Delhi District Court
Arct No. 57/12 vs Capt. Jeevan Jyoti Nijhawan on 1 July, 2014
IN THE COURT OF Ms. ANU MALHOTRA
DISTRICT & SESSIONS JUDGE / ARCT (WEST) : DELHI
ARCT No. 57/12
Smt. Rama Bhalla
W/o Late Shri T. R. Bhalla
R/o H. No. DG-II-73-B, FF
SFS Flat, Vikaspuri
Delhi. . . . . Appellant
Versus
Capt. Jeevan Jyoti Nijhawan
S/o. Shri K. C. Nijhawan
R/o. H. No. K-76, Sector-25
Jalwayu Vihar, Noida
U.P. . . . . Respondent
Date of Institution : 23.07.2012
Date of reserving for orders : 22.01.2014
Date of pronouncement of judgment : 01.07.2014
JUDGMENT
This judgment shall dispose of an appeal instituted on 23.07.2012 by the appellant Smt.Rama Bhalla against the respondent Captain Jeevan Jyoti Nijhawan vide which the appellant has challenged the impugned order dated 30.05.2012 in Eviction Petition No. 132/09 of the ld. ARC (West), vide which the appellant / tenant was directed to be evicted from the tenanted premises bearing No. DG-II-73B, SFS Flats, First Floor, Vikaspuri, Delhi comprising of two rooms, living room, bathroom, WC, kitchen, verandah at the first floor as shown in red in the site plan Ex. PW1/1 in terms of Section 14 (1) (a) of the Delhi Rent Control Act, 1958 as amended (hereinafter referred to as " the DRC Act").
As observed vide the said impugned order, the appellant had deposited the rent u/s. 15(2) of the DRC Act for the period 01.10.2007 till 31.03.2008 and ARCT No. 57/12 Page No.1 thereafter, as per the written statement, the rent was paid upto 30.06.2009 and the rent was paid also w.e.f. 01.01.2009 on 30.06.2009, the rent for the period November, 2007 to July, 2008 was deposited on 28.06.2008 vide a cheque which was encashed. Interalia, it was observed by the ld. ARC that these aspects were not denied by the respondent to the eviction petition i.e. the appellant herein in the written statement except for submitting that the rent had been deposited in terms of Section 15(2) of the DRC Act. The ld. ARC further observed that this admission of the tenant amounted to a second default and proved that the respondent to the eviction petition i.e. the appellant herein had committed a second default in payment of rent and that the deposit of rent u/s. 15(2) of the DRC Act in another petition could not discharge his liability to pay the rent to the petitioner after getting the benefit u/s. 14(2) of the DRC Act and that the landlord was thus entitled for an eviction order on account of the second default in terms of the verdict of the Hon'ble High Court of Delhi in the case Sameer Wason & Anr. Vs. Rajinder Kumar Lamba, 2010 IV AD (Delhi) 609 wherein it has been categorically laid down that after availing the benefit under Section 14(2) of the DRC Act, the tenant ought to have strictly followed the procedure given under Section 27 of the DRC Act to deposit the rent, if the landlord refused to accept the same and that in the present case, the tenant had not chosen to follow this procedure and deliberately did not pay the rent.
Through the appeal, the appellant / tenant has submitted that the appellant was initially inducted as a tenant @ Rs. 1150/- per month but that the present rent for the premises was Rs. 3025/- per month and that in the eviction petition No. 184/02 filed by the landlord against the appellant was allowed, the benefit of Section 14(2) of the DRC Act had been given by the then ld. ARC, whereafter the landlord filed another eviction petition u/s. 14(1)(e) read with Section 25B of the DRC Act against the appellant in the month of April, 2007, in ARCT No. 57/12 Page No.2 which, there was an order u/s. 15(2) of the DRC Act, whereby the then ld. ARC directed the appellant to pay the rent and further rent each month by the 15 th of each English calendar month. Interalia, it was submitted by the appellant that a lenient view had been taken by the Court citing the old age ailments of the appellant and further problems that she had at that time and that time, and that the delay in deposit of the rent had been condoned. It has been submitted by the appellant that thereafter, the appellant has made the payment in terms of the order of the ld. ARC and has not committed any single default and that the previous default was also not intentional but for the reason that the appellant was under
medical supervision for long and was being attended to by her son and at that time, the priority of the children of the appellant was to attend to her first and thereafter, the delay so occasioned was not intentional nor deliberate. Interalia, the appellant submitted that the appellant had paid the rent in advance also to the landlord but the respondent / landlord got issued a legal notice dated 23.01.2009 calling upon the appellant to vacate the tenanted premises and that notice itself made it clear that there was no rent outstanding on the date of issue of the notice.
Through the appeal, it has been submitted by the appellant that once the order under Section 15(2) of the DRC Act had been made, the previous defaults were apparently condoned and could not be termed to be any fresh default.
Vide order dated 17.05.2013, a report of the Civil Nazir (West) qua the aspect of deposit of rent, if any in the instant case by the appellant was called for, in view of the submission made on behalf of the respondent that rent was not being deposited in compliance of the order of the ld. Trial Court. The report of the Naib Nazir dated 17.07.2013 was received to the effect that as per the computer details the tenant had not deposited the rent in the eviction petition E-132/09, qua which, a submission was made on behalf of the appellant that the appellant was in possession of receipts to indicate that till July, 2013, the rent had been deposited till ARCT No. 57/12 Page No.3 04.07.2013 and that it had been deposited into the account No. 306300100030657 of the respondent in the Punjab National Bank situated in Vikaspuri, New Delhi.
The affidavit of the respondent qua receipt of the amount was called for. The affidavit of the appellant and the counter affidavit of the respondent were thus filed qua the amounts stated to have been deposited. As per the appellant vide her affidavit dated 29.07.2013 the appellant has stated that the following payment were made to the respondent :-
• that the payment for the month of November, 2007 to December, 2008 was made vide DD No. 97437 dated 26.06.2008 amounting to Rs. 42,350/- ; • that the payment for the period January, 2009 to June, 2009 was made vide DD NO. 90539 dated 07.01.2009 amounting to Rs. 18,150/-; • that the payment for the period July, 2009 to September, 2009 was made vide DD NO. 027998 dated 08.07.2009 amounting to Rs. 9,750/-; • that the payment for the period of October, 2009 was made by cash and for December, 2009 vide cheque and for November, 2009 by cash; and • that the payment for the months of January, 2010 to February, 2010 was made by cash and for the period March, 2010 to December, 2010 was made by cash;
• that the payment for the period January, 2011 to May, 2011 was made by cash;
• that the payment for the period June, 2011 to December, 2011 was made by cheques;
• that the payment for the period January, 2012 to December, 2012 was made by cheques; and • that the payment for the period January, 2013 to July, 2013 was made vide cheques.ARCT No. 57/12 Page No.4
and it was submitted on behalf of the appellant that the appellant had made payments of the rent to the landlord either in cash or by cheques.
The counter affidavit of the respondent dated 16.08.2013 gives the details of payments of rent paid by the tenant to the effect as follows :-
• that the rent for the month of August, 2006 was paid on 13.11.2006 i.e. delay by 74 days;
• that the rent for the month of September, 2006 was paid on 22.12.2006 i.e. delay by 83 days;
• that the rent for the month of October, 2006 was paid on 22.12.2006 i.e. delay by 52 days;
• that the rent for the month of November, 2006 was paid on 22.12.2006 i.e. delay by 22 days;
• that the rent for the month of January, 2007 was paid on 16.03.2007 i.e. delay by 44 days;
• that the rent for the month of February, 2007 was paid on 16.05.2007 i.e. delay by 62 days;
• that the rent for the month of March, 2007 was paid on 08.06.2007 i.e. delay by 69 days;
• that the rent for the month of April, 2007 was paid on 08.06.2007 i.e. delay by 39 days;
• that the rent for the month of August, 2007 was paid on 10.10.2007 i.e. delay by 40 days;
• that the rent for the month of September, 2007 was paid on 31.01.2008 i.e. delay by 123 days;ARCT No. 57/12 Page No.5
• that the rent for the month of October, 2007 was paid on 11.04.2008 i.e. delay by 5 months 11 days;
• that thereafter the rent w.e.f. November, 2007 to May, 2008 was not paid till 30.06.2008 and the same was paid on 30.06.2008 by depositing cheque for Rs. 42,350/- in lump sum i.e. rent for the period November, 2007 to July, 2008. The said cheque dated 28.06.2008 was deposited by the appellant / tenant in June, 2008 and with advance rent upto December, 2008 and it was thus submitted on behalf of the respondent that it was clear that the appellant had committed default in making the payment of rent intentionally, willfully and deliberately;
• that the rent for the period w.e.f. 01.01.2009 to 30.06.2009 for Rs. 18,150/- was deposited in advance on 14.01.2009.
It has been submitted on behalf of the respondent / landlord that the defaults made by the appellant in payment of rent despite having been granted the benefit of Section 14(2) of the DRC Act, cannot be condoned. Interalia, it has been submitted on behalf of the respondent that the appellant also failed to pay the interest for the delayed period in depositing the rent in the bank account as required under Section 26 of the DRC Act and the enhanced rent enhanced by 10% in view of the provisions of Section 6A of the DRC Act, which was not enhanced by the appellant also had not been paid and that the benefit under Section 14(2) of the DRC Act could not be availed by the appellant any further. Interalia, the appellant enclosed the copy of his passbook in respect of his bank account with entries therein, which he affirmed to be true and correct.
ANALYSIS ARCT No. 57/12 Page No.6 A bare perusal of the records of eviction petition E-132/09, which petition was filed by the landlord i.e. the respondent herein u/s. 14(1) of the DRC Act read with Section 14(2) of the said enactment indicates that it spelt out categorically that the rent w.e.f. November, 2007 to May, 2008 was not paid till 30.06.2008 and was paid on 30.06.2008 by depositing a cheque for Rs. 42,350/- in lump sum w.e.f. November, 2007 to July, 2008 and that the cheque dated 28.06.2008 was deposited by the respondent in June, 2008 and that the same was encashed in the first week of July, 2008 for the period November, 2007 to December, 2008. The response of the tenant to this eviction petition does not deny that the rent w.e.f. November, 2007 to May, 2008 was not paid till 30.06.2008 despite the grant of benefit under Section 14(2) of the DRC Act in eviction petition No. 184/02 vide judgment dated 03.02.2005. The details of rent paid for the month of August 2006, September 2006, October 2006, November 2006, January 2007, February 2007, March, 2007, April 2007, August 2007, September 2007, October 2007 and November 2007 to May, 2008 as detailed in para V (a) to (l) of the eviction petition have not been specifically denied by the tenant i.e. the present appellant.
CONCLUSION On a consideration of the entire available record and the rival submissions made on behalf of either side, it is apparent that in the instant case, despite the benefit of Section 14(2) of the DRC Act having been granted in eviction petition No. E-184/02 vide judgment dated 03.02.2005, there has been a delay in making the payment of the rent by the appellant / tenant in compliance thereof regularly for more than a period of three consecutive months. It is brought forth categorically from the fact that the rent for the months November, 2007 to ARCT No. 57/12 Page No.7 December, 2008 was admittedly paid only on 26.06.2008 and the submission made on behalf of the appellant that the said compliance was made pursuant to directions under Section 15(2) of the DRC Act in eviction petition No. E-791/07 with new No. E-110/09/07 in a petition under Section 14(1)(e) read with Section 25B of the DRC Act filed by the landlord vide order dated 01.04.2008 in terms of Section 15(2) of the DRC Act and that thereby the delay in deposit of the rent by the tenant, in view of illness of the tenant and non-availability of her son had been condoned, in view of the specific provisions of Section 14(2) of the DRC Act cannot be accepted and it is apparent thus that there is no infirmity in the impugned order dated 30.05.2012 in eviction petition No. E-132/09 as the tenant cannot be granted and is not entitled to the benefit of Section 14(2) of the DRC Act, 1958 more than once.
In relation to this aspect, the law is settled vide judgment of the Hon'ble High Court of Delhi in the case S. N. Bhalla vs. Soldier United Motor Transport Company Limited, 2006(1) RCR (Rent) 231 wherein it has been observed vide paragraph Nos. 26 and 27 to the effect as follows :-
"26. The only other submission which is to be considered is as to whether the company is entitled to the benefit of Section 14(2) of the Rent Act. It has already availed that benefit once earlier as well. In the present petition also, the application of the landlord under Section 15(1) of the Rent Act was allowed vide order dated 19th March, 1997 and the company was directed to pay the landlord or deposit in the Court the entire arrears of rent from 1st May, 1983 upto date at the rate of Rs. 250/- per month. The company was also directed to continue to pay or deposit future rent at the aforesaid rate month-by-month by the 15th day of each succeeding month of English calender.
27. The landlord, in these circumstances, shall be entitled to the eviction orders. In the case of Punjab National Bank, New Delhi vs. The Rent Controller Delhi and another, 1974 RCR (Rent) 470 (Delhi): 10 (1974) DLT 209, this Court held that if a tenant had already enjoyed the benefit of Section 14(2), he is not entitled to that benefit again having committed three consecutive defaults in payment of rent within the meaning of the proviso to Section 14(2). Orders under ARCT No. 57/12 Page No.8 Section 15(1) are still to be passed which are not for the benefit of the tenant but for the benefit of the landlord. Again in the case of Subhash Chander vs. Arjan Kaur, 23 (1983) DLT 48, this Court held that where tenant deposited rent under Section 15(1) and took benefit under Section 14(2), in the second application for eviction under Section 14(1)(a) even if he deposited rent under Section 15(1), he was still liable for eviction. This view was reiterated by this Court in the case Smt. Kamla Devi vs. Shri Sadhu Ram, 2000 (1) RCR (Rent) 186 (Delhi) : 1999 VI AD (Delhi) 649 and in the case of Ashok Kumar vs. Ram Gopal, 22 (1982) DLT 188."
The stay of the execution of the impugned order granted vide order dated 31.08.2012 in the present appeal ARCT No. 57/12 is thus vacated. The appeal ARCT No. 57/12 is thus dismissed. Decree sheet be prepared accordingly.
The records of ARCT No. 57/12 be consigned to the Record Room and the records of the ld. Addl. Rent Controllers in Eviction petition Nos. E-132/09 and E-791/07 with new No. E-110/09/07 be returned.
Announced in the open Court ( ANU MALHOTRA )
st
dated 1 day of July, 2014 DISTRICT & SESSIONS JUDGE / ARCT (WEST) DELHI ARCT No. 57/12 Page No.9