Jai Kishan vs Kamleshwar Nath Arora
2013 Latest Caselaw 757 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision : 15th February, 2013

+      CM(M) 188/2013 & CM.2643/2013

       JAI KISHAN                                  ..... Petitioner
                             Through :   Mr.Abhimanyu K.Singla,
                                         Advocate
                    versus

       KAMLESHWAR NATH ARORA                         ..... Respondent
                  Through :

       CORAM:
       HON'BLE MS. JUSTICE PRATIBHA RANI

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PRATIBHA RANI, J. (ORAL)

1. The petitioner has filed the present petition under Article 227 of the Constitution of India praying for issuance of appropriate orders/directions for setting aside the impugned order dated 7 th December, 2012, passed by the learned Rent control Tribunal (in short RCT) in RCT No.70/2012 and order dated 17th September, 2012, passed by the learned Additional Rent Controller (in short ARC) in Eviction Petition No.E-150/2011/08.

2. Learned counsel for the petitioner submitted that it is not a case of second default for the reason that petitioner tendered the rent for the period May, 2005 to June, 2006 @ Rs.127/- per month by money order. Thereafter, the rent was enhanced to Rs.150/- per month and for the

period July, 2006 to July, 2008, the same was sent on 4 th August, 2006, rent w.e.f. August, 2008 to July, 2009 was sent on 22 nd September, 2008. Thus, there was no arrears as alleged and the learned ARC has wrongly considered it to be a case of second default. At the same time, learned ARC did not consider the aspect that the rent tendered through money order but refused by the landlord/respondent was a valid tender of rent thus could not have been considered as a case of second default to deny the benefit under Section 14(2) of the Delhi Rent Control Act (in short DRC Act).

3. Learned counsel for the petitioner has heavily relied on Shashi Kumar Vs. Dharam Pal - 1981 Rajdhani Law Reporter 191 which explained the legal position prevalent at the time when rent was tendered through money order that rent sent through money order was a valid tender and on refusal to receive the money, the tenant could not be said to have committed default. It is further submitted that the rent through money order was sent prior to the legal position, clarified in Sarla Goel and ors. Vs. Kishan Chand - (2009) 7 SCC 658, which was delivered in the year 2009 and this decision cannot have retrospective effect so as to deny benefit under Section 14(2) of the DRC Act to the tenant.

4. I have considered the submissions made by learned counsel for the petitioner and also gone through the decision of this Court in Shashi Kumar's case relied upon by him. It is not disputed by the petitioner that earlier Eviction Petition No.35/1998 was filed against him, which was disposed of vide order dated 9th February, 2000 granting benefit to him of Section 14(2) of DRC Act. When the petitioner committed

default, the landlord/respondent again filed eviction petition, wherein the written statement was filed by the present petitioner denying that he was in arrears of rent. It was pleaded that:

(i) the landlord/respondent had accepted the rent upto 2004;

(ii) rent for the period September, 2004 to April, 2005 was not accepted by the landlord/respondent;

(iii) rent for the above period was deposited in Court of Senior Civil Judge, Delhi in a petition under Section 31 of Punjab Relief and Indebtedness Act, 1934 (in short, the PRI Act); and

(iv) tenant/petitoner again tendered the rent for the period May, 2005 to June, 2006 by money order dated 27th May, 2005 and also for the subsequent periods through money orders.

5. The contention raised before this Court is that tender of rent through money order was a valid tender, thus, learned ARC as well as RCT committed grave error in denying the protection available to the petitioner under Section 14(2) of DRC Act.

6. It is petitioner's own case that the landlord/respondent had accepted the rent only upto August, 2004. The rent for the subsequent period from September, 2004 to April, 2005 has been deposited by him under Section 31 of the PRI Act.

7. In Atma RamVs. Shakuntala Rani - AIR 2005 Supreme Court 3753, the Apex Court has held that in view of the express provisions of Section 27 of the Act, deposit under Punjab Act was of no avail. Thus, there is clear enunciation by Apex Court that deposit under the PRI Act is not a valid deposit.

8. The contention of learned counsel for the petitioner that in view of the judgment reported as Shashi Kumar vs. Dharam Pal (Supra), prior to decision of Apex Court in Sarla Goel's case (Supra), the tender of rent through money order was valid tender, is liable to the rejected for the reason that in Sarla Goel's case (Supra), the Apex Court affirmed the principles laid down in Atma Ram's case (Supra) and E.Palanisamy vs. Palanisamy by Lrs. & Ors. AIR 2003 SC 153 and observed that :

'In Atmaram's case (Supra), this Court observed at paragraph 19 as under::

'19. It will thus appear that this Court has consistently taken the views that in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision.

(Emphasis supplied)

20. Again in paragraph 20 of the same decision, this Court observed as follows:

Section 26 of the Delhi Rent Control Act, 1958 provides that every tenant shall pay rent within the time fixed by contract, and in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorized agent a written receipt for the amount paid to him, signed by the landlord or his authorized agent. It is also open to the tenant to remit the rent to his landlord by postal money order. The relevant part of Section 27 of the Act reads 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:

Provided that in cases where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.

21. This Court in the aforesaid decision, after examining Section 27 of the Act observed at paragraph 21 as follows:

The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by Sub- section (2) of Section 27, There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act. and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.'

9. The legal position was summarised in para 23 as under :-

'23. Applying the principles laid down in Atmaram's case (Supra), as noted herein earlier, and the decision in E. Palanisamy (Supra) and in view of our discussions made herein earlier and considering the object of the Act and the intention of the Legislature, we are in respectful agreement with the observations made by this Court in the aforesaid two decisions. In our view, similar facts had arisen in the present case.'

10. The copy of money order receipts placed on record by the petitioner (from pages 53 to 56) established that despite the legal position

being explained by the Apex Court in Atma Ram's case (Supra), the petitioner continued tendering rent through money order instead of depositing the rent under Section 27 of Delhi Rent Control Act.

11. Once the tenant/petitioner knew that w.e.f. September, 2004, the landlord/respondent has not been accepting the rent which constrained him to deposit the rent under Section 31 of the PRI Act, the averments that the rent was again tendered through money order, which was refused does not amount to a valid tender for the reason that in the given circumstances when earlier also eviction petition had been filed for non- payment of rent and second time also the tenant/petitioner knew that any default would take away the protection available to him but he opted to deposit the rent under Section 31 of the PRI Act, there was hardly any occasion for him to tender rent for the subsequent period through money order. In the given circumstances, the tenant/petitioner cannot take any shelter under Shashi Kumar's case (supra) to claim that this was the law prevalent at that time.

12. Learned RCT in the impugned order has ignored the period for which the rent was deposit under Section 31 of the PRI Act for the reason that it was not legally recoverable thus took into account the period from May, 2005 onwards. While observing that appeal under Section 38 of DRC Act can be filed only on question of law and no question of law was involved in the appeal, further opined that in view of the settled legal position in Sarla Goel's case that in case of refusal to accept the rent tendered by the tenant, it is incumbent upon the tenant to deposit rent under Section 27 of DRC Act, it was considered to be a case

of second default in payment of rent, resulting in passing of the eviction order by the learned ARC, which was affirmed by the RCT.

13. Learned Rent Control Tribunal has rightly come to the conclusion that on refusal of the landlord to accept the rent tendered through money order, it was incumbent upon the tenant to have deposited the rent before the Rent Controller as prescribed under Section 27 of the Delhi Rent Control Act, which he failed to do. Since it is a case of second default, learned Rent Control Tribunal has rightly dismissed the appeal.

14. I find no infirmity or illegality in the impugned orders. The petition has no merit and the same is hereby dismissed.

PRATIBHA RANI, J February 15, 2013 aka