Delhi District Court
Jalveen Rosha vs B. D. Khanna Publicity on 6 August, 2021
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
RENT CONTROL TRIBUNAL
SOUTH EAST: SAKET COURTS, NEW DELHI
RCT ARCT No. 01/2021
Jalveen Rosha
W/o Captain Rajinder Singh Rosha
R/o M131, Greater KailashI,
New Delhi110048.
.... Appellant/Landlord
Versus
B. D. Khanna Publicity
C10, First Floor,
Kailash Colony,
New Delhi 110048. ....Respondent/ Tenant
First date before this Court : 25.06.2021
Date of Order : 06.08.2021
RCT ARCT No. 02/2021
Jalveen Rosha
W/o Captain Rajinder Singh Rosha
R/o M131, Greater KailashI,
New Delhi110048.
.... Appellant/Landlord
Versus
B. D. Khanna Publicity
RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 1 of 27 Pages
C10, First Floor,
Kailash Colony,
New Delhi 110048. ....Respondent/ Tenant
First date before this Court : 25.06.2021
Date of Order : 06.08.2021
RCT ARCT No. 03/2021
Jalveen Rosha
W/o Captain Rajinder Singh Rosha
R/o M131, Greater KailashI,
New Delhi110048.
.... Appellant/Landlord
Versus
B. D. Khanna Publicity
C10, First Floor,
Kailash Colony,
New Delhi 110048. ....Respondent/ Tenant
First date before this Court : 25.06.2021
Date of Order : 06.08.2021
ORDER:
1. By this common order, I shall dispose of three appeals under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act") filed against the impugned order dated 06.04.2021 vide which the deposit of rent under Section 27 of the Act has been allowed.
RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 2 of 27 Pages
2. The respondent / tenant in the above mentioned cases filed under Section 27 of the Act for deposit of rent stating that it was the tenant in property bearing No. C10, First Floor, Kailash Colony, New Delhi110048 and had been paying the rent regularly to the erstwhile owner but in view of the Undertaking given before the Court of learned Additional Rent Controller in another matter, it started paying rent @ Rs.2,750/ per month to the appellant/landlady even though according to him she was unauthorized and illegal person who was not the landlady/owner of the property in question. It was asserted that the appellant through a Notice dated 27.08.2020 had informed the respondent that she had closed the bank account of Punjab National Bank, Greater KailashI branch and would not receive rent in that Account. However, the rent for the month of November, 2020 and December, 2020 was deposited through RTGS in the same Account which were duly credited but the same were returned back in the bank account of the respondent tenant. Hence, three Rent Petitions have been filed as under:
(i)Petition bearing DR No. 53/20 (against which appeal bearing RCT ARCT No. 02/2021 has been filed) for deposit of rent for the month of October, 2020;
(ii)Petition bearing DR No. 61/20 (against which appeal bearing RCT ARCT No. RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 3 of 27 Pages 03/2021 has been filed) for deposit of rent for the month of November, 2020;
(iii) Petition bearing DR No. 67/20 dated 18.12.2020 (against which appeal bearing RCT ARCT No. 01/2021 has been filed) for deposit of rent for the months of December, 2020 to May, 2021.
3. The appellant filed her Objections in the three DR petitions.
4. Learned ARC vide impugned order in all the three DR petitions noted that intricate questions of fact and law need not be agitated in the summary proceedings under Section 27 of the Act and left the rival contentions of the parties to be raised before the court of competent jurisdiction. The three deposit of rent petitions were allowed vide separate order dated 06.04.2021. Aggrieved by the said order, three separate appeals as mentioned above have been filed.
5. Learned counsel on behalf of the appellant has argued that detailed objections had been filed in the DR petitions but they have been summarily rejected by the learned ARC which is not tenable in law. It is asserted that deposit under Section 27 of the Act is permissible only in three conditions i.e. when there is a bona fide doubt about who the owner is; when the landlord does not accept the rent tendered by the tenant within the period referred to in RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 4 of 27 Pages Section 26 and refuses or neglects to deliver a receipt referred to therein.
6. In the present case, there was no doubt about the person to whom the rent is payable as the rent is being deposited in the account of appellant since 2016. Moreover, there has been no tender of rent for the month of December, 2020 to May, 2021 which has been deposited in advance which is not permissible under Section 27.
7. In so far as the rent for the month of October, 2020 and November, 2020 is concerned, the same has been deposited @ Rs.2,750/ per month while a Legal Notice under Section 6(A) dated 27.08.2020 has already been received by the tenant whereby the rate of rent stands increased by 10% to Rs.3,025/. Despite having received the Notice of enhancement the respondent has intentionally deposited the rent @ Rs.2,750/ only to defeat the bona fide claim to enhancement of rent by 10% to which the appellant is entitled. Moreover, in terms of Section 26 the delayed rent has to be deposited along with 15% interest which has not been included in the rent so deposited.
8. It is argued that the rent for the month of October, 2020 and November, 2020 is not valid as it is of lesser amount and not as per Section 26 of the Act. Moreover, the compliance of Section 27 and 28 has not been made and thus the deposit of rent could not have been allowed.
RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 5 of 27 Pages
9. It is further argued that the precondition for deposit of rent under Section 27 is the person who is entitled to receive rent wrongfully refuses to accept the same. The rent for the month of October and November,2020 cannot be considered to have been tendered since it was deposited in the Bank Account despite being informed that the said bank account would be closed and rent be paid through cheque. The rent for the month of December, 2020 to May, 2021 has been deposited in advance without even tendering it to the appellant.
10.It is argued that learned ARC fell in error in observing that intricate questions of law cannot be considered in the proceedings under Section 27 of the Act. It is vehemently argued that the jurisdictional facts essential to be established before any deposit can be permitted under Section 27, have not been established and the deposit of rent petitions were liable to be dismissed.
11.Learned counsel on behalf of the respondent tenant has argued that the rent for the month of October, 2020 and November, 2020 was tendered through RTGS but mischievously the amounts were reverted back in the account of the tenant. Though, the appellant has claimed that vide Notice dated 27.08.2020 it was informed that the bank account has been closed but the RTGS transfer of the amount was successful thereby showing that the account had not been closed. The amount was validly tendered but RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 6 of 27 Pages refused by the landlady by returning the same and thus the tenant was left with no option but to deposit it under Section 27 of the Act.
12.The learned counsel for respondent tenant has further argued that he has never been informed about her ownership and there is no attornment made by him to the appellant. There being a bona fide doubt about the ownership of the property, the rent has been rightly deposited under Section 27 of the Act.
13.Learned counsel for respondent has relied upon Bismillah Be vs. Majeed Shah, 2017 (2) SCC 274, it was observed that by virtue of Section 116 of the Indian Evidence Act, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, though he is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/ Vendee against the tenant for his eviction from the demised property under the Rent Laws.
14.It is thus argued that the order of learned ARC in the three DR petitions does not suffer from any illegality and the present appeals are liable to be dismissed.
15.I have heard the arguments and have perused the record. My observations are as under :
16.At the outset it may be stated that Rent Law is tenant centric conceptualized in the era soon after the RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 7 of 27 Pages Independence to secure a house for all and to protect those not having a house from being exploited by the "Haves" of the Society. Though with passage of time the rigors of this Act have been somewhat diluted in favour of the landlord, but the tilt continues to be in favour of the tenants. Visualizing that situation may arise where the landlord may not accept rent to create a ground for eviction or tenant may be prevented on account of bonafide doubt about who the owner is, Chapter IV was incorporated for Deposit of Rent.
17.The objective of providing for these provisions was enumerated in Atma Ram vs Shakuntla Rani (2005) 7 SCC 211, by the Apex Court wherein it was noted that the provision of Section 27 of the DRC Act was made to ensure that tenants should not be prejudiced in case the landlord refuses to accept the rent and the tenant in such a case in order to avoid any issue of default of payment of rent, can deposit the rent with the Rent Controller under Section 27 of the Act.
18.Similarly, in E. Palanisamy vs Palanisamy (2003) 1 SCC 123 while considering similar provisions under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, it was observed that where landlord refuses to accept the rent tendered by money order, the tenant is entitled to deposit rent before the Rent Controller. It was further observed RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 8 of 27 Pages that benefit conferred on the tenant can be enjoyed only by strict compliance with the statutory provisions. The tenant cannot straight away jump to the last step i.e. deposit rent in court. The last step can only be after the earlier steps have been taken by the tenant. Similar view was taken in Kuldeep Singh vs Ganpat Lal (1996) 7 SCC 243 and M. Bhaskar vs Venkatarama Naidu (1996) 6 SCC 228.
19.The Supreme Court in the case of Sarla Goel & Others Vs. Kishan Chand (2009) 7 SCC referred to above said judgments and explained that the tenant must necessarily follow the procedure under the Act for Deposit of Rent under Section 27 of the Act in case of refusal of rent by the landlord and only in case of valid deposit; the eviction of the tenant cannot be effected.
20.The above judgments make it abundantly clear that while the provisions have been made to ensure that tenant is not prejudiced by any circumstance to deposit rent but the rider is that there must be strict adherence to the procedure and conditions specified therein to be able to avail the benefit of these sections.
21.To understand the true import, the relevant sections may be reproduced.
22.Section 26 prescribes the time frame for tender of rent. It reads as under:
26. Receipt to be given for rent paid. (1) Every tenant RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 9 of 27 Pages shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable [and where any default occurs in the payment of rent, the tenant shall be liable to pay simple interest at the rate of fifteen per cent per annum from the date on which such payment of rent is due to the date on which it is paid].
2) 2) Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorized agent a written receipt for the amount paid to him., signed by the landlord or his authorized agent:
[Provided that it shall be open to the tenant to remit the rent to his landlords by postal money order.] (3) If the landlord or his authorized agent refuses or neglects to deliver to the tenant a receipt referred to in subsection (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.
23.Section 26 thus, provides that the tenant is liable to pay rent by 15th day of next month and in case of 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.
RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 10 of 27 Pages
24.Section 27: Deposit of rent by the tenant.
27.(1) 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 to the person or persons to whom the rent is payable the tenant may deposit such rent with the Controller in the prescribed manner.
[Provided that in case where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.] (2)......
25.Section 27 spells out the three conditions in which rent may be deposited under this section. These are as under:
(a) landlord does not accept any rent tendered by the tenant within the time referred to in section 26; or
(b) landlord neglects to deliver a receipt referred to; or
(c) where there is a bona fide doubt as to the person or persons to whom the rent is payable.
26.These may be termed as jurisidictional issues and unless these conditions are satisfied no deposit under Section 27 can be permitted.
27.Section 28 provides for the manner of making a valid deposit. It reads as under:
28. Time limit of making deposit and consequences RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 11 of 27 Pages of incorrect particulars is application for deposit. (1) No rent deposited under section 27 shall be considered to have been validly deposited under that section, unless the deposit is made within twentyone days of the time referred to in section 26 for payment of the rent.
(2) (3)28.The reading of these sections make it abundantly clear that a deposit of rent under S.27 can be made only on establishing any of the three conditions specified in S27 as mentioned above. S.28 provides for the time limits while S.26 provides for the receipt to be given for rent paid by the tenant. From these sections it is evident that the jurisdictional circumstances for deposit of rent under S.27 are only three as already mentioned and if any of these conditions are met, the deposit may be made under S.27. All other requirements about time frames, rate of rent and payment of interest though material in other proceeding, are not the subject matter of deposit of rent under S.27.
29.The basic contention raised on behalf of the appellant is that the learned ARC has permitted the deposit of rent under Section 27 even though the basic jurisdictional requirements were not met by the respondent. The consequence of the same has been that even though there is no valid deposit of rent, the respondent tenant is seeking rejection of the eviction petition under Section 14 (1)(a) of RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 12 of 27 Pages the Act filed by the appellant.
30.The question of law that has been raised is whether the learned ARC was required to consider the objections of the Respondent in regard to validity of deposit of rent in terms of Section 27, in detail on merits.
Bonafide Dispute about the Owner/ Landlord:
31.The learned counsel for the respondent has justified the deposit of rent under s.27 by claiming that there is a bona fide dispute about who was the landlord. To appreciate this argument, a reference may be made to the multifarious litigations between the parties. It is not in dispute that a Civil Suit No. 275/1995 was filed in the High Court of Delhi by the respondent M/s B. D. Khanna Publicity against Smt. Fateh Rajya Laxmi Devi, Mrs. Sangeeta Singh, M/s Oak View Farms Pvt. Ltd. and Shri Amit Sarin. On the statement by the defendants that they shall not dispossess the plaintiff except in accordance with law, the suit was disposed of vide order dated 06.01.1999. From the title of the suit itself it is evident that M/s Oak View Farms Pvt. Ltd., the erstwhile owner was also impleaded as a party.
32.A petition No. 5234/2016 under Section 45 was filed by the respondent against M/s Oak View Farms Pvt. Ltd. and RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 13 of 27 Pages another seeking restoration of water supply. In the said case, a statement was made on 23.09.2017 by Shri Rajinder Singh Rosha on behalf of M/s Oak View Farms Pvt. Ltd. that documents of title have been executed in favour of Ms. Jalveen Rosha (the appellant herein) and the rent may be paid henceforth to the new owner. The statement was made by Jalveen Rosha, present appellant that she shall not be disrupting the supply of water to the rented premises.
33.The counsel for respondent had stated in his application under Section 27 that the rent was being paid to Jalveen Rosha on account of Undertaking given in the court. The perusal of the record shows that there was no such Undertaking given but a statement was made by Captain Rajinder Singh Rosha on behalf of the erstwhile owner informing that appellant herein is a new owner that the rent be started to be paid to the appellant.
34.The facts as unraveled from the undisputed documents filed on record and also the statement made by the respondent in its application under Section 27 claiming that rent was being paid to the appellant pursuant to undertaking in the court shows that there is no dispute about who the landlord was. The respondent has been regularly paying rent in the account of Appellant since 2017. It is obvious that suddenly a controversy about the RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 14 of 27 Pages title of appellant in 2020 has been raised immediately after receiving a Notice for enhancement of Rent. This ground for filing a petition under Section 27 is therefore, not met.
Attornment under S.109 Transfer of Property Act of subsequent purchaser by the tenant:
35.Learned counsel on behalf of the respondent has relied upon Section 116 read with Section 109 of Transfer of Property Act to argue that in the absence of attornment the subsequent purchaser cannot claim ownership neither any notice has been issued on behalf of the present owner nor has the respondent ever accepted him as a landlord. Reliance has been placed on Bismillah Be (supra).
36.The concept of attornment is contained in Section 109 of the Transfer of Property Act, 1982 which reads as under:
Rights of lessor's transferee If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 15 of 27 Pages transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.
37.According to Section 109 on transfer of the property, the transferee succeeds to the rights and liabilities of the lessor in respect of covenants which run with the land. By virtue of Section 109 the tenant is bound to pay the rent to the transferee and he cannot deny the rent merely on the ground that there is no privity of contract.
38.In Mohd. Ilyas & Another vs Mohd. Adil & Others, AIR 1994 Delhi 212 it was explained that "to attorn" merely means to agree to become a tenant of the owner or landlord of a property previously owned or held by another or to agree to recognise a new owner of the property and promise to pay the rent to him. Black's Law Dictionary, Legal Glossary (1988 Edition) issued by the Ministry of Law & Justice defines "attorn" as "to agree to become tenant to one owner or landlord of any estate previously held by another". In the Concise Oxford Dictionary, the word "attorn" means 'transfer: make legal acknowledgment of new landlord. Thus, "to attorn"
merely means to acknowledge the relation of a tenant to a RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 16 of 27 Pages new landlord. It merely means acceptance of the new owner as landlord and estoppes the tenant to dispute the landlord's title thereafter. It was held that attornment by the tenant of the landlord is not required.
39.In Mohar Singh (through LRs) vs. Devi Charan & others, 1988 AIR 1365, it was explained that under the general law such an assignment effects a severance, and entitles the assignee on the expiry of the term to eject the tenant from the land covered by the assignment. Section 109 of Transfer of Property Act provides a statutory exception and enables an assignee to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject to the other covenants running with the land. There is no need for a consensual attornment as it is brought about by operation of law. It has the same effect as contractual attornment so that because of a transfer of the lease property, the transferee ipso facto acquires all the rights of the lessor and a new relationship is created between the transferee and the lessee. Letter of attornment is not necessary to complete title to the assignment of the reversion under Section 109 of the Transfer of Property Act. Title of the assignee is complete on the execution of the deed of assignment and is not postponed till the notice of the assignment is given right to ejectment which is inherent in ownership. Section 109 embodies the principle "Qui in jus deminiumve RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 17 of 27 Pages alterius succedit jure ejus uti debet" i.e. rights and liabilities attached to the property (arising out of possession and control of that property) pass with the property as observed in Shankar Sahai vs. Kamal 1971 MP LJ 436 It was further observed that there is nothing in Section 109 of Transfer of Property Act which provides attornment as a condition precedent for the owner to be so. No attornment of the landlord by the tenant is therefore necessary. Reference may also be had to Brij Bihari Prasad & Another vs. Smt. Deoki Devi & Another, AIR 1978 Pat 117 and Hajee K. Assainar & Company vs. Chacko Joseph, AIR 1984 Ker 113.
40.The claim of the respondents that they never attorned to the appellants/petitioners as their owner/landlord is of little consequence. The respondents had been informed to pay rent to the appellant by the erstwhile owner and that too by a statement in the court and they have been depositing the rent in her account; a plea cannot be raised now about the doubt about the ownership merely to justify deposit of rent in the court.
41.Rule of estoppel against tenant as embodied in Section 116 of the Indian Evidence Act.
42.It would also be pertinent to refer to Section 116 of the Indian Evidence Act which deals with estoppel against RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 18 of 27 Pages tenants or licencees or lessees in possession and falls in the category of estoppel by contract. This principle prevents a tenant in occupation of the demised premises, from denying the title of the landlord, who let him into possession.
43.In Re: Stringer's Estate, LR. Ch. 9, JesselM.R., explained the spirit and rationale underlying the doctrine of estoppel as under: "Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title. This is perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title. That is a wellestablished doctrine. That is estoppel by contract."
44.The principle that a tenant in possession of the property cannot contest the title of the landlord was reiterated by a threeJudge Bench of the Supreme Court in Sri Ram Pasricha vs. Jagannath and Ors., (1976) 4 SCC 184 and the relevant para is as under : "14. The relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 19 of 27 Pages question of title to the leased property is irrelevant....."
45.In Bismillah Be vs. Majeed Shah, 2017 (2) SCC 274, it was observed that by virtue of Section 116 of the Indian Evidence Act, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, though he is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/Vendee against the tenant for his eviction from the demised property under the Rent Laws. However, this right of a tenant is subject to one caveat that the tenant/lessee has not attorned to the Assignee/Vendee. If he has paid the rent then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an Assignee/Vendee in the proceedings. It has been further explained that once the Assignee/Vendee proves his title to the demised property, the original tenant/lessee by operation of law becomes its tenant on the same terms and conditions on which it was entered into with the original landlord/lessor and continues till same is modified by the parties or is determined by the landlord in accordance with law. It enables the Assignee/ Vendee to acquire the status of a "new landlord" in place of the original landlord of the tenanted premises (Law of Evidence by Sarkar, 16 th RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 20 of 27 Pages Edition, pages 21062108).
46.This authority was followed by Hon'ble Supreme Court of India in Apollo Zipper India Limited vs. W. Newman & Company Limited, (2018) 6 SCC 744 wherein it was observed as under:
40 "It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the rent laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.
42... Similarly, the law relating to derivative title to the landlord and when the tenant challenges it during subsistence of his tenancy in relation to the demised property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the rent laws. However, this right of a tenant is subject to one caveat that the tenant has not attorned to the assignee. If the tenant pays rent to the assignee or otherwise accepts the assignee's title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord.
Two earlier authorities, Sheela vs. Firm Prahlad rai Premm Prakash [(2002) 3 SCC 375] and Boorugu Mahadev & sons vs. Srigiri [(2016) 3 SCC 343] broadly lay down the same principle of law. It is not the law that in a landlordtenant suit the landlord cannot be called upon at all to prove his ownership of a premises, but onus is not on him to establish perfect title of the suit property."
RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 21 of 27 Pages
47.It has been further observed in Apollo Zipper India Limited(supra) that attornment does not create any new tenancy but once the factum of attornment is proved then by virtue of such attornment, the old tenancy continues as held by the Hon'ble Supreme Court of India in case of Uppalapati Veera Venkata Satyanarayanaraju & Another vs. Josyula Hanumayamma & Another AIR 1967 SC 174."
48.Hon'ble Supreme Court of India in Vinay Eknath Lad vs Chiu Mao Chen, (2019) 20 SCC considered the same aspect. It held that in a landlordtenant suit, the landlord is not required to prove his title in the subject property, unlike in a title suit. The Supreme Court held that it is not the law that in a landlordtenant suit, the landlord cannot be called upon at all to prove his ownership of the premises, but onus is not on him to establish perfect title of the suit property. The principle of estoppel bars a tenant from questioning the title of the landlord as incorporated in Section 116 of the Indian Evidence Act. In the said case reference was made to Bismillah Be (Supra) wherein it was held that the owners have served the termination notice upon the tenant and once notice was served, it was sufficient notice to the respondent to handover the tenancy rights in the property to the appellant.
49.This judgment has been followed in recent judgment of RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 22 of 27 Pages Delhi High Court in M/s Northern India Carriers vs Vinay Kumar & Anr. in RSA No. 39/2021 decided on 22 April, 2021.
50.The principle of estoppels thus bars a tenant from questioning the title of the landlord as incorporated in Section 116 of the Indian Evidence Act.
51.To conclude, it is established that appellant is the owner/Landlady of the property in question by virtue of statutory attornment under Section 109 of the Transfer of Property Act and no formal attornment by the tenant is mandated by law. The tenant is estopped under S.116 of evidence Act from challenging the title of the owmer. The argument raised by the respondent about the doubt about the ownership of the Appellant is without merit.
Refusal to Accept Rent:
52.The other reason taken by the respondent for depositing the rent is that the landlady refused to accept the rent. The appellant had given a notice dated 27.08.2020 informing the respondent that henceforth rent may be paid through cheque and not through RTGS as she was closing the Account in which the respondent had been depositing the rent since long. Though the respondent was so informed he still tendered the rent by way of RTGS in the same bank account for the month of October, 2020 and November, RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 23 of 27 Pages 2020 which was duly transferred though it was subsequently returned by the appellant by making a reverse entry. In such circumstances, it cannot be said that there was no tender of rent for the month of October, 2020 and November, 2020 even if made against the directions of the landlady / appellant. There was a tender made for the rent for the month of October, 2020 and November, 2020 and once it was reversed / refused the fundamental requirement of Section 27 stands satisfied and the tenant was well within the scope of Section 27 to have deposited the rent in the court under Section 27 for the month of October and November,2020.
53.However, in (RCT No. 01/2021), Section 27 petition was filed on 18.12.2020 to deposit the rent for the months of December, 2020 to May, 2021. In the Deposit of Rent petition there is no averment whatsoever that the rent was tendered and it was refused. Rather, the rent has been deposited in advance. From Section 27, it is clearly made out that no rent can be deposited in advance but it is only when there is refusal to accept the rent that it can be deposited under Section 27. The jurisidictional requirement of Section 27 is therefore not satisfied in Appeal No. 01/2021 and the said deposit could not have been allowed.
54.Learned counsel for the appellant has vehemently argued RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 24 of 27 Pages that detailed objections were filed on behalf of the appellant challenging the deposit made under Section 27. It was not a valid deposit because it was neither at the enhanced rent nor did it include 15% interest as provided under Section 26 of the Act. The learned ARC therefore was not justified in observing that these are the summary proceedings where such objections cannot be considered and they may be raised in appropriate proceedings.
55.The proceedings under Section 27 are summary in nature wherein the deposit of rent may be made under Section 27 in the given three situations. Section 26 provides for deposit of rent within 15 days in case it is refused and such deposit has to be with 15% interest. Section 26 defines the amount and the manner in which the deposit is to be made. Further, as provided in Sarla Goel & Others Vs. Kishan Chand (2009) 7 SCC in case the amount tendered by way of rent is refused in answer to the legal notice the same is required to be deposited under Section 27 within 15 days of such refusal. It is clear that the validity of deposit of rent needs detailed evidence in regard to service of notice, tender of rent, its refusal and also determination of the rate of rent and the interest payable for delayed tender or payment of rent. The validity of deposit of rent so made under Section 27 is to be considered in the proceedings under Section 14 (1) (a) for it requires evidence and RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 25 of 27 Pages determination of facts which may be disputed. Learned ARC has rightly observed that proceedings under Section 27 are summary in nature and such intricate questions of fact and law cannot be decided in the summary proceedings. The objections that have been taken are required to be taken in the proceedings under Section 14 (1) (a) where the court may decide them after taking evidence. The learned ARC has rightly refrained from deciding the objections on merit. The apprehension of the appellant that once deposit of rent is allowed under S.27 it would amount to valid discharge is misfounded as the validity of deposit has to be necessarily determined in the eviction proceedings. The respondent/ tenant would obviously take a plea of deposit in the eviction petition under S.14(1)(a) but that does not leave the landlord remedy less to establish that deposit was not valid as held in the case of Sarla Goel (supra).
Conclusion:
56.In view of the above discussion, the appeal bearing RCT ARCT No. 02/2021 in respect of rent for the month of October, 2020 and RCT ARCT No. 03/2021 in respect of rent for the month of November, 2020 are hereby dismissed while the appeal bearing RCT ARCT No. 01/2021 in respect of rent for the months of December, 2020 to May, 2021 is hereby allowed.
RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 26 of 27 Pages
57.Parties to bear their own costs. Trial court record be sent back with a copy of this order. File be consigned to Record Room.
Announced in the open court (Neena Bansal Krishna) today i.e. 6 August, 2021 Principal District & Sessions Judge th Rent Control Tribunal SouthEast District, Saket Courts, New Delhi.
RCT ARCT Nos.01/2021; 02/2021 & 03/2021 Page 27 of 27 Pages