Madras High Court

Punjab National Bank vs Mrs.J.Amsa Veni on 12 July, 2021

                                                                  C.R.P.Nos.1120, 1122 and 1123 of 2019

                                   IN THE HIGH COURT OF JUDICATURE OF MADRAS

                                                 DATED: 12.07.2021

                                                      CORAM:

                         THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN

                                         C.R.P. Nos.1120, 1122 & 1123 of 2019

                     1.Punjab National Bank
                       Head Office at
                       No.7, Bhikaji Cama Place,
                       New Delhi.

                     2.Punjab National Bank
                       Avadi Branch
                       No.402, M.T.H.Road,
                       JK Complex, Avadi,
                       Chennai 600054.                           ...Petitioners in all cases

                                                         Vs


                     Mrs.J.Amsa Veni
                     Wife of Mr.B.Jayaraman                      ...Respondent in all cases
                     Prayer in C.R.P.No.1120 of 2019: Civil Revision Petition filed under
                     Section 25 of the Tamil Nadu Building (Lease & Rent Control) Act 18 of
                     1960 as amended by Act 23 of 1973 and Act 1 of 1980 to set aside the
                     final order and decree dated 28.11.2018 passed by the learned Rent
                     Control Appellate Authority, Subordinate Judge, Poonamalle, in
                     R.C.A.No.28 of 2017 confirming the fair order and decree dated
                     13.07.2017 passed by the learned Principal District Munsiff, Rent

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                     1
                                                                    C.R.P.Nos.1120, 1122 and 1123 of 2019

                     Controller, Poonamallee, in R.C.O.P.No.22 of 2014 and direct the learned
                     Appellate Authority to dispose the appeal in R.C.A.No.28 of 2017 on its
                     own merits.
                     Prayer in C.R.P.No.1122 of 2019: Civil Revision Petition filed under
                     Section 25 of the Tamil Nadu Building (Lease & Rent Control) Act 18 of
                     1960 as amended by Act 23 of 1973 and Act 1 of 1980 to set aside the
                     Final and decreetal order dated 28.11.2018 passed by the learned Rent
                     Control       Appellate   Authority,   the   learned    Subordinate        Judge,
                     Poonamallee, in I.A.No.86 of 2018 in R.C.A.No.28 of 2017 and dismiss
                     the said I.A.No.86 of 2018 in R.C.A.No.28 of 2017.
                     Prayer in C.R.P.No.1123 of 2019: Civil Revision Petition filed under
                     Section 25 of the Tamil Nadu Building (Lease & Rent Control) Act 18 of
                     1960 as amended by Act 23 of 1973 and Act 1 of 1980 to set aside the
                     order dated 27.09.2018 passed by the learned Rent Control Appellate
                     Authority, The learned Subordinate Judge, Poonamallee, in I.A.No.86 of
                     2018 in R.C.A.No.28 of 2017 and dismiss the said I.A.No.86 of 2018 in
                     R.C.A.No.28 of 2017.



                                          For Petitioner     : Mr.C.Prabakaran

                                                       ORDER

These civil revision petitions have been filed against the order

passed in R.C.A.No.28 of 2017 confirming the order passed by the trial

Court in R.C.O.P.No.22 of 2014. The petitioner and the respondent

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C.R.P.Nos.1120, 1122 and 1123 of 2019

herein will be referred as tenant and landlord in these petitions. The

landlord is the owner of the property and rented out the premises to the

tenant/Punjab National Bank since 13.11.2002, initially for a monthly

rent of Rs.9,000/-. Thereafter, in the year 2007, the landlord filed

R.C.O.P.No.22 of 2007 for fixation of fair rent, which was allowed by the

rent controller vide its order dated 23.10.2013, fixing the fair rent at

Rs.44,426/-. However, the tenant failed to pay the fair rent fixed to the

landlord and since 17.12.2007, the total due was Rs.33,31,915/-.

Therefore, the present R.C.O.P.No.22 of 2014 was filed by the landlord

for eviction of the tenant from the premises.

2. The matter was contested by the tenant stating that the fixation

of fair rent order was passed without hearing the tenant and that the

counsel who had represented the tenant was not a counsel authorized by

the tenant and that the ex-parte order cannot be sustained as the fair rent

is fixed on the higher side and it is also submitted by the tenant that he

has filed the necessary petition for setting aside the fixation of fair rent.

On the side of the landlord, one witness was examined as P.W.1 and three

documents were marked as Exhibits P1 to P3. On the side of the tenant,

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C.R.P.Nos.1120, 1122 and 1123 of 2019

one witness was examined as D.W.1 and Ex.D1 to D7 were marked. The

trial Court, after taking into consideration the submissions advanced by

either side and also on proper appreciation of the documentary evidence,

held that the landlord had willfully failed to pay the fair rent and that the

amount paid to the Income Tax Department on the basis of Ex.D5

without bringing the same to the notice of the landlord is nothing but an

admitted fact on the part of the tenant to evict the payment of rent to the

landlord and accordingly, allowed the petition filed by the landlord,

directing the tenant to vacate the premises within a period of two months.

3. Aggrieved by the said order, the tenant preferred R.C.A.No.28

of 2017 and along with the said appeal, I.A.No.86 of 2017 was filed by

the tenant to set aside the ex-parte order. The Rent Control Appellate

Authority on hearing the tenant directed the tenant to deposit the fair rent

due to the landlord within a particular time frame. While agreeing with

the findings and reasonings recorded by the trial Court, the Rent Control

Appellate Authority directed the tenant to pay the arrears of

Rs.55,08,824/- due till April 2018 and to pay the rent for a period from

May 2018 to August 2018 within the particular time. Since the said order

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C.R.P.Nos.1120, 1122 and 1123 of 2019

was not complied with, both the I.A. and R.C.A were dismissed

upholding the reasons recorded by the Rent Controller. Aggrieved by the

said order, the present civil revision petitions have been filed.

4. The learned counsel appearing for the tenant submitted that the

rent has been duly paid to the Income Tax Department on the basis of the

notice Ex.D5 received and therefore, the findings that there is a default in

payment of rent is fully unsustainable. It is the further submission of the

learned counsel for the tenant that the order was passed ex-parte without

affording the opportunity of hearing to the tenant and the fixation of fair

rent is also on the higher side. However, both the Rent Controller and

Rent Control Appellate Authority have failed to appreciate the

submission advanced on behalf of the tenant in proper perspective. It is

the submission of the learned counsel for the tenant that the rent has been

paid to the Income Tax Department for the due on behalf of the landlord,

on the basis of the notice Ex.D5 served on the tenant by the Income Tax

Department and therefore, the reasonings recorded by the trial Court as

exhibited by the Appellate Court is not borne out by the materials

available on record. It is the contention of the learned counsel for the

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C.R.P.Nos.1120, 1122 and 1123 of 2019

tenant that the premises having been attached by the Income Tax

Department in respect of the due from the landlord to the income tax

department, the landlord has no right to claim any rent. Accordingly, he

prays for allowing these petitions.

5. Per contra, the learned counsel for the landlord reiterated the

submissions as advanced before the Court below and submitted that

without paying the landlord on notice as to the notice received from the

income tax department by the tenant, the tenant cannot get himself

absconded from the responsibility of paying the landlord. Further, it is

the submission of the learned counsel for the landlord that the tenant has

paid only a sum of Rs.10,800/- to the Income Tax Department, whereas,

the fair rent fixed by the Rent Controller is to the tune of Rs.44,426/- and

the said fixation having not been challenged by the tenant, the tenant is

bound to pay the balance amount to the landlord. The Courts below have

properly appreciated all the evidences placed before it and recorded the

findings and the tenant has willfully defaulted in payment of fair rent

fixed by the Court and therefore ordered eviction of the tenant, which

calls for no interference.

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C.R.P.Nos.1120, 1122 and 1123 of 2019

6. This Court carefully considered the submissions on either side

and also perused the materials available on record.

7. It is the contention of the tenant that on the basis of Ex.D5-

notice received from the income tax department, the amount towards rent

has been deposited with the income tax department. However, it is to be

pointed out that fair rent fixed for the premises is to the sum of

Rs.44,426/-, whereas, it is the admitted case of the tenant that he has paid

a sum of Rs.10,800/-, however, monthly towards the dues to the Income

Tax Department on behalf of the landlord. It clearly shows that there is a

shortfall of more than a sum of Rs.30,000/- towards monthly rent due to

the landlord from the tenant.

8. It is not the case of the tenant that he has paid the said amount to

the landlord, but, this case is only to the extent that the property is

attached with the Income Tax Department and therefore, the landlord is

not eligible for receiving any rent. It is the admitted case of the tenant

that the premises belongs to the landlord and that the tenant had entered

into the tenancy with the landlord for occupation of premises. While that

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C.R.P.Nos.1120, 1122 and 1123 of 2019

being the case, the tenant is duty bound to pay the rent due to the

landlord and once the fair rent is fixed by the Court on the petition filed

by the landlord and in the absence of fair rent fixed by the Court, it is not

open to the tenant to fix a rent by himself and pay the same to the Income

Tax Department on the notice received from the Income Tax Department.

9. Further, it is the case of the tenant that the tenant had paid the

landlord on notice with regard to Ex.D5, the notice received from the

Income Tax Department. Provisionally, without paying the landlord on

notice with regard to the notice received from the Income Tax

Department, the tenant started to pay a sum of Rs.10,800/- to the Income

Tax Department towards the dues payable by the tenant, without

disallowing the order of the fair rent fixed by the Rent Controller.

Though an opportunity was given to the tenant to deposit a sum of

Rs.55,08,824/-, which is the rent due to the landlord, which was directed

to deposit with the particular time, the tenant has shown has not shown

interest in depositing the said amount.

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10. At this juncture, it is pertinent to point out that with regard to

arrears of the rent, ie., with respect to payment of fair rent from 2007, the

petitioners, before the Court below, admitted that they have not paid the

same and stated that they are not liable to pay. Further, the petitioners

claim to have paid the contractual rent regularly, but, the said amount has

not been paid to the respondent and seems to have paid to the IT

Department. Hence, the petitioners contention that they are paying the

rent to the respondent is not acceptable.

11. The contentions put fourth on behalf of the petitioners are that

they are not liable to pay the rent at the rate fixed in R.C.O.P.No.22 of

2007, in view of the fact that under the lease deed, the initial monthly

rent was Rs.9,000/- and the petitioners are presently paying rent with an

enhancement of 20% i.e., Rs.10,800/- per month and hence they have not

committed any default and the petitioners are also not remitting the

monthly rents regularly cannot be accepted, because, when the Court has

fixed the fair rent, the petitioners are bound to comply with the said order

and instead of complying with the said order, the petitioners have

deposited the rent regularly without any default till date.

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C.R.P.Nos.1120, 1122 and 1123 of 2019

12. Moreover, since the petitioners have failed to pay the

contractual rent from the year 2013 and they have committed willful

default, it would be appropriate to extract Paragraph No.25 of the

Judgment of Hon'ble Supreme Court reported in AIR 1985 SC 582

[S.Sundaram Pillai etc., Vs. R.Pattabiaman] referred by

Mr.M.S.Krishnan, learned Senior Counsel for petitioner:-

“Thus, a consensus of the meaning of the words 'willful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequenes flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above”

13. It is clear from the above said decision of the Hon'ble Supreme

Court that the willfull default must be intentional, deliberate, calculated

and conscious with full knowledge of legal consequences flowing

therefrom. The non-payment of arrears of fair rent will also amount to

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C.R.P.Nos.1120, 1122 and 1123 of 2019

conduct of willful default as the tenant deliberately did not remit the

arrrears of fair rent, when this court has refixed the fair rent. Therefore,

mere deposit of rent made by the petitioners, that too with the Income tax

Department, and non-payment of arrears amount, will amount to wilful

default.