Jharkhand High Court
Smt. Sandhya Rani Dutta vs Sachidanand Das on 16 April, 2002
Equivalent citations: AIR 2004 (NOC) 227 (JHA), 2004 AIR - JHAR. H. C. R. 1155, (2002) 2 JCR 221 (JHA), (2002) 2 JLJR 167
Author: M.Y. Eqbal
Bench: M.Y. Eqbal, H.S. Prasad
JUDGMENT M.Y. Eqbal, J.
1. This appeal under clause 10 of the Letters Patent is directed against the judgment dated 29.9.1995 passed in First Appeal No. 81/85(R) whereby the learned Single Judge allowed the appeal filed by the tenant and set aside the judgment and decree passed by the Subordinate Judge, Ranchi in Title Suit No. 273/83.
2. The present appellant is the owner of the suit property. She constructed building and structures over the suit land in order to start cinema business. The case of the plaintiff-appellant is that she executed a registered deed of lease in the year. 1971 in favour of Amalgamated Films for a period of 51 years. The subject matter of the lease was the land. building and some other incomplete structures. In terms of the lease deed monthly rent of the premises was payable on or before 15th day of each following month and also 2/3rd of the existing and future municipal taxes from the date of commencement of the cinema show, it was alleged that the lessee paid monthly rent upto 1981 and. thereafter assigned the lease hold interest to the defendant-respondent, Sri Sachidanand Das. The plaintiffs case was that the defendant neither paid the monthly rent from February, 1981 nor the municipal taxes. The plaintiff, therefore, terminated the lease with effect from the month of August. 1981 and directed the defendant to vacate the building premises. In reply to the said notice the defendant sent a bank draft dated 25.7.1981 for a sum of Rs. 29,107.11 paise. The plaintiff then filed Title Suit No. 192/81 against the defendant for his eviction from the suit property. The defendant contested the suit by filing written statement. However, the suit was disposed of in terms of compromise petition dated 16.8.1983. The relevant portion of the compromise petition is reproduced hereinbelow :--
"(A) Defendant shall at all time during subsistence of the lease grant four free passes for the highest class to the plaintiff and the plaintiff shall requisition the passes in writing.
(B) The defendant shall make the Cinema Hall with its fixtures, fittings, electricity and other accessories including the services of the member of the staff available free of charges to the plaintiff for her use whether for her own purposes or otherwise for six days in calander year to be notified for each occasion by the plaintiff to the defendant in writing atleast 15 days in advance. It shall be the responsibility of the plaintiff to obtain the necessary permission from the concerned authorities. The defendant will in no case be responsible for entertainment tax for holding any show or functions in the Cinema Hall in the said six days.
(C) If the defendant at any time during subsistence of the lease intends to transfer his entire or part of his interest in Sandhya Cinema premises to any person or body of persons then the defendant shall intimate to the plaintiff in writing of the said intention and the plaintiff may within thirty days of the receipt of the said notice resume from the defendant his such interest. In case the plaintiff fails to exercise her option to resume such interest within the period reserved hereby then the defendant shall be at liberty to transfer his such interest to any person or body of persons of his own choice.
(D) The arrears of rent from October. 1982 to August. 1983 is Rs. 59,683.17 paise and the dues on account of municipal tax from 6.2.1981 to 31.3.1983 is estimated at Rs. 19.927.96 paise which the defendant shall pay to the plaintiff within 45 days from the date of this com promise petition. Failure to make payment within this stipulated period by the defendant shall be deemed as defaulter within the meaning of the law.
(E) Other terms and conditions as contained in the deed of lease dated 29th November, 1971 shall remain unaltered and the relation between the plaintiff and the defendant as the lessor and the lessee with regard to the lease hold property being Sandhya Cinema Hall shall be governed by the said deed of lease.
(F) The parties agreed to execute and register the necessary deed and instruments within 30 (thirty) days incorporating the aforesaid modification to the original lease and cost and expenses of such deed will be borne and payable in equal one-half shares.
(G) For the breach of any of the con-venents reserved hereby by the defendant, the plaintiff shall be entitled to initiate appropriate legal proceeding as provided under the law."
3. The case of the plaintiff-appellant was that in terms of the compromise the defendant did not pay the arrears of rent and municipal taxes within the period fixed in the compromise petition, She then sent lawyer's notice dated 11.10.1983 asking the defendant to vacate the premises by 1st of October, 1983 and pay the entire arrears. It is alleged that although there was clear understanding that the plaintiff will not accept the rent and municipal taxes through cheques but the defendant sent two cheques; one for Rs. 59,683.17 paise arid another for Rs. 19.927.96 paise along with a forwarding letter. The defendant again sent a letter to the appellant on 19.10.1983 and bank draft of Rs. 19,927.96 paise. The plaintiff alleged to have received the bank draft without prejudice and returned the cheques. It is alleged that the defendant again sent two cheques for a sum of Rs. 5,500/- each alongwith forwarding letters dated 19.10.1983 and 14.11.1983, The plaintiff, thereafter, levied Execution Case No. 7/83 for the recovery of the arrears of rent in terms of the compromise decree. The defendant appeared in the said execution case and deposited the decretal amount. The plaintiff. thereafter, filed the instant Title Suit No. 273/83 for his eviction on the ground that the defendant failed to pay the arrears of rent within the time specified in the compromise decree and also the subsequent rent in terms of the original lease deed.
4. The defendant-appellant contested the suit by filing written statement stating. inter alia, that the suit was barred under Section 47 of the Code of Civil Procedure. Defendant's further case was that the plaintiff already realised the arrears of rent and municipal taxes vide Execution Case No. 7/83. The plaintiff, thereafter, filed Execution Case No. 1/84 for recovery of the suit property. The defendant contended that the rent for the month of September to November. 1983 was sent to the plaintiff in time as per the regular accepted mode of payment and further the defendant has been sending monthly rent for the month of December. 1983 onwards through cheques by registered post and, therefore, the plaintiff is not entitled to a decree for eviction on the ground of nonpayment of arrears of rent and current rent.
5. The trial Court, while deciding the issues, held that the defendant committed breach of the terms of the compromise inasmuch as the arrears of rent were not paid within time, The trial Court further held that the defendant also defaulted in payment of rent for the months of September and October, 1983 by the last date of the next following month and. therefore, he is liable to be evicted on the ground of default under Section ll(l)(d) of the Bihar Building (Lease Rent and Eviction] Control Act. 1982 (shortly the BBC Act).
6. Aggrieved by the said judgment and decree passed by the trial Court the defendant-respondent preferred First Appeal No. 81/85 before this court. By the impugned judgment the learned Single Judge allowed the appeal and set aside the judgment and decree passed by the trial Court. The learned Single Judge held that although the arrears of rent and municipal taxes were not paid by the defendant within 45 days as fixed in the compromise decree but the plaintiff-appellant realised the entire amount in Execution Case No. 7/83 and the decree was fully satisfied. The learned Single Judge further held that the delay, if any. in payment of the aforesaid amount, cannot be a cause of action for the eviction of the defendant from the suit premises. The learned Single Judge further heid that according to the lease deed monthly rent was payable on or before the 15 day of the next following month. The rent tor the month of September. 1983 was sent by the defendant by cheque dated 29.10.1983 and rent tor the month of October, 1983 was sent by another cheque dated 14.11.1983. Although rent for November. 1983 was payable on or before 15.12.1933 but the plaintiff filed suit on 6.12.1983 i.e. earlier to the due date. The learned Single Judge, therefore, held that the defendant has not defaulted in payment of two month's rent either within the time fixed in the lease or by the last date of the next following month and. therefore, the plaintiff is not entitled to a decree under Section 11(1)(d) of the BBC Act.
7. Mr. M.M. Banerjee. learned counsel for the appellant assailed the impugned judgment of the learned Single Judge on the ground that the learned Single Judge has not correctly appreciated the law while holding that the defendant is not a defaulter in the eye of law. Learned counsel further submitted that payment of rent by cheque was not the mode of payment of rent and further arrears of rent was not paid by the defendant within the time reserved in the compromise petition. Learned counsel further submitted that the defendant has not paid the rent for the months September and October. 1983 within the time fixed IP the lease deed and, therefore, he is liable to be evicted.
8. Admittedly the defendant used to pay rent of the building premises by cheques which fart is evident from Exts. A series. Ext. A series are the forwarding letters whereby cheques for several months in the years, 1976. 1977 and 1978 were sent. The defendant filed several receipts issued by the plaintiff and also by the bank certifying that the rent paid by several cheques have been encashed by the plaintiff-appellant. Learned counsel for the appellant could not show us any document whereby the mode of payment of rent was specifically agreed by the parties by way of cash or bank draft other than cheques. The learned Single Judge also held that there was no specific mode of payment of rent prescribed in the deed of lease. In our opinion also the payment of rent by cheques cannot be said to be unlawful. In the case of Damadilal and Ors. v. Parash Ram and Ors. AIR 1976 SC 2229 their lordships observed as follows :--
"On the ground of default, it is not disputed that the defendants tendered the amounts in arrears by cheque within the prescribed time. The question is whether this was a lawful tender. It is well established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as valid discharge of the debt and if the cheque was sent by post and was met on presentation, the date of payment is the date when the cheque was posted. The question however, still remains whether in the absence of an agreement between the parties, the tender of rent by cheque amounts to a valid discharge of the obligation. Earlier we have extracted a passage from the High Court's judgment on this aspect of the case. We agree with the view taken by the High Court on the point. Rent is payable in the same manner as any other debt and the debtor has to pay his creditor in cash or other legal tender but there can be no dispute that the mode of payment can be altered by agreement. In the contemporary society it is reasonable to support such agreement as implied unless the circumstances of a case indicate otherwise. In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiff amounted To valid tender of rent. The second contention urged on behalf of the appellants must also be rejected."
9. The next question that arises for consideration is whether the learned Single Judge was right in holding that the defendant has not committed default in payment of rent for the months of September and October, 1983 and the arrears of rent. As noticed above, in the compromise petition it was agreed between the parties that the arrears of rent from October, 1982 to August, 1983 amounting to Rs. 59.683,17 paise and the municipal taxes estimated at Rs. 19,927.96 paise shall be paid by the defendant- appellant within 45 days from the date of compromise dated 16.8.1983. The defendant issued two cheques for the aforesaid amount which was not encashed by the plaintiff and the plaintiff raised objection that payment of the aforesaid amount by cheque is not acceptable. The defendant again sent letter dated 19.10.1983 along with a bank draft of Rs. 19.927.96 paise which was received bv the plaintiff without prejudice. The defendant also sent two cheques for Rs. 5.500 each dated 29.10.1983 and 14.11.1983 being the rent for the months September and October. 1983. The plaintiff, thereafter, levied execution case No. 7/83 for realisation of the aforesaid decretal amount of Rs. 59,683.17 paise for which a cheque was already issued by the defendant but not encashed by the plaintiff'. In the said execution case the defendant deposited the arrears of rent amounting to Rs. 59,683.17 paise The plaintiff-appellant then filed an application in the said execution case stating that since the arrears of rent has been deposited the decree has been fully satisfied. It was. therefore, prayed by the plaintiff-appellant in the said petition that the execution case may be disposed of on full satisfaction. The executing court, thereafter, by order dated 17.5.1984, disposed of the execution case on full satisfaction. A copy of the said order dated 17.5.1984 passed in execution case 7/83 has been marked as Ext. 12 which reads as under :--
"17.5.1984 : The decree-holders files a petition stating therein that the decretal dues of this case has been deposited by the judgment-debtor which has been withdrawn by the decree-holder and. as such, prays to withdraw the case as fully satisfied. Copy of the petition has been supplied to the judgment-debtor.
Heard learned lawyer of the petitioner. Prayer allowed. Case is disposed of as fully satisfied."
10. It further appears that rent for the month of September. 1983 was paid by the defendant vide cheque dated 29.10.1983 and rent for the month of October. 1983 was paid vide cheque dated 14.11.1983. We are, therefore, of the view that the plaintiff- appellant having received the entire arrears of rent in full satisfaction of the decree and the rent for the months of September and October. 1983 having been paid within time prescribed under law, the defendant-appellant cannot be held to be a defaulter. The Supreme Court, while considering the provisions of Section 11(1)(d) of the said BBC Act, in the case of Smt. Priya Bala Ghosh and others v. Bajrangalal Singhania and Anr. 1993 Supp (1) SCC 24. held as under :--
"It is not difficult to conceive of several situations which may arise and necessidate the remittance of the rent by money order, We have referred to one and the High Court had referred to another. But there could be many more such situations and it must be realised that the law intended to ensure on the one hand regular payment to the landlord and on the other protection to the tenant from a not-too-cooperative landlord. If the tenant is sure on account of a consistent course of conduct of the landlord that the latter will not accept the rent if paid hand to hand, it would be futile for him to make the trip every time; in such a situation he would be justified in remitting the rent by money order. What is it that the landlord requires? He must be assured of his rent. If the tenant pays the rent whether by hand to hand or by money order at his cost, that should not make any difference to the landlord. Why should a tenant who resorts to the latter mode of payment be evicted even though he has shown readiness mid willingness to pay the rent due and payable by him to the landlord? The law has to be broadly construed because it is not intended to trap the tenant into a situation so that the landlord can evict him. We are afraid that the High Court construed the relevant provisions of the law in a rather hypertechnical manner without keeping in mind the fact that Rent Restriction Legislations were enacted to protect the tenants from eviction by not-too-cooperative landlords."
11. The Supreme Court again considered the provisions of Section 11(l)(d) of the said BBC Act. in a case reported in 1988 PLJR (SC) 37, wherein their lordships held that when the plea of wilful default is not established, the plaintiff-landlord would not be entitled to a decree for eviction under the aforesaid provisions of the said Act.
12. As noticed above, although there was a few days delay in payment of arrears of rent within the time specified in the compromise petition, the defendant immediately sent the entire arrears of rent by cheques which was not encashed by the plaintiff on the plea that the mode of payment of rent was not by way of cheque. The defendant again deposited the entire arrears of rent in the executing court and on the application filed by the plaintiff the execution case was disposed of on full satisfaction. Further, the defendant sent the rent for the months of September and October. 1983 by two cheques within time. We are, therefore, of the view that the defendant has not defaulted in payment of arrears of rent as also the rent for the months of September and October, 1983. We further hold that even there was a few days delay in payment of arrears of rent, that was not wilful. The learned Single Judge, therefore, rightly allowed the appeal and set aside the Judgment and decree passed by the trial Court
13. For the aforesaid reasons, there is no merit in this appeal which is, accordingly dismissed.