Delhi District Court
Sh. K.K. Agarwal vs Kiran Devi Giriap on 19 September, 2013
IN THE COURT OF SAURABH PRATAP SINGH LALER,
ACJ/ARC(WEST), TIS HAZARI, DELHI
E. No: 51/2009
Date of Institution : 5.10.2009
Date of order : 19.09.2013
M/s Karori Engineering Works
through its proprietor
1. Sh. K.K. Agarwal
2. Sh. Shekhar Agarwal
16, Shivaji Marg,
New Delhi. ....Petitioner
VERSUS
Kiran Devi GiriaP
Proprietor
M/s Shiv Ganga Industries
16, Shivaji Marg,
New Delhi.
...Respondent
JUDGMENT
Vide this judgment the court shall dispose of petition under section u/s 14(1)(a) of DRC Act.
1 By filing the present petition, applicant/petitioner is seeking eviction of respondent in respect of one room/hall on the ground floor out of property bearing No.16, Shivaji Marg, New Delhi, depicted in red colour in the site plan (hereinafter referred to as tenanted premises) under section 14(1)(a) of DRC Act. The brief facts as narrated in the petition are:-
1.1 That petitioner is the landlord in respect of one room/hall on the ground floor out of property bearing No.16, Shivaji Marg, New Delhi. 1.2 That the rate of rent was Rs.1000/- per month besides service tax @12.36% and the same was subsequently enhanced to Rs.
1100/- per month besides service tax @12.36% totaling Rs.1235.96p after legal notice dated 25.1.2009 was served upon the respondent. 1.3 That the tenancy is an old tenancy which was created decades ago.
E. No. 51/2009 Page 1 of 281.4 That the respondent has defaulted in payment of rent at the rate of Rs.1000/- per month besides service tax @12.36% and failed to pay rent w.e.f. 01.04.2008 despite the service of legal notice dated 25.01.2009 which was served upon the respondent by registered post and UPC.
1.5 That vide the said notice dated 25.1.2009 the petitioner had also asked the respondent to increase the rent from Rs.1000/- per month besides service tax @12.36% (totaling Rs.1123.60p) to Rs.1100/- per month besides service tax @12.36% (totaling Rs.1235.96p). 1.6 That the respondent failed to pay the arrears of rent within the stipulated period of two months from the date of notice and as such the present petition has been filed for the eviction of the respondent. 2 The respondent filed Written Statement to the eviction petition wherein she has admitted the following facts:-
2.1 The description of tenanted premises is admitted (in Paragraph 1 and 8 of the Reply on merits in Written Statement to the eviction petition) 2.2 Respondent admitted that she is old tenant in the suit premises and that the petitioner is the landlord of the tenanted premises.(in Paragraph 3, 18(a) of the Reply on merits in Written Statement to the eviction petition) 2.3 It is further admitted by the respondent that the rate of rent is Rs.1100/- per month (in Paragraph 14 of the Reply on merits in Written Statement to the eviction petition) 3 However, respondent denied that she has defaulted in payment of rent.
3.1 It was alleged by the respondent that it was the petitioner itself who denied to receive rent, due to which the rent was sent by cheque which was received by the petitioner but the petitioner deliberately did not encash the said cheques. Respondent stated in para 7 of the written statement on page 2 that respondent personally tendered the rent from 1.4.2008 to 31.3.2009 regularly to the petitioner, but, E. No. 51/2009 Page 2 of 28 petitioner with malafide intention refused to accept the rent and as a last resort respondent sent rent from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post and the same was duly received by the petitioner but petitioner did not encash the said cheque. Respondent also sent rent from 1.4.2009 to 31.7.2009 by cheques bearing no. 224988, 243603, 243617 & 243645 of Rs.1,103/- each by registered post and the same were duly received by the petitioner but petitioner did not encash the said cheques.
3.2 The respondent denied having received legal notice dated 25.1.2009 and she also denied that the rate of rent was enhanced in view of legal notice dated 25.2.2009.
4 Replication was filed and in the replication the petitioner denied having received any rent for the period stated and reiterated the contentions of the petition. The petitioner categorically denied having received any cheque from the respondent.
5 Order under section 15(1) Delhi Rent Control Act was passed on 9.7.2010. Evidence was produced by both the parties. 6 Arguments were heard and record perused SECTION 14(1)(a) OF DRC ACT 7 To prove the case under section 14(1)(a) of DRC Act, the petitioner is required to prove the following ingredients:-
(i) That there is relationship of landlord and
tenant between the parties;
(ii) Rate of rent;
(iii) That there were arrears of legally
recoverable rent at the time of issuance of legal demand notice;
(iv) That a valid legal demand notice was duly
served upon the respondent; and
(v) That the respondent has neither paid nor
E. No. 51/2009 Page 3 of 28
tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
The ingredients are taken up for consideration one by one :-
RELATIONSHIP
8 Relationship of landlord and tenant between the parties is admitted as the respondent has admitted in the written statement that the respondent used to pay/tender rent to the petitioner. Moreover respondent witness RW-1 Sh. Norat Mal Giria (husband/POA of respondent) stated in the first paragraph of his affidavit as under:
"My wife is tenant of petitioner"
Thus, relationship of landlord and tenant between the parties is admitted.
RATE OF RENT 9 The rate of rent is disputed 9.1 Petitioner claimed that the rate of rent was Rs.1000/- per month besides service tax @12.36% and the same was subsequently enhanced to Rs.1100/- per month besides service tax @12.36% totaling Rs.1235.96p after legal notice dated 25.1.2009 was served upon the respondent. 9.2 Respondent stated in para 11 of Reply on merits in Written Statement that "the rate of rent of the property is Rs. 1100/- per month including service tax".
9.3 Thus, the court proceed to discuss the evidence produced by both the parties in order to prove the rate of rent.
9.3.1 Sh. Shekhar Aggarwal (PW-1), partner of the petitioner firm filed his affidavit in evidence and the said affidavit is Ex. PW-1/A. In the said affidavit PW-1 reiterated that the rate of rent was Rs.1000/- per month besides service tax @12.36% and the same was subsequently enhanced to Rs.1100/- per month besides service tax @12.36% after legal notice dated 25.1.2009 E. No. 51/2009 Page 4 of 28 was served upon the respondent. He also exhibited a rent receipt dated 24.3.2008 in this regard as per which the rate of rent for the period from June 2007 to March 2008 was Rs.1,000/- per month excluding taxes and after inclusion of taxes the rent for ten months for which receipt was issued came to Rs.11,236/-.
9.3.2 PW-1 also exhibited the Legal Notice dated 25.1.2009 as Ex.PW-1/3 and the postal receipt and UPC as Ex.PW-1/4 & 5. The returned registered envelop is Ex.PW-1/6.
9.3.3 It may be noted that no objection was raised at the time of the exhibiting of the aforesaid documents. 9.3.4 PW-1 was cross examined by Ld Counsel for respondent at length. In the cross examination the witness admitted that the tenancy was oral and that there was no written contract as regards payment of service tax by the respondent on the rent.
9.3.5 As regards rent receipt Ex.PW-1/2 no suggestion has been given to PW-1 that the said document is forged and fabricated. As regards Ex.PW-1/2 the cross examination of PW-1 is as under:
"It is correct that there is no acknowledgment of the respondent on document Ex.PW-1/2 (Vol. The payment of the amount as mentioned in Ex.PW1/2 have been paid by the respondent to the petitioner through cheque) It is correct that I have not filed any document to show the said payment was made by the respondent through cheque"
From the said cross examination it is clear that the correctness of the rate of rent as mentioned in Ex. PW-1/2 has not been challenged by the respondent. Rather, several suggestion have been given by Ld Counsel for the respondent to PW-1 that the respondent had tendered rent to the petitioner at the rate of Rs. 1,103/- per month which indicates that the rate of rent E. No. 51/2009 Page 5 of 28 was Rs.1,103/- per month as per the respondent. Thus, from the testimony of PW-1 it seems that the rate of rent is Rs1,000/- per month excluding service tax. 9.3.6 However, the rate of rent becomes crystal clear from the testimony of RW-1 Norat Mal Giria (husband/POA of respondent) as in his affidavit Ex. RW-1/A in para 6, RW-1 deposed that:
"The rent is Rs.1000/- per month and service tax of Rs103/- pm"
The said deposition of RW-1 supports the case of the petitioner as petitioner claimed in petition that the rate of rent was Rs.1,000/- per month excluding service tax. However, the said deposition is contrary to the claim of respondent made in para 14 of Reply on Merits in Written Statement, as in the said para respondent stated that "the rate of rent of the property is Rs.1100/- per month including service tax".
9.3.7 Both RW-1 and RW-2 deposed that they tendered rent at the rate of Rs.1103/- per month to the petitioner and the said deposition is contrary to the averment of the respondent that the rate of rent is Rs1,100/- per month including service tax1.
9.4 From the deposition of witnesses it is clear that the rate of rent was Rs.1000/- per month plus service tax. 9.5 However, in the facts of the present case Service Tax is an important issue as both the parties have stated a different rate of service tax and the rent is Rs.1000 + Service tax. 9.6 While the petitioner is claiming that the rate of service tax is 12.36%, the respondent witness RW-1 has claimed that the rate of service tax is 10.03%2.
9.7 However, the said issue is not a matter of controversy 1 Respondent stated in para 11 of Reply on merits in Written Statement that "the rate of rent of the property is Rs.1100/- per month including service tax". 2 As RW-1 in para 6 of affidavit Ex.PW-1/A stated that "The incidence of service tax is 10.3%"
E. No. 51/2009 Page 6 of 28as rate of service tax is a matter of fact of which the court can take judicial notice. As per the data available from Government Web sites, the table below shows the rate of service tax applicable at the relevant period of time3.
Sr.No. Period Rate of Rate of Education Rate
Service Tax Cess of Secondary &
Higher
Education Cess
1. Till 13.05.2003 5% Nil Nil
2. 14.05.2003 to 8% Nil Nil
09.09.2004
3. 10.09.2004 to 10% 2% of the S.T. Nil
17.04.2006
4. 18.04.2006 to 12% 2% of the S.T. Nil
31.05.2007
5. 01.06.2007 to 12% 2% of S.T. 1% of S.T.
23.02.2009
6. From 24.02.2009 10% 2% of S.T. 1% of S.T.
The rate of service tax has further been revised after the filing of the present petition on 1.4.2012 as per table below:
Sr.No. Period Rate of Rate of Education Rate
Service Cess of Secondary
Tax & Higher
Education
Cess
1. From 01.04.2012 12% 2% of S.T. 1% of S.T.
9.8 Thus, as per the table above the rate of total rent (along with service tax) was as under:
Sr.No Period Rate of Rent + Service Tax Total rent . Service Tax Per Month payable Per (In Rs) Month (In Rs) 1 01.06.2007 to 12.36% 1000 + 123.6 1123.6 23.02.2009 2 24.02.2009 to 10.3% 1000 + 103.0 1103.0 31.3.2012 3 1.04.2012 till date 12.36% 1000 + 123.6 1123.6 9.9 However, the rate of rent is further alleged to have been 3 http://www.servicetax.gov.in/st-proc-home.htm (A Government of India Web site.) E. No. 51/2009 Page 7 of 28 enhanced by 10% by the petitioner by Legal Notice dated 25.1.2009 Ex. PW-1/3 which was sent by post vide postal receipt Ex.PW-1/4 and UPC Ex. PW-1/5.
9.10 Service of Legal Notice dated 25.1.2009 Ex. PW-1/3 upon the respondent has been discussed separately in the judgment and the court has come to the conclusion that the notice was duly served upon the respondent in the month of February 2009.
9.11 It has been argued by Ld counsel for the respondent that in the legal notice dated 25.1.2009 the petitioner has not claimed ten percent enhancement in rent, rather, it has claimed enhanced rent at the rate of Rs.1,60,000/- and as such the notice is defective. The respondent has also relied upon judgment titled Atma Ram Properties (P) Ltd Vs Escorts Ltd 188(2012) DLT 126 in this regard.
The court has gone through the said judgment and found that in the said judgment Honorable Delhi High Court observed that rent cannot be increased by the landlord to market rent if the tenancy is governed by Delhi Rent Control Act and that rent can only be increased as per section 6A of Delhi Rent Control Act.
9.12 In the present case it is true that in the legal notice Ex.PW-1/3 the petitioner has demanded increase in rent to market rate of rent and as per the aforesaid judgment the rent cannot be increased to market rent. However, after service of notice the respondent is under a statutory obligation to increase the rent by 10 percent as per section 6A of Delhi Rent Control Act. It is no defence that the petitioner has not demanded 10% increase and has demanded market rate of rent. Even if the petitioner has demanded more increase in rent in the legal notice than as per section 6A of Delhi Rent Control Act, still, the petitioner has conveyed his intention for E. No. 51/2009 Page 8 of 28 increase of rent and once such intention has been been conveyed, the tenant respondent is under a statutory obligation to increase rent by 10 percent. Thus, the court is of the opinion that after the service of legal notice in February 2009, the rent stood increased by ten percent with effect from 1.3.2009.
9.13 Now after the increase of 10 percent in the rate of rent with effect from 1.3.2009 the rate of rent (including service tax) comes out to be as under:
Sr.N Period Rate of Rent + Service Tax Total rent o Service Per Month payable Per Tax (In Rs) Month (In Rs) 1 01.06.2007 to 12.36% 1000 + 123.6 1123.6 23.02.2009 2 24.02.2009 to 10.3% 1000 + 103.0 1103.0 28.2.2009 3 01.03.2009 to 10.3% 1100 + 113.3 1213.3 31.3.2012 4 1.04.2012 till date 12.36% 1100 + 135.96 1235.96 ARREARS OF RENT
10 The question before the court is whether the respondent was in arrears of rent on the date of notice?
10.1 It is the case of the petitioner that the respondent had defaulted in payment of rent and failed to pay rent w.e.f. 01.04.2008, despite the service of legal notice dated 25.01.2009 which was served upon the respondent by registered AD post and UPC.
10.2 In reply to the contention raised by the petitioner, the respondent denied that she has ever defaulted in payment of rent. It was alleged by the respondent that respondent sent rent from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post and the same was duly received by the petitioner but petitioner did not encash the said cheque. Respondent also sent rent from 1.4.2009 to 31.7.2009 by cheques bearing no.
E. No. 51/2009 Page 9 of 28224988, 243603, 243617 & 243645 of Rs.1,103/- each by registered post and the same was duly received by the petitioner but petitioner did not encash the said cheques. 10.3 It is settled law that when the petitioner alleges non- payment of rent under section 14(1)(a) of DRC Act, the onus lies upon the respondent/tenant to prove that she has paid the rent. It has been held in Sukhanand Vs. IVth Additional District Judge, Bulendshahar & ors. 1994(2) AIRCJ 27 that the onus to show payment of rent lies on the tenant and oral testimony of tenant in regard to the payment of rent claiming discharge of liability in this regard cannot be admitted to be worth reliance at all. It is also held in Raghubir Prasad Vs. Rajendra Kumar Gurudev, 1993(2) R.C.R. (Rent) 234 that on default in payment of rent the onus to show payment of rent lies on tenant.
10.4 It is also held in Satya Prakash Vs. District Judge Ghaziabad, 1982(1) R.C.R. (Rent) 295 that if in a petition tenant alleges that rent is paid, then as per Evidence Act, burden to prove payment lies on the tenant, as he alleges that payment is made. It is held by Hon'ble Supreme Court of India in Karamchand Deojee Sanghavi Vs. Tulshiram Kalu Kumawat, 1992(1) RCR 118 that in a case of eviction on arrears of rent, the onus would always be on tenant to prove that he has paid the rent.
10.5 Thus, the onus was upon the respondent to prove that she had made upto date payment of rent and that there were no arrears of rent due against her as claimed in the legal demand notice Ex.PW1/3.
10.6 The respondent can prove the said fact either through oral or documentary evidence.
10.7 As stated earlier the respondent has alleged that that respondent sent rent from 1.4.2008 to 31.3.2009 by cheque E. No. 51/2009 Page 10 of 28 bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post and the same was duly received by the petitioner but petitioner did not encash the said cheque. Respondent also sent rent from 1.4.2009 to 31.7.2009 by cheques bearing no.224988, 243603, 243617 & 243645 of Rs. 1,103/- each by registered post and the same was duly received by the petitioner but petitioner did not encash the said cheques. The same contentions have been made on oath by both the respondent witnesses i.e. RW-1 and RW-2. 10.8 The said contention is itself an admission of the fact that as on the date of notice Ex.PW-1/3 i.e. 25.1.2009, the respondent was in arrears of rent with effect from 1.4.2008 and that it was only after the date of legal notice4 that the respondent sent rent from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post as the postal receipt Ex.RW-1/5 is dated 13.2.2009.
10.9 Thus, it is an admitted fact that the respondent was in arrears of rent since 1.4.2008 as on the date of legal demand notice Ex.PW-1/3 dated 25.1.2009 and further that the respondent had not tendered rent by cheque or money order prior to 25.1.2009.
10.10 Concluding, the respondent is held to be in arrears of rent w.e.f. 1.4.2008 till the date of notice5.
That a valid legal demand notice was duly served upon the respondent.
11 The court is required to decide whether the notice dated 25.1.2009 was served upon the respondent or not as it is the service of this notice that gives rise to cause of action for filling of the present petition.
4 Dated 25.1.2009 Ex.PW-1/3 5 Dated 25.1.2009 Ex.PW-1/3 E. No. 51/2009 Page 11 of 28 11.1 The petitioner had sent legal notice dated 25.1.2009 Ex.PW-1/3 through registered post vide postal receipt Ex.PW-1/4 and by ordinary post vide UPC Ex.PW-1/5. The postal receipt is dated 31.1.2009 and the UPC is dated 5.2.2009. The ordinary post was not received back and the registered post was received back with the report 'unclaim'.
11.2 The respondent in the written statement denied having received the legal notice.
11.3 However, in the opinion of the court the legal notice was served upon the respondent for the following reasons:
11.3.1 Firstly, because there is a presumption of service as per as per Section 114 of Evidence Act and Section 27 of General Clauses Act as the Legal Notice6 was sent through registered post and UPC 7 In K. Bhaskaran v. Sankaran Vaidhyan Balan, (SC) 6 Dated 25.1.2009 Ex.PW-1/3 7 1999 A.I.R. (SC) 3762 : 1999 Cri.L.J. 4606 : 1999(4) Crimes 212 : 1999(7) S.C.C. 510 :
1999(7) J.T. 558 Apex Court observe as under as regards service of notice sent by post:-
"22. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him, [Vide Harchan Singh v. Smt. Shivarani and Ors., 1981(2) SCC 535, and Jagdish Singh v. Natthu Singh, 1992(1) SCC 647].
23. Here the notice is returned as unclaimed and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned ? In this connection a reference to Section 27 of the General Clauses Act will be useful. The Section reads thus :
"27. Meaning of service by post.- Where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
24. No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.
25. Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause
(d) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption."E. No. 51/2009 Page 12 of 28
it was observed by Honorable Apex Court that the principle incorporated in Section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. It was further observed that when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause (d) to the proviso of Section 138 of the Act.
The said judgment was relied upon by Full Bench8 of Honorable Apex Court in C.C. Alavi Haji v. Palapetty Muhammed, (SC)9 and it was observed that when a 8 Comprising of Honorable Justices Sh. K.G. Balakrishnan, C.J., Sh. R.V. Raveendran and Sh. D.K. Jain.
9 2007(3) R.C.R.(Criminal) 185 : 2007(3) R.A.J. 177 : 2007(7) J.T. 498 : 2007(3) Civ.C.C. 1 : 2007(6) S.C.C. 555 Apex Court observe as under as regards service of notice sent by post:-
"8. Since in Bhaskarans case (supra), the notice issued in terms of Clause
(b) had been returned unclaimed and not as refused, the Court posed the question : "Will there be any significant difference between the two so far as the presumption of service is concerned ?" It was observed that though Section 138 of the Act does not require that the notice should be given only by "post", yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short 'G.C. Act') could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service.
9. All these aspects have been highlighted and reiterated by this Court recently in Vinod Shivappa's case (supra). Elaborately dealing with the situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc; it was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. It was further observed that once the payee of the cheque issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability, can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of E. No. 51/2009 Page 13 of 28 notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.
Thus, Service of legal demand notice Ex.PW1/3 stands proved as per Section 114 of Evidence Act and Section 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the notice, which may be returned with an endorsement that the addressee is not available on the given address. This Court held :
"We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure"
10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.
11. However, the Referring Bench was of the view that this Court in Vinod Shivappa's case (supra) did not take note of Section 114 of Evidence Act in its proper perspective. It felt that the presumption under Section 114 of the Evidence Act being a rebuttable presumption, the complaint should contain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to state that a notice was sent by registered post and that the notice was returned with the endorsement "out of station"; and that there should be a further averment that the addressee-drawer had deliberately avoided receiving the notice or that the addressee had knowledge of the notice, for raising a presumption under Section 114 of Evidence Act.
12. Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows :
E. No. 51/2009 Page 14 of 2827 of General Clauses Act as the same was sent through registered post and UPC.
Learned Counsel for the respondent relied upon a judgment titled State of Maharashtra Vs Rashid B Mulani10 in order to establish that service by UPC cannot be relied upon. The court has gone through the said judgment and found that in the said judgment the "Section 114 - Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened. regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume -
.... .... ....
(f) That the common course of business has been followed in particular cases;
... ... ..."
13. According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below :
"27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions" "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post".
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604; State of M.P. v. Hiralal & Ors., (1996)7 SCC 523 and V. Raja Kumari v. P.Subbarama Naidu & Anr. 2004(4) RCR(Criminal) 933 : 2005(1) E. No. 51/2009 Page 15 of 28 notice was sent only by UPC and not by registered post11. In the present case the legal notice dated 25.1.2009 has been sent by registered post as well as by UPC and the registered post has been received unclaimed while the ordinary post has not been received back.
11.3.2 Secondly, because the address of respondent as mentioned in Legal Notice Ex.PW-1/3, UPC Ex.PW-1/5 and the registered post received pack as unclaimed Ex. PW-1/6 is correct and this fact has Apex Criminal 58 : (2004)8 SCC 774]. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."
10 2006(1) J.T. 76 : 2006(1) S.C.C. 407 : 2006(1) R.C.R.(Criminal) 422 : 2006(1) Apex Criminal 127 : 2006(1) Cri.C.C. 622 : 2006(2) ISJ (Banking) 291 : 2006(2) AICLR 82 :
2006 Cri.L.J. 794 : 2006 A.I.R. (SC) 825 : 2006(1) SCR 189 : 2006(1) SCC(Cri) 408 :
2006(1) Scale 107
11 Para 13 and 14 of the judgment makes the things clear:
"13. The entire story of sending a notice dated 6.9.1996 by the accused to the complainant is a clumsy belated attempt to explain away the receipt of the illegal gratification on 6.10.1986. Firstly, the direction dated 3.9.1996 by the Tehsildar, as noticed above, was to recover the amount due from Baban and there is no direction to recover the amount from the complainant. Accused could not have, therefore, issued any notice of demand to the complainant. Secondly, the notice of demand on 6.9.1986 was not sent by registered post to the complainant, nor delivered personally against acknowledgement. The High Court appears to have accepted the explanation of the accused (that the payment was towards government dues) as probable, because it was submitted on behalf of the accused that a notice of demand dated 6.9.1986 was sent to the complainant by the accused by registered post. On a specific query by us with reference to the list of documents dated 3.2.1990 filed by the accused before the Special Judge, learned counsel for the respondent conceded that the notice dated 6.9.1986 was not sent by registered post. She submitted that the notice was posted on 6.9.1986 at Pune and a certificate of posting was obtained. It is strange that the notice dated 6.9.1986, if really sent, was not posted at the place where the accused was working, but from Pune which is at a distance of about 40 kms. from his place of work. In the written submissions filed before us on 3.10.2005, the accused has confirmed that the notice was not sent by registered post and has attempted to offer some lame explanation as to why the notice dated 6.9.1986 was posted at Pune. It is clear that no notice dated 6.9.1986 was issued to the complainant and the accused has tried to create an explanation by securing a certificate of posting dated 6.9.1986 from Pune after the event.
14. A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the Post Office. But when a mere certificate of posting is sought, no record is maintained by the Post Office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing ante-dated seal with the connivance of any employee of the Post Office is a matter of concern. The Department of Posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender's name and addressee's name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communications is disputed or denied as in this case. Be that as it may." (emphasis supplied) E. No. 51/2009 Page 16 of 28 been admiitted by RW-1 in his cross examination in following words:
"It is correct that name of my wife and her address have been correctly mentioned in the red colour encircled portion mark-X in the notice Ex.PW-1/3. The same is my reply in respect of the UPC receipt Ex.PW-1/5. It is correct that the name of my wife and her address have been correctly shown on registered envelope and AD card Ex.PW-1/6."
11.3.3 Thirdly, because in order to rebut the presumption under section 114 of Indian Evidence Act and section 27 of General Clauses Act, the respondent herself had to appear in the witness box and state on oath that she never received legal notice. However, in the present case the respondent did not appear herself in the witness box to deny having received legal notice. Husband of respondent appeared on behalf of the respondent as RW-1 and deposed in affidavit that "We have not received notice dated 25.1.2009 Ex.PW-1/3 sent by petitioner"12. What is meant by 'We' is not clear from the testimony of RW-1 and it is not the deposition of RW-1 that he was told by his wife (respondent) that the legal notice dated 25.1.2009 Ex.PW-1/3 was never received by her. Thus, the testimony as regards non receiving of the Legal Notice Ex.PW-1/3 is vague and unreliable.
11.3.4 Fourthly, because RW-2 Sanjeev Kumar has admitted in his cross examination that legal notice was received by the respondent in following words:
"It is correct that previous rent was Rs.1000/- and after receipt of the notice dated 25.1.2009 by the respondent, the same was increased to Rs.1100/-"
11.3.5 Fifthly, because it has been stated by the respondent that the respondent sent rent from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post vide postal receipt Ex.RW-1/5 dated 13.2.2009. Thus, it has been admitted by the respondent that the respondent did not send rent with effect from 1.4.2008 prior to 13.2.2009. The respondent has not clarified as to what was the reason that all of a sudden on 13.2.2009 the respondent felt the need of sending rent 12 Para 6 of the affidavit.
E. No. 51/2009 Page 17 of 28from 1.4.2008 to 31.3.2009 by cheque. In the opinion of the court the reason was the receipt of Legal Notice dated 25.1.2009, as the legal notice was sent by registered post on 31.1.2009 and by UPC on 5.2.2009. It was after having received legal notice by ordinary post that the respondent felt the need of sending the rent due since 1.4.2008 and as such the respondent allegedly sent rent from 1.4.2008 to 31.3.2009 by cheque on 13.2.2009 by registered post.
11.4 Thus, the court is of the opinion that the Legal Notice Ex.PW-1/3 was duly served upon the respondent in February 2009.
That despite the service of the legal demand notice the respondent has neither paid nor tendered the entire arrears of legally recoverable rent.
12 The respondent has alleged that respondent sent rent from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post vide postal receipt Ex.RW-1/5 dated 13.2.2009 and as such the present petition is without any cause of action.
12.1 It may be noted that in the written statement in para 7 on page 2 it has been admitted by the respondent that the aforesaid cheque was never deposited for encashment by the petitioner. Further, it has also been admitted by RW-1 in his cross examination that none of the cheques sent to the petitioner after 1.4.2008 were encashed by the petitioner form the bank account of the respondent. RW-1 filed the bank statement of the account of respondent but failed to show any debit entry as regards rent with effect from 1.4.2008 till the date of the filing of the petition.
12.2 The questions before the court are as under:-
12.2.1 Whether tendering of rent by cheque is a valid tender? 12.2.2 Whether the respondent was legally required to deposit rent in court under section 27 of Delhi Rent Control Act if the cheques were not encashed?E. No. 51/2009 Page 18 of 28
12.3 Whether tendering of rent by cheque is a valid tender? 12.3.1 Tendering of rent by cheque is a valid tender of rent and it has been so held by Honorable Delhi High Court in a recent judgment, cited by respondent, titled Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267. In the said judgment the Honorable High Court relied upon a judgment of the Apex Court titled Mahender Raghunathdas Gupta Vs Vishwanath Mogul AIR 1997 SC 2437 in which it was observed that tender of rent by cheque is a valid tender unless it is specifically mentioned that the payment must be in cash.
12.4 Whether the respondent was legally required to deposit rent in court under section 27 of Delhi Rent Control Act if the cheques were not encashed?
12.4.1 Presuming that the cheques allegedly sent by the respondent were received by the petitioner, the question before the court is that in case of non encashment of the said cheques whether the repondent was under a legal obligation to deposit the rent under section 27 of Delhi Rent Control Act.
12.4.2 As stated earlier it has been admitted by the respondent that cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur (i.e. the cheque with respect to arrears of rent w.e.f. 1.3.2008) was not encashed by the petitioner.
12.4.3 Ld Counsel for the respondent has heavily relied upon judgment titled Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267 to show that once the rent has been tendered by cheque within the period of two months from the date of notice, then there is no default for the purposes of section 14(1)(a) of Delhi Rent Control Act and there is no cause of action for the filing of the present eviction petition.
12.4.4 Before discussing the aforesaid judgment the court would like to refer to judgment of Honorable Supreme Court in judgment titled Sarla Goel Vs Kishan Chand 2009 (7) SCC 658.E. No. 51/2009 Page 19 of 28
The facts of the said case are as under:-
"4. The facts are not in dispute. The respondent is a tenant in respect of the suit premises. As noted herein earlier, it is not disputed that the respondent has already availed of the benefit of Section 14(2) read with Section 15 of the Act pursuant to an order dated 3rd of December, 2001 passed by the Additional Rent Controller, Delhi in Eviction Case No. E-105 of 1999. At the present juncture, it may be mentioned that the appellants is now facing the charge of committing second default in payment of rent to the appellants in respect of the suit premises. It is also not in dispute that a demand notice dated 31st of March, 2003 was served by the appellants upon the respondent intimating that the respondent was in arrears of rent for three consecutive months from January, 2003 onwards. It is also not in dispute that on receipt of the said demand notice from the appellants, the respondent had sent the arrears of rent for three months for the period from 1st of January, 2003 to 31st of March, 2003 by a money order dated 22nd of April, 2003. It is also not in dispute that the appellants had refused to accept the money order and consequently, the money was refunded to the respondent. The case made out by the respondent was that he had duly complied with the provisions of the Act which was required to be done by him and therefore, it cannot be held that it was a case of second default whereas the case of the appellants either before the Rent Controller or before the High Court was that on refusal to receive the money order by the appellants, the respondent ought to have taken the recourse of Section 27 of the Act by depositing the aforesaid arrears of rent with the Rent Controller and he not having admittedly done so, was liable to be evicted from the suit premises on the ground of second default under Section 14(1)(a) read with proviso to Section 14(2) of the Act. ..."
The Apex Court finally observed as under:-
"11. We are unable to accept this submission of the learned counsel for the tenant/respondent for the following reasons :- It is true that in Section 27 of the Act, it has been provided that the tenant may deposit rent when such rent was not accepted or refused or no receipt was granted by the landlord or there was bonafide doubt as to the person or the persons to whom the rent was payable, the tenant may deposit such rent with the Rent Controller in the prescribed manner.
12. Chapter III deals with Control of Eviction of Tenants. Section 14 gives a specific right to the tenants to resist evictions. Sub- section (2) of Section 14 of the Act provides that no order for recovery of possession of any premises shall be made on the grounds specified in Class A of the proviso to sub- section (1) if the tenant makes payment or deposit the rent as required by Section 15.
13. An overall reading of Chapter III of the Act would clearly show that an additional protection has been given by the Legislature to the tenant who has committed default in payment of rent for which he is liable to be evicted under Section 14(1)(a) of the Act. Section 14(1)(a) of the Act clearly provides that when the tenant has neither paid nor tendered whole of the arrears of the rent legally recoverable from him within two months from the date of which a notice of payment of the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882. A plain reading of sub-section (2) of Section 14 makes it clear that a tenant is protected from eviction if he makes payment or deposits the rent as required by Section 15. Section 15 deals with cases when a tenant can get the benefit of protection against eviction.
14. Accordingly, Section 14(1)(a) is a ground for eviction of a tenant for E. No. 51/2009 Page 20 of 28 default in payment of rent. In spite of that, protection has been given under Section 15 of the Act to the tenant to avail of the protection given by the Legislature by depositing rent in the manner indicated in Section 15 of the Act. However, proviso to Section 14(2) of the Act takes away the right of a tenant of the benefit of Sub-Section (2) of Section 14 if the tenant having obtained such benefit once in respect of any premises and makes a further default in payment of rent of those premises for three consecutive months. Therefore, it has been made clear that when the tenant makes a second default, no protection can be given to the tenant from eviction.
15. Chapter IV, however, deals with Deposit of Rent. Section 26 of the Act provides that if the rent is paid it is the obligation of the landlord to grant receipt for the rent paid to him. In default of payment of rent within the time specified therein, the tenant is also liable to pay simple interest at the rate of 15% per annum from the date on which such payment of rent is due to the date on which it is paid. The proviso to Section 26(2) of the Act makes it clear that it shall be open to the tenant to remit the rent to his landlord by postal money order. Sub-section (3) of Section 26 also makes the provision that if the landlord or his authorized agent refuses or neglects to deliver to the tenant a receipt referred to in sub-section (2), the Controller may, on an application made to him in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorized agent, by order direct the landlord or his authorized agent to pay to the tenant, by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also grant a certificate to the tenant in respect of the rent paid. From a reading of sub-section (3) of Section 26 of the Act, it is clear that the tenant has been given further protection to get the rent receipt from the landlord and in the event the landlord refuses to grant such receipt, the procedure has been clearly made by the Legislature for the purpose of getting the receipt under the Act and at the same time the landlord can be imposed to pay damages not exceeding double the amount paid by the tenant and the costs of the application and to obtain a certificate from the landlord in respect of the rent paid. Now we come to the most important provision regarding the procedure under the Act to pay or deposit or tender rent to the landlord, if he refuses to grant any receipt in respect of the payment already made to him. As quoted herein earlier, Section 27 deals with deposit of rent by the tenant. It clearly says that where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner. When the words 'bona fide doubt' has been added to Section 27, the tenant may remit such rent to the Controller by postal money order. From a conjoint reading of this provision referred to herein above and particularly Section 27 of the Act, in our view, it cannot be doubted that the procedure having been made by the Legislature how the rent can be deposited if it was refused to have been received or to grant receipt for the same. If that be the position, if such protection has been given to the tenant, the said procedure has to be strictly followed in the matter of taking steps in the event of refusal of the landlord to receive the rent or to grant receipt to the tenant. It is well settled that whether the word 'may' shall be used as 'shall', would depend upon the intention of the Legislature. It is not to be taken that once the word 'may' is used by the Legislature in Section 27 of the Act, would not mean that the intention of the Legislature was only to show that the provisions under Section 27 of the Act was directory but not mandatory.E. No. 51/2009 Page 21 of 28
16. In other words, taking into consideration the object of the Act and the intention of the Legislature and in view of the discussions made herein earlier, we are of the view that the word 'may' occurring in Section 27 of the Act must be construed as a mandatory provision and not a directory provision as the word 'may' , in our view, was used by the Legislature to mean that the procedure given in those provisions must be strictly followed as the special protection has been given to the tenant from eviction. Such a cannon of construction is certainly warranted because otherwise intention of the Legislature would be defeated and the class of landlords, for whom also, the beneficial provisions have been made for recovery of possession from the tenants on certain grounds, will stand deprived of them."
From the aforesaid judgment it is clear that if the landlord refuses to accept rent, then the tenant is required to deposit rent in court under section 27 of Delhi Rent Control Act and in case he does not deposit rent in the court, then he cannot claim that he is protected from eviction under section 14(1)(a) of Delhi Rent Control Act because he has tendered rent to the landlord and that the landlord refused to accept the rent.
12.4.5 However, the said judgment has been distinguished in the judgment cited by respondent titled Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267 in which it has been held by Honorable High Court as under:-
"7. .............................The judgment of Sarla Goel (Supra) is also inapplicable as in that case there was a tender of rent by the tenant by a money order which had been returned. In this case, the tenant had sent the rent by cheque alongwith his reply dated 07.10.2009 and till the date of the filing of the eviction petition which was in December, 2009, the tenant was wholly unaware that this cheque has not been accepted by the landlord as the same was admittedly not informed to him. It is not the case of the landlord that any information has been sent by him to the tenant that this cheque of Rs. 8,400/- was not acceptable to him; in these circumstances, it is clear that the tenant did not know that the landlord has not accepted this rent and as such his approaching the Rent Controller under Section 27 of the DRCA did not or could not arise. It was only on the filing of the eviction petition in December, 2009 that the tenant became aware that his cheque of Rs. 8,400/- remained un-encahsed; record further shows that the tenant had in fact thereafter approached the Rent Controller under Section 27 of the DRCA seeking permission of the Court to deposit the rent which permission had been granted to him by the Rent Controller vide order dated 27.04.2010 wherein he had been permitted to deposit the legally E. No. 51/2009 Page 22 of 28 recoverable rent i.e. for a period of three years preceding the filing of the petition." (emphasis supplied) 12.4.6 The question which arises before the court is whether the case of the respondent falls under Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267 or under Sarla Goel Vs Kishan Chand 2009 (7) SCC 658 12.4.7 In the present case the respondent had sent the rent from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post vide postal receipt Ex.RW-1/5 dated 13.2.2009. Presuming that the said cheque was received by the petitioner, the petitioner could have encashed the said cheque within 6 months from 13.2.2009 i.e. till 13.8.2009. However, it is admitted fact that the petitioner never encashed the said cheque.
The petition has been filed on 5.10.2009 i.e. after six months from
13.2.2009 and about two months after the cheque had expired. Thus, in the present case the respondent had the knowledge that the cheque had not been encashed by the petitioner as the cheque expired after six months from 13.2.2009 and as such after the expiration of period of six months the respondent could have deposited the rent in court under section 27 of Delhi Rent Control Act but the respondent did not do so and waited for the filing of the present petition.
12.4.8 The present case is similar to the case of Sarla Goel Vs Kishan Chand 2009 (7) SCC 658 as in the present case the respondent had the knowledge that the petitioner has not deposited the cheque for encashment within six months from 13.2.2009 as the said amount was not debited from the account of the respondent and as such the respondent had the opportunity to deposit rent in court under section 27 of Delhi Rent Control Act.
12.4.9 The circumstances of the present case are different from the facts of case titled Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267 as in the said case the tenant never had the opportunity to E. No. 51/2009 Page 23 of 28 know whether the cheques for rent were encashed by the landlord or not. In the present case if the petition had been filed before expiry of six months from 13.2.2009, then judgment titled Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267 would have applied to the facts of the present case, but, as the petition has been filed much after expiry of period of six months, hence the facts of the present case are squarely covered by judgment Sarla Goel (supra) 12.4.10 Thus, the court is of the opinion that after the expiry of six months from 13.2.2009, the respondent was under a legal obligation to deposit rent in court under section 27 of Delhi Rent Control Act, but, the respondent failed to discharge the said obligation. 12.5 Another question before the court is whether the respondent had tendered the correct amount rent by cheque allegedly sent on 13.2.2009 to the petitioner?
12.5.1 Respondent has contended that she sent rent from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post vide postal receipt Ex.RW-1/5 dated 13.2.2009 12.5.2 Thus the rent was sent for period of 12 months at the rate of Rs.1,103/- per month.
12.5.3 The rate of rent has been ascertained by the court earlier in this judgment and the same is as under:-
Sr.N Period Rate of Rent + Service Tax Total rent o Service Per Month payable Per Tax (In Rs) Month (In Rs) 1 01.06.2007 to 12.36% 1000 + 123.6 1123.6 23.02.2009 2 24.02.2009 to 10.3% 1000 + 103.0 1103.0 28.2.2009 3 01.03.2009 to 10.3% 1100 + 113.3 1213.3 31.3.2012 4 1.04.2012 till date 12.36% 1100 + 135.96 1235.96 E. No. 51/2009 Page 24 of 28 12.5.4 From the table it is clear that the rate of rent (including service tax) was Rs. 1123.6 per month till 23.2.2009 and as service tax was reduced w.e.f. 24.2.2009 hence the rate of rent (including service tax) was Rs. 1103 per month w.e.f. 24.2.2009.
12.5.5 However, the respondent sent rent from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post vide postal receipt Ex.RW-1/5 dated 13.2.2009 i.e. at flat rate of Rs.1,103/- per month which is less that the rate of rent determined by the court. 12.5.6 Thus, the respondent had not tendered the rent actually due from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs. 13,236/- drawn on State Bank of Maysur by registered post vide postal receipt Ex.RW-1/5 dated 13.2.2009.
12.5.7 INTEREST: Moreover, the interest component is missing in the alleged rent sent from 1.4.2008 to 31.3.2009 by cheque bearing no.224970 of Rs.13,236/- drawn on State Bank of Maysur by registered post vide postal receipt Ex.RW-1/5 dated 13.2.2009. As per section 26 of Delhi Rent Control Act the respondent is directed to pay interest on rent due in case the respondent does not pay rent regularly by the 15th of succeeding month. In the present case admittedly the respondent had not paid rent by 15th of each succeeding month and as such he was under a statutory obligation to tender interest along with rent, which she failed to tender. 12.5.8 Ld. Counsel for the respondent argued that respondent is not obliged to tender interest with rent in view of judgment titled Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267.
12.5.9 The court has gone through the said judgment and relevant portion of the said judgment is as under:-
"7.Record has been perused. Record shows that in the legal notice there has been no demand of interest; the legal notice has made a demand of rent for three months to be paid within two months without detailing any dates. It is an admitted fact that within one week of the receipt of the legal notice Rs. 8,400/- was tendered by way of the aforenoted cheque which was at the E. No. 51/2009 Page 25 of 28 admitted rate of rent for a period of 14 years although contention of the tenant is that the legally recoverable rent is only three years preceding the filing of the eviction petition. That apart, since there was no demand for the rent to be paid alongwith interest, the judgment of Raghbir Singh (supra) would not be applicable. In the case of Raghbir Singh (supra) the legal notice had specifically made a demand of arrears of rent specifying details of the arrears of rent alongwith interest to be paid under Section 26 of DRCA which had not been tendered......." (emphasis supplied) 12.5.10 In the case of Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267 the interest was not demanded in the legal notice, however, in the present case interest at the rate of 15% as per Delhi Rent Control Act has been specifically demanded in para 2 of the Legal Notice date 25.1.2009 Ex.PW-1/3. As such the judgment of Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267 is not applicable to the facts of the present case.
12.5.11 Rather, the judgment of Honorable Delhi High Court reported in 2009 (109) DRJ 19 titled as Raghbir Singh vs. Sheela Wanti & Anr applies squarely to the fact of the present case and as such the respondent was under an obligation to tender interest on rent along with rent, which the respondent failed to tender. In view of the above discussion the court is of the opinion that despite the service of the legal demand notice the respondent has neither paid nor tendered the entire arrears of legally recoverable rent.
13 Conclusion: From the above said discussion, it is clear that the petitioner has proved all the ingredients of Section 14(1)(a) of DRC Act and, therefore, the present petition is decided in favour of the petitioner and against the respondent with respect of tenanted premises i.e. one room/hall on the ground floor out of property bearing No.16, Shivaji Marg, New Delhi, depicted in red colour in the site plan Ex.PW1/1.E. No. 51/2009 Page 26 of 28
14 In the foregoing circumstances, the respondent is held to be a defaulter within the meaning of Section 14(1)(a) of DRC Act.
15 Accordingly, the respondent is directed to pay the arrears of rent w.e.f. 1.4.2008 till date at the rate specified in the table below per month along with statutory interest 13 @ 15% per annum thereupon in the court within one month from today after adjusting the amount, if any, paid by respondent for the said period in the court.
Sr.N Period Rate of Rent + Service Tax Total rent
o Service Per Month payable Per
Tax (In Rs) Month
(In Rs)
1 01.06.2007 to 12.36% 1000 + 123.6 1123.6
23.02.2009
2 24.02.2009 to 10.3% 1000 + 103.0 1103.0
28.2.2009
3 01.03.2009 to 10.3% 1100 + 113.3 1213.3
31.3.2012
4 1.04.2012 till date 12.36% 1100 + 135.96 1235.96
If the respondent fails to deposit the aforesaid arrears within one month from today, the petitioner shall be entitled to recover the same by filing an execution in that regard.
Separate file be maintained for consideration as regards benefit under section 14(2) DRC Act.
13 In Raghbir Singh vs Sheela Wanti & Anr. dated 18 February, 2009 CM(M) 133/1999:-
"Thus, the legislature made it clear that in case the rent is not tendered month by month by the tenant, the tenant incurs additional legal liability of paying interest @ 15% on the amount due for the delayed period. This additional liability has become part of the rent. A landlord can recover from the tenant only legally recoverable arrears rent and the landlord has no liberty to recover beyond what has already been agreed upon between the parties or the market rent. Where the rent is not paid by month to month, the interest over the rent, as levied by the statute, becomes part of the legally recoverable rent and it cannot be said that unless there is an amendment in Section 14 (1) (a) or Section 15, the provisions of Section 26 would not apply. The rent due would mean that the rent due as per law and where the law specifically provides that if rent is not paid for the month when it is due, it has to be paid with interest of 15% per annum, then the rent due would include the rent plus the interest over it."E. No. 51/2009 Page 27 of 28
No order as to costs.
File be consigned to record room.
Announced in the open court On this 19th day of September, 2013 (Saurabh Pratap Singh Laler) ACJ/ARC(West) Tis Hazari, Delhi E. No. 51/2009 Page 28 of 28