Madras High Court
Mr.Nandi Khanna vs Suneel Aiyer on 30 January, 2009
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30-01-2009 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRP.NPD.Nos.110, 111 & 185 of 2009 and M.P.Nos.1 + 1 + 1 of 2009 1.Mr.Nandi Khanna 2.Shradha Khanna .. Petitioners in all the above CRPs Tenants Vs. 1.Suneel Aiyer 2.Mrs.Srividya Viswanathan ... Respondents in all the above CRPs Landlords Prayer in CRP.NPD.No.110 of 2009:-This Civil Revision Petition has been preferred under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the order dated 12.11.2008 in RCA.No.829 of 2007 on the file of the VII Judge, Court of Small Causes, Chennai, confirming the order dated 30.11.2007 in M.P.No.556 of 2007 in RCOP.No.1267 of 2007 on the file of the XIV Judge, Court of Small Causes, Chennai. Prayer in CRP.NPD.No.111 of 2009:-This Civil Revision Petition has been preferred under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the order dated 12.11.2008 in RCA.No.171 of 2008 on the file of the VII Judge, Court of Small Causes, Chennai, confirming the order dated 17.12.2007 in M.P.No.556 of 2007 in RCOP.No.1267 of 2007 on the file of the XIV Judge, Court of Small Causes, Chennai. Prayer in CRP.NPD.No.185 of 2009:-This Civil Revision Petition has been preferred under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the order dated 12.11.2008 in RCA.No.117 of 2008 on the file of the VII Judge, Court of Small Causes, Chennai, confirming the order dated 17.12.2007 in RCOP.No.1267 of 2007 on the file of the XIV Judge, Court of Small Causes, Chennai. For Petitioners : Mr.K.Sridhar, Advocate (in all the above CRPs) For Respondents : Mr.V.Radhakrishnan, Senior Counsel for Mr.Dev Sai, Advocate (in all the above CRPs) COMMON ORDER
CRP.NPD.No.110 of 2009 is directed against the judgment in RCA.No.829 of 2007 on the file of the VII Judge, Court of Small Causes, Chennai, which had arisen out of the order dated 30.11.2007 in M.P.No.556 of 2007 in RCOP.No.1267 of 2007 on the file of the XIV Judge, Court of Small Causes, Chennai.
2. M.P.No.556 of 2007 was filed by the landlords/petitioners in RCOP.No.1267 of 2007 under Section 11(4) of the Tamil Nadu Building (Lease and Rent Control) Act (hereinafter referred to as 'the Act'), claiming that on the date of filing of RCOP, the rent is due from the tenant for the months from February 2007 to October 2007 amounting to Rs.99,000/- (at the rate of Rs.11,000/- per month) and maintenance charges at the rate of Rs.1,250/- from January 2007 to October 2007 amounting to Rs.12,500/- totalling Rs.1,11,500/- and also to direct the tenant to pay the future rent and the amenities charges at the above rate without fail, failing which to stop all further proceedings and order eviction. The learned Rent Controller, after hearing both sides, had allowed the said M.P.No.556 of 2007 directing the respondent to pay Rs.1,11,500/- towards arrears of rent from February 2007 to October 2007, and amenities charges from January 2007 to October 2007 on or before 14.12.2007 and directed the Office to post the matter on 17.12.2007 for reporting compliance. Further the learned Rent Controller observed that failure to comply with the conditional order will entitle the landlords to get an order of eviction. On 17.12.2007 a memo was filed on behalf of the respondents / tenants stating that RCA is pending against the order passed in M.P.No.556 of 2007 and on that score it was submitted on behalf of the tenants to stay the further proceedings in M.P.No.556 of 2007 in RCOP.No.1267 of 2007. But the learned Rent Controller on the ground that there was no stay obtained by the tenants in RCA, had allowed M.P.No.556 of 2007 on the ground that arrears of rent was not paid as per the directions given in M.P.No.556 of 2007, giving one month time for vacating and handing over vacant possession of the petition scheduled premises. Consequently RCOP.No.1267 of 2007 was also ordered by the learned Rent Controller by stopping the further proceedings in lieu of the order passed in M.P.No.556 of 2007 in RCOP.No.1267 of 2007.
3.Against the said order dated 30.11.2007 passed in M.P.No.556 of 2007 in RCOP.No.1267 of 2007 dated 30.11.2007, RCA.No.829 of 2007 was filed by the tenant. Against the order passed in RCOP.N.1267 of 2007, RCA.No.117 of 2008 was filed by the tenant. RCA.No.171 of 2008 was preferred against the final order dated 17.12.2007 passed in M.P.No.556 of 2007 in RCOP.No.1267 of 2007.
4.RCA.No.117 of 2008, which had arisen out of the order in RCOP.No.1267 of 2007, was dismissed by the Rent Control Appellate Authority. Against the order of dismissal in RCA.No.117 of 2008, CRP.NPD.No.185 of 2009 has been preferred.
5.CRP.NPD.No.111 of 2009 has been preferred by the tenants against the Judgment in RCA.No.171 of 2008, which was preferred against the final order dated 17.12.2007 passed in M.P.No.556 of 2007 in RCOP.No.1267 of 2007.
6.RCOP.N.1267 of 2007 was filed by the landlords / respondents herein under Section 10(2)(i) and 10(3)(a)(i) of the Act. According to the landlords / petitioners in RCOP, they had purchased the undivided share measuring 16.32% out of the larger extent measuring 5550 sq.ft comprised S.Nos. RS No.1/Part present T.S.No.7, Block No.7 of Mullam Village, T.S.No.24, Part Block No.12 of Ayyanavaram Village bearing Door No.K10, New No.22, 1st main Road, Anna Nagar East, Chennai-102, through a sale deed dated 28.04.1999 and bearing Doc.No.1340/99 & 1341/99 before SRO Anna Nagar. The petitioners have also entered into a Construction Agreement dated 05.04.1999 with M/s.Appaswamy Real Estates Ltd., 3, Mangesh Street, T Nagar, Chennai-17, to construct the Flat bearing No.6, Subashree Apartments measuring about 1529 sq.ft super built up area including common area with the covered car park. As per the buildings agreemnt the Flat was constructed and handed over by the builder during May 1999 and from thereon the petitioners have mutated the corporation records into their name and paid the taxes till date. After the puchase and occupation of the said Flat the petitioners have lived there till January 2003. Due to the employment commitments of the 1st petitioner, the petitioners have decided to let out the Flat to the prospective tenants.
6(a)During the 3rd week of November 2004, the respondents approached the petitioners for the purpose of taking the petition scheduled premises on a monthly rent for residential purpoes. The 1st respondent represented that he is a business man and he, his wife and two daughters will occupy the premises. It was further represented that the 2nd respondent Ms.Shradha Khanna is employed with M/s.ABN Amro Bank and the monthly rentals and other charges would be paid by her promptly from her account in the ABN Amro Bank. After due negotiation the petitioners had agreed to let out the petition scheduled premises to the 1st respondent's family based on the promises and representations made during the course of their discussion. A lease agreement was entered into between the petitioners and the 1st respondent on 27.11.2004 and a licence agreement was also entered into between them on the same date in respect of the petition scheduled premises. The agreed monthly rent for the premises is Rs.7,500/- per month and the agreed amenities charges is Rs.2,500/- per month from 01.12.2004. The 2nd respondent had paid an interest from free refundable security deposit of Rs.75,000/- vide ABN Amro Bank, Chennai, Cashiers Cheque No.963795 dated 26.11.2004. The said two agreements were valid for a period of 11 months ie., from 01.12.2004 to 31.10.2005. At the time when the tenancy was subsisting, the respondents were paying the rent as well as amenities charges through DD or through Pay Order raised from M/s.ABN Amro Bank, Chennai. After the expiry of the rental agreements, the 2nd respondent had renewed the rental agreement and licence agreement on 05.01.2006 at an enhanced monthly rent of Rs.8,500/- and the amenities charges at Rs.2,500/- per month. The said agreements were executed by the respondents on 05.01.2006 for the period ie., from 1.2.2006 to 31.12.2006.
6(b)The 1st petitioner had informed the respondents that he requires the petition scheduled premises for his own occupation and that these agreements dated 5.1.2006 will not be renewed after its expiry. The respondents have agreed to vacate the premises by 31.12.2006, but the respondents have not vacated the premises by 31.12.2006 as agreed upon by them. The respondents have committed default in payment of rent from February 2007 and also the amenities charges. The amenities charges is also due from the respondents from January 2007. At the instance of the petitioners through a common friend both the petitioners and the respondents, the first respondent executed a letter dated 4.5.2007 wherein the respondents had agreed to vacate the petition scheduled premises by 30.5.2007 and have also executed a letter dated 4.5.2007 to the effect that in view of the subsequent mediation which took place at 12.30 pm on 10.6.2007, the respondents have agreed to vacate the petition scheduled premises by 16.6.2007 and to the effect that they have also executed a letter in favour of the petitioners. In the mean time, the first respondent had preferred a false complaint with the Deputy Commissioner of Police, Anna Nagar, Chennai, on 11.6.2007 against the petitioners and also issued a legal notice dated 10.6.2007. The 1st respondent with the consent of the 2nd respondent had filed a suit for permanent injunction in O.S.No.3492 of 2007 with I.A.No.9264 of 2007 for injunction before the XII Assistant Judge, City Civil Court, Chennai and also obtained interim order. On receipt of the notice in the injunction application, the petitioners filed written statement in the suit. The erstwhile landlady Ms.Sringara also initiated proceedings in RCOP.No.1888 of 2003 against the first respondent's wife. But the said RCOP was withdrawn by then landlady due to some unavoidable circumstances. Hence, the petition.
7.The respondents in their counter would contend that as per the lease agreement dated 27.11.2004, the respondents had taken the petition scheduled premises on monthly rent of Rs.7,500/- and have also paid an advance amount of Rs.75,000/- at the time of inception of the tenancy. Towards the amenities charges, the first respondent had agreed to pay Rs.2,500/- per month to the 2nd petitioner. The first respondent is residing in the petition scheduled premises along with his wife and two daughters and was regularly paying the rent. Rental agreement and licence agreement with the petitioners were renewed in the month of January 2006 and fresh rental agreement dated 05.01.2006 was executed between the 1st respondent and the 1st petitioner wherein the monthly rent was fixed at Rs.8,500/-. A fresh licece agreement dated 05.01.2006 was entered into between the 1st respondent and the 2nd petitioner and the 1st respondent is paying a monthly amenities charges of Rs.2,500/-. The first respondent was regularly paying the monthly rent and amenities charges to the petitioners. The petitioners refused to receive the montly rent when the first respondent tendered the same. The petitioners also demanded exorbitant rent from the respondents. Under duress the petitioners forcibly obtained a letter from the first respondent on 4.5.2007 as if the first respondent was willing to vacate and handover possession of the petition scheduled premises on or before 30.5.2007. On 10.6.2007, the first petitioner accompanied by his father-in-law Viswanathan and their henchmen forcibly entered into the petition scheduled premises and threatened the respondents to vacate and handover possession. Immediately the 1st respondent sent a legal notice to the first petitioner calling upon him not to indulge in high handed activities and to desist from trying to evict them by unlawful means. The 1st respondent has also given a complaint to the Inspector of Police, K4 Police Station, Anna Nagar, Chennai. The 1st respondent also filed O.S.No.3492 of 2007 before the XII Assistant Judge, City Civil Court, Chennai, and obtained an order of interim injunction against the petitioners from resorting to get possession from the tenants except under due process of law. The respondents are paying the rent regularly to the petitioners and they have not committed any default in payment of the rent much less wilful default. The petition filed by the petitioners is liable to the dismissed for misjoinder of parties. The 2nd respondent Shradha Khanna, daughter of the 1st respondent is not the tenant of the petition scheduled premises. The respondents submit that even though the period of lease has expired the 1st respondent is a statutory tenant of the petition scheduled premises holding over and he cannot be evicted except under due process of law. The 1st respondent had paid an advance of Rs.75,000/- to the 1st petitioner and the said amount is still lying in the hands of the 1st petitioner. The monthly rent for the petition premises is Rs.8,500/-. Till February 2007 the first respondent was paying the rent regularly. When the first respondent tendered the rent, the petitioners refused to receive the rent demanding exorbitant enhancement of rent. The petitioners have been evading to receive the rent subsequently and have been indulging in illegal acts to evict the 1st respondent. The rent has been paid till January 2007. Due if any from February 2007 to June 2007 would be only Rs.55,000/-, but the petitioners are holding a sum of Rs.75,000/- as advance. Under Section 7 the petitioners are entitled to retain only one month rent (ie., Rs.8,500/-) as advance and the balance sum of Rs.66,500/- has to be adjusted towards the alleged arrers. Even after adjusting the alleged dues of rent from February 2007 to June 2007 the petitioners are still holding a sum of Rs.20,000/- and by no stretch of imagination can say that the respondent had committed default in payment of rent much less wilful default. The petitioners demanded exorbitant rent from the 1st respondent and on his denial they have attempted to evict him illegally. Having failed in their attempt they have now come up with the present petition. The petitioners are residing at Gurgaon and they have not stated that they required the petition scheduled premises for their own occupation. Hence, the petition is liable to be dismissed for the relief under Section 10(3)(a)(i) of the Act also. Further, the 1st petitioner owns four flats at No.6, (New No.11), 6th Cross Street West, Shenoy Nagar, Chennai-30. The claim of the petitioners is not bonefide. Hence, the petition is liable to be dismissed.
8.Along with RCOP.No.1267 of 2007, the petitioners have also filed M.P.No.556 of 2007 under Section 11(4) of the Act alleging that the respondents are liable to pay Rs.11,000/- towards arrears of rent and amenities charges from January 2007 to October 2007 amounting to Rs.99,000/- and amenities charges at the rate of Rs.1,250/-per month from January 2007 to October 2007 amounting to Rs.12,500/- in total Rs.1,11,500/- within a stipulated time and the same may be directed to be paid by the respondents at the rate of Rs.11,000/- per month towards rent and along with amenities charges at the rate of Rs.1,250/- per month.
9.The 2nd respondent has filed a counter contending that she is not the tenant under the petitioners in respect of the petition scheduled premises and she is not liable to pay the rent claimed by the petitioners. Hence, the petition is liable to be dismissed.
10.Before the learned Rent Controller in M.P.No.556 of 2007 in RCOP.N.1267 of 2007 no oral evidence was let in on either side. On the side of the petitioners Ex.P.1 to Ex.P.8 were marked and on the side of the respondents Ex.R.1 notice was marked. After meticulously going through the evidence, the learned Rent Controller has come to an unassailable conclusion that the respondents are liable to pay a sum of Rs.1,11,500/- towards arrears of rent relating to the period from February 2007 to October 2007 and amenities charges from January 2007 to October 2007, giving time till 14.12.2007 to pay the arrears, allowed the application and posted the case for reporting compliance on 17.12.2007. On 17.12.2007, since the condition imposed by the learned Rent Controller in M.P.No.556 of2007 [11(4) application] was not complied with, the learned Rent Controller has ordered eviction after stopping all further proceedings in the RCOP, giving one month time for the tenant to vacate and handover the possession and consequently he had also stopped all further proceedings in RCOP.No.1267 of 2007. The said order in M.P.No.556 of 2007 and the order of dismissal passed in RCOP.No.1267 of 2007, which was confirmed in RCA.No.829 of 2007, is the subject matter in CRP.NPD.No.110 of 2009.
11.The learned counsel appearing for the revision petitioners would contend that the learned Rent Controller while passing a conditional order in M.P.No.556 of 2007, an application filed under Section 11(4) of the Act, has not correctly assessed the arrears of rent on the date of filing of the petition under M.P.No.556 of 2007 and further in RCA.No.171 of 2008, which had been preferred against the order passed in M.P.No.556 of 2007 also, the learned Rent Control Appellate Authority has not correctly arrived at the arrears of rent. Hence, he would contend that the order passed by the learned Rent Controller, which was confirmed by the learned Rent Control Appellate Authority, under Section 11(4) of the Act is to be set aside and the same is liable to be remanded to the Courts below. The main contention of the learned counsel for the revision petitioners is that the landlords even at the time of filing of petition under Section 11(4) of the Act under M.P.No.556 of 2007 in RCOP.N.1267 of 2007 was having a security deposit of Rs.75,000/- and without adjusting the same towards the arrears of rent on the date of filing of the suit as contemplated under Section 7(2) of the Act, the petition is not maintainable. In support of this contention, the learned counsel for the revision petitioners relied on 1996(2) MLJ (SC) 49 (K.Narasimha Rao Vs. T.M.Nasimuddin Ahmed) and would contend that if more than a months rent was in the hands of the landlord by way of advance or security deposit as the case may be then under Section 7(2) of the Act, the tenant has got every right to ask the landlord to adjust the arrears of rent towards the said advance or security deposit. The short facts of the above said case is that the appellant filed a petition for eviction against the respondent / tenant on the ground of willful default in payment of rent for the period from July 1990 to November 1990 inspite of a notice dated 16.11.1990. The monthly rent is Rs.150/-. The respondent denied that there was any wilful default. He contended that certain repairs had been made in the premises by him with the consent of the landlord for which Rs.1,000/- was spent by him; that amount had to be adjusted towards the rent due for the said period and that on receipt of the notice from the landlord, he sent a demand draft for Rs.750/- as the rent for five months, which was received by the landlord and that the amount of Rs.2,850/- paid as excess advance was also available with the landlord for adjustment towards the rent due. The Rent Controller rejected the respondent's/tenant's contention and held that there was wilful default committed by the tenant in the payment of rent for that period and an order of eviction was passed against the tenant. The appellate authority also rejected the tenant's appeal. Then the tenant preferred a Civil Revision Petition before this Court, which allowed the revision holding that there is no wilful default in payment of rent on the ground that Rs.3,000/- was paid by the respondent/tenant towards advance. But under Section 7(2) of the Act, the landlord could receive only one month's rent in advance and accordingly the excess amount of Rs.2,850/- paid by the respondent/tenant to the landlord was required to be refunded by the landlord and since the tenant had paid excess amount to the landlord and the same being available with the landlord, the landlord cannot ask for eviction of the tenant on the ground of wilful default. The relevant observation in the said Judgment runs as follows:-
"The proviso to clause (a) permits the landlord to receive by way of advance an amount not exceeding one month's rent only ie., Rs.150/- in the present case. Clause (b) provides for the situation where any sum is paid by the tenant to the landlord in excess of the agreed rent save as provided in clause (a) ie., any sum paid in excess of the agreed rent and an amount not exceeding one month's rent by way of advance. Clause (b) enacts that the amount in excess of the sum which the landlord is permitted to take under-clause (a) shall be refunded by the landlord to the person by whom it was paid, ie., the tenant, or at the option of the tenant, shall be otherwise adjusted by the landlord. In other words, clause (b) requires that the excess amount paid to the landlord has to be refunded by the landlord to the tenant unless the tenant exercises the option of requiring the landlord to otherwise adjust the excess amount. It is clear that this excess amount available with the landlord is only for the benefit of the tenant, the liability to refund the amount to the tenant being immediate unless the tenant exercises the option to get it adjusted otherwise. The character of the excess amount, undoubtedly, is that it is the tenant's money in the hands of the landlord for return to the tenant or for adjustment towards the dues of the tenant at the tenant's option. Any other stipulation in contravention to it has no legal effect being null and void.
The provision clearly enacts the course to be adopted in the case of any excess amount being paid by the tenant to the landlord, taking into account the factor that the tenant in certain circumstances may be compelled to make payment as advance of an amount in excess of that required to be paid to the landlord according to law. For that situation the provision imposes the legal obligation on the landlord to immediately refund the excess amount to the tenant unless the tenant exercises the option of requiring the landlord to adjust that amount towards any dues of the tenant or in any other manner indicated by the tenant. This provision has the effect of creating a corresponding enforceable right in the tenant to recover the excess amount from the landlord or to have it adjusted for his benefit in case the landlord fails to discharge his obligation of returning that amount. This provision of adjustment of the excess amount at the option of the tenant clearly visualises its adjustment towards the rent due from the tenant since the jural relationship envisages payment only of rent by the tenant to the landlord towards which it can be adjusted.
There is no illegality attaching to the payment of the excess amount by the tenant to the landlord and a legally enforceable right clearly flows from the provision to the tenant. The pari delicto principle is, therefore, clearly excluded for the purpose of envisaging the consequences of an excess amount being taken by the landlord from the tenant because the provision requires the landlord to refund that excess amount. The corresponding provisions in the Bihar Act are different which import the pari delicto principle."
12.The learned counsel for the revision petitioners relying on Ex.R.1, notice, issued on behalf of the tenants dated 10.6.2007, would contend that a sum of Rs.75,000/- was paid by the tenants to the landlords towards advance and that the landlords have failed to receive the four month's rent sent by the tenants and that the rent due for the months from February 2007 to May 2007 amounting Rs.44,000/- is to be adjusted towards advance amount of Rs.75,000/'- paid by him and that the landlords under law are entitled to get only one month's rent towards advance and hence, the landlords are liable to return the balance of advance amount to the tenants. Section 7(2) of the Act runs as follows:_ ""Section 7(1) ..................
7(2)Where the fair rent of building has not been so fixed_
(a)the landlord shall not claim, receive or stipulate for the payment of, any premium or other like sum in addition to the agreed rent;
Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one month's rent, by way of advance;
(b)Save as provided in clause (a), any sum paid in excess of the agreed rent, whether before or after the date of the commencement of this Act in consideration of the grant, continuance or renewal of the tenancy of the building after the date of such commencement, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted by the landlord."
A perusal of Ex.P.1 and Ex.P.2 lease agreements dated 5.1.2006 reads (clause 2) that the monthly rent of the petition scheduled premises is Rs.8,500/- and the amenities charges per month is Rs.1,250/-. Clause 3 of the said agreement reads as follows:- That the licensee has paid to the licensor Rs.75,000/- (Rupees Seventy Five Thousand only) vide ABN AMRO BANK, Chennai cashiers cheque No.963795 dated 26.11.2004 as interest free security deposit which shall be refunded back to the licensee within five days after vacating and handing over vacant possession of the said premises after deducting the dues if any pertaining to monthly maintenance charges to the society, electricity bill, and damages to fittings and fixtures. This security deposit will not be adjusted towards rent payment towards the end of lease period by the licensee." Even though the said clause is against Section 7(2) of the Act, the fact remains that a sum of Rs.75,000/- was paid by the tenants by way of advance for the petition scheduled premises under the above said lease agreement by the tenants to the landlords.
13.Now the point is whether the tenants, after committing default to the tune of over and above the advance paid by him after committing wilful default and even continuously after the filing of the RCOP by the landlords, and also after filing of a petition under Section 11(4) of the Act, are entitled to take shelter under Section 7(2) of the Act by claiming that the advance amount of Rs.75,000/- is to be adjusted towards the rent due from him and that the calculation made by the landlords for arrears of rent without deducting the advance amount of Rs.75,000/- paid by them is incorrect and on the basis of which the landlords cannot evict the tenatns under Section 11(4) of the Act?
14.For the same point the learned counsel for the revision petitioners also relied on 1950 MLJ 579 (Navanethammal, In re.), wherein the relevant observation of the Division Bench of this Court runs as follows:-
"The learned advocate for the petitioner also urged upon us another point not dealtwith by the learned Judge, namely, that the landlord had with him two months' rent in advance and he could adjust it towards arears of rent under Section 6(c). But to invoke the provisions of that sub-section of section 6, the tenant should exercise the option and call upon the landlord in time to make the adjustment. There is no evidence in this case of the exercise of such a choice. The mere fact that the landlord had with him an advance rent does not mean that the tenant has not committed default within the meaning of Section 7(2)."
Reliance was also placed on the ratio in AIR 1989 SC 1510 (Modern Hotel Gudur, rep by M.N.narayanan Vs. K.Radhakrishnaiah and others), wherein the ratio decidendi is as follows:-
"The lease deed described the amount of Rs.6,500/- as advance at four places and stipulates adjustment of a sum of Rs.1,500/- out of it and the balance amount of Rs.5,000/- to be paid back to the tenant after the expiry of the lease period. The proviso to Section 7(2)(a) prohibits payment of any sum exceeding one month's rent by way of advance and sub-section (3) declares the stipulation for payment of rent in advance beyond that of one month as null and void.............
The Court held that the tenant could not be evicted on the ground of default in the payment of rent for two months even if the tenant failed to ask the landlord to make adjustment of the advance amount in the absence of any agreement requiring the tenant to inform the landlord as to when such adjustment is to be made. This Court said that when the Rent Act prohibited the landlord to claim such advance payment, the tenant could not be considered to be a defaulter and the doctrine of pari-delicto was not attracted to such a fact situation."
In 2000(2) MLJ 202 ( Mahalingam Vs. Pichaiammal) the relevant observation relied on by the learned counsel appearing for the revision petitioner runs as follows:-
"It is clear that this excess amount available with the landlord is only for the benefit of the tenant, the liability to refund the amount to the tenant being immediate unless the tenant exercises the option to get it adjusted otherwise. The character of the excess amount undoubtedly is that it is the tenant's money in the hands of the landlord for return to the tenant or for adjustment towards the dues of the tenant at the tenant's option. Any other stipulation in contravention to it has no legal effect being null and void.
.............
The provision of adjustment of the excess amount at the option of the tenant clearly visualise its adjustment towards the rent due from the tenant since the jural relationship envisages payment only of rent by the tenant to the landlord towards which it can be adjusted.
In view of the law declared by the Honourable Supreme Court, it has to be held that landlady has no cause of action to file application for eviction on the ground that tenant has committed default in paying rent. As stated earlier, landlady has taken advance of 60 months rent, though law permits to take advance of only one month rent. Excess advance is liable to be adjusted in the rent payable by tenant as and when becomes due even without any demand from tenant. If that be so, landlord cannot expect payment of rent for the alleged period of default. If landlord cannot demand any rent for that period, notice issued by her intimating default also will be invalid and of no legal consequence. On the date when notice was issued, no rent was due nor payable by tenant. If notice issued is invalid merely because tenant did not pay rent within a period of two months, he also cannot be deemed as defaulter."
Further the learned counsel for the revision petitioner would contend that the learned Rent Control Appellate Authority while disposing of RCA.No.829 of 2007, and RCA.No.117 of 2008 in its judgment has referred 2008(2)CTC 375 (K.Selvaraj Vs. J.Narayanan and another) (a judgment rendered by Me) and would contend that this Court has erroneously held that it is not open to the tenant to ask the landlord to adjust the arrears of rent from out of the advance paid until he vacates the premises and hand over the possession to the landlord, forgetting a moment the facts and circumstances of the said case. In the said case the landlord had filed RCOP under Section 10(2)(i) of the Act claiming that the tenant had committed wilful default in paying of rent for a period of 19 months ie., from May 2001 to November 2002 and after admitting the said arrears, had demanded that it is to be adjusted from out of the advance amount of Rs.20,000/- paid by him. At paragraph 8 of the said judgment I have discussed and held as follows:-
"But in the case on hand, it is the definite case of the landlord/respondent herein that appellant/tenant is in default of payment of rent from May, 2001 to November,2002 that is for 19 months. It was contended on behalf of the revision petitioner/tenant herein, before the Court below on the basis of Ex.R.1 notice dated 22.02.2003 that the tenant was in arrears only from December 2002. But a reading of Ex.R.1 notice would go to show that the tenant had demanded that the arrears of rent is to be adjusted towards the advance amount of Rs.20,000/- already paid by the tenant to the landlord at the time of entering into the agreement of tenancy. Only after adjusting the arrears of rent towards the advance amount of Rs.20,000/-, according to the tenant, the arrears of rent will commence from December, 2002. So, inference which can be drawn from Ex.R.1 is that there was arrears of rent for a period of 19 months to the tune of Rs.19,000/- and according to the tenant it is to be adjusted towards advance amount of Rs.20,000/- paid by the tenant to the landlord. As correctly observed by the Court below that there is absolutely no evidence or material placed on the side of the tenant to show that he had already paid rent for 19 months i.e, from May, 2001 to November 2002.
............
After admitting the arrears of rent for 19 months, it is not open to the tenant to ask the landlord to adjust the same with the advance amount he had paid, until he vacates and hand over vacant possession of the building to the landlord. Even in Ex.R.1 notice, the stand taken by the tenant is that he is willing to vacate and hand over possession to the landlord.
Learned counsel for the respondent/landlord in both the Revisions would state that even during the pendency of the Appeal, the tenant had paid Rs.8,000/- towards eight months arrears of rent upto 22.09.2003, on 22.10.2005. For the subsequent period, that is from November, 2003 to September, 2005 for 23 months, the tenant had paid Rs.23,000/-. But the tenant had not paid the arrears of rent for 19 months from May, 2001 to November, 2002."
So it is clear from the above facts that even 8 months arrears ie., for the period from 22.9.2003 amounting to Rs.8,000/- was paid by the tenant only on 22.10.2005, and subsequently for nearly 23 months ie., for the period from November 2003 to September 2005 the tenant has paid the rent, but has failed to pay the rent for an earlier period ie., the period relating to May 2001 to November 2002. Only under such circumstances, this Court held in the said case that after committing continuous default in payment of rent, even after filing of the RCOP, the petitioner / tenant cannot ask the landlord to adjust the arrears of rent amounting to Rs.19,000/- towards the advance of Rs.20,000/- without taking into consideration the subsequent default in payment of rent by him ie., 8 months rent arrears of Rs.8,000/- from 22.9.2003 which was admittedly paid only on 22.10.2005.
15.There cannot be two opinion with regard to the well settled proposition of law that the tenant is competent to ask the landlord to adjust the arrears of rent with that of the advance amount in the hands of the landlord if it is over and above a month's rent. Now we have to see on the date of filing of Section 11(4) application by the landlord under M.P.No.556 of 2007 what was the rent due. The rent due was Rs.1,11,500/-.
Arrears of rent from February 2007 to October 2007 = Rs.99,000/-
(for nine months at Rs.11,000/- pm) Arrers of amenities charges from January-2007 to = Rs.12,500/- October 2007 (10 months Rs.1,250/- pm) --------------- Total Rs.1,11,500/- ---------------
Even if the contention of the learned counsel for the revision petitioners is taken into consideration, after excluding 1 month's rent from the advance of Rs.75,000/-, the balance advance amount of Rs.64,000/- if adjusted towards arrears of rent of Rs.99,000/-, even then there is balance of Rs.35,000/- to be paid by the tenants on the date of filing of the petition under Section 11(4) of the Act filed under M.P.No.556 of 2007 in RCOP.N.1267 of 2007. On behalf of the respondents a calculation memo was also filed before this Court page 16 of the type set of papers produced by M/s.Dev Sai, counsel for the respondents at page 17 the rent due from the tenant as on 19.01.2009 is shown as Rs.1,06,000/-. So it is clear that even after the filing of the RCOP and also during the pendancy of the RCA, the tenants have committed default in payment of rent.
16.The learned counsel for the respondent relying on 2002 (5) SCC 51 (Abdul Kader Vs. G.D.Govindaraj (dead) by LRs), would contend that "rent" means all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances. The exact observation in the above said ratio on which reliance was placed by the learned counsel for the respondents runs as follows:-
"The term 'rent" has not been defined in the Act and therefore, we shall have to go by the ordinary dictionary meaning of the term "rent". As held in Karnani Properties Ltd., Vs. Augustine (Miss) AIR 1957 SC 309 the term "rent" is comprehensive enough to include, all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord. It was very fairly conceded by learned counsel for the appellant that ever since the decision of this Court in the case of Karnani Properties Ltd., (1968 -2 MLJ 50) the view being taken consistently by the High Court of Madras is that in the event of taxes having been agreed to be paid by the tenant, the same forms part of the rent."
The learned counsel for the respondent would contend that when the arrears of rent itself exceeds the advance amount, then it is not open to the tenant to contend that he is not committed wilful default since more than a month's rent is with the landlord towards advance. In support of this contention the learned counsel for the respondents relied on a decision of this Court in 2005(5) CTC 473 (R.Murugan Vs. M.O.M.Abubucker) wherein the exact observation runs as follows:-
"Advance amount: It is not in dispute that the respondent/tenant has paid an advance of Rs.5,000/- to the landlord. The main contention of the tenant is that when the excess amount is available when the landlord, that could be adjusted towards the rent and there will not be any wilful default. It is further contended that even assuming that the tenant was in arrears of rent of nine months at the time of filing the Eviction petition, it would amount only to Rs.2,475/- and that could have been adjusted with the advance amount and there would not be any wilful default on of the tenant. In support of his contention, the learned counsel for the tenant has relied upon K.Narasimhaao Vs. T.M.Nasimuddin Ahmed, 1996(2) CTC 78. In the said decision, the High Court has observed that when the tenant has paid Rs.3,000/- to the landlord as advance, the landlord is not entitled to claim eviction of tenant on the ground of wilful default when he was having the excess amount of advance of Rs.2,850/- and held that the landlord is bound to adjust the excess amount of advance towards the rent due from the tenant and that the tenant cannot be held to be wilful defaulter in payment of rent. In the above case, the tenant has made repairs and claimed adjustment of the amount of Rs.1,000/- spent on repairs. The arrears of rent from July to November 1990, were only Rs.750/. Under that factual circumstances of the case that the tenant has made repairs and claimed adjustment of the advance of Rs.1,000/-, the Supreme Court has held that the landlord was bound to adjust the advance amount towards the alleged due from the tenant. The case in hand stands on different footing, since the parties are governed by the Lease Agreement."
As per the terms of the lease agreement as I have referred to above the security deposit of Rs.75,000/- the parties have agreed not to adjust the same towards arrears of rent. Further, I am of the considered view that even on the date of filing of petition under Section 11(4) of the Act itself the arrears of rent exceeds the advance amount in the hands of the landlords. Under such circumstances, it is not open to the tenants to ask the landlords to adjust the advance amount towards arrears of rent, which cannot be done.
17.The learned counsel for the revision petitioners relying on 2004(1) MLJ 76 (M.Salem Vs. Josephine Mary) would contend that under Ex.R.1-notice it was issued even before the filing of RCOP the tenants had asked the landlords to adjust the rental arrears of Rs.44,000/- due for the months from February 2007 to May 2007 with the advance amount of Rs.75,000/- and hence, the default committed by the tenants will not be construed as a wilful default. The relevant observation in the above said ratio relied on by the learned counsel for the revision petitioners runs as follows:-
"In Mahalingam Vs. Pichaiammal (2000) 2 MLJ 202, it was held that the landlady is entitled to retain only one month's rent as advance and when eviction petition is filed alleging wilful default, where the excess amount is not adjusted, the landlady will have no cause of action to file the petition. This squarely applies to this case. Further, the petitioner had sent Ex.A.-9 wherein it is clearly stated that the rent is Rs.1,500/- and that the respondent had refused to receive the payment of rent and therefore, the respondent was called upon to name the bank. Immediately, the respondent had filed the RCOP without naming the bank. The petitioner had deposited the arrears. So, there is no wilful default. Eviction on the ground of wilful default is set aside."
The facts of the above said case will not be applicable to the present facts of the case. Even after Ex.R.1-notice alleging that the landlords had refused to receive the rent, the tenants had not chosen to file any application under Section 8(5) of the Act to deposit the future rent in a bank account of the landlords or to take steps to deposit the arrears of rent in the Court to the credit of RCOP.No.1267 of 2007.
18.The other decision relied on by the learned counsel for the revision petitioners is 2004(2) MLJ 107 (Sharbudin and others Vs. K.Subramani), wherein, the Court relying on the decision in K.Narasimharao Vs. T.M.Nasimuddin Ahmed ( 196)2 MLJ 49, the learned Judge of this Court has held that "the landlord is not entitled to claim eviction of tenant on ground of wilful default when he was having excess to adjust towards the rent due from the tenant be a wilful defaulter in payment of rent." As far as the arrears of rent comes within the advance amount in the hands of the landlord it is open to the tenant to claim that the landlord has to adjust the advance towards the arrears of rent. But once the arrears of rent exceeds the advance amount in the hands of the landlord, then it is not open to the tenant to claim that the advance amount is to be adjusted towards arrears of rent and that he had not committed wilful default. It is pertinent to note at this juncture that in the application M.P.No.131 of 2008 in RCA.No.117 of 2008, the learned Rent Control Appellate Authority had passed an order directing the tenant to deposit a sum of Rs.97,500/- being the arrears of rent. The learned Rent Control Appellate Authority after adjusting the advance amount come to the conclusion that a sum of Rs.97,500/- was due even on the date of filing of M.P.No.131 of 2008 in RCA.No.117 of 2008. So far the order of the learned Rent Control Appellate Authority in M.P.No.131 of 2008 in RCA.No.117 of 2008 was not challenged by the tenant. Even it is seen from the order in M.P.No.131 of 2008 that the tenants are not regular in paying the rent month after month even after the filing of RCOP.No.1267 of 2007. Under such circumstances, I do not find any reason to interfere with the findings of the learned Rent Controller in M.P.No.556 of 2007 in RCOP.No.1267 of 2007 and also the findings of the learned Rent Control Appellate Authority in RCA.No.829 of 2007, RCA.No.117 & 171 of 2008.
19.In fine, the CRP.NPD.Nos.110, 111 & 185 of 2009 are dismissed confirming the orders of the learned Rent Control Appellate Authority in RCA.No.829 of 2007 and in RCA.Nos.117 & 171 of 2008 respectively, on the file of the VII Judge, Court of Small Causes, Chennai. Connected Miscellaneous petitions are closed. Time for vacating the premises is two months from this date. No costs. Affidavit of undertaking to be filed by the tenants in two weeks.
ssv To,
1.The VII Judge, Court of Small Causes Chennai.
2.The XIV Judge, Court of Small Causes Chennai