Prem Narain vs Vishnu Avtar & Ors.
2012 Latest Caselaw 2200 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Judgment:30.3.2012

+                   CM(M) 421/2005

      PREM NARAIN                                   ..... Petitioner
                             Through:   Mr.A.P.Aggarwal, Advocate.
                    versus

      VISHNU AVTAR & ORS                           ..... Respondents
                   Through:             Mr.S.S.Gautam, Advocate.
                   AND

+                   CM(M) 424/2005

      PREM NARAIN                                   ..... Petitioner
                             Through:   Mr.A.P.Aggarwal, Advocate.
                    versus

      RAM AVTAR & ORS                              ..... Respondents
                  Through:              Mr.S.S.Gautam, Advocate.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 The impugned judgment is dated 01.12.2004; it had been

delivered by the Rent Control Tribunal (RCT); the findings returned by

the Additional Rent Controller (ARC) had been set aside. The ARC vide

its order dated 21.12.2002 had given the benefit of Section 14 (2) of the

Delhi Rent Control Act (DRCA); the ARC had returned a finding that

since this is a case of first default, benefit of Section 14 (2) be granted to

the tenant; this judgment was the subject matter of appeal before the

RCT who had reversed this finding.

2 Record shows that an eviction petition has been filed by the

landlord Prem Narain against his five tenants, all daughters of Khem

Chand who was the original tenant. The demised premises is a shop

bearing No. 937/11, Ward No. VII, Main Bazar, Mehrauli, New Delhi

which had been tenanted out at a monthly rent of `13/-. The contention

of the landlord was that the tenants were in arrears of rent w.e.f.

01.06.1988 which was not tendered inspite of the legal notice served

upon them on 31.01.1991. This notice had been proved as Ex. PW-1/2;

Ex.PW-1/R1 was a letter of the tenant prior in time to Ex.PW-1/2; this is

dated 29.11.1990 informing the landlord that he was persistently

refusing to recognize the aforenoted respondents as legal representatives

of the original deceased tenant (Khem Chand) and inspite of their

repeated efforts to pay the rent to the landlord, he was not accepting it.

3 Ex.PW-1/R1 & Ex.PW-1/2 have been perused. These are

communications dated 29.11.1990 and 31.01.1991. A notice prior to the

filing of the eviction proceedings under Section 14 (1)(a) of the DRCA

has to comply with the requirements of Section 106 of the Transfer of

Property Act; it has to be addressed to the tenant and to be delivered to

him. The RCT had noted that Ex.PW-1/2 was a valid notice. The

contention of the tenant that he had already deposited rent on

05.02.1991 i.e. prior to the receipt of the notice and as such he was not

in arrears of rent.

4 The only answer which has to be answered is as to whether the

deposit of rent made by the tenant on 05.02.1991 under Section 27 of

the DRCA was a 'valid tender of rent' in terms of Section 14 (i)(a) of

the DRCA. Counsel for the petitioner has placed reliance upon a

judgment of this Court reported in 1977 RLR (SC) 412 Dr.

Brahamanana Vs. Smt. Kaushlyadevi as also a judgment of a Bench of

this Court reported as 1988 RLR (NSC) State Vs. Ramesh Kumar S.

Jain; contention being that a tenant is entitled to deposit the rent in

Court only if the landlord does not accept or refuses to take the rent

either directly or indirectly from the tenant; a straightway deposit of rent

without fulfilling the aforenoted statutory condition is not a valid tender

of rent. Submission of the landlord being that there was no refusal by the

landlord to accept the rent in terms of the notice dated 31.01.1991 which

in fact had been received by the tenant only on 07.02.1991 and as such

the tender of rent by the tenant on 05.02.1991 was not a valid tender.

5 Arguments have been countered. Learned counsel for the

respondent/tenant has drawn attention of this Court to the contents of the

notice dated 31.01.1991; submission being that paras 2, 3 & 5 of the

said communication clearly shows that the landlord was refusing to

accept the rent from the tenant and it was for this reason, that he was left

with no option but to make the deposit of rent in Court under Section 27

of the DRCA.

6 This submission of the learned counsel for the respondent is

devoid of any force.

7 The contents of notice dated 31.01.1991 have been perused. No

such averment as has been submitted by learned counsel for the

petitioner is borne out. In fact this letter which has been sent by the

landlord to the tenant was an answer to the notice dated 29.11.1990

which had been sent by the tenant; the RCT had returned a finding that

without going into the technicalities, this document dated 31.01.1991

(Ex. PW-1/2) will be treated as a valid notice. No cross appeal has been

filed by the tenant on this count. Treating Ex. PW-1/2 as a valid notice,

the contents of the same do not in any manner decipher that the landlord

up to 31.01.1991 was refusing to accept the rent from the tenant; in fact

there are categorical averments made in this notice calling upon the

tenant to pay the rent to him as he is in arrears w.e.f. 01.06.1988; he has

been asked to pay rent with interest at the old rate and 10% per month

increase thereto. This is clearly stated in para 5 of Ex. PW-1/2; there is

also no dispute that this notice dated 31.01.1991 was received by the

tenant only on 07.02.1991.

8 In this factual scenario, it can nowhere be said that the landlord

had refused to accept the rent which was validly tendered by the tenant

pursuant to which the tenant had no option but to deposit the rent in the

Court of ARC under Section 27 of the DRCA. The deposit of rent by

the tenant in the Court under Section 27 of the DRCA on 05.02.1991

can in no manner be said to be a valid tender of rent within the meaning

of Section 14 (1)(a) of the DRCA. In this view of the matter, the

impugned order holding otherwise suffers from an infirmity.

9 Rent was admittedly payable every month which is also the

provision contained in Section 26 of the DRCA which states that in the

absence of any contract between the parties, the rent has to paid on or

before the 15th day of each calendar month; presumption under Section

26 of the DRCA is that where the landlord does not accept rent within

the period specified in Section 26; section 28 mandates that the deposit

made under Section 27 will not be considered to be a valid tender if it is

made within 21 days of the time period mentioned in Section 26. In the

present case, the ARC had noted this contention in the correct

perspective and rightly noted that there is no valid tender of rent; since

this was a case of first default, the respondents were entitled to benefits

under Section 14 (2)(a) of the DRCA. The order of the ARC is

accordingly restored.

10    Both the petitions are disposed of.




                                                INDERMEET KAUR, J
MARCH 30, 2012
A