Delhi District Court
Sajan Kumar vs Rajender Gupta on 12 January, 2024
RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta
In the Court of Ms. Neetu Nagar, JSCC cum Additional SCJ cum
Guardian Judge, South East District, Saket District Court, Delhi
(the then Additional Rent Controller-02, Central District,
Tis Hazari Courts, Delhi)
RC ARC No: 1050/18
E - 148/18
In the matter of
Sajjan Kumar
S/o Late Sh. Shyam Lal Goel,
R/o 1461, Gali Arya Samaj,
Bazar Sita Ram, Delhi-110006. ..... Petitioner
Versus
Rajender Gupta
S/o Sh. Banarsi Dass
Shop No. 1078, Kucha Natwa,
Chandni Chowk, Delhi-110006. ..... Respondent
*********
Date of filing of petition : 07.12.2018
Date of reserving judgment : 07.12.2023
Date of pronouncement of Judgment : 12.01.2024
Decision of petition : Allowed
*********
JUDGMENT
1. The petitioner has filed the present petition under Section 14 (1) (a) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') for eviction of the respondent in respect of one shop bearing no. 1078, Ground Floor, forming part of property (in short "subject property") bearing no. 1077-78, Kucha Natwa, Chandni Chowk, Delhi- 110006 (hereinafter referred to as "tenanted premises") which is shown in red colour of the site plan attached to the petition.
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.1 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta FACTS OF THE PETITION
2. It is the case of the petitioner that the respondent last paid the rent to the petitioner's mother Smt. Satya Wati, the then owner/landlady @ Rs.80/- for the period ending on 30.06.2014 against the rent receipt. Thereafter, the respondent defaulted and failed to pay the rent inspite of repeated demands and requests made by Smt. Satya Wati. Unfortunately, Smt. Satya Wati expired on 01.02.2015 and after her death, the petitioner, being her son and legal heir, stepped into her shoes and became the owner/landlord of the subject property including the tenanted premises.
2.1 It is averred that the respondent was called upon to attorn and pay the rent but he failed. It is submitted that the respondent is in arrears of rent w.e.f. 01.07.2014 @ Rs.80/- per month, which the respondent has failed to pay inspite of repeated demands and requests made by the petitioner and despite the service of the legal demand notice dated 10.05.2015, which was served upon the respondent under registered cover and courier. Through the said notice, the respondent was called upon to pay the entire arrears of rent with interest @ 15% per annum as per the provisions of Delhi Rent Control Act. Further, the respondent was called to enhance the rent of the subject premises by 10% and pay the future rent at the revised rate. The tenancy of the respondent was also terminated through the said notice. However, the respondent did not comply with the said notice and neither tendered nor paid the rent due with interest. Since the rent prior to three years have become time barred but still, the respondent/tenant is liable to pay rent for the period w.e.f. 01.12.2015 till date @ Rs.88/- per month with interest at the rate of 15% per annum, since the rent stands increased from Rs.80/- to Rs.88/- per month after service of the legal demand notice.
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.2 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta 2.2 It is further submitted that the tenanted premises is situated under the slum areas, as notified under the Slum Areas (Improvement and Clearance) Act. The petitioner filed a slum petition against the tenant/ respondent and the Competent Authority, vide order dated 03.04.2018 granted permission in favour of the petitioner and against the respondent. Hence, the instant petition for eviction of the tenanted premises.
FACTS OF THE WRITTEN STATEMENT
3. Notice of the eviction petition was sent to the respondent who entered his appearance.
3.1 The petition of eviction is contested by the respondent by way of written statement wherein preliminary objections are taken to the effect that the petition is liable to be dismissed being not maintainable. It is submitted that the rent to Smt. Satyawati stood paid till her death i.e. 01.02.2015 as clear from the copies of the rent receipts w.e.f. 01.07.2014 till the date of her death. It is submitted that Smt. Satyawati was survived by two sons namely Sh. Sajjan Kumar and Sh. Dharmender Kumar Gupta whereas the names and addresses of the four daughters could not be known to the respondent. It is further submitted that none of the said legal heirs had come to receive rent from the respondent as disputes had arisen between the petitioner and his brother Sh. Dharmender Kumar Gupta in respect of the properties (including the tenanted premises) left by deceased Smt. Satya Wati.
3.2 It is further submitted that after the expiry of 2-3 months of the death of Smt. Satyawati, the petitioner got sent a legal notice dated 10.05.2015 through his advocate Sh. Vinay Gupta. Similarly, Sh. Dharmender Kumar Goyal through his advocate Sh. Ravi Shankar Srivastava got sent a legal notice dated 25.05.2015 to the respondent.
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.3 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta Both of them demanded the arrears of rent and further claimed exclusive ownership / landlordship over the subject property. 3.3 It is stated that the respondent has got sent a reply dated 27.05.2015 to the legal notice dated 10.05.2015 got sent by the petitioner and further in order to avoid any controversy and without prejudice to his rights also sent the cheque bearing no. 000054 dated 28/05/2015 for Rs. 408/- as rent for the period w.e.f. 01.02.2015 to 31.05.2015 @ Rs. 80/- and for the month of June @ Rs.88/-. The petitioner did not accept the said reply and as such it returned with the report of "Refusal". It is submitted that the signed copy of the reply along with photocopy of the aforesaid cheque was also sent to the Shri Vinay Gupta Advocate. Since then the respondent has been regularly depositing rent under section 27 of the Delhi Rent Control Act 1958, and the rent stands paid/deposited till December 2018 before the competent courts of learned Rent controllers. The respondent further stated that neither the petitioner nor his brother had filed any objections to the aforesaid petitions filed under section 27 of the DRC, Act 1958. It is stated that lastly the rent for the period from November 2017 to December 2018 was deposited in the DR petition which has been retained by the learned Rent Controller, Central District, Tis Hazari Courts, Delhi and the said petition has been registered. It is submitted that the respondent is not a defaulter in payment of rent. 3.4 It is submitted that the petition is bad for non-joinder of other legal heirs of late Smt. Satyawati. Rest of the contentions of the petition have been denied in toto and it has been prayed that the petition be dismissed.
REPLICATION
4. Replication has been filed on behalf of the petitioner to the written statement of the respondent. The averments made in the (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.4 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta petition for eviction have been reiterated by the petitioner whereas the defence taken by the respondent in his written statement are traversed. 4.1 Additionally, it is averred that only one shop on the ground floor of the subject property was let out to the respondent by late Smt. Satya Wati and the tenancy was an oral one. Subsequent to the letting out, the respondent illegally constructed a small temporary/ kacha mezzanine in the tenanted shop and failed to remove the same despite complaints lodged by Smt. Satya Wati with various authorities and demands made by her to the respondent. However, later on with the intervention of the local respectables, it was amicably settled between Smt. Satya Wati and the respondent that the said mezzanine shall form part of the tenanted shop and accordingly, the rent receipts were issued to the respondent. It is submitted that the said mezzanine/small room with the height of four and a half feet is a part of the tenanted shop on the ground floor and the said portion is not situated on the first floor but is a mezzanine within the tenanted shop as the ceiling level of the said mezzanine is the same as the ceiling level of the adjoining shops i.e. remaining part of the subject property. 4.2 Further, no alleged rent agreement /deed was ever entered into between Smt. Satya Wati and the respondent and copy thereof is forged, fabricated and manipulated document as the same does not bear the signatures of Smt. Satya Wati. 4.3 It is averred that no alleged reply or alleged cheque was ever sent by the respondent/his counsel to the petitioner/his counsel and no such reply/cheque was ever tendered to the petitioner. 4.4 It is alleged that the respondent seems to have played fraud upon the learned Courts and obtained the order/s in the alleged deposit of rent petitions. It is claimed that the petitioner and his family members were never served with any summons through any mode of (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.5 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta any alleged petition of deposit of rent so the question of filing of the objections does not arise.Rest of the contentions have been denied in toto.
EVIDENCE OF PETITIONER
5. The petitioner Sajjan Kumar has examined himself as PW-1 and tendered evidence by way of affidavit Ex. PW-1/A and relied upon the following documents:
Exhibits/Mark Document
Ex. PW-1/1 Site plan
Ex. PW-1/2 and Ex. PW-1/2(A) Counter foil of rent receipts
Copy of death certificate of Satya
Ex. PW-1/3
Wati
Ex. PW-1/4 Office copy of legal notice
Ex. PW-1/5 Postal receipt
Ex. PW-1/6 Courier receipt
Ex. PW-1/7 AD Card
Ex. PW-1/8 Certified copy of Slum permission
Certified copy of site plan forming
Ex. PW-1/9
part of said Slum permission
5.1 Vide separate statement of the petitioner, evidence of
petitioner was closed on 04.04.2022.
EVIDENCE OF RESPONDENT
6. The respondent examined himself as RW-1 and tendered affidavit Ex. RW-1/A in his evidence and relied upon the following documents:-
Exhibits/Mark Document Ex. RW-1/1 Original rent receipts dated 05.07.2014 Ex. RW-1/2 Original rent receipts datd 05.08.2014 Ex. RW-1/3 Original rent receipts dated 05.09.2014 Ex. RW-1/4 Original rent receipts dated 06.10.2014 (NEETU NAGAR)
JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.6 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta Ex. RW-1/5 Original rent receipts dated 05.11.2014 Ex. RW-1/6 Original rent receipts dated 06.12.2014 Ex. RW-1/7 Original rent receipts dated 05.01.2015 Ex. RW-1/8 Legal notice sent by the petitioner Ex. RW-1/9 Legal notice sent by brother of petitioner namely Sh. Dharmender Kumar Ex. RW-1/10 Signed copy of reply dated 27.05.2015 Ex. RW-1/11 04 original postal receipts pasted on one sheet of paper Ex. RW-1/12 Certified copy of DR petition no.
335/2015 showing deposit of rent for the period from February, 2015 to July, 2015 Ex. RW-1/13 Certified copy of DR petition no.148/2016 showing deposit of rent for the period from August, 2015 to March, 2016 Ex. RW-1/14 Certified copy of DR petition no.
435/2016 showing deposit of rent for the period from April, 2016 to August, 2016 Ex. RW-1/15 Certified copy of DR petition no. 26/2017 showing deposit of rent for the period from September, 2016 to January, 2016 Ex. RW-1/16 Certfied copy of DR petition no. 379/2017 showing deposit of rent for the period from February, 2017 to October, 2017 Ex. RW-1/17 Certified copy of DR petition no. 339/18 showing deposit of rent for the period from November, 2018 to December, 2018 Ex. RW-1/17A Certified copy of order dated 28.09.2015 passed in petition no. 335/2015 Ex. RW-1/18 Certified copy of order dated 10.05.2016 passed in petition no. 148/2016 Ex. RW-1/19 Certified copy of order dated 09.12.2016 passed in petition no.98912/2016 Ex. RW-1/20 Certified copy of order dated 29.05.2017 (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.7 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta passed in petition no. 173/2017 Ex. RW-1/20A Certified coipy of order dated 15.01.2018 passed in petition no. 2063/2017 Ex. RW-1/21 Certified copy of amended petition no.
339/2018 showing deposit of rent for the period November, 2017 to December, 2018 Ex. RW-1/22 Certified copy of receipt of challan showing deposit of rent for the aforesaid period Ex. RW-1/23 Certified copy of order sheets in DR petition no. 339/2018 Ex. RW-1/24 Site plan filed by respondent Mark X Electricity bill having due date 18.12.2018 is the photocopy Ex. RW-1/26 Attested copy of bank statement of account of respondent 6.1 Respondent also examined Sh. Surender, JA/Ahlmad as RW-2 who has proved the summoned case file bearing no. CSDJ 516/2020 titled as "Sudha Gupta & Ors. Vs. Dharmender Goel and Ors." vide Ex. RW-2/1.
6.2 RW3 Sh. Sandeep Rana, JJA, Assistant Ahlmad has proved the summoned case file bearing no. E-6/20 (2620) titled as "Sajjan Kumar Vs. Rajender Kumar Gupta" proved the same vide Ex. RW-3/1.
6.3 Respondent also examined Sh.Paras Jain, Assistant Manager/Officer who has proved the summoned record i.e statement of account of late Smt. Satyawati dated 10.03.2023 for the period w.e.f 01.01.2014 to 31.12.2014 vide Ex. RW-3/A and for the period from (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.8 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta 01.01.2015 to 31.12.2015 vide Ex. RW-3/B. 6.4 RW4 Sh. J. Vignesh, Officer at Bank of Baroda proved the summoned record i.e statement of account bearing no. 00890100007730 maintained by the respondent for the period w.e.f 01.01.2014 to 30.01.2015 vide Ex. RW-4/A along with certificate under section 2A of Banker's Book Evidence Act vide Ex. RW-4/B. 6.5 Thereafter, respondent's evidence was closed vide order dated 10.03.2023.
ARGUMENTS
7. I have heard the arguments at length. I have also carefully gone through the testimonies of the witnesses, documents and material on record and case law relied upon along with written submissions filed on behalf of both the parties.
LAW ON SEC. 14(1) (a) D.R.C. ACT:-
8. It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant: Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(a) that the tenant has neither paid nor tendered the whole arrears of the rent legally recoverable from him within two months of the day on which (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.9 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882)."
9. As such, the following are the ingredients of Section 14 (1) proviso (a) DRC Act:-
(I) relationship of landlord and tenant; (II) existence of arrears of rent legally recoverable on the date of notice of demand;
(III) service of notice of demand in the manner provided in Section 106 of the Transfer of Property Act; and (IV) failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of the date of service of notice.
10. Let us discuss the ingredients of Section 14 (1) (a) of DRC Act one by one as applicable to present facts and circumstances.
(i) RELATIONSHIP OF LANDLORD AND TENANT
11. Firstly, we need to determine whether there exists relationship of landlord and tenant between the parties to the present petition.
12. It is the admitted case of the parties to the present petition that Smt.Satyawati was the original landlord and the respondent was the tenant under her. It is also not in dispute that the petitioner is one of the legal heir of late Smt. Satyawati. Admittedly, the respondent has alleged to have sent alleged cheque to the petitioner on account of rent for the period from 01.02.2015 to 31.05.2015. Hence, the relationship of landlord and tenant is not disputed between the parties to the instant petition. Although, the respondent has alleged that there are disputes amongst the legal heirs (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.10 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta of Smt. Satyawati including the petitioner but none of the alleged legal heirs have come before the Court challenging the institution of the present petition. Even otherwise it is settled law that eviction petition can be filed by a co-owner. Hence, the relationship of landlord and tenant stands duly proved in the present case by way of admission and the present petition is very much maintainable.
13. The petitioner has claimed the respondent to be the tenant in respect of one shop bearing No. 1078, as shown in the site plan Ex. PW-1/1. The respondent has alleged that the tenanted premises consists of a shop and a room on the first floor of the said property, which has been disputed by the petitioner. Per contra, the petitioner claimed in the replication that the alleged room on the first floor is not a room but a small mezzanine inside the tenanted shop itself having a height of four and a half feet. The said fact finds support from the version of the respondent, who in his cross- examination deposed that he did not know whether the suit premises has been shown as shop with miani (mezzanine) in the MCD record. He admitted further that the height of the mezzanine is 4'6". He admitted next that the said mezzanine is a kuchha (temporary) construction. Perusal of the the site plan relied upon by the respondent as Ex.RW-1/24 also shows that in the rear side of the shop, the access of stairs leading to mezzanine has been shown. Further, from the rent receipts placed on record by the petitioner Ex.PW1/2 and Ex.PW1/2A as well as that placed on record by the respondent Ex.RW1/1 to Ex.RW1/7, it is clear that the tenancy in question consists of one shop at the ground floor and one room. Although, the contention of the petitioner that the illegal construction has been raised in the shape of mezzanine by the respondent has remained unproved, however, there seems to be no dispute regarding the identity of the tenanted premises (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.11 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta as clear from the rent receipts duly proved on record by both the parties. To my mind also, the said one room is the mezzanine as clear from the height thereof. Hence, the tenanted consists of one shop at the ground floor and mezzanine.
II. SERVICE OF LEGAL DEMAND NOTICE AND NON-
PAYMENT OF RENT
14. The petitioner has claimed the respondent to be in arrears of rent w.e.f. 01.07.2014 @ Rs.80/- per month, which the respondent failed to pay inspite of legal notice dated 10.05.2017. The demand notice dated 10.05.2015 is Ex. PW-1/4. The postal receipt of dispatch of demand notice is dated 11.05.2015 Ex.PW-1/5. The AD Card pertaining to the said notice has endorsement of 13.05.2015 and returning post office with the stamp 14.05.2015. It is argued on behalf of the learned counsel of the petitioner that the notice dated 10.05.2015 Ex. PW1/4 was served upon the respondent by 13.05.2015 or at the most 14.05.2015 and accordingly, the respondent was liable to pay the arrears of rent within two months of the service of the notice i.e. latest by 14.07.2015 / 15.07.2015.
15. Per contra, it is averred on behalf of the respondent that the entire arrears have been cleared by the respondent and the present petition is not maintainable. The respondent proved on record the rent receipts Ex.RW1/4 to Ex. RW-1/7, covering the rent for the month of July 2014 to January 2015 paid by the respondent to the mother of the petitioner Smt. Satyawati. Perusal of the said rent receipts also confirms the same. Hence, the contention of the petitioner that rent is not paid from the month of July 2014 to January 2015 totally fails as clear from the rent receipts and bank account statement of Smt. Satyawati and the respondent wherein there are clear entries of (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.12 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta payment of Rs. 80/- to Smt. Satyawati.
16. It was then urged on behalf of the petitioner that the respondent remained defaulter in the payment of rent w.e.f. 01.02.2015 to 30.04.2015 at the time of issuance of the petitioner's legal notice dated 10.05.2015. Whereas, it was contended on behalf of the respondent that the respondent deposited the rent in the court from February, 2015 to July, 2015 as clear from copy of the DR petition alongwith challan of deposit of rent as Ex. RW-1/12. It was further contended that the rent for the said period has also been sent to the petitioner through the cheque bearing no. 000054 dated 28/05/2015 for Rs. 408/-, drawn on bank at Baroda, Manak Vihar, Karkardoma, Delhi along with reply addressed to the petitioner but the petitioner deliberately refused to receive the same. Hence, it was contended that there were no arrears of rent against the respondent.
17. Hence, it is to be seen whether the arrears of rent existed at the time of service of legal notice were paid/ tendered in accordance with law. What would amount to arrears of rent as envisaged under Clause (a) to Section 14 DRC Act to be paid on service of legal notice has been explained in Smt. Prakash Mehra vs K. L. Malhotra AIR 1989 SC 1652, wherein it had been explained that the arrears under Section 14 (1) (a) of the Act are those demanded by the notice for payment of arrears of rent. The arrears due cannot be extended to rent which has fallen due after service of the notice of demand. In Ashok Kumar vs Ram Gopal 22 (1982) DLT 188, Hon'ble Delhi High Court observed that if the entire arrears of rent are not paid within two months of receipt of notice, then the tenant becomes liable for eviction. The period of two months for deposit of arrears of rent pursuant to Legal Notice of Demand under Section 14 (1) (a) of DRC Act is not directory, rather it gives a mandatory period of deposit of (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.13 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta rent as held by Hon'ble High Court of Delhi in Kewal Krishan Ahuja vs. Jagdeep Singh, CM (Main) No. 416/1994 decided on 09.11.2006.
18. Now if the tendered rent is refused by the Landlord, the obligation of the tenant does not cease there. What is the tenant expected to do in case the landlord refuses to accept rent in compliance of Legal Notice of Demand has been explained in Atma Ram Versus Shakuntala Rani (2005) 7 SCC 211, wherein it was noted that if the landlord does not accept rent tendered by him within a specified period he is required to deposit the rent in the court under Section 27 of the Act and it would not be open to a tenant to resort to any other procedure.
19. The Hon'ble Supreme Court in the case of Sarla Goel & Others Vs. Kishan Chand (2009) 7 SCC explained that it is the responsibility/liability of the tenant to comply with the demand notice under Section 14 (1) (a) of the Act and it does not end by tender or refusal. 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 dicta of Sarla Goel (supra) was followed in the case of Mohd. Abid Vs. Kausar Parveen C.M (M) No.1271/2013 decided by Hon'ble High Court of Delhi on 25.11.2014. From the aforesaid judgments it is clear that if the landlord refuses to accept rent, then the obligation of the tenant is to deposit rent in the court under Section 27 of the Act and in case he fails to do so, then he cannot claim protection from eviction under section 14(1)(a) of the Act.
21. The question which now arises is whether the respondent has tendered the rent in accordance with S.26 and whether there is (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.14 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta compliance of the demand notice sent under Section 14(1)(a) of the Act by valid deposit under Section 27 of the Act.
22. At this stage, to understand the true import, the relevant section may be reproduced. 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 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) ...
(3) ...."
23. Section 26 DRC Act 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.
24. Now we come to the most important provision which is Section 27 DRC Act which deals with the procedure under the Act to pay or deposit or tender rent to the landlord, if he refuses to accept any rent tendered by the tenant within the time referred to in Section 26. The relevant part of Section 27 reads as under:
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.15 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta
27. Deposit of rent by the tenant. (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.
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.
These may be termed as jurisidictional issues and unless these conditions are satisfied no deposit under Section 27 can be permitted.
26. 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. No doubt, the proceedings under Section 27 of the Act are summary in nature, but it is not the law that simply by deposit of rent under Section 27 of the Act, it has to be taken as a valid deposit, because, as per the very language of Section 27 of the Act the pre (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.16 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta condition of deposit of rent under Section 27 of the Act is that there is a refusal by the landlord to receive the rent and there is a time frame for making the deposit.
27. Section 28 provides for the manner of making a valid deposit. It reads as under:
28. Time limit of making deposit and consequences 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) No such deposit shall be considered to have been validly made, if the tenant willfully makes any false statement in his application for depositing the rent, unless the landlord has withdrawn the amount deposited before the date of filing an application for the recovery of possession of the premises from the tenant. (3) If the rent is deposited within the time mentioned in subsection (1) and does not cease to be valid deposit for the reason mentioned in subsection (2), the deposit shall constitute payment of rent to the landlord, as if the amount deposited had been validly tendered.
28. The conjoint reading of Section 26, Section 27 and Section 28 of the DRC Act, spells out the procedure for how the rent can be deposited if it was refused, for the tenant to avoid eviction for non payment of rent. The procedure as discernable from these provisions is that in the absence of any contract to the contrary, the tenant is required to pay/tender rent of a month by fifteenth day of the succeeding month. In case the landlord refuses to accept, it shall be (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.17 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta deposited under S. 27 in the court within 21 days. This implies that on service of legal notice the rent has to be tendered within two months and if refused it has to be deposited in the court under S.27 within 21 days of refusal.
29. In recent case law with regard to section 27 DRC Act titled as B.D. KHANNA PUBLICITY Versus JALVEEN ROSHA Respondent. (2022) 4 High Court Cases (Del)718: 2022 SCC OnLine Del 1898, it was observed as follows:
" 11. The cascading effect of Section 27 is to be felt in clause
(a) of the proviso to Section 14(1) of the DRC Act [for convenience, "Section 14(1)(a)". Where a tenant defaults in paying or tendering arrears of rent within two months of the date on which a notice in that regard is issued to the tenant by the landlord, the landlord becomes entitled to seek eviction of the tenant from the tenanted premises on that ground under the said provision. Deposit of rent by a tenant with the Rent Controller, if validly made under Section 27(1) of the DRC Act, is entitled to be treated as a valid deposit for the purposes of Section 14(1)(a). Such deposit can, therefore, defeat the eviction petition if preferred by the landlord under the said provision.
xxx
16. This is especially so as default in payment of rent results in vesting, in the landlord, of a valuable right to seek eviction of the tenant. Though the DRC Act is, conceptually, a legislation aimed at the welfare of the tenant, it has, in its practical application, been used, over time, by tenants to latch themselves onto properties of others, resulting in landlords having to battle for years to gain possession of their own (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.18 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta properties. The tenant can, therefore, plead deposit of rent in court as a valid defence to an action under Section 14(1)(a) of the DC Act only if said deposit has been made in accordance with Section 27(1), and if the case attracts one of the three circumstances envisaged in the said provision. xxxx
83. In this context, it is necessary to appreciate the purpose for which Section 27 was enacted. Non-payment of rent by a tenant to a landlord constitutes one of the grounds on which the landlord could seek eviction of the tenant. It is obvious, on its face, that Section 27 is intended to cater to a circumstance in which the tenant is willing to pay rent but the landlord is unwilling to accept it. The provision obviously intends to protect tenants from such recalcitrant landlords who do not accept the rent tendered by the tenant and, thereafter, seek to urge nonpayment of rent as a ground to evict the tenant from the premises. Section 27 is, therefore, only intended to provide an avenue by which the ten-ant, situated in such unhappy circumstances, can deposit the rent, so as to avoid an allegation of default in that regard, as a plea to defend an eviction action. By its very nature, Section 27(1) does not envisage any exhaustive inquiry into the title of the person to whom the rent is payable.
91. The structure of Sections 27(1) to (3) is, in this regard, important. Section 27(1) does not refer to making of any application by the tenant. The making of application by the tenant is envisaged, for the first time, by Section 27(2). The application, to which Section 27 (2) alludes, is to accompany the deposit made by the tenant. The "deposit", to which Section (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.19 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta 27(2) refers is obviously the deposit envisaged by Section 27(1). In other words, in the event of one or more of the exigencies envisaged by Section 27(1) applying, the tenant would, under that provision, be entited to deposit such rent with the Rent Controller. Section 27(2) contemplates that such deposit, made under Section 27(1) would be accompanied by an application containing the particulars enumerated in Section 27(2). On such deposit being made, accompanied by the application, copies of the applications are required to be sent by the Rent Controller to the landlord or to the person entitled to receive the rent, under Section 27(3).
92. Deposit has, therefore, necessarily either to accompany the application or to have been paid prior to the applications. Making of deposit subsequent to filing of the applications is inimical to the entire structure of Section 27 of the DC Act. An application seeking permission to deposit rent in court, unaccompanied by such deposit is, therefore, not maintainable under Section 27, as sub-section (2) thereof specifically envisages the application as an accompaniment to the deposit. The statute does not, therefore, envision an application without a deposit. Any application made without a deposit is not maintainable under Section 27, as it is in the teeth of sub- section (2) thereof."
30. The onus was on the respondent to prove valid tender/deposit of arrears of rent. The respondent has claimed to have tendered rent the entire arrears of rent. A perusal of registered AD Ex. PW1/R1 shows that same was sent by the respondent on 27.05.2015 and has postal receipt of 28.05.2015 and endorsement of refusal on 29.05.2015. Hence, the payment of rent was required to be made (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.20 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta under section 27 within 21 days of refusal under section 27 DCT Act.
31. However, perusal of document of respondent i.e. Ex. RW-1/12 shows that the said DR petition, bearing DR No. 335/2015 was instituted on 17.07.2015 as apparent from the filing stamp on the first page of the said petition, which itself is dated 17.07.2015 and the challan forming part of the said Ex. RW-1/12 shows the alleged deposit of rent on 04.08.2015. The period prescribed under section 14 (1)(a) DRC Act is two months. For computing the time of two months, the day when the notice of demand is served will be excluded from computation. Therefore, 14. 05. 2015 shall be excluded from the period of two months and the same shall be computed from 15.05.2015. Meaning thereby that the tenant should have tendered the arrears of rent after the expiry of two months from the date of service of notice of demand that i.e. by 15.07.2015 but the same neither been done within the said period as mandated by Section 14 (1) (d) of DRC Act nor 21 days of refusal on 29.05.2015 as required under Section 28 DRC Act. Hence, there has been no compliance of the legal notice. The failure to pay the entire arrears of rent within two months of receipt of Notice becomes a cause of action for eviction which would not be obliterated and would continue to exist till the date of the filing of eviction petition and the delayed payment on the part of the tenant does not wipe off the cause of action and would not defeat the petition for eviction as observed in the case of Mst. Saeedan vs Shri Jawala Pershad, 1978 (1) RGR 31. In that case, the tenant had paid the rent before the institution of proceedings under Section 14 (1) of the Act but the benefit of Section 14 (2) of DRC Act was still not granted as the payment was made after two months of service of Legal Notice when the cause of action had already accrued
32. The contention of the respondent that once deposit of (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.21 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta rent is allowed under Section 27 of DRC Act 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).
33. It is also to be noted in the DR Petition Ex. RW1/12, it is nowhere mentioned that the respondent made payment of the rent by way of cheque.Mere fact of sending the cheques towards the rent by way of post would not by itself suffice to hold that the tender in question was legal.
34. The payment by cheque is an ordinary incident of the present day life and unless it is specifically mentioned that payment must be in cash, payment by cheque shall be taken to be due payment if the cheque is subsequently encashed in the ordinary course. There is neither any agreement not previous practice of receiving of rent by way of cheque between the parties to the present petition. Further, there is nothing on record if the said cheque was ever encashed. The right course would be to take the recourse of section 27 DRC Act rather than sending the payment by way of cheque. Further, recourse to section 27 DRC Act can be made within the stipulated period and not after the period of two months of the service of demand notice.
35. Further from a perusal of DR petition Ex. RW-1/12 for deposit of rent for the period from February, 2015 to December, 2015, it is apparent that the respondent allegedly deposited the rent @ Rs.80/- per month for the aforesaid entire period, despite service of the legal demand notice dated 10.05.2015 Ex. PW-1/4. It is urged on behalf of the learned counsel of the petitioner that the respondent was bound to increase the rent by 10% from Rs.80/- to Rs.88- per month (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.22 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta after lapse of one month of the service of the said legal notice dated 10.05.2015, which notice has not been disputed by the respondent. Whereas, the said legal notice has been replied vide reply dated 27.05.2015. Surprisingly, the respondent himself stated that payment of rent was made by way of cheque w.e.f. 01.02.2015 to 31.05.2015 @ Rs.80/- and for the month of June @ Rs. 88/-. Hence, the respondent himself admits that the payment of rent for the month of June, 2015 was Rs. 88/-. However, in all the DR petition Ex.PW1/12 from February 2015 to July 2015; Ex. PW1/3 from August 2015 to March 2016; Ex.PW1/14 from April 2016 to August 2016 and Ex.PW1/15 from September 2016 to January 2017 rent has been calculated @ Rs. 80/- per month.Whereas, in DR Petition Ex.RW1/16 from February 2017 to October 2017,the rent has been paid for nine months @Rs.88/-per month and the said petition has been filed on 17.10.2017. Similar is the rate of rent in DR petition Ex. RW1/17 from November 2018 to December 2018 filed on 10.12.2018. However, it is clear from the said two DR petitions that the interest is not included therein. Increased rent under the Act as well as interest becomes legally recoverable and if not paid or tendered then Section 14 (1)(a) DRC Act is attracted.Hence, without payment of increased rent and interest, the same can not be considered as proper tender of rent as Section 26 of the Act states that the rent has to be deposited along with interest @ 15% per annum for the default period. The tender/deposit of increased rent should have been made along with interest @ 15% per annum as mandated by Section 26 of the Act. However, the rent that was deposited did not include the interest for this period and was not even increased rent. Further, the DR application without a deposit is not maintainable as clear from case law titled as B.D. Khanna (supra). Clearly, none of the DR petitions filed by the respondent is (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.23 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta accompanied with deposit of rent. Thus, there was no valid deposit of arrears of rent in response to the Legal Notice. Merely for the reason that objections were not filed on behalf of the petitioner in the DR petitions filed by the respondent does not mean that rent deposited is valid tender as DR petitions are summary in nature and does not envisage exhaustive enquiry.
36. The validity of deposit of rent so made under Section 27 DRCt Act is considered in the proceedings under Section 14 (1) (a) for it requires evidence and determination of facts which may be disputed.
37. To conclude, the deposit of rent under Section 27 of DRC Act, pursuant to the Legal Notice of Demand is not shown to be valid and in accordance with Section 27 and 28 of DRC Act as it was not deposited within two months of service of Legal Notice and also the interest @ 15% on due rent amount was not included. Since the respondent defaulted in paying the entire arrears of rent within two months of service of Legal Notice, the ground for eviction under Section 14(1)(a) is made out.
38. Hence, the present petition being filed on 07.12.2018 as such under law the petitioner is entitled to the rent for the period from three years preceding the date of filing the petition w.e.f 07.12.2015.
39. Further, Order under section 15 (1) of the DRC Act has been passed on 24.04.2019 to the effect that the respondent is directed to pay the entire arrears of rent if due w.e.f.01.12.2019@ Rs.88/- per month as well as to pay the future rent at the same rate on or before 15th of each English Calendar month during the pendency of the present petition. Hence, modified order is hereby being passed to the effect that the respondent is directed to pay the entire arrears of rent w.e.f.07.12.2015 @ Rs.88/- per month with interest @ 15% per annum within one month from the date of this judgment and he is (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.24 of 25 RC ARC No: 1050/18 Sajjan Kumar Vs. Rajender Gupta further directed to pay or tender or deposit the future rent at the same rate on or before the 15th day of each succeeding English Calender Month .
CONCLUSION
40. In view of the aforesaid discussion and settled proposition of law, this court has come to the conclusion that the petitioner has satisfied all the ingredients of Section 14(1)(a) of D.R.C. Act in respect of tenanted premises i.e. one shop and mezzanine bearing no. 1078, Ground Floor, forming part of property no. 1077-78, Kucha Natwa, Chandni Chowk, Delhi- 110006, as shown in colour red in the site plan Ex. PW1/1 which is further clear from the site plan Ex. RW1/24. Hence, eviction petition filed by petitioner against the respondent under section 14 (1) (a) of the DRC Act is allowed.
41. Ahlmad is directed to prepare a separate file for the consideration of benefit under section 14 (2) of Delhi Rent Control Act. Nazir is also directed to file his report on 29.02.2024 regarding compliance of order passed by this court today.
42. Miscellaneous file be prepared for ascertaining the benefits under section 14(2) of the D.R.C. Act.
43. File be consigned to Record Room after due compliance.
Digitally signedAnnounced in the open Court NEETU by NEETU
NAGAR
on 12.01.2024 NAGAR Date:
2024.01.12
(This judgment contains 25 pages) 17:49:28 +0530
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(the then ARC-02, Central District,
Tis Hazari Courts, Delhi).
(NEETU NAGAR)
JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.25 of 25