Madras High Court

K.S.Balakrishnan vs M/S Krishna Mills Pvt. on 22 June, 2021

                                                                                  C.R.P.No.2053 of 2020

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated : 22.06.2021

                                                         CORAM

                                   THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                               C.R.P.No.2053 of 2020 and
                                                C.M.P.No.12898 of 2020

                     K.Subramaniam (died)
                     1. K.S.Balakrishnan
                     2. S.Annapoorani
                     3. Balasaraswathi                                    ... Petitioners

                                                             Vs.

                     M/s Krishna Mills Pvt., Ltd.,
                     rep by its Director
                     J.Anand
                     1082, Avinashi Road,
                     Coimbatore – 18.                                    ... Respondent


                               Civil Revision Petition is filed under Section 25 of the Tamil Nadu

                     Buildings (Lease & Rent Control) Act, 1960 to set aside the Fair and

                     Decreetal order passed in R.C.A. No.32 of 2019 dated 25.02.2020 on the

                     file of learned Principal Subordinate Judge, Coimbatore by reversing the

                     fair and decreetal order passed in R.C.O.P. No.134 of 2007 on the file of

                     learned I Additional District Munsif, Coimbatore.




                     1/31


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                                                                                  C.R.P.No.2053 of 2020




                                       For Petitioners        : Mr.M.S.Krishnan
                                                                Senior Counsel for
                                                                Mr.Edwin Prabakar

                                       For Respondent         : Mr.M.Ravindran
                                                                Senior Counsel for
                                                                Mr.R.Nandhakumar

                                                         ORDER

The present Civil Revision Petition is filed under Section 25 of Tamil

Nadu Buildings Lease and Rent Control Act, 1960 as against the Fair and

Decreetal order passed in R.C.A No.32 of 2019 dated 25.02.2020 by the

learned Principal Subordinate Judge, Coimbatore reversing the finding

made in R.C.O.P.No.134 of 2007 dated 06.02.2019 on the file of learned

First Additional District Munsif, Coimbatore.

2. The Tenant since deceased, his legal heirs are the Revision

Petitioners before this Court. Initially R.C.O.P.No.44 of 2005 was filed by

the landlord for fixing fair rent as Rs.2,43,600/- before the learned I

Additional District Munsif, Coimbatore. Thereafter, R.C.O.P.No.134 of 2007

was filed by the landlord under Section 10(2)(1) of Tamilnadu Buildings

Lease and Rent Control Act, 1960 on the fact that the tenant took the

property measuring 16,500 square feet from the previous management of

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the landlord. During the year 1999, the tenant took front portion of 5,000

square feet on the monthly rent of Rs.15,000/- and thereafter, the northern

portion measuring an another 5,000 square feet of land and building was

taken on lease by the tenant during October, 2000 for a monthly rent of

Rs.15,000/-. Further, a separate shed on the western side measuring 500

square feet was given on lease to the tenant from 01.05.2000 on a monthly

rent of Rs.3,000/- and an extent of 5000 was rented out to the tenant in

October, 2001 on a monthly rent of Rs.15,000/-, totally an extent of 15,500

square feet of land and building on a monthly rent of Rs.48,000/- was to be

paid by the tenant. However, the tenant seems to have been contending

that the monthly rent is only Rs.33,000/-. Meanwhile, the landlord had

taken out the petition in R.C.O.P.No.44 of 2005 for fixing of fair rent in

which fair rent proceedings the tenant has submitted his trading profit and

loss account for the year ended 31.03.2000 had shown the monthly rent

payable to the landlord as Rs.48,000/-, which seems to have been

admitted in the cross examination in R.C.O.P.No.44 of 2005. The landlord

was receiving the reduced rent without prejudice to their right held that from

01.10.2000 till 01.07.2007, the tenant has defaulted to pay the balance of

Rs.15,000/- as monthly rent. Furthermore, in the fair rent case filed by the

landlord, the fair rent was fixed as Rs.2,43,600/- from 01.02.2005, the

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tenant has not paid the said fair rent so fixed and continued to pay

Rs.33,000/- per month. Despite there being an order of the court in fair

rent, the tenant had willfully defaulted the rent and liable to be evicted on

the ground of willful default.

3. As per the counter filed by the tenant in R.C.O.P.No. 134 of 2007

filed for eviction, the tenant had denied the allegation and stated that the

tenant took the front portion of the subject property measuring an extent of

5,000 square feet in the year 1989 on a monthly rent of Rs.15,000/- from

the landlord and thereafter took another portion of the said godown

measuring an extent of 4,200 square feet situated in north of the front

portion in October, 2000 on a monthly rent of Rs.10,000/-. Thereafter, in

October, 2001 the tenant took the rear portion of the godown measuring an

extent of 4,200 square feet on a monthly rent of Rs.5,000/- from the

landlord and earlier, the tenant had taken another ground on measuring

500 square feet on 01.05.2000 on a monthly rent of Rs.3,000/- from the

landlord and ever since of taking of the possession by the tenant, the

monthly rent for the above said godowns and the adjacent building is Rs.

33,000/- and not Rs.48,000/- .

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4. Meanwhile, as against the fair and final order made in

R.C.O.P.No.44 of 2005 dated 10.01.2007 passed by the learned I

Additional Munsif, Coimbatore, who had fixed the fair rent at Rs.2,43,600/-,

R.C.A.No.21 of 2007, was filed by the tenant and R.C.A.No.24 of 2007,

was filed by the landlord, the appellate authority by fair and final order

dated 20.02.2008 dismissed both the appeals filed by the tenant as well as

the landlord and confirmed the fair and decreetal order passed in

R.C.O.P.No.44 of 2005 dated 10.01.2007 confirming the fair and rent fixed

by the 1st Additional District Munsif Court at Rs.2,43,600/-.

5. The tenant approached this Court under Section 25 of the Act as

against the fair and final order made in R.C.A.No.21 of 2007 dated

20.02.2008. This Court by order dated 30.07.2008 in M.P.No.1 of 2008 in

C.R.P.NPD No.2511 of 2008 had passed an interim order, which is as

follows:-

“ 5. After hearing both the learned counsel, to meet the ends of justice, I find it reasonable to direct the petitioner / tenant to deposit Rs.25,00,000 (Rupees twenty five lakhs only) without prejudice to the claim of both the parties. Accordingly, the revision petitioner is hereby directed to deposit a sum of Rs.25,00,000/- (Rupees twenty five lakhs

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only) on or before 29.09.2008 before the court below, failing which, this petition shall stand automatically dismissed ad the respondent / landlord would be at liberty to execute the E.P. The learned counsel appearing for the respondent submitted that the arrears of rent as on the date of the order would be computed approximately to Rs.86,67,600/- Accordign to the learned counsel appearing for the revision petitioner, the fair rent would be at Rs.75,000/- and the arrears payable is for a period of 40 months and therefore as contended by the learned counsel for the respondent / landlord, I find it reasonable to permit the respondent / landlord to withdraw the said amount to be deposited by the petitioner / tenant.

6. It is seen that as per the report of the engineer engaged by the revision petitioner, the fair rent fixed would be at Rs.75,000/-

Hence, based on the said report the revision petitioner is directed to pay Rs.75,000/- (Rupees seventy five thousand only) as rent without prejudice to the claim of both the parties in the Civil Revision Petition for the subsequent period.” Thereafter, this Court by order dated 09.09.2011 which finally decided the

C.R.P.NPD No.2511 of 2008 filed by the tenant allowing the revision

petition and modified the order passed by the authorities and refixed the

fair rent payable at Rs.2,37,500/- as against the fair rent of Rs.2,43,600/-

fixed by the 1st Additional District Munsif Court, Coimbatore, which was

later confirmed by the Appellate Authority, the learned Principal Sub Judge,

Coimbatore in R.C.A.No.21 of 2007. The tenant, thereafter filed

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S.L.P.Nos. 6500 and 6501 of 2012 before the Hon'ble Supreme Court of

India, as against the final order made in C.R.P. No.2511 of 2008 dated

09.09.2011. The Hon'ble Supreme Court by order dated 23.03.2012 while

dismissing the S.L.P., observed as follows:-

'However, we direct that the arrears be paid by the petitioner, at the rate of Rs.15,00,000/- (Rupees fifteen lakhs only) per month along with regular rent, i.e., Rs.2,37,500/- (Rupees two lakhs thirty seven thousand five hundred only) fixed by the learned Single Judge of the said High Court by 15th of each month till arrears are not cleared, thereafter, the payments be made. We also made it clear that the above said payment would be made without any prejudice to the rights of either party in the pending suit.'

6. Thereafter, there were several communications between the

landlord and the tenant. Meanwhile, the R.C.O.P. No.134 of 2007 filed by

the landlord under Section 10(2)(i) of Tamilnadu Building Lease and Rent

Control Act, 1960 for willfull default came to be finally decided against the

landlord by a fair and final order dated 06.02.2019 by the Rent Control

Authority, Coimbatore holding that there is no willful default committed by

the tenant. The landlord had approached the Rent Control Appellate

Authority in R.C.A. No.32 of 2019 under Section 23 of Tamilnadu Lease

and Rent Control Act, 1960 and the Appellate Authority by fair and

decreetal order dated 25.02.2020 allowed the appeal in favour of the

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landlord holding that the tenant has committed willful default in payment of

arrears of fair rent and he is liable to be evicted thereby setting aside the

fair and final order dated 06.02.2019 made by the Rent Control Authority,

as against which, the present Revision Petition has been filed by the

tenant.

7. Mr.M.S.Krishnan, learned Senior Counsel appearing for the

Petitioner / Tenant contended that when the tenant had started paying the

fair rent fixed by this Court from 25.10.2011 itself, even before filing the

SLP before the Hon'ble Supreme Court and when this Court has allowed

the Revision Petition in C.R.P. NPD No.2511 of 2008 dated 09.09.2011

modifying the fair rent fixed as Rs.2,35,500/-, as against Rs.2,48,000/-

fixed by the Rent Controller, the question of willful default does not arise

and the appellate authority miserably failed to appreciate the said factual

position. The learned senior counsel further contended that when the

tenant as well as the landlord filed R.C.A.No.21 of 2007 and R.C.A.No.24

of 2007 respectively, challenging the fair and final order made in R.C.O.P

No.44 of 2005 dated 10.01.2007, which subsequently was dismissed by

the appellate authority and thereafter, the tenant filed C.R.P No.2511 of

2008, this Court modified order passed in fair rent, until the finality being

attained in the proceedings before District Courts, the question of willful

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default as held by the appellate authority in R.C.A. No.32 of 2019 is not

correct and has to be set aside.

8. The learned Senior Counsel for the Petitioner also contended that

the lower appellate authority misunderstood the fact and proceeded on a

wrong presumption that the tenant did not make payment after the order

passed by the High Court and waited till the dismissal of the S.L.P., which

according to the learned counsel is incorrect, as the tenant had

commenced his payment at rent as early as 25.10.2011 itself, even before

filing of the S.L.P. before the Hon'ble Supreme Court.

9. The learned Senior Counsel for the Petitioner submits that when

the Civil Revision Petition was allowed on 09.09.2011, the tenant had

complied with the above order from 25.10.2011 and has paid

Rs.2,56,50,000/- which would prove that the tenant was not a willful

defaulter and the presumption by the appellate authority that the tenant

failed to pay the fair rent modified by the High Court in C.R.P. filed by the

tenant in C.R.P. No.2511 of 2008 and had waited till the disposal of the

SLP by the Hon'ble Supreme Court.

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10. The learned senior counsel for the petitioner would also further

contend that the Hon'ble Supreme Court while dismissing the S.L.P. had

granted a direction to the tenant to pay the arrears of Rs. 15,00,000/- per

month along with the regular rent of Rs.2,37,500/- fixed by this Court by

15th of each month till the arrears was clear and thereafter, regular payment

to be paid without prejudice to the rights of either parties pending suit and

in compliance to the said order, the arrears of Rs.1,22,22,000/- was paid

without any default, which the landlord is acknolwedged by receving the

same, which was totally overlooked by the 1st Appellate Authority.

11. The learned senior counsel for the petitioner also represented

that when the tenant has received the legal notice dated 01.10.2011 calling

upon the tenant to pay the rental amount, the tenant promptly started

paying rental dues from 25.10.2011 itself, which was not taken into account

by the 1st Appellate Authority while allowig the appeal filed by the landlord,

which is absolutely incorrect and is liable to be set aside.

12. The learned senior counsel for the petitioner apart from the

above submissions has relied on the following Judgments:

(i) AIR 1985 SC 582 [Sundaram Pillai Vs. Kousalaya]

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(ii) 1996 [2] LW 849 [Visalakshi Vs.Sathyanarayana]

(iii) 2000 [3] SCC 282 [Chordia Automobiles Vs.S.Moosa and others]

(iv) CRP NPD No.3084 of 2015 Equivalent: 2017 SCC online MAD 6043

[Nirmala Daga and another Vs. C.Subramanian]

(v) 2008 5 CTC 409 [P.Sivachandran Vs.Purushotham]

(vi) C.A.No.6145 of 2009 ; SC Equivalent: 2009 9 SCC 359

[Arjunan Vs. Universal Fertilizer co]

(vii) 2001 [1] LW 823 [Agarwal Vs.Zeear Sultan]

(viii) CRP NPD No.2655 of 2013 [South India Vaniar Educational Trust Vs.

Broad Lands]

13. In contrary to the argument put forth by Mr.M.S.Krishnan, learned

senior counsel for the petitioner, Mr.Ravindran, learned senior counsel

appearing for the respondent / landlord contended that the landlord, who

initially filed R.C.O.P.No.44 of 2005 sought the intervention of the Rent

Controller to fix Rs.3,76,800/- as fair rent, however, the learned Rent

Controller by order dated 10.01.2007 had fixed only Rs.2,43,600/- as fair

rent from the date of petition, i.e., from 01.02.2005. As such, immediately

after the passing of the final order in R.C.O.P. No.44 of 2005 the difference

between the contractual rent and fair rent becomes payable immediately.

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Though there are statutory appeals, the dues have to be calculated from

the date of petition. Furthermore, the learned senior counsel for the

respondent had pointed out that even in an appeal filed before the 1st

Appeallate Authority, though there is a statutory remedy under Section

23(2) of Tamilnadu Building Lease and Rent Control Act, 1960, there was

no stay obtained by the tenant as against the fixation of fair rent by the

Rent Controller.

14. Even at this stage, the tenant, who ought to have remitted the

differential amount between the contractual amount and the fair rent

amount, failed to pay the same. Nevertheless, when the R.C.A.No.24 of

2007 filed by the tenant was dismissed by the 1st appellate authority by its

order dated 20.02.2008 but confirming the fixation of fair rent by the Rent

Control Authority, the tenant ought to have deposited the differential

amount atleast even at that stage, however, the tenant had filed Revision

Petition before this Court in C.R.P. No.2155 of 2008, the Court had initially

directed the tenant to deposit a sum of Rs.25,000/- without prejudice to the

claim of both the parties on or before 29.09.2008 before the lower court,

failing which, the petition shall automatically be dismissed and the landlord

would be at liberty to file the execution petition.

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15. However, when the Revision petition was taken up for final

hearing, this Court by order dated 09.09.2011 allowed the Revision petition

for a limited extent modifying the amount fixed by the Rent controller as

Rs.2,37,500/- instead of Rs.2,43,600/- fixed by the court below. As such,

when the court has passed and when the tenant has exhausted all its

statutory remedy available under the Act and when this Court modified the

fair rent by order dated 09.09.2011, the fair rent has become final and

attained finality once the statutory remedy available were exhausted.

16. The learned senior counsel for the respondent would also

contend that though the tenant received the notice dated 01.10.2011 was

in arrrears to an extent of Rs.1,22,22,000/- the tenant started paying the

rent, which was modified by this Court at Rs.2,37,000/- and choose to

approach the Hon'ble Supreme Court in S.L.P.(Civil) Nos.6500 and 6501 of

2001, however, the Hon'ble Supreme Court in S.L.P.(Civil) number had

dismissed the S.L.P. permitting the tenant to pay the arrears in installment

and continue to pay the fair rent fixed by the court below in the caveat

without any prejudice to the rights of either party in the pending suit. It is

only thereafter the tenant started paying the fair rent fixed by this Court.

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Hence the tenant had committed willfull default and he is liable to be

evicted.

17. The learned senior counsel for the respondent has relied on the

following Judgments to defend his case:-

1. 2011 (5) CTC 252 [Girdharilal chandak and Bros. And others Vs.

S.Mehdi Ispahani and others]

2. 2011 (5) CTC 837 [C.Raghunatha Reddy Vs. S.Rajasekaran and

another]

3. 2011 (2) MWN (Civil) 138 [G.Sureshkumar Vs.O.L.Muthu]

4. 2014 - 4- L.W. 158 [P.Thangamani Ammal Vs. K.Ramachandra Chetty]

5. (2001) 7 SCC 503 [N.Kamalam (Dead) and Another Vs. Ayyasamy and

Another]

6. (2004) 2 SCC 663 [Chairman and MD, NTPC Ltd., Vs. Reshmi

Constructions Builders and contractors]

7. (1978) 3 SCC 113 [Superintendent (Tech.I) Central Excise,

I.D.D.Jabalpur and others Vs. Pratap Rai]

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18. Heard both the learned senior counsels appearing for the

petitioners and the respondent and perused the materials available on

record.

19. The only issue to be decided to arrive at a finality in the present

petition is that when the fair rent has reached the finality?; guided by the

various decisions cited by the either learned senior counsels, the Court

shall now deal with the above issue.

20. The contention of the tenant / petitioner that the fair rent fixed by

the Court had not attained finality until the order of the Hon'ble Supreme

Court, there cannot be any willful default in payment of the differential

amount between the contractual amount and fair rent fixed, this Court is

unable to accept the contention raised by Mr.M.S.Krishnan, learned senior

counsel for the petitioner. The petition for fixation of fair rent was filed only

on 01.02.2005, which came to be allowed on 10.01.2007. Thereafter,

R.C.O.P.No.134 of 2007 was filed on 17.07.2007, as against the fixation of

fair rent by order dated 10.01.2007, R.C.A.No.21 of 2007 was filed by the

tenant. However, though the Appellate authority is empowered to grant

stay under Section 23(2), it is seen from the record that there was no stay

granted by the Appellate Authority in R.C.A.No.21 of 2007.

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21. The Judgment of this Court reported in 2011 (5) CTC 252

[[Girdharilal chandak and Bros. And others Vs. S.Mehdi Ispahani and

others] referred by Mr.Ravindran, learned Senior Counsel for the

respondent would be apt for the present case and the relevant portions are

as follows:-

“14. Irrespective of whether the order passed by this Court on 28.10.2005 in CRP (NPD) Nos.1657 and 1658 of 2005 was a conditional order or not, it is an admitted fact that the petitioner himself did not seek a stay of the orders passed by the Rent Controller and the Appellate Authority, while challenging the same by way of revision.

If a person does not seek stay of an order passed by a Court below, it would only indicate either of the two things viz., (i) that he is willing to comply with the order or (ii) that he has no objection to the orders of the Court below being put into execution. The failure of a person to seek from an appellate forum, a stay of the order of a subordinate forum, cannot mean anything else than the above two factors. Take for instance, a case where a decree for recovery of money is passed. If out of fear that an Appellate Court may impose a condition for the grant of stay, the judgment-debtor chooses not to seek stay of the decree for money at all, it would either mean that he has no objection to the decree being put to execution or that he is even willing to pay the decretal debt subject to his rights in the first appeal. The failure of a person to seek a stay from an Appellate Court, cannot lead to a disastrous consequence viz., that though he would not seek stay,

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there will automatically be a clog on the right of the decree holder to execute it. Such an interpretation, can never be permitted.

15. Order 41, Rule 5 (1) CPC, makes it clear that an appeal shall not operate as a stay of the proceedings under a decree or order appealed from, except so far as the Appellate Court may order. It also makes it clear that the execution of a decree need not be stayed merely by reason of an appeal having been preferred from the decree. As a matter of fact, the Explanation to Sub Rule (1) of Rule 5 of Order 41, goes a step further by stating that even an order granted by the Appellate Court for the stay of execution will be effective only from the date of communication of such order to the Court of first instance. However, it permits the Court of first instance even to act upon an affidavit sworn to by the appellant, to the effect that an Appellate Court had stayed the execution of the decree. In other words, the stay is made operative only prospectively.

16. In Kamla Devi vs. Takhatmal {AIR 1964 SC 859}, the Supreme Court pointed out that Order 41, Rule 5 CPC, embodies the general principle of law that an appeal shall not operate as a stay of proceedings under a decree. To hold that Order 41, Rule 5 CPC, embodies only the general principle of law, the Supreme Court quoted with approval the opinion of the Judicial Committee in Juscurn Bold vs. Pirthi Chand Lal {(1918) LR 46 Indian Appeal 52}, to the following effect:-

"Under the Indian Law and Procedure, a original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal"

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17. Therefore, the petitioner cannot even contend that the principles of Order 41, Rule 5 CPC, cannot be invoked to the proceedings under the Rent Control Act, in view of the above observations of the Supreme Court that Order 41, Rule 5, embodies only a general principle of law. In any case, in Atma Ram Properties (P) Ltd vs. Federal Motors (P) Ltd {2005 (1) SCC 705}, which arose out of the provisions of Delhi Rent Control Act, 1958, the Supreme Court held in paragraph 8 that it is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below. The Court pointed out that a prayer for the grant of stay of the proceedings or on the execution of the decree or order appealed against has to be specifically made to the Appellate Court. In paragraph 9 of the Report, the Supreme Court further reiterated that "to secure an order of stay merely by preferring an appeal is not a statutory right conferred on the appellant". To come to the above conclusions, the Supreme Court relied upon the provisions of Order 41, Rule 5 CPC, despite the fact that the proceedings in that case also arose only under the Rent Control Act. Therefore, if a person who seeks an order of stay and suffers a refusal, is himself obliged to pay the fair rent, the petitioner who did not even seek a stay of the orders of both the Courts below, cannot be placed better of.

18. Therefore, the contention raised by the respondents that the first petitioner was guilty of willful default in payment of the fair rent fixed by the two Courts below, was rightly sustained by both the authorities, in view of the very failure of the petitioner to seek stay of those orders in the revision filed by them. In other words, the orders of

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eviction passed by both the Courts below, cannot be and need not be made relatable to the order passed by this Court in CRP (NPD) Nos.1657 and 1658 of 2005. Only if the contention regarding willful default is linked to the order dated 28.10.2005 passed in CRP (NPD) Nos.1657 and 1658 of 2005 that the question as to whether it was a conditional order or not and the next question as to whether this Court is competent to impose such a condition or not, would arise. In plain and simple terms, if the conduct of the petitioner is looked into, the same makes it clear that though he challenged the orders of fixation of fair rent, he did not want stay of those orders. If the Court did not grant stay of those orders and if he himself did not seek stay of those orders, the consequences of the same would have to follow.

19. The above issue can also be looked at from another angle. Take for instance a case, where a revision is filed against orders fixing the fair rent and the tenant also seeks stay of the orders of the Court below. For the grant of stay, if this Court imposes a condition and the revision petitioner fails to comply with those conditions, it would automatically result in the vacation of the stay order. Once a stay is sought and it is also granted on condition and once the conditional order is not complied with, the default on the part of the tenant would automatically become a willful default. If this is the position even with regard to a person who obtains a conditional order of stay, the case of a person who does not even seek stay, cannot be placed in a better position. In other words, to say that a person who seeks stay and suffers a conditional order is worse off than a person who does not seek stay would be a travesty of justice. Therefore, the Courts below were right in looking at the issue in plain and simple terms in the sense

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that on account of the very action of the petitioner in not seeking a stay, the petitioner became liable to pay the fair rent.”

22. It is clear from the records that no stay has been granted by the

Appellate Authority; as held by Hon'ble Mr.Justice V.Ramasubramanian in

the above referred case, 'Mere pendency of appeal before the appellate

authority cannot be construed as stay'. It is also seen from the Revision

Petition filed by the tenant in C.R.P. No.2511 of 2008, that there was only a

direction to deposit Rs.25 Lakhs and directed the tenant to pay a sum of

Rs.75,000/- per month as an interim measure. This is for the purpose of

admission of the Civil Revision Petition, this Court has not granted any

stay of the order. In the similar situation, this Court in the Judgment

reported in 2011 (2) MWN (Civil) 138 [G.Sureshkumar Vs.O.L.Muthu] relied

on by the learned senior counsel appearing for the respondent, the relevant

paragraphs are extracted hereunder:-

“ 13. Before the Hon'ble Supreme Court in the case of Maragathammal vs. Kamalammal, 2006 (5) CTC 698, a some what identical issue came up for consideration. In the said case, the landlord had filed an application under Section 11 of the Act and the Rent Controller directed the tenant to deposit the entire admitted arrears into Court on or before a particular date failing compliance of which, the tenant's defence would be struck off. In the said case, the

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date fixed by the Rent Controller was 22.11.1995. The tenant filed a lodgment schedule on 21.11.1995, stating that he desires to deposit the amount. The said lodgment schedule was considered and challan was issued only on 29.11.1995. The learned Rent Controller therein held that the tenant failed to comply with the order and ordered that the defence should be struck off. Thereupon, an appeal was filed before the Appellant Authority and pending appeal, there was an interim order passed to deposit the rent and this was complied with and the appeals were finally disposed by the learned Appellate Authority. Aggrieved by such order, revision petitions were filed before this Court. This Court in its order took note of the conduct of the tenant pending appeal and held that the tenant has displayed her bonafide by payment of rent during the pendency of the appeal proceedings and should be allowed to contest the eviction petition on merits. The Hon'ble Supreme Court reversed the decision of this Court and in doing so held as follows :-

10.We are afraid that we cannot agree with the view taken by the High Court.

14. In this case an order was passed under Section 11 dated 9- 11-1995, directing the respondent tenant to deposit the entire admitted arrears of rent in court on or before 22-11-1995 failing compliance with which the respondents defence would be struck off. Admittedly, the respondent tenant did not deposit the arrears of rent on or before 22-

11-1995 and instead of that lodged a schedule on 21-11-1995. In this lodgment schedule the respondent stated that she wanted to deposit the rents from the month of June 1992 to October 1995 i.e. a sum of Rs.26,650 covering 41 months. This lodgment schedule came to be

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considered and the issue of challan for depositing the sum of Rs.26,650 was ordered on 29-11-1995.

15. We see no reason why the respondent lodged the schedule as late as on 21-11-1995 i.e. just the previous day prior to 22-11-1995 by which date when she was directed to deposit the entire admitted arrears in court under Section 11. The respondent could have lodged this schedule on the very next day after the order dated 9-11-1995 i.e. on 10-11-1995 or within a day or two thereafter. We see no reason why she waited till the eve of 22-11-1995, which was the last date of depositing the entire rent in court. It is admitted that the respondent tenant has been deliberately avoiding the payment of the rent as and when it fell due. Thus, we respectfully disagree with the view taken by the Madras High Court and we uphold the orders of the Rent Controller dated 9-11-1995 and 22-3-1996. The impugned judgment of the High Court is set aside and the respondent tenant is granted two months time to vacate the premises in question, failing which she will be evicted by police force. The appeal is allowed. No costs.”

23. The above mentioned decision of this Court referring to the

decision of Hon'ble Supreme Court squarely applies to the present case

on hand. Mere deposit of amount as specified as an interim measure

unless, the Court specifically grants stay does not amount to stay of the

order. As such, in the present case, it is clear that while passing the

interim order it was only an interim arrangement till the disposal of the main

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revision pending before the Court, as such, it cannot be construed as an

stay, unless expressly stayed by this Court.

24. Furthermore, this Court when finally decided the Revision

Petition by its order dated 09.09.2011, refixing the fair rent from

Rs.2,43,600/- as ordered by the Rent Control Authority to Rs.2,37,500/- in

the statutory appeal under Section 25 of Tamilnadu Buildings Lease and

Rent Control Act, 1960 filed by the Revision Petitioner ; the statutory

remedy available to the tenant has been exhausted and once this Court in

Revision Petition No.2511 of 2008 had refixed the fair rent from that of the

rent fixed by the Rent Control Authority, the fair rent attains the finality,

once the statutory remedy available was exhausted by the tenant, though it

is stated by the learned senior counsel for the petitioner that the tenant did

not wait for the verdict before the Supreme Court in SLP filed by the tenant

as against the order passed by this Court in C.R.P. No.2511 of 2008 that

they have started to pay the rent as per the orders of this Court even prior

to filing of the SLP, could not said that the fair rent did not attain finality and

there was no willful default.

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25.It would be appropriate to extract the Tables 1 and 2 furnished in

the grounds of revision petition filed by the Revision Petitioner:-

TABLE 1

Sl Rent paid Cheque no. and RPAD RPAD Cheque Bank after date Sent Received passed in deducting by landlord our A/C on TDS 1 2,13,750/- 001031/21.10.2011 102111 102211 102511 City Union Bank, Ramnagar, CBE 2 2,13,750/- 001061/08.11.2011 110811 110911 111011 CUB 3 2,13,750/- 002117/08.12.2011 120911 121011 121211 CUB 4 2,13,750/- 002165/07.01.2012 010912 011012 011112 CUB 5 2,13,750/- 002210/08.02.2012 020812 020912 021012 CUB 6 2,13,750/- 002276/08.03.2012 030912 031012 031312 CUB 7 2,13,750/- 002338/09.04.2012 040912 041012 041112 CUB 8 2,13,750/- 002413/05.05.2012 050512 050712 050812 CUB 9 2,13,750/- 002477/09.06.2012 061212 061312 061412 CUB 10 2,13,750/- 002550/11.07.2012 071212 071312 071412 CUB 11 2,13,750/- 002612/11.08.2012 081112 081312 081412 CUB 12 2,13,750/- 002667/12.09.2012 091212 091412 091512 CUB 13 2,13,750/- 002711/12.10.2012 101312 101512 101612 CUB 14 2,13,750/- 002757/12.11.2012 111212 111412 111512 CUB 15 2,13,750/- 002809/14.12.2012 121412 121512 121712 CUB 16 2,13,750/- 002856/11.01.2013 011213 011613 011813 CUB Till, October 2020 the petitioner herein has paid sum of Rs.2,56,50,000/- [Rupees Two Crores Fifty Six Lakhs and Fifty Thousand only) towards rent and arrears

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TABLE 2

Sl Installment Cheque no. and RPAD RPAD Cheque Bank amount date Sent Received passed in (after by landlord our A/C on deducting TDS) 1 13,50,000/- 002414/05.05.2012 050512 050712 051212 City Union Bank Ltd., Ramnagar, CBE 2 13,50,000/- 002478/09.06.2012 061212 061312 061412 CUB 3 13,50,000/- 002552/11.07.2012 071212 071312 071412 CUB 4 13,50,000/- 002613/11.08.2012 081112 081312 081412 CUB 5 13,50,000/- 002668/12.09.2012 091212 091412 091512 CUB 6 13,50,000/- 002712/12.10.2012 101312 101512 101612 CUB 7 13,50,000/- 002758/12.11.2012 111212 111412 111512 CUB 8 13,50,000/- 002810/14.12.2012 121412 121512 121712 CUB 9 1,99,800/- 002857/11.01.2013 011213 011613 020213 CUB TOTAL 1,22,22,000/

26. On a careful perusal of the above tables as furnished by the

Revision Petitioner / tenant, it is true that the tenant has started to pay the

rent as fixed by this Court from 21.10.2011, which is not in dispute.

However, it would be appropriate to refer the notice dated 01.10.2011,

wherein the landlord had issued a notice through their lawyer immediately

after the order being passed in CRP No.2511 of 2008 dated 09.09.2011

terminating the lease and calling the tenant to pay the entire arrears of

Rs.1,22,22,000/- and it is thereafter only the first payment was made by the

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tenant for Rs.2,13,750/- after deducting TDS on Rs.2,37,500/-, the fair rent

revised by this Court by its order dated 09.09.2011 in C.R.P. No.2511 of

2008.

27. It is a categorical admission made by the tenant that they started

paying the arrears of rent accumulated from the date of petition 01.02.2005

in R.C.O.P. No.44 of 2005 only from 05.05.2012 after the Hon'ble Supreme

Court ordered dismissing the SLP Nos.6500 and 6501 of 2012. It is seen

from the orders passed by the Hon'ble Supreme Court that the Hon'ble

Supreme Court has not interferred with the findings of the order made in

C.R.P. No.2511 of 2008 dated 09.09.2011, however, permitted the tenant

to pay the accumulated arrears of rent in instalments of Rs.15,00,000/- per

month with the caveat that the claim would be without any prejudice to the

rights of either parties in the pending suit.

28. It would be appropriate to mention here that, in the present case,

the Hon'ble Supreme Court did not interefere with the orders passed by

this Court in C.R.P No.2511 of 2008 dated 09.09.2011. Thus making it

very clear that the fair rent fixed has attained finality on 09.09.2011 itself

on which day the final order was passed by this Court in CRP No.2511 of

2008.

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29. This Court is unable to accept the contention of the learned

Senior counsel for the petitioner, that they started paying the revised fair

rent fixed by this Court even before filing the SLP. Mere payment of fair

rent does not absolve the tenant from his conduct of willful default as a

tenant as on date of payment of the revised fair rent fixed by this court was

still in due of the accumulated arrears from the original date of filing of

RCOP No.44 of 2005, ie., 01.02.2005. The tenant was consicous enough

to receive the notice dated 01.10.2011 issued on behalf of the landlord

which categorically claimed the due as on 01.10.2011 was

Rs.1,22,22,000/- as arrears of differential amount between the contracted

amount and the fair rent amount as revised by this Court in C.R.P. No.2511

of 2008.

30. 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

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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”

31. 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. As

far as the present case is concerned, the tenant was conscious with full

knowledge that he is in due of Rs.1,22,22,000/- as on the date of notice

dated 01.10.2011 issued on behalf of the landlord. However, the tenant

choose to remit only the revised rent as fixed by this Court before filing the

SLP before the Hon'ble Supreme Court. The non-payment of arrears of

fair rent will also amount to conduct of willful default as the tenant

deliberately did not remit the arrrears of fair rent when the fair rent has

attained finality on 09.09.2011 itself, when this court has refixed the fair

rent. Therefore, mere deposit of rent made by the tenant pursuant to the

orders of this Court alone and non-payment of arrears amount will amount

to willful default.