Delhi High Court
Rajiv Kumar vs Meena Sharma on 9 January, 2020
$~6 & 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th January, 2020
+ CM(M) 501/2017
RAJIV KUMAR ..... Petitioner
Through: Mr. Vivek Narayan Sharma, Mr.
Akash Chatterjee & Mr. Priyansh
Sharma, Advocates (M-9646996865)
versus
MEENA SHARMA ..... Respondent
Through: Mr. Mukesh Anand, Advocate (M-
9810001582)
AND
+ CM(M) 502/2017 & CM APPLs. 47488/2017, 47518/2017
DHARAM PAL & ANR ..... Petitioners
Through: Mr. Vivek Narayan Sharma, Mr.
Akash Chatterjee & Mr. Priyansh
Sharma, Advocates
versus
MEENA SHARMA ..... Respondent
Through: Mr. Mukesh Anand, Advocate
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The present petitions challenge the impugned orders dated 22 nd
July, 2016 passed by the ld. Rent Controller and the order dated 20th
April, 2017 passed by the ld. Rent Control Tribunal by which the eviction
petition filed by the Respondent/Landlord (hereinafter, "Landlord") has
been allowed. The background is that an eviction petition was filed by the
CM(M)s 501/2017 & 502/2017 Page 1 of 12
Landlord - Smt. Meena Sharma against the Petitioners/Tenants (hereinafter,
"Tenants") under Section 14(1)(a) of the Delhi Rent Control Act. Initially,
vide order dated 5th September, 2006, the Tenants were held to be in breach
and a decree was passed under Section 14 (1)(a). However, benefit was
given under Section 14(2). Since there were defaults by the tenant, the
matter reached this Court in CM(M) 796/2014 and CM(M) 797/2014. The
question that came to be considered in the said petition was whether future
defaults by the Tenant could be considered for the purpose of refusing
benefit under Section 14(2). The petitions were decided by this Court vide
the said order dated 3rd March, 2015 and the matter was remanded back to
the ld. ARC in the following terms:
"7. The short issue in the present petitions is that in the
absence of an order under Section 15(1) DRC Act
directing payment of future rent, whether the Court
was not required to consider future defaults in view of
provision under Section 26 of the DRC Act.
8. Learned counsel for the petitioner contends that the
order dated 5th June, 2006 condoning the delay without
any application seeking condonation of delay was an
illegal order and further illegality was committed by
the impugned orders of the learned ARC dated 7th
September, 2013 and Rent Controller dated 24th
July,2014 when they did not consider the subsequent
defaults made. Even if there was no direction by the
Court to pay future rents the provision of Section 26
DRC Act was applicable and any delay in deposition of
the money beyond 15th day of the proceeding month
would have given rise to a cause of action in favour of
the petitioners amounting to subsequent defaults.
Reliance is placed on Shanti Prasad Jain (D) Through
Lrs. Vs. Prakash Narain Mathur 158 (2009) DLT
483(SC); Sanjay Kumar Saxena Vs. Smt. Meeta Govel
114 (2004) DLT 710; Ram Prakash Tewari Vs. Suraj
CM(M)s 501/2017 & 502/2017 Page 2 of 12
Bhan Yadav 90(2001) DLT 236 and Shri Manohar Lal
(deceased) through LRs Vs. Prem Nath Gera
(deceased) through LRs. CM(M) 638/2011, decided by
this Court on 24th May, 2011.
....
12. Thus even if the learned ARC vide the order dated
5th September, 2006 failed to pass directions for
payment of future-rent, the tenant was statutorily
bound to pay the future rent in terms of Section 26 of
the Act. However, both the learned ARC and the Rent
Controller committed illegality in not considering
Section 26 of the DRC Act and dismissed the
application of the petitioner under Section 14(1)(a),
14(2) and 15(7), 25 and 26 of the DRC Act read with
Section 151 CPC on the ground that there was no
order for payment of future rent under Section 15(1)
DRC Act. Thus, there is an illegality committed by both
the Courts below. Hence the impugned order is set
aside and the matter is remanded back to the
Additional Rent Controller for consideration of the
petitioner's applications under Sections 14(2), 15(7),
25 and 26 of the DRC Act and whether the respondent
was entitled to the benefit under Section 14(2) of the
DRC Act in view of subsequent defaults."
2. The ld. Single Judge of this Court had, as per the above order, set
aside the impugned orders and had remanded the matter back to the ld.
ARC. The first impugned order which is under challenge i.e. order dated
22nd July, 2016 was an order passed on remand. The ld. ARC, has, after
analysing the various payments made by the Tenant and the question as to
whether the tenant is entitled to benefit under Section 14(2), arrived at a
conclusion that the Tenant was a defaulter and had committed violation of
the order dated 5th September, 2006. In view thereof, the ld. Rent Controller,
passed an order for eviction. The observations of the ld. Rent Controller are
CM(M)s 501/2017 & 502/2017 Page 3 of 12
as under:
"11. A month after the order dated 5 September,
2006, the respondent committed default in making
payment of rent for three consecutive months i.e. for
the months of November 2006, December, 2006 and
January, 2007, as the rent for the said three months
was deposited by the respondent on 21 February
2007 and that too without interest at the rate of 15%
per annum. From the table of the payment of rent, as
reproduced therein above, it can be seen that the
respondent defaulted to pay the rent as per section 26
of Delhi Rent Control Act despite order dated 5
September 2006, even though the proceedings were
pending for consideration of entitlement of the
respondent to benefit under section 14(2) of Delhi
Rent Control Act.
...
14. In the present case, the respondent despite
having knowledge of the fact that he has been held to
be a defaulter by the court as per order dated 5
September 2006, and despite having the knowledge
that he has yet not been granted benefit under section
14(2) of Delhi Rent Control Act and the petition is
pending for the consideration of his entitlement to the
said benefit under section 14(2) of Delhi Rent Control
Act, opted not to deposit/pay meagre rent of Rs.400/-
per month, regularly as per order under s.15(1) dated
5 September 2006 read with section 26 of the Delhi
Rent Control Act. Therefore, in the present case it is
not the three consecutive defaults to pay rent
regularly (as per under s.15(1) of Delhi Rent Control
Act read alongwith section 26 of Delhi Rent Control
Act) during the pendency of the eviction petition,
which renders the respondent not entitled to benefit
under s.14(2) of Delhi Control Act.
15. ORDER
In view of the defaults committed by the respondent in
making payment of rent regularly during the
CM(M)s 501/2017 & 502/2017 Page 4 of 12
pendency of the present eviction petition as per order
dated 5 September 2006 and as per the provisions of
section 26 of Delhi Rent Control Act, it is held that
the respondent has failed to make payment of rent as
required by section 15 of Delhi Rent Control Act and
he is therefore not entitled to benefit under Section
14(2) of Delhi Rent Control Act.
Accordingly eviction order is passed under s.14(1)(a)
of Delhi Rent Control Act against the respondent and
in favour of the petition with respect to the tenanted
premises i.e. Room No.2 (measuring 10' x 20'), first
floor, property No.IX/6933, Prem Gali, Gandhi
Nagar, Delhi as shows in site plan Ex.PW-1/1."
3. This order was carried in appeal by the Tenant, resulting in order
dated 20th April, 2017 of the ld. RCT. The finding of the ld. RCT is as
under:
"23. During the course of arguments, it is admitted by
the Ld. Counsel for the appellant that the arrears were
deposited @ Rs.300/- per month and not at the rate as
directed in case of Tenant Rajeev Kumar. The same is
noted in the order of the trial court also showing
deposit of rent for the period of November, 2006 to
January, 2007 as sum of Rs.900/- which was deposited
only during 21.2.2007. No interest is deposited. The
trial court records and the impugned order at page 2
and 3 is very clear. The same continued. It is clearly
forthcoming from the chronological deposits made,
that there has been no proper deposits within the time
prescribed u/s 15(1) of the Rent Control Act. There is a
mandatory obligation on the tenant to deposit and to
continue to pay or deposit month by month by 15 th of
each succeeding month a sum equivalent to the rent at
that rate.
As regards the other appeal, there has been continuous
delay in deposit of rents and there was no timely
deposits.
CM(M)s 501/2017 & 502/2017 Page 5 of 12
24. The Hon'ble High Court directed the Rent
Controller to find out the eligibility of the tenant for
the benefit of protection provided u/s 14(2) of the DRC
Act in view of the subsequent defaults. It was also
directed to consider the applications u/s 14 (2), 15 (7)
and also section 25 and 26 of the said Act of the
landlord.
25. Section 14(2) of the DRC Act creates a rider in
passing the eviction order on the ground of non-
payment of rents. If the tenant makes payment or
deposits the same as required u/s 15 of DRC Act, then
no eviction order can be passed. After careful perusal
and further considering the language employed u/s 15
(1) of the DRC Act, it becomes clear that the Act aimed
at the proper, diligent and timely payment of rents. It is
also clear that this provision not only expects the
tenant to clear the arrears but also mandates him to
pay the current rents [which becomes future rents after
the initial order u/s 14(1)] month to month and the
same shall have to be paid or deposited before 15th of
each succeeding month for the preceding month. It also
clearly commands that the sum shall be equivalent to
the rent at that rate.
26. In the case of this tenant, the sums deposited
are not at the equivalent rate. Having noted the
language employed in this provision, it is clear that
there cannot be any further defaults at all. The
chronological events of the deposits made by the tenant
exposit that:
a) the tenant had not deposited the rents and the
arrears equivalent to the rent adjudicated.
b) the same is belated.
c) the subsequent deposits are not in conformity with
the provisions u/s 15 (1) as regards the date of deposits
and the sum adjudged.
27. As per section 26 of the DRC Act, again there
is a direction to the tenant that he shall pay the rent
within the time fixed by contract or in the absence by
CM(M)s 501/2017 & 502/2017 Page 6 of 12
15th day of the succeeding month. If there is any
default, the tenant is liable to pay the interest. The
object of Section 26 (1) is to enforce the tenant to pay
the rents regularly within the prescribed time or to pay
the penalty by way of interest. It must be noted that
section 26 is the first provision under Chapter 6 of the
Act which deals with the deposit of rents.
...
30. The only contention of the ld. Counsel for the
appellant is that the landlord cannot claim the arrears
of rent in violation of the provisions of Article 52 of the
Limitation Act, which hit the entire case of the
appellant. He relies on the ruling of Kamla Bakshi vs.
Khairati Lal 2000 (3) SCO 381. It was a case where
one landlord succeeded in the suit for mandatory
injunction for eviction against the occupier which was
upheld by the Hon'ble High Court. Thereafter, a notice
was issued claiming arrears of rent and initiated
proceedings for eviction invoking section 14 (1) (a) of
the DRC Act for rent for the period which was spent in
prosecuting the civil suit. In that case the Hon'ble
Supreme Court held that the landlords cannot be
allowed to claim the arrears of rents beyond the period
of limitation.
In the instant case, respondent had never objected to
the claim of the landlord for the arrears at the time of
inception of the proceedings u/s 14 (2) of the DRC Act.
All these arrears accrued under the valid orders of the
Rent Controller constituted under the Act. With utmost
respect to the ruling, it is to be noted that the principle
of law laid down therein cannot be made applicable to
the present set of facts in the instant case which is
totally of a different genre. Thus, the contentions of the
tenant that there was no arrears of rent and that there
were bonafides in not depositing the rents timely,
cannot be accepted. Consequently, the following
order."
CM(M)s 501/2017 & 502/2017 Page 7 of 12
ORDER:
Both the appeals stand dismissed. The orders
dated 22.07.2016 in RC/ARC No. 684/16 in E. No.
212/05 and in RC/ARC No. 683/16 in E. No. 211/05
on the files of Ld. SCJ, Shahdara, KKD Courts, are
hereby, affirmed."
4. Ld. counsel for the Tenants submits that the manner in which the
benefit of Section 14(2) was not given to the Tenants, is contrary to law. He
submits that future defaults could not have been considered while
considering the benefit under Section 14(2) and in fact, the Tenant had not
committed any default. He further submits that the manner in which the
decree for eviction has also been passed based upon the wrong interpretation
of law shows that the same is liable to be set aside. Ld. counsel, however, on
a query from the Court fairly concedes two aspects i.e. first, that the rent for
November, 2006 to January, 2007 was in fact paid only in February, 2007
and second, that pursuant to the eviction decree being passed, the execution
was filed and the possession of the premises has also been given in July,
2018.
5. On the other hand, ld. counsel for the Landlord submits that
possession having been handed over and the Tenants having enjoyed a stay
order from this Court, which has not been complied with, no indulgence
deserves to be shown to them. In fact, a stay order was initially granted on
17th November, 2017 and was therafter vacated vide order dated 24th April,
2018 due to non-compliance by Tenants. The Tenants, while enjoying
interim orders have failed to pay any of the amounts directed by the Court.
Further, the default has not only been for the period of 2006 and 2007 but
even after enjoying interim orders passed by this Court. In the meantime,
since the stay was vacated, the property has been handed over and the
Tenants, who are in default cannot be put back in possession.
6. A perusal of the initial order dated 3rd March, 2015 shows that the ld.
Single Judge had ruled on the question as to whether future defaults can be
taken into consideration for the purpose of granting or non-granting the
benefit under Section 14(2). That order dated 3rd March, 2015 has attained
finality and has not been challenged by the Tenants. Even in the present
petition, initially vide order dated 3rd May, 2017, warrants of possession
were directed to be not executed till the next date. On applications moved by
the landlord, the matter came to be considered at the interim stage afresh
vide order dated 17th November, 2017. The ld. Single Judge in the said order
directed that payment of Rs.40,000/- shall be made in respect of each of the
shops which are subject matter of the two petitions on or before the 10th of
each successive month. The said order is extracted herein below:
"CM No.19077/2017 in CM (M) No.501/2017 & CM
No.19080/2017 in CM(M) No.502/2017 (both for
exemption)
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
CM(M) 501/2017 & CM(M) 502/2017
3. Adjournment is sought by the counsel for the
petitioners.
4. The counsel for the respondent opposes, contending
that stay of the order of eviction impugned has been
granted without even imposing any conditions on the
petitioners in terms of Atma Ram Properties (P) Ltd.
Vs. Federal Motors Pvt. Ltd. (2005) 1 SCC 705.
5. The orders of eviction impugned in these petitions
became executable in July, 2016. The petitioners have
already enjoyed possession for nearly one and a half
years without paying any compensation.
6. The counsel for the petitioners on enquiry states that
he has no idea of the prevalent letting value.
7. The counsel for the respondent states that as far
back as in the year 2011, compensation at the rate of
Rs.20,000/- per month was fixed for each of the shops
subject matter of the two petitions. He further states
that the petitioners themselves had offered rent to the
respondent at the rate of Rs.80,000/- per month for
both the shops.
8. The counsel for the petitioners also confirms.
9. In this view of the matter, the continuation of the
stay of the order of eviction impugned in these petitions
is made subject to payment of compensation by the
petitioners to the respondent at the rate of Rs.40,000/-
per month for each of the shops subject matter of the
two petitions.
10. The petitioner/s in each of the petitions to, on or
before 25th December, 2017, pay to the respondent
compensation at the said rate with effect from the
month of August, 2016 till the month of December,
2017 and to continue to pay compensation at the said
rate with effect from the month of January, 2018,
month by month, in advance for each month, by the
10th day of the month and till further orders in these
petitions.
11. If there is any default in payment, the interim order
shall stand vacated and the respondent shall be entitled
to execute the order of eviction subject to final outcome
of the petitions.
12. If there is any default in payment, the interim order
shall stand vacated and the respondent shall be entitled
to execute the order of eviction subject to final outcome
of the petitions.
13. Needless to state that the payments aforesaid are
also subject to final outcome of the petitions and
repatriable by the respondent in the event of the
petitions succeeding. 14. CM Nos.16964/2017,
19076/2017, 16967/2017 & 19079/2017 are disposed
of. 15. List on 24th April, 2018."
7. It is the admitted position that the tenants did not comply with the
above order. Thus, vide order dated 24th April, 2018, the stay which was
granted was vacated. The landlord has since filed for execution and the
possession of the premises has been handed over.
8. Considering that the Tenant has been under repeated defaults in
making payments to the landlord, no indulgence deserves to be shown by
this Court. The benefit of Section 14(2) is meant for bona fide Tenants and
cannot be extended to those Tenants who are neither paying the admitted
rent as per the directions, but also the occupation charges as directed by the
Court to enjoy a stay order.
9. Under these circumstances, it is clear that the petition is liable to be
dismissed. Further the Petitioner has enjoyed interim relief since 3rd May,
2017 till July, 2018, which is a period of approximately 13 months, further
orders are required to be passed so as to ensure that parties who enjoy
interim orders are not shown indulgence for non-compliance. Considering
that the occupation charges which were directed was approximately
Rs.40,000/- for each of the shops i.e. Rs.80,000/- per month, the Petitioner is
liable to compensate the landlord for this period. The total amount that
would be due as per the order dated 17th November, 2017 would be
Rs.80,000/- per month from the date when the interim order was passed. In
the facts and circumstances of this case, considering that there has been
default by the Tenants, and the total amount due in terms of the interim
order dated 17th November, 2018 would be over and above Rs.10 lakhs and
the Tenant has now handed over the possession of the property to the
landlord, it is directed that a lumpsum amount of Rs.5 lakhs shall be paid to
the landlord on or before 8 weeks from today. If the said amount is paid, no
further amount would be liable to be paid for the period 3 rd May, 2017 till
July, 2018. Failure to pay this amount, would entail the Tenants to pay the
entire sum of Rs.10,40,000/-. The landlord would be entitled to recover the
same along with @ 6% per annum from 17th November, 2017.
10. With these observations, both the petitions and all pending
applications are disposed of.
PRATHIBA M. SINGH
JUDGE
JANUARY 09, 2020
Rahul
