Arun Kumar Gupta vs Rakesh Sood
2012 Latest Caselaw 198 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment: 11.01.2012

+     CM(M) 39/2011

      ARUN KUMAR GUPTA                      ..... Petitioner
                  Through          Mr. Rakesh Khanna, Sr. Adv.
                                   with Mr. D.N. Grover, Adv.

                    versus


      RAKESH SOOD                       ..... Respondent
                         Through   Mr. Sanjeev Sachdeva, Sr.
                                   Advocate with Mr. Preet Pal
                                   Singh, Ms. Pryam Mehta and
                                   Mr. Abhimanyu Mehta, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. The order impugned before this court is the order dated

13.10.2010 vide which the Additional Rent Control Tribunal

(ARCT) had reversed the finding of the Addition Rent Controller

(ARC) in a pending eviction petition filed by the landlord-Arun

Kumar Gupta under Section 14(1)(a) of the Delhi Rent Control Act

(DRCA).

2. Record shows that the present eviction petition had been

filed by the landlord under the aforenoted provision of law

claiming non-payment of arrears of rent for three consecutive

months by the tenant. It is not in dispute that the benefit of

Section 14 (2)of the DRCA had already been availed of by the

tenant vide order dated 27.05.1985. Legal notice sent to the

tenant by the landlord is dated 30.09.2009. In this legal notice

demand for arrears of rent not having been paid by the tenant for

three consecutive months has been made; contention being that

this amount should be payable within two months. Reply to the

legal notice is dated 07.10.2009. Receipt of this reply is not in

dispute. Alongwith this reply the tenant had tendered a cheque of

Rs. 8,400/- i.e. cheque bearing No. 176066 dated 01.10.2009

drawn on Central Bank of India, Darya Ganj, New Delhi tendering

rent with effect from 01.01.1995 up to 31.12.2009 i.e. for a period

of 14 years. It is not in dispute that this cheque was sent

alongwith this reply which was within one week of the demand

notice. The eviction petition was filed thereafter i.e. on

18.12.2009; in this petition it has been stated that the tenant is

liable for eviction as he had sent a cheque of Rs. 8,400/-

acknowledging the fact that he has been at default since

01.01.1995 to 31.12.2009. Eviction under Section 14(1)(a) of the

DRCA had been prayed for.

3. ARC decreed the petition holding that the tenant is

admittedly in default for three consecutive months.

4. The ARCT had vide impugned judgment reversed this

finding. It was of the view that the cheque of Rs. 8,400/- tendered

by the tenant within one week of the receipt of the legal notice

was a valid tender of rent; as such eviction order passed by ARC

was set aside.

5. On behalf of the petitioner vehement arguments have been

addressed. Contention being that the deposit of rent vide the

aforenoted cheque was not a valid tender and this is clear in view

of the ratio of the judgment of the Apex Court reported in (2009)

7 SCC 685 titled as Sarla Goel & Ors. vs. Kishan Chand wherein

court had noted that in such an eventuality where the rent is not

accepted by the landlord, the requirement of Section 27 of DRCA

has to be adhered to and the tenant should have deposited the

rent before the Rent Controller which he had not done. Reliance

has also been placed upon the judgment of the Apex Court

reported in (2005)7 SCC 211 titled as Atma Ram vs. Shakuntala

Rani to substantiate the submission that the provisions of the

DRCA are a strict legislation; if the tenant wants to take benefit

of this legislation he must strictly follow the procedure contained

therein which in this case mandates that the tenant should have

deposited the rent under Section 27 of DRCA before the Rent

Controller in a case where landlord has refused to accept the

tender. Reliance has also been placed upon the judgment of this

court reported in 2009 (109) DRJ 19 titled as Raghbir Singh vs.

Sheela Wanti & Anr. to substantiate the submission that even

assuming that there was a valid tender of rent for the 14 year

period of Rs. 8,400/- but this tender does not contain the interest

quotient which is envisaged under Section 26 of DRCA; it is thus

not a valid tender; impugned order dismissing the eviction

petition suffers from an infirmity; it is liable to be set aside.

6. Arguments have been countered.

7. Record has been perused. Record shows that in the legal

notice there has been no demand of interest; the legal notice has

made a demand of rent for three months to be paid within two

months without detailing any dates. It is an admitted fact that

within one week of the receipt of the legal notice Rs. 8,400/- was

tendered by way of the aforenoted cheque which was at the

admitted rate of rent for a period of 14 years although contention

of the tenant is that the legally recoverable rent is only three

years preceding the filing of the eviction petition. That apart,

since there was no demand for the rent to be paid alongwith

interest, the judgment of Raghbir Singh (supra) would not be

applicable. In the case of Raghbir Singh (supra) the legal notice

had specifically made a demand of arrears of rent specifying

details of the arrears of rent alongwith interest to be paid under

Section 26 of DRCA which had not been tendered. The judgment

of Sarla Goel (Supra) is also inapplicable as in that case there was

a tender of rent by the tenant by a money order which had been

returned. In this case, the tenant had sent the rent by cheque

alongwith his reply dated 07.10.2009 and till the date of the filing

of the eviction petition which was in December, 2009, the tenant

was wholly unaware that this cheque has not been accepted by

the landlord as the same was admittedly not informed to him. It is

not the case of the landlord that any information has been sent by

him to the tenant that this cheque of Rs. 8,400/- was not

acceptable to him; in these circumstances, it is clear that the

tenant did not know that the landlord has not accepted this rent

and as such his approaching the Rent Controller under Section 27

of the DRCA did not or could not arise. It was only on the filing of

the eviction petition in December, 2009 that the tenant became

aware that his cheque of Rs. 8,400/- remained un-encahsed;

record further shows that the tenant had in fact thereafter

approached the Rent Controller under Section 27 of the DRCA

seeking permission of the Court to deposit the rent which

permission had been granted to him by the Rent Controller vide

order dated 27.04.2010 wherein he had been permitted to deposit

the legally recoverable rent i.e. for a period of three years

preceding the filing of the petition.

8. In AIR 97 SC 2437 titled as Mahendra Raghunathdas Gupta

vs. Vishwanath Bhikaji Mogul & Ors. a question had arisen before

the court as whether tender of rent by cheque is a valid tender;

this was a special leave petition under the Bombay Rents, Hotel

And Lodging House Rates Controls Act (57 of 1947) for a decision

that; it was held to be a valid tender as payment by cheque is an

ordinary incident of present day life and unless it is specifically

mentioned that the payment must be in cash, a cheque payment

was held to be a valid payment.

9. In these circumstances, in this factual context the tender of

rent by the tenant was a valid and legal tender; impugned order

thus reversing the finding of the ARC on this count suffers from no

infirmity

10. Petition is without any merit; it is dismissed.

INDERMEET KAUR, J JANUARY 11, 2012 rb