Act is for the benefit of

the tenants but if the landlord has been given certain rights under DRC Act,

the same cannot be denied to him. The Act provides that if there are three

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 6 Of 11 consecutive month defaults by the tenant in making payment of the rent of

the premises, the tenant will not be entitled to benefit under sub Section

14(2). If the law has to be strictly construed for the benefit of the tenant, no

separate rule can be applied for construing the law when it falls for the

benefit of the landlord. A tenant cannot make a landlord rush to an advocate

after every few months to serve upon him a notice of demand to claim rent. It

is obligatory on the tenant under law to tender rent month by month to the

landlord. In the present case, the tenant was having the account number of

the landlord but despite having account number of the landlord, he was not

depositing even meager rent of Rs.80 per month in the account of landlord up

to September 1992 and @ Rs.88/- per month from October 1992 in the

account of the landlord. This account number was given by the landlord to the

tenant only to facilitate deposit of the rent. The landlord in this case had to

serve notice upon the tenant through an advocate for claiming meager

amount of Rs.80 per month. Hiring of services of an advocate does not come

free. The landlord may have to spend more amount in hiring an advocate for

claiming rent, than the rent itself. The statute provides protection to the

tenant but not at the cost of perpetual harassment to the landlord.

9. Section 14(1) (a) specifically provides that on receipt of notice the

tenant has to pay whole of the arrears of rent legally recoverable from him.

There can be no doubt that payment of rent is an obligation of the tenant and

'whole of arrears' of rent would only mean that the rent payable up-to-date

on the date of tendering of rent. The legislature cannot be intended to have

provided that the landlord will keep on serving notice every time on the

tenant and then only the tenant would tender arrears of rent as demanded in

the notice and unless it is not demanded in the notice, the arrears of rent

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 7 Of 11 would not be tendered. The tendering of 'whole of arrears of rent' as

envisaged under Section 14(1) (a) cannot be construed as arrears demanded

in the notice by the landlord. I, therefore, consider that learned RCT went

wrong in observing that the tenant was only obliged to pay arrears only up to

September 1992 as demanded and he was not obliged to pay the whole of

arrears legally recoverable from him on the date of tendering.

10. This Court in Ashok Kumar vs. Ram Gopal 22(1982) DLT 188 observed

as under:

"13. Another contention which has been raised by Mr. Makhija is that a petition for eviction on the ground of non-payment of arrears of rent can only be filed for those arrears for which notice of demand was given and which amount is still in arrears on the date of the petition. In this respect, he has relied upon the case of Sh. Prabhati v Smt. Budho Devi and another, 1974 RCR 354 and sought to contend that the default complained of must be with reference to the notice of demand. I am unable to agree with this contention. The cause of action accrues and the provisions of proviso to Section 14(2) become applicable the moment there is a default committed on the part of the tenant in not making the payment pursuant to the receipt of the notice of demand. It is admitted that in the present case the tenant was in arrears of rent with effect from 1st April, 1977 to 31st March, 1978 when a notice of demand was sent on 28th April, 1978. This was second default which had been committed. Within two months of the receipt of notice, admittedly the full amount of arrears of rent were not paid. It has been observed in the case of Ms. Sueclan vs. Shri Jawala Pershad, 1978(1) RCR 31, that the cause of action for the landlord consists in the fact that the tenant has failed to pay the rent within two

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 8 Of 11 months of the receipt of the notice, and this cause of action would not be obliterated and would continue to exist till the date of the petition for eviction, and the delayed payment on the part of the tenant does not wipe off the cause of action and does not defeat the petition for eviction, excepting, perhaps on the grounds of waiver and estoppels. In that case the tenant had paid the rent before the institution of the fresh proceedings under Section 14(1) (a) but the court still held that as the cause of action had already accrued, the tenant was not entitled to the benefit of Section 14(2). In arriving at this decision, the learned Judge relied upon Gajanan Daatraya vs. Sherbanu Hasang patel and Others, 1975 RCJ, 672, Mst. Begum Jan v. Mst. Mehr Nigar, IX (1973) DLT 516. Butto Mal vs. Rameshwar Nath 1970 RCR 532 and Gian Singh v. Tarlok Singh, 1975 RCJ 475.

14. For the aforesaid reasons it must follow that as rent after September 1977 had not been paid despite a notice of demand dated 28th April, 1978 having been served, the tenant forfeited the protection under Section 14(2) and an eviction order has to be passed against him.

Xxxxxxxxxx Xxxxxxxxx xxxxxxxxx

15. For the aforesaid reasons the appeal is allowed. The order of the Rent Control Tribunal dated 15th December, 1981 is set aside and the eviction petition filed by the landlord under clause (a) of the proviso to Sub Section (1) of Section 14 of the Delhi Rent Control Act is allowed and the eviction of the respondent-tenant from shop No.M-19 Market, Greater Kailash-I, New Delhi is ordered. The parties will, however, bear their own costs."

11. I also consider that the learned RCT went wrong in observing that the

tenant was not liable to pay interest as demanded by the landlord on demand

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 9 Of 11 notice. Section 26(1) of the DRC Act reads as under:

"26. Receipt to be given for rent paid. - (1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable [and where any default occurs in the payment of rent, the tenant shall be liable to pay simple interest at the rate of fifteen per cent. per annum from the date on which such payment of rent is due to the date on which it is paid."

12. This amendment was inserted by the legislature in 1988. The

amendment makes it abundantly clear that the rent is to be paid month by

month and where any default occurs for payment of rent, the tenant has to

pay simple interest @ 15% per annum from the date of which such payment

of rent became due till the date when it is paid. Thus, the legislature made it

clear that in case the rent is not tendered month by month by the tenant, the

tenant incurs additional legal liability of paying interest @ 15% on the

amount due for the delayed period. This additional liability has become part

of the rent. A landlord can recover from the tenant only legally recoverable

arrears rent and the landlord has no liberty to recover beyond what has

already been agreed upon between the parties or the market rent. Where the

rent is not paid by month to month, the interest over the rent, as levied by

the statute, becomes part of the legally recoverable rent and it cannot be

said that unless there is an amendment in Section 14 (1) (a) or Section 15,

the provisions of Section 26 would not apply. The rent due would mean that

the rent due as per law and where the law specifically provides that if rent is

not paid for the month when it is due, it has to be paid with interest of 15%

per annum, then the rent due would include the rent plus the interest over it.

CM(M) 133/1999 Raghbir Singh vs. Sheela Wanti & Anr. Page 10 Of 11 The tenant in this case had been tendering rent with a gap of six month or

nine month or so and had not been tendering rent month by month. The

tenant had to tender rent along with accrued interest of 15% per annum to

the landlord in view of the statutory provisions of DRC Act. In the case in

hand, the landlord had specifically demanded interest of 15% over the

delayed rent from the tenant vide notice of demand and once this notice is

made, non tendering of rent with interest, tantamount to non fulfillment of

obligation under Section 14(1) (a) of DRC Act. I consider that the tender made

by the tenant was not in accordance with law and was not a valid tender.

13. In view of the foregoing discussion, I consider that the learned RCT

wrongly came to conclusion that the interest would not form part of the rent.

I, therefore, allow this petition. The order dated 15th September 1998 passed

by learned Rent Control Tribunal is hereby set aside and the order passed by

learned ARC dated 17th January 1998 is restored. The petition stands

disposed of.

February 18, 2009                                   SHIV NARAYAN DHINGRA J.
rd




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