Mohd. Rashid vs Mohd. Sayeed & Ors.
2012 Latest Caselaw 5451 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM (M) 1181/2011

                                         Date of Decision: 12.09.2012

MOHD. RASHID                                   ......PETITIONER
                          Through:       Mr.P.K.Chauhan, Adv. with
                                         Mr.Kartikey Mahajan, Adv.


                                Versus

MOHD. SAYEED & ORS.                            ......RESPONDENTS
                 Through:                Mr.Gurvinder Singh, Adv.
                                         with Mr. Rajeev Kr.Gupta,
                                         Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution seeks assailing the order dated 9.9.2011 of District Judge-cum-ARCT passed in RCA No. 26/2011.

2. The appeal being RCA 26/2011 filed before the ARCT was directed against the order dated 2.8.2011 of ARC, Karkardooma Courts, whereby the application under Section 151 CPC filed by the petitioner, who was the tenant/respondent in the eviction petition, for deposit of interest on arrears of rent, was dismissed.

3. A short narration of facts would make the things clear. A petition under Section 14 (1) (a) of the Delhi Rent Control Act (for short the 'Act') seeking eviction on the ground of non-payment of rent, filed by the respondents against the petitioner, was allowed by ARC vide his order dated 23.11.2009 and, the petitioner-tenant was directed to comply the order passed under Section 15(1) of the Act.

Subsequently,      an     application    was        moved      by          the
respondents/landlords    for   modification    in    the    order     dated

23.11.2009, praying for payment of interest on arrears of rent. This was allowed by the ARC vide order dated 15.1.2010, whereby the petitioner was directed to pay interest @ 15% p.a. on the arrears of rent dues, within a month from the date of this order. It was also ordered that the benefit of Section 14(2) would be extended to the petitioner-tenant subject to his depositing interest on arrears of rent, within one month.

4. The petitioner had preferred two separate appeals i.e. one was against the order dated 23.11.2009, and second appeal was against the order dated 15.1.2010, whereby the direction regarding payment of interest @ 15% p.a. on the arrears of the rent dues (which had already been deposited), was given to the petitioner. Both these appeals were dismissed by the separate orders dated 3.12.2010 by the ARCT.

5. The respondents/landlords filed an application on 6.5.2010 under Section 151 CPC read with Section 15(7) and 14(2) of the Act, alleging the non-compliance of the order of 15.01.2010 by the petitioner and thus, for striking off the defence of the petitioner. On the other side, the petitioner/tenant had filed an application dated 13.01.2011 under Section 151 CPC before the ARC, seeking permission to deposit the interest on arrears of rent in terms of the order of 15.01.2010 of the ARC as also of 03.12.2010 of ARCT. The ARC vide his order dated 02.08.2011 dismissed the application of the petitioner-tenant under section 151 CPC, but allowed the application under Section 15(7) read with Section 14(2) of the respondent-landlord and struck off the defence of the petitioner- tenant and passed eviction order under Section 14 (1)(a) read with Section 15(7) and 14(2) of the Act. This order was carried in appeal by the petitioner before the ARCT, who dismissed the same vide the impugned order dated 09.09.2011. This order is under challenge in the instant case.

6. I have heard learned counsel for the petitioner-tenant as also the respondents and gone through the records.

7. There is no dispute that vide judgment and order dated 23.11.2009 the eviction petition under Section 14(1) (a) of the Act was disposed and direction was given for compliance of the order under Section 15(1) and, further that order under Section 15(1) of

the Act was in respect of payment of rent only. It was ordered that on the compliance of this order, the petitioner was to get benefit of Section 14(2) of the Act. There is no dispute that the petitioner did comply this order and deposited arrears of rent. However, the controversy is as regard to the alleged non compliance of the order dated 15.01.2010, whereby the petitioner was directed to pay interest @ 15% per annum on the arrears of rent and was to get the extended benefit of Section 14(2) of the Act, subject to deposit of interest on the arrears of rent. The submission of the petitioner is that he had complied the order dated 23.11.2009 in its terms and had deposited the rent, and got the benefit of Section 14(2) of the Act, and that he was not liable to pay any interest as there was no such order in this regard, passed by the ARC. His next submission is that in any case, he had challenged the order of 15.01.2010 before the ARCT, and immediately after the dismissal of his appeal on 03.12.2010 by ARCT, he filed an application on 13.01.2011 before the ARC, seeking permission to deposit the interest. It is his submission that since his request was declined by the ARC vide order dated 02.08.2011, and simultaneously his defence was also struck off and eviction order was passed, he has been seriously prejudiced, because of no fault of his.

8. On the other hand, the submission of learned counsel for the respondent is that as per Section 26(1) of the Act, the tenant was liable to pay interest @ 15% per annum from the date such payment

of rent is due. It is also his submission that since there was no stay granted by the ARCT against the modified order dated 15.01.2010, the petitioner was under an obligation to deposit the interest within one month of this order so as to avail benefit under Section 14(2) of the Act.

9. There is no dispute that as per Section 26(1), a tenant is under an obligation to pay rent within the time fixed by the contract, and in the absence thereof, by 15th of each succeeding month, and further that, where any default occurs in the payment of rent, the tenant is liable to pay simple interest @ 15% per annum from the date on which such payment of rent is due to the date on which it is paid. Here is a case in which eviction petition was already disposed on 23.11.2009, directing the petitioner to comply the order under Section 15(1), and avail the benefit under Section 14(2) of the Act. The petitioner did comply this order in its terms, and to which there is no dispute. There is also no dispute that there was no component of interest ordered by the ARC in the order under Section 15(1). It was only on the application filed by respondents under Section 151 and 152 CPC latter, that the petitioner was directed to deposit the interest @ 15% per annum on the arrears of rent, which had already been deposited by him. The learned ARC in this order has observed this to be in consonance with provisions of Section 26 of the Act. If this was an order under Section 26 of the Act, non-compliance thereof, for any reason whatsoever, would not attract rigour of

Section 14(2) of the Act. This order of the ARC to the extent that it is only subject to payment of interest, that the petitioner would get the benefit of Section 14(2) of the Act, is apparently, erroneous. The petitioner had already got the benefit of Section 14(2) of the Act by complying the order under Section 15(1) in terms of judgment and order dated 23.11.2009. Secondly, as noted above, the non compliance of the order passed under Section 26 regarding interest cannot attract the applicability of Section 14(2) of the Act. As envisaged in Section 26, the non-payment of interest by tenant, would at the most entitle the landlord tgo claim interest @ 15% till the time of payment.

10. Moving further, the petitioner had the right to challenge this order, and which he did by filing appeal before the ARCT. He had also challenged the main order dated 23.11.2009 by way of appeal before the ARCT. Till the decision of these appeals, he was under no obligation to comply the order of 15.01.2010, except that recurring interest, since he had already complied the main order under Section 15(1) in terms of judgment and order dated 23.11.2009, and paid the arrears of rent. Immediately after the dismissal of his appeals on 3.12.2010, he filed application under section 151 of CPC on 13.01.2011 before the ARC, seeking permission to deposit the interest in terms of order dated 15.01.2010. The respondent on the other hand, without waiting for the outcome of the order of ARCT in the appeals of the petitioner, filed

application under Section 15(7) read with 14(2) of the Act on 06.05.2010, seeking striking off the defence and passing of eviction order against the petitioner, on account of alleged non-compliance of order dated 15.01.2010. It is really surprising to note that the ARC instead of granting time to deposit the interest to the petitioner as prayed by him in his application dated 13.01.2011, proceeded to strike off his defence and passed eviction order on 02.08.2011 on the application dated 06.05.2010 of the respondent. Here again, the ARC grossly erred. The non-payment of interest ordered under Section 151 in terms of Section 26 of the Act, do not invite the applicability of Section 15(7) of the Act. The learned ARCT also again erred in upholding the order dated 02.08.2011 of ARC, overlooking the fact that the order dated 15.01.2010 was not an order under Section 15(1). The observations made by ARCT that the non payment of interest by the petitioner was willful, is apparently erroneous in the entire factual background, as discussed above.

11. In view of my above discussion, the impugned order of ARCT dated 09.09.2011 and that of ARC dated 02.08.2011 are not sustainable as per law and, are accordingly set aside. The petitioner is permitted to deposit the arrears of interest, if not already deposited as per order of 15.01.2010 within one month from today. The petition stands disposed of accordingly.

M.L. MEHTA, J.

SEPTEMBER 12, 2012/akb/acm