Delhi District Court
Bhupinder Singh vs Rajender Kathuria on 24 August, 2021
IN THE COURT OF SH. YASHWANT KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT, SHAHDARA
DISTRICT, KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-007330-2017
RCA No. 142/17
1. Bhupinder Singh ....Appellant
Through his LRs
(since deceased)
2. Sh. Charanjit Singh
Son of the appellant
3. Ms. Tajinder Kaur
Daughter of appellant
4. Sh. Parvinder Singh
Son of appellant
All R/o 48A, Second Floor
Street No. 6
Near Ram Ghariha Gurudwara
West Azad Nagar,
Krishna Nagar, Delhi-110051
Versus
Rajender Kathuria
S/o Sh. Kanshi Ram
R/o Q-702, Anupam Appartments
East Arjun Nagar, Shahdara
Delhi-110032
.... Respondent
Date of filing : 18.11.2017
Date of judgment : 24.08.2021
JUDGMENT
1. The present appeal was taken up for hearing arguments and for disposal through virtual hearing on Cisco WebEx platform as well as RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 1 of 12 physical hearing in pursuance of the directions issued by the Hon'ble High Court of Delhi due to pandemic of Covid-19.
2. This is an appeal u/s 38 Delhi Rent Control Act, 1958 (hereinafter referred to DRC Act), against the order dated 23.10.2017 passed in petition bearing ARC No.352/16 by Ld. SCJ-cum-RC, (Shahdara), Karkardooma Courts, Delhi (in short the impugned order), whereby the Ld. RC dismissed the application u/s 15(7) of DRC Act, filed by the respondent- therein/appellant-herein.
3. The appellant has preferred the present appeal on the grounds among others that the Ld. Trial Court failed to appreciate the principle of Audi Alteram Partem and fair opportunity of being heard was not provided to the appellant-herein. No issue u/s 14(1)(a) DRC Act was framed but the Ld. Trial Court decided the case u/s 14(1)(a) DRC Act. The Ld. Trial Court has failed to appreciate the fact that since the appeal against order dated 02.07.2014 passed by the Court of Sh. N.K. Laka, Ld. A.R.C. u/s 15(1) DRC Act, was subjudice before the Predecessor of the Ld. Rent Control Tribunal of Sh. T.R. Naval, Ld. Rent Control Tribunal, the previous counsel of the appellant-herein could not file the said application u/s 15(7) DRC Act, at earlier occasion before the Ld. Trail Court. The delay in filing the said application is not because of the appellant but due to the judicial as well as technical procedure in deciding the appeal against the impugned order dated 02.07.2014 passed by Sh. N.K. Laka, Ld. A.R.C., Karkardooma Court, Delhi. The Ld. Trial Court has failed to appreciate the fact that the appellant-herein got prepared three bank drafts/ Cheques of Rs.1,27,000/- dated 20.01.2017, of Rs.51,500/- dated 11.04.2017 and of Rs. 1,62,500/- dated 12.04.2017 all drawn on Punjab & Sind Bank, Krishnan Nagar Bank RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 2 of 12 in favor of the respondent-herein in respect of the interest of the rent as payable to the respondent herein as per the order dated 14.07.2014 passed by the court of Sh. N.K. Laka, Ld. A.R.C., Karkardooma Court, Delhi. The future rent was being sent to the respondent-herein by money orders by the appellant-herein, which were refused, thereafter, rent was paid by the appellant by filing application under section 27 DRC Act and off late the Ld. A.R.C. had directed the respondent to provide his Bank account number and since then the appellant-herein has been paying the rent to the respondent- herein, without default, by making payment into bank account of the respondent as per the order dated 02.07.2014 passed by Sh. N.K. Laka, Ld. A.R.C., Karkardooma Court, Delhi in respect of depositing the future rent. The final report filed by the Nazir of the Ld. Trial Court in regard to arrears of rent /money to be deposited by the appellant-herein is not calculated correctly as the rate of interest on the arrears of rent has been decided by the Ld. Trial Court @ 15% per annum whereas the Nazir of the Ld. Trial court has calculated the rate of interest on the arrears of rent @ 12% per annum. Even, the Nazir in his final report calculated the period of all 153 months by overlooking the periods for which the appellant herein has been paying the rent through money orders/ by filing an application U/s 27 of DRC Act and by depositing the rent in the bank account of the respondent-herein. The Ld. Trial Court did not consider the facts of the case and passed the impugned order upon the conjectures & surmises and the same is against law & facts of the case. The respondent-herein has failed to prove that the rate of rent was increased from Rs.2000/- to Rs. 2500/- p.m. as alleged by him. The Ld. ARC has failed to appreciate the material contradiction of the evidence led by the respondent at the time of trial. The Ld. Appellate Court vide order dated 23.08.2016 directed the appellant to deposit only the entire arrears of RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 3 of 12 rent only and the Ld. Appellate Court had not given any direction in respect of the interest to be paid by the appellant to the respondent thus in the absence of any specific directions, the appellant only deposited the arrears of rent of Rs.2,60,000/- before the Ld. A.R.C. on 25.08.2014. The appellant- herein has always been willing, ready and is still ready to pay the interest and remaining arrears of rent, if any, to the respondent-herein that is why he has got prepared the three different Demand Drafts / cheques of Rs.1,27,000/- dated 20.01.2017, of Rs. 51,500/- dated 11.04.2017 and of Rs. 1,62,500/- dated 12.04.2017 all drawn on Punjab & Sind Bank, Krishnan Nagar Bank in favor of the respondent-herein in respect of the interest of the rent as payable to the respondent provided that the actual and correct amount is known to the appellant. The eviction order under section 14 (1)
(a) DRC Act cannot be passed for non-payment of the interest amount calculated on the arrears of rent, if in the demand notice itself no claim of interest for the first time is made. There would be failure of justice if the delay in depositing the interest amount is not condoned. The Ld. ARC has failed to consider the evidence and the material on record and disposed off the petition on surmises and findings in the impugned order is illegal and liable to be set aside. The appellant prayed to set aside the impugned order dt.23.10.2017.
4. The respondent has not filed reply to the appeal. However, the Ld. Counsel for the parties have filed written arguments.
5. I have heard Ld. Counsel for the parties and also carefully gone through the written arguments filed by the Ld. Counsel for the parties, judgments cited and referred by the Ld. Counsel for the parties and impugned order as well as the materials on record.
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6. Ld. Counsel for the appellant argued that the calculation list filed by the appellant was not considered by the Ld. RC. The Nazir of the Ld. Trial Court did not correctly calculate the rate of interest as per the order of Ld. Trial Court. Vide the order dt. 23.08.2014 of the Ld. District & Sessions Judge/RCT, the proceedings of the Ld. RC were stayed subject to deposit of entire arrears of rent adjudged by the Ld. RC vide order dt.02.07.2014. In the said order, the Ld. RCT did not give any direction to pay any interest. Rate of interest is to be simple and not compound interest. Nazir did not include the rent deposited in the bank. In compliance of the said order dt.23.08.2014, the appellant deposited the entire arrears of rent of Rs.2,60,000/- vide D.D. dated 25.08.2014 and previously the future rent was being sent to the respondent through money orders and it was being deposited in the bank account of the respondent herein, without any delay. If substantive amount of rent already paid, eviction order may not be passed. Another DD of Rs. 51,500/- in favour of the respondent was also prepared by the appellant on 18.11.2014 but as the appeal before Ld. RCT was pending, the same could not be deposited before the Ld. ARC. The delay in filing the said application is not because of the appellant but due to the judicial as well as technical procedure in deciding the appeal against the impugned order dated 02.07.2014. Ld. Counsel for the appellant, in support of his case, relied upon the judgments in the cases of Manmohan Kaur V. Surya Kant Bhagwandi 1989 AIR 291; Santosh Mehta V. Om Prakash & Anr. 1980 AIR 1664; Smt. Kamla Devi Vs. Sh. Vasdev 1994 legaleagle (SC) 1175; Satish Parashar V. Prem Bihari (since deceased) in CM(M) No.476/2020 & CM No.24292/2020 decided by the Hon'ble Delhi High Court on 07.04.2021; Babu Lal Goel V. Shiv Kumar & Ors. in CM (M) 430/2012 & CM No.6715/2012 decided by the Hon'ble High Court of Delhi RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 5 of 12 on 20.12.2013; Sh. Lok Nath & Ors. Vs. Sh. Ashok Kumar in CM (M) 360/2012 & CM No.5474/2012 (for exemption) decided by Hon'ble Delhi High Court on 30.07.2014; Raghbir Singh Vs. Sheela Wanti & Anr. in CM (M) 133/1999 decided by Hon'ble High Court of Delhi on 18.02.2009.
7. Ld. Counsel for the respondent argued that the scope of Section 38 DRC Act is very limited. An appeal can be entertained only on question of law. The appellant in the appeal has stated that the entire amount was deposited. Whereas, he has also stated in the appeal that he was willing to deposit the arrears of rent. Meaning thereby, the appellant has given contradictory statements in the appeal. Therefore, he cannot be allowed to blow hot and cold at the same time. Further, against the order dated 02.07.2014 passed U/S 15(1) of the DRC Act, the appellant preferred an appeal, wherein on 23.08.2014, the proceedings before the Ld. RC was stayed subject to the appellant depositing the entire arrears of rent as adjudged vide said order dated 02.07.2014 but the appellant failed to fully comply with the said order dated 23.08.2014. The admission of the appellant in paragraph no.8 of the brief facts at page no.4 of the present appeal that he was only able to deposit a Demand Draft dated 25.08.2014 of Rs.2,60,000/- before the Ld. Trial Court implies that the he defaulted in complying with the directions and orders of the Ld. Trial Court as well as the appellate court. The entire amount does not come to Rs.2,60,000/-. Till date, the amount of Rs.4,82,000/- is due against the appellant. The said appeal against the order dated dt.02.07.2014 was also dismissed by the Ld. Appellate Court on 22.02.2016. Thus, the appellant failed to deposit the entire arrears of rent despite the two opportunities i.e. first by the trial court and secondly by the appellate court. The appellant gave contradictory statement with regard to arrears of rent. The said application u/s 15(7) of DRC Act was filed on RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 6 of 12 12.04.2017, whereas, the appeal against the said order was dismissed on 22.02.2016. The delay in filing the application u/s 15(7) of DRC Act was deliberate and intentional. There was 14 months delay. Delay should be reasoned one and beyond the control of the appellant, which was not in this case. The appellant only made part payment of rent as per the order dt.02.07.2014 despite being given further opportunity by the Ld. Appellate Court. Hence, the benefit of Section 14(2) has rightly been declined and the said application u/s 15(7) of DRC Act has also been rightly dismissed by the Ld. Trial Court vide impugned order dated 23.10.2017. The Ld. Counsel for the respondent, in support of his arguments, relied upon the judgment in the case of Shanti Prasad Jain (D) through LRs V. Prakash Narain Mathur in Civil Appeal No.2544 of 2009 (Arising out of SLP (C) No. 7430 of 2008) decided by the Hon'ble Supreme Court of India on 15.04.2009.
8. Perusal of the record reveals that the petitioner-
therein/respondent-herein filed an eviction petition u/s 14(1)(a) & (j) of DRC Act bearing No.09/2005 against the respondent-therein/appellant- herein in January 2005. In the said eviction petition, after, leading evidence by both the parties, final arguments were heard and Sh. Naresh Kumar Laka, the then Ld. SCJ-cum-RC, Shahdara, KKD Courts, Delhi passed the judgment on 02.07.2014, whereby the said petition was dismissed u/s 14(1)
(j) of DRC Act but was allowed u/s 14(1)(a) of DRC. However, as per Section 15(1) of the DRC Act, the respondent-therein was directed to pay the arrears of rent of Rs.24,000/- as held in the judgment and to pay the balance amount of rent at the rate of Rs.2,000/- w.e.f. March 2004 till 02.07.2014 along with interest @ 15% per annum within 30 days to the petitioner-therein and to keep on paying the rent from month to month as per law. Thereafter, the matter was fixed for consideration on the point of RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 7 of 12 giving benefit u/s 14(2) of DRC Act for 13.08.2014. Against the said judgment dt.02.07.2014, an appeal bearing No. 48/16 (old No.34/14) was preferred by the respondent-therein, Sh. Bhupender Singh, which was dismissed by the then Ld. District & Sessions Judge/RCT (Shahdara), KKD, Delhi on 22.02.2016. Vide order dt. 13.08.2014 of the Ld. Trial Court, the respondent-therein filed an application u/s 151 CPC r/w/s 5 of Limitation Act. As regard the payment of arrears of rent in terms of order dt.02.07.2014, it was specifically stated that the respondent-therein was ready with the said amount to be paid to the petitioner-therein. However, the Ld. Counsel for the petitioner-therein raised the objection that period of 30 days given to the respondent for the said payment had already been elapsed. The Ld. Trial Court fixed the matter for order on the point of giving benefit u/s 14(2) of DRC Act on 25.08.2014. On 25.08.2014, a copy of the order dt. 23.08.2014 of the Ld. District Judge was received whereby the proceedings were stayed and in compliance of the said order, the respondent-therein placed a Demand Draft of Rs.2,60,000/- in the name of the petitioner-therein. On 08.03.2016, case file was taken up before the Ld. Trial Court in pursuance of the order of Ld. Appellate Court and the matter was again re-listed for arguments on the aspect of giving benefit u/s 14(2) of DRC Act for 06.04.2016. On 06.04.2016, a statement of calculation of rent along with interest was filed on behalf of the petitioner-therein. Thereafter, the matter was kept pending for arguments on the aspect of grant of benefit u/s 14(2) of DRC Act from 30.05.2016 to 12.04.2017. On 12.04.2017, the respondent-therein filed an application u/s 15(7) of DRC Act for condonation of delay in deposit of rent along with annexures. On 12.09.2017, an adjournment was sought on behalf of the respondent-therein but the Ld. Trial Court, considering the fact that the matter is more than 10 RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 8 of 12 years old, adjourned the matter subject to cost of Rs.20,000/- upon the respondent. On 14.10.2017, the arguments on the said application were heard and the said application was disposed off vide the impugned order dt. 23.10.2017.
9. The Ld. RC vide the impugned order dt.23.10.2017, observed that the essence of Section 14(2) and 15(7) of the Act is whether there has been a substantial compliance with the order passed u/s 15 (1) DRC Act. Ld. RC while placing reliance upon the judgments in the cases of of Ram Murti Vs. Bhola Nath, (1984) 3 SCC and Kamla Devi Vs. Vasdev (1995) 1 SCC 356 observed that the Controller has the discretion to condone the delay but this discretion to be exercised after due application of mind to the facts of the case. The case of the applicant-therein is that respondent- therein was directed to pay the arrears of rent of Rs.24,000/- along with balance amount of rent @ Rs.2,000/- per month w.e.f March 2004 till July 2014 along with interest @ 15% per annum to the petitioner-therein vide order dated 02.07.2014; that in terms of order dated 02.07.2014, no interest was to be paid on arrears of Rs. 24,000/- and interest on the balance amount of the rent amounts to Rs.1,99,500/-; that the said order was challenged before Ld. Tribunal whereby the order was stayed subject to the payment of entire arrears of rents @ Rs.2,000/- per month; that in compliance of the said order respondent has deposited the entire arrears of rent; that the said appeal has been dismissed and the respondent was to deposit arrears of rent, however, same could not be deposited as petitioner mala fidely got part of the premises vacated from him by playing fraud. The plea taken by the respondent was that he could not deposit arrears of rent on time due to mala fide of the petitioner in getting the premises vacated from him by playing fraud. However, Ld. RC considered that there is no material on record RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 9 of 12 which supports the said stand of applicant/respondent and same was found to be a vague averment. Thus, the Ld. RC held that when there is gross negligence on the part of applicant/respondent/tenant in committing default in deposit of rent, then such a default cannot be condoned.
10. Vide the impugned order dt.23.10.2017, the Ld. RC gone through the judgments, relied upon by the Ld. counsel for applicant/respondent in the case of Meena Sharma Vs. Rajiv Kumar, 2014 Delhi, wherein it has been held that the benefit of Section 14 (2) can be claimed by the tenant only if he meets its precondition, which is compliance with an order under Section 15 of the Act. The Ld. RC considered how the said judgment is supporting the case of applicant since admittedly he has not complied the order dated 02.07.2014 i.e. the final order containing order under Section 15(1) of the Act as well. Coming to his next citation i.e. Tabassum @ Mona Vs. Nazuk Begum (2011) Delhi, Ld. Counsel for the respondent-therein emphasized on the finding of the Court "if the Rent Controller has the discretion under Section 15 (7) not to strike off the defence of the tenant, he necessarily has the power to extend the time for payment of future rent under Section 15 (1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control". Ld. RC observed that the circumstances beyond the control of applicant in the present case have not been specifically pleaded nor there is any material on record to substantiate the said plea. Thus, the Ld. RC vide the impugned order dt.23.10.2017 held that respondent has not paid the interest of Rs.1,99,500/- along with arrears of rent till date nor he has placed any cheque or demand draft of the said amount. Accordingly, the payment of rent by the respondent is not proper as per Section 26 of DRC Act and as per final order dated 02.07.2014. As such, the respondent was held to be RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 10 of 12 defaulter in payment of rent as per the aforesaid order passed under Section 15 of the DRC Act. Ld. RC also observed that as the applicant/respondent has been held to be defaulter under Section 14 (1) (a) of DRC Act as per order dated 02.07.2014, he is not entitled to the benefit under Section 14 (2) of the DRC Act. On the above findings, the Ld. RC passed the eviction order against the respondent and directed the respondent to handover the vacant and peaceful possession of an office measuring 10x12 ft. situated at F8/9, first floor, Krishna Nagar, Delhi including bathroom and store above one staircase as shown in site plan Ex. PW1/A.
11. In view of the facts and circumstances of the case, oral arguments as well as written arguments of the Ld. Counsel for the parties, judgments relied upon by the Ld. Counsel for the parties, the records and also the impugned order, I am of the considered opinion that the appellant only made part payment of rent as per the order dt.02.07.2014 despite being given further opportunity by the Ld. Appellate Court. The appellant-herein failed to deposit the entire arrears of rent despite the two opportunities i.e. first by the trial court and secondly by the appellate court. The application u/s 15(7) of DRC Act was filed by the appellant-herein/respondent-therein on 12.04.2017 and the appeal against the order dt. 02.07.2014 was dismissed on 22.02.2016. The application u/s 15(7) of DRC Act for condonation of delay in depositing the rent and interest amount from the respondent itself shows that the respondent-therein has not made the entire amount of rent in compliance of the order dt. 02.07.2014. The appellant/tenant has not complied with the order passed under Section 15 of the Act and the appellant-herein/respondent-therein has failed to show as to what were the circumstances beyond his control which prevented him for non-payment of entire rent in compliance of the order dt.02.07.2014 even RCA No. 142/19 Bhupender Singh vs. Rajender Kathuria Page No. 11 of 12 despite the dismissal of the appeal bearing No. 48/16 (old No.34/14) against the said order dt. 02.07.2014 by the then Ld. District & Sessions Judge, Shahdara, KKD, Delhi on 22.02.2016. The Ld. Trial Court has already given the opportunity to the appellant-herein/respondent-therein of being heard. It seems that the appellant was adopting delay tactics and did not want to make the payment as per the orders of the court. The appellant cannot take plea of delay of judicial and technical procedure since nothing prevented him to deposit the amount as per the direction of the courts as discussed above. Meaning thereby, the appellant intentionally and deliberately committed defaults in depositing the entire amount as per the orders of the court. Therefore, the Ld. RC, after going through the materials on record as well as provisions of DRC Act, vide the impugned order dated 23.10.2017, while declining the benefit of Section 14(2) of DRC Act to the respondent- therein/appellant-herein, has rightly dismissed the application u/s 15(7) of DRC Act. The aforesaid judgments relied upon by the Ld. Counsel for the appellant are distinguishable from the facts and circumstances of this case. Therefore, this appeal is devoid of any merits and the same is accordingly dismissed. No order as to costs. Trial Court record along with copy of this judgment be sent back. The appeal file be consigned to Record Room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2021.08.24
16:18:06 +0530
Announced in the (YASHWANT KUMAR)
open court today Principal District & Sessions Judge/RCT
on 24 day of August 2021
th
Shahdara, KKD Courts, Delhi
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