Delhi High Court
Jalveen Rosha vs B. D. Khanna Publicity on 4 July, 2022
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26th May, 2022
Pronounced on: 4th July, 2022
+ CM(M) 62/2022 & CM APPL. 3222/2022
B D KHANNA PUBLICITY ..... Petitioner
Through: Mr. Kamlesh Anand, Adv.
versus
JALVEEN ROSHA ..... Respondent
Through: Ms. Deepika Marwaha, Sr.
Adv. with Mr. Alok Pandey and Ms.
Raunika Johar, Advs.
+ CM(M) 644/2021 & CM APPL. 33300/2021
JALVEEN ROSHA ..... Petitioner
Through: Ms. Deepika Marwaha, Sr.
Adv. with Mr. Alok Pandey and Ms.
Raunika Johar, Advs.
versus
B. D. KHANNA PUBLICITY ..... Respondent
Through: Mr. Kamlesh Anand, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
04.07.2022
1. Jalveen Rosha (―Jalveen‖, hereinafter), claiming to be the
owner and landlord of C-10, Defence Colony, New Delhi-110048
(―the suit property‖), filed a petition under clause (a) of the proviso to
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
Section 14(1)1 of the Delhi Rent Control Act, 1957 (―the DRC Act‖),
seeking to evict M/s B.D. Khanna Publicity (the tenant in the first
floor of the suit property and referred to, hereinafter, as ―Khanna‖, for
the sake of convenience) from the premises in its occupation. The
said Eviction Petition is presently pending before the learned
Additional Rent Controller (―the learned ARC‖). It does not seriously
concern us.
Facts
2. The present petition emanates from three petitions, DR
53/2020, DR 61/2020 and DR 67/2020, filed by Khanna before the
learned ARC under Section 27(1)2 of the DRC Act. The learned ARC
allowed all three petitions. Aggrieved, Jalveen appealed to the learned
Rent Control Tribunal (the learned RCT), by way of RCT ARCT
02/2021 (directed against the order passed in DR 53/2020), RCT
ARCT 03/2021 (directed against the order passed in DR 61/2020) and
RCT ARCT 01/2021 (directed against the order passed in DR
57/2020). The impugned judgment dated 6th August, 2021, of the
1
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 any court or 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 the 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 of the arrears of the rent
legally recoverable from him within two months of the date on which 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);
2
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 of 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.
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
learned RCT, dismisses RCT ARCT 02/2021 and RCT ARCT
03/2021, and allows RCT ARCT 01/2021.
3. Aggrieved, Jalveen and Khanna have both petitioned this Court.
CM (Main) 644/2021, instituted by Jalveen, assails the impugned
judgment insofar as it dismisses RCT ARCT 02/2021 and RCT ARCT
03/2021. CM (Main) 62/2021, instituted by Khanna, assails the
impugned judgment insofar as it allows RCT ARCT 01/2021.
4. Khanna sought, by DR 53/2020 and DR 61/2020, permission of
the learned ARC to deposit the rent, in respect of the suit property, for
the months of October 2020 and November, 2020, with the learned
ARC. DR 67/2020 sought similar permission in respect of the rent
payable for the period December 2020 to May 2021. Permission, as
sought, was granted by the learned ARC, for all the aforesaid three
periods. By the impugned judgment dated 6th August, 2021, however,
the learned RCT has reversed the decision of the learned ARC insofar
as it related to deposit of rent payable for the period December 2020
to May 2021 and maintained the decision insofar as it related to
deposit of the rent payable for the months of October 2020 and
November 2020.
5. Before this Court, Jalveen, therefore, urges that Khanna was not
entitled to be permitted to deposit the rent with the learned ARC for
any of the aforesaid three periods, whereas Khanna would seek to
contend, per contra, that the said permission ought to have been
granted to it for all the three periods.
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Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 3 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
The provisions in question
6. As has been correctly observed by the learned RCT, Section
27(1) of the DRC Act applies if
(i) the landlord does not accept rent tendered by the tenant
within the time stipulated in Section 26, or
(ii) the landlord refuses or neglects to deliver a receipt
referred to in Section 26, or
(iii) there is a bona fide doubt as to the person or persons to
whom the rent is payable.
The existence of any one of these circumstances would suffice for the
tenant to be entitled to deposit the rent with the Rent Controller.
7. The first of the three exigencies envisaged by Section 27(1) and
delineated in para 6 (supra) arises where the tenant tenders rent within
the time stipulated in Section 26 and the landlord does not accept the
rent so tendered. Two pre-conditions are, therefore, required to be
satisfied for this exigency to apply, viz (a) tendering, by the tenant, of
rent, within the period stipulated in Section 26 and (b) refusal, by the
landlord, to accept such rent.
8. Section 27(2)3, however, makes it clear that the tenant would
have, in the event of one or more of the aforesaid three circumstances
3
27. Deposit of rent by the tenant. -
*****
(2) The deposit shall be accompanied by an application by the tenant containing the
following particulars, namely:-
(a) the premises for which the rent is deposited with a description sufficient for
identifying the premises;
(b) the period for which the rent is deposited;
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
existing, have to deposit the rent for the concerned month upfront with
the Rent Controller, and, accompanying the deposit, move an
application for permission to do so, containing the particulars
enumerated in the sub-section.
9. Sub-section (1) of Section 264 requires the tenant to pay rent
within the contractually stipulated period or by the 15th day of the
month following the month for which rent was payable. Sub-sections
(2) and (3) deal with furnishing of receipt by the landlord and the
procedure to be followed in default thereof. They are not of particular
relevance to the present case.
10. 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
(c) the name and address of the landlord or the person or persons claiming to be
entitled to such rent;
(d) the reasons and circumstances for which the application for depositing the rent
is made;
(e) such other particulars as may be prescribed.
4
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.
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
Section 14(1)(a). Such deposit can, therefore, defeat the eviction
petition if preferred by the landlord under the said provision.
11. The learned RCT has, in the impugned judgment, relied upon
the decisions of the Supreme Court in Kuldeep Singh v. Ganpat Lal5,
M. Bhaskar v. Venkatarama Naidu6 and E. Palanisamy v.
Palanisamy7. Though the provisions under examination in these cases
are not in haec verba with Section 27 of the DRC Act, they are, to the
extent necessary, in pari materia, as they also envisaged
circumstances in which the tenant could deposit rent in the Court, on
the tenant being unable to deposit the rent with the landlord or on the
landlord refusing to accept the rent. These decisions are, therefore,
undoubtedly relevant to the controversy at hand.
12. They are all cases in which, however, consequent on the court
finding that the deposit of rent by the tenant with Rent Controller was
not validly effected in accordance with the relevant provisions in that
regard, as contained in the applicable rent control statute, orders of
eviction followed. In the present case, matters have not reached that
stage, as the impugned judgment of the RCT, as well as the judgments
dated 6th August, 2021 of the learned ARC, adjudicate the applications
of Khanna under Section 27 of the DRC Act, for being permitted to
deposit of rent in respect of the suit property for the months of
October 2020 and November 2020 and for the period December 2020
to May 2021, in Court.
5
(1996) 1 SCC 243
6
(1996) 6 SCC 228
7
(2003) 1 SCC 123
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
13. Inasmuch as the judgment in E. Palanisamy5 considers the
earlier decision in Kuldeep Singh3 and M. Bhaskar4, one need
reproduce, for the sake of reference only, passages 5 to 8 of E.
Palanisamy5, thus:
―5. Mr Sampath, the learned counsel for the appellant
argued that since the appellant tenant had deposited the
arrears of rent in court, it should be taken as compliance with
Section 8 of the Act. This would mean there is no default on
the part of tenant in payment of rent and therefore, no
eviction order could have been passed against the appellant
on that ground. According to the learned counsel, the court
should not take a technical view of the matter and should
appreciate that it was on account of refusal of the landlords to
accept the rent sent by way of money orders that the tenant
was driven to move the court for permission to deposit the
arrears of rent. Since there is a substantial compliance with
Section 8 inasmuch as the arrears of rent stand deposited in
court, a strict or technical view ought not to have been taken
by the High Court. We are unable to accept this contention
advanced on behalf of the appellant by the learned counsel.
The rent legislation is normally intended for the benefit of the
tenants. At the same time, it is well settled that the benefits
conferred on the tenants through the relevant statutes can be
enjoyed only on the basis of strict compliance with the
statutory provisions. Equitable consideration has no place in
such matters. The statute contains express provisions. It
prescribes various steps which a tenant is required to take. In
Section 8 of the Act, the procedure to be followed by the
tenant is given step by step. An earlier step is a precondition
for the next step. The tenant has to observe the procedure as
prescribed in the statute. A strict compliance with the
procedure is necessary. The tenant cannot straight away jump
to the last step i.e. to deposit rent in court. The last step can
come only after the earlier steps have been taken by the
tenant. We are fortified in this view by the decisions of this
Court in Kuldeep Singh v. Ganpat Lal8 and M. Bhaskar v. J.
Venkatarama Naidu9.
8
(1996) 1 SCC 243
9
(1996) 6 SCC 228
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
6. The counsel for the appellant did not dispute that the
tenant had not fulfilled the conditions prescribed in Section 8
of the Act before making deposit of rent in court. Hence
similar circumstances and while dealing with almost similar
provisions contained in the Rajasthan Premises (Control of
Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v.
Ganpat Lal8 (SCC p. 249, para 8):
―8. In the present case, the appellant is seeking to
avail of the benefit of the legal fiction under Section
19-A(4) of the Act. It is settled law that a legal fiction
is to be limited to the purpose for which it is created
and should not be extended beyond that legitimate
field. [See Bengal Immunity Co. Ltd. v. State of
Bihar10. The appellant can avail of the benefit of
Section 19-A(4) if the deposit of Rs 3600 made by him
in the Court of Munsif (South), Udaipur, on 29-10-
1982, by way of rent for the months of May 1982 to
October 1982, can be treated as a payment under
Section 19-A(3)(c) so as to enable the appellant to say
that he was not in default in payment of rent. Under
Section 19-A(3)(c) the tenant can deposit the rent in
the court only if the conditions laid down in the said
provision are satisfied. It is the admitted case of the
appellant that these conditions are not satisfied in the
present case. The deposit which was made by the
respondent in court on 29-10-1982 cannot, therefore,
be regarded as a deposit made in accordance with
clause (c) of sub-section (3) of Section 19-A and the
appellant cannot avail of the protection of sub-section
(4) of Section 19-A and he must be held to have
committed default in payment of rent for the months of
May 1982 to October 1982. This means that the decree
for eviction has been rightly passed against the
appellant on account of default in payment of rent for
the period of six months.‖
7. Again in M. Bhaskar v. Venkatarama Naidu9 with
reference to similar provisions contained in the A.P.
Buildings (Lease, Rent and Eviction) Control Act, 1960, this
Court observed that when the landlord is evading payment of
rent, the tenant has to follow the procedure prescribed under
10
AIR 1955 SC 661 : (1955) 2 SCR 603
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
Section 8 of the Act i.e. to issue notice to the landlord to name
the bank and if he does not name the bank, the tenant has to
file application before the Rent Controller for permission to
deposit rent. The tenant did not follow that procedure.
Omission to avail of the prescribed procedure disentitles the
tenant to plead that there was no wilful default on his part.
The landlord was, therefore, entitled to seek eviction on the
ground of wilful default in payment of rent on the part of the
tenant.
8. Admittedly the tenant did not follow the procedure
prescribed under Section 8. The only submission that was
advanced on behalf of the appellant was that since the deposit
of rent had been made, a lenient view ought to be taken. We
are unable to agree with this. The appellant failed to satisfy
the conditions contained in Section 8. Mere refusal of the
landlord to receive rent cannot justify the action of the tenant
in straight away invoking Section 8(5) of the Act without
following the procedure contained in the earlier sub-sections
i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we
are of the considered view that the eviction order passed
against the appellant with respect to the suit premises on the
ground of default in payment of arrears of rent needs no
interference. The impugned judgment of the High Court,
therefore, does not call for interference. These appeals are
dismissed. We are informed that the landlords have already
taken possession of the suit premises, in pursuance of the
High Court judgment.‖
(Emphasis supplied)
14. Equity, therefore, has no part to play in interpreting Section 27
of the DRC Act. The tenant can be permitted to deposit the rent in
Court only if there is strict compliance with the provisions of Section
27 and the case falls within one of the three exigencies envisaged by
the provision and delineated in para 6 (supra). If none of these
circumstances exists, it is not open to the Rent Controller or to the
Court to permit the rent to be deposited in Court on equitable,
sympathetic or compassionate considerations.
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
15. 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 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
DRC 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.
16. In the present case, the learned ARC held that Khanna was
entitled to deposit the rent payable to Jalveen for the months of
October 2020, November 2020 and for the period December 2020 to
May 2021, in Court. DR 53/2020, DR 61/2020 and DR 67/2020 were,
thus, allowed by the learned ARC. The learned RCT held Khanna to
be eligible to be entitled to the benefit of Section 27(1) for the months
of October 2020 and November 2020, but not for the period December
2020 to May 2021. The judgment of the learned ARC in DR 53/2020
and DR 61/2020 was, thus, maintained, and the judgment of the
learned ARC was reversed qua DR 67/2020.
Applications/petitions of respondent under Section 27 of the DRC Act
DR 53/2020
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
17. DR 53/2020 sought permission for Khanna to deposit rent,
payable to Jalveen for the month of October 2020, with the learned
ARC. The application was filed on 10th November, 2020. The first
exigency in Section 27(1) applies where the landlord fails to accept
rent tendered by the tenant within the time referred to in Section 26.
Invocation of this exigency by the tenant, in support of a prayer for
permission to deposit, in Court, rent payable for the month of October,
2020 would, therefore, necessarily require the tenant to pay the rent on
or before 15th November, 2020, being the stipulated period in Section
26(1) of the DRC Act (as it is nobody's case that there was any other
contractually fixed date for payment of rent).
18. DR 53/2020 notes the fact that, by notice dated 27 th August
2020, Jalveen had informed Khanna that the bank account of the
Punjab National Bank at Greater Kailash-I, in which rent was, till
then, being paid by Khanna, had been closed.11 A reading of the said
notice dated 27th August 2020 reveals that it was issued under Section
6A12 read with Sections 813 and 14(1)(j)14 of the DRC Act. Section
11
This is not strictly correct, as would be noted hereinafter, as the intimation regarding closure of the bank
account of Jalveen was contained in a later communication dated 25th September 2020 which was, however, a
follow up to the communication dated 27th August 2020.
12
6-A. Revision of rent. - Notwithstanding anything contained in this Act, the standard rent, or, where no
standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed
upon between the landlord and the tenant, may be increased by ten per cent every three years.
13
8. Notice of increase of rent. -
(1) Where a landlord wishes to increase the rent of any premises, he shall give the tenant
notice of his intention to make the increase and in so far as such increase is lawful under this Act, it
shall be due and recoverable only in respect of the period of the tenancy after the expiry of thirty
days from the date on which the notice is given.
(2) Every notice under sub-section (1) shall be in writing signed by or on behalf of the
landlord and given in the manner provided in section 106 of the Transfer of Property Act, 1982 (4
of 1882).
14
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 any court or Controller in
favour of the landlord against a tenant:
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
6A allows a landlord to increase the agreed rent by 10% every three
years. Where this option is exercised by the landlord, Section 8(1)
requires the landlord to issue a notice to the tenant, evincing the
landlord intent to increase the rent. The increased rent becomes due
and recoverable only on the expiry of 30 days from the date of such
notice. Exercising the aforesaid option, notice dated 27 th August 2020
from Jalveen to Khanna notified Khanna of the enhancement, by
Jalveen, of the rent payable to her in respect of the suit property, from
₹ 2,750/- per month to ₹ 3,025/- per month, to take effect from 1st
October, 2020, i.e. after the expiry of 30 days from the date of the
notice. The notice also relied on the fact that Khanna had attorned in
1994, to M/s Oak View Farms Pvt Ltd (OVFPL) in respect of the suit
property and was, since the date of such attornment, paying rent to
OVFPL. OVFPL had sold the suit property to Jalveen vide Sale Deed
dated 28th July, 2017, whereafter, as per the notice, Khanna had, vide
letter dated 25th September, 2017, attorned to Jalveen as well. Since
that date, pointed out the notice, Khanna had been paying rent, in
respect of the suit property, to Jalveen, by deposit in the bank account
of Jalveen at the branch of the Punjab National Bank (PNB) located at
Greater Kailash-I (GK-I).
19. I may note, here, that, though the applications, under Section 27
of the DRC Act, filed by Khanna, aver that Jalveen had, vide notice
dated 27th August 2020, informed Khanna that she had closed the bank
Provided that the Controller may, on an application made to him in the prescribed
manner, make an order for the recovery of possession of the premises on one or more of the
following grounds only, namely: -
*****
(j) that the tenant has, whether before or after the commencement of this Act,
caused or permitted to be caused substantial damage to the premises;
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
account at the GK-I branch of PNB, this information was, in fact,
contained, not in the notice dated 27th August 2020, but in the
rejoinder dated 24th September 2020, issued by Jalveen to Khanna, in
response to the reply dated 17th September 2020 of Khanna to the
legal notice dated 27th August 2020 of Jalveen. In the said rejoinder
dated 24th September 2020, Jalveen informed Khanna that the bank
account in which, theretofore, Khanna was depositing rent, had been
closed and that rent would, therefore, have to be paid directly by
cheque to Jalveen.
20. DR 53/2020 sought to justify the prayer for permission to
deposit rent in Court for the month of October 2020, on the following
grounds (―the respondent‖ being Jalveen and ―the applicant‖ Khanna):
―a. The respondent has not produced any ownership
document till date vis-à-vis C-10, First Floor, New Delhi-
110048, which make to believe a genuine apprehension that
she is not the owner of the said premises and has been
illegally trying to dispossess the tenant.
b. The applicant is under no obligation to pay rent to an
illegal and unauthorized occupant/person i.e. the respondent,
however, due to undertaking given before the Hon'ble Court
of Ld. ARC the petitioner is obliged to pay a rent of
Rs.2,750/- to respondent.
c. The Applicant has been paying a sum of Rs.2,750/- per
month to respondent only under the undertaking dated
23.09.2017 given before the court of Ld. ARC, Saket Court.‖
Though DR 53/2020 prayed that Khanna be allowed to deposit rent @
₹ 2,750/- ―for the month of 10th November 2020‖, a reading of the
application, particularly recital (b) therein, reveals that the application
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
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was seeking permission to deposit rent in Court for the month of
October 2020.
21. Khanna acknowledged, in DR 53/2020, that it was paying rent
to Jalveen as per an undertaking dated 23rd September, 2017 tendered
before the learned ARC. This undertaking was tendered on the basis
of a statement by Capt. Rajinder Singh Rosha, husband of Jalveen,
tendered before the learned ARC on 23rd September, 2017, and
recorded thus:
―M/s B.D. Khanna Publicity v. M/s Oak View Farms Pvt.
Ltd. and anr.
New EV No. 5234/16
23.09. 2017
Statement of Capt. Rajender Singh Rosha s/o late H.S. Rosha
r/o M-131, Greater Kailash Part-I, New Delhi.
ON SA
I am the AR of the respondent no. 1. I am making
statement upon instructions given by respondent no. 1. The
respondent's no. 1 company has transferred its interest and
title with respect to the property bearing no. C-10, Kailash
Colony, New Delhi - 48 on 28.07.2017, in favour of Ms.
Jalbeen Rosha r/o M-131, Greater Kailash Part-I, New Delhi.
The petitioner's tenant may kindly pay the rent to the new
owner from herein now. A letter of atonement shall be issued
to the petitioner within one week.
Sd. Sd.
RO & AC (Vikrant Vaid)
ACJ/CCJ/ARC-(SE)
Saket Court, New Delhi -23.09.2017‖
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
22. Following the aforesaid statement, OVFPL wrote, on 25th
September, 2017, to Khanna, informing Khanna that, vide sale deed
dated 27th July, 2017, all rights and title in respect of the suit property
stood transferred by OVFPL to Jalveen. Khanna was, therefore, called
upon to attorn to Jalveen as its landlord, entitled to receive rent in
respect of the suit property, with the terms and conditions of tenancy
being the same as applied between OVFPL and Khanna.
23. Khanna, in response, addressed the following communication to
Jalveen on 14th October, 2017:
―14-10-2017‖
Ms. Jalveen Rosha
W/o Capt. Rajinder Singh Rosha
R/o M-131, Greater Kailash-1
New Delhi-110048
Madam,
Sub: Rented Property bearing No. C-10, Kailash
Colony (first Floor), New Delhi.
We are in receipt of a letter dated 25.09.2017 received
under the signature of Mrs.Harjas Kaur Anand, Director of
M/s Oak View Farms Pvt. Ltd., C-10, Kailash Colony, New
Delhi-110048 (received by us on 04.10.2017( stating that the
above mentioned property has now been sold out to your good
self therefore the rent for the same i.e. let out portion of C-10,
First Floor, Kailash Colony, New Delhi along with servant
quarter car parking and other common facilities etc. be now
directly paid to your good self i.e. Mrs. Jalveen Rosha, W/o
Caption Rajinder Singh Rosha, R/o M-131, Greater Kailash-1,
New Delhi-110048 as new landlord on a monthly rent of ₹
2750/- on same terms and conditions with the previous
landlord.
In order to transfer the rent through digital mode for
direct payment to your account, we shall request you to please
forward to us the following information:
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 15 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
Name of A/c Holder:
Type of Account: Current/Saving/OD/other
Name of Bank:
Branch Address:
Branch IFSC Code:
It shall be preferred if you attach a photo-copy of a
cancelled cheque containing the requisite information to avoid
any chance of error.
Kindly acknowledge and do the needful ASAP.
Thanking you
Your sincerely
For B.D. Khanna publicity
Sd/-
Kuldip Khanna‖
24. DR 53/2020 sought to invoke Section 27(1) of the DRC Act on
the sole ground that Khanna had a genuine apprehension that Jalveen
was not the owner of the suit property, as she had not produced any
ownership document till that date. It was contended that, despite the
ownership of Jalveen over the suit property being thus in jeopardy,
Khanna was paying rent to Jalveen only on the basis of the
undertaking tendered before the learned ARC on 23 rd September,
2017.
25. There was, in fact, no such undertaking, as the learned RCT
rightly observes. Following the statement of Capt Rajinder Singh
Rosha, before the learned ARC on 23rd September 2017 to the effect
that OVFPL had transferred its rights, title and interest in the suit
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 16 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
property to Jalveen on 28th July 2017, OVFPL wrote to Khanna on
25th September 2017 to pay rent, thereafter, to Jalveen, to which
Khanna acquiesced vide reply dated 14th October 2017. The decision
to commence paying rent to Jalveen from October 2017 was,
therefore, voluntarily taken by Khanna.
DR 61/2020
26. DR 61/2020 sought permission for Khanna to deposit rent @ ₹
2,750/-, for the month of November 2020, in Court. The contents of
the application/petition were identical to those of DR 53/2020, but
with an additional allegation to the effect that Khanna had paid rent @
₹ 2,750/-, for October and November 2020, to Jalveen by way of
RTGS bank transfer but that Jalveen had mischievously returned the
amount to the account of Khanna by a reverse entry.
DR 67/2020
27. By this application, Khanna sought permission to deposit the
rent payable to Jalveen in respect of the suit property for the period
December 2020 to May 2021 with the learned ARC. Besides
reiterating the submission, already advanced in DR 53/2020 and DR
61/2020, that Khanna had bona fide doubts regarding the ownership of
Jalveen over the suit property, DR 67/2020 additionally sought to
justify the request for permission to deposit the rent for the period
December 2020 to May 2021 with the learned ARC on the ground that
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 17 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
the deposit made by Khanna for the months of October 2020 and
November 2020 had been returned by Jalveen.
Comparative evaluation of the applications
28. A comparative evaluation of DR 53/2020, DR 61/2020 and DR
67/2020 discloses, therefore, that the grounds urged by Khanna, in
each of these applications, to justify the prayer for permission to
deposit rent in Court were distinct and different, albeit to a slight
extent. The only ground urged in DR 53/2020, pertaining to the
month of October 2020, was that Khanna had bonafide doubts
regarding ownership of Jalveen over the suit property. DR 61/2020,
dealing with the month of November 2020, urged, in addition, that the
rent for occupation of the suit property had in fact been transferred by
Khanna into the bank account of Jalveen for the months of October
and November, 2020 by way of RTGS transfer, but had been returned.
DR 67/2020, while again reiterating the ground of bonafide doubt
regarding ownership of Jalveen over the suit property, additionally
sought to justify the request for permission to deposit the rent in Court
on the ground that Jalveen had, by returning the rent deposited by
Khanna by way of RTGS transfer for the months of October and
November, 2020, effectively refused to accept rent from Khanna,
leaving Khanna with no option but to deposit the rent in Court.
29. DR 53/2020, DR 61/2020 and DR 67/2020 were allowed by the
learned ARC vide three separate orders passed on 6th April 2021. The
reasoning of the learned ARC is contained in the following
paragraphs, which are identical in the three orders:
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 18 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
―These are summary proceedings before this court U/s. 27 of
DRC Act in cases where the landlord does not accept any rent
tendered by the tenant or there is a bonafide doubt as to the
person or persons to whom the rent is payable, the tenant is
allowed to approach the court to deposit such rent in court.
Now, in the present case, the applicant claims that he is
disputing the title of the non applicant qua the property in
question and the applicant claims that non applicant is an
illegal and unauthorized occupant of the property and is
depositing the amount of Rs.2750/- with this court on the
basis of an undertaking dated 23.09.2017 given by the
applicant earlier. This is strongly countered by the non
applicant who claims that whether it is a valid tender of rent
or not has to be decided by this court. In my opinion,
considering the rival arguments of the parties, the said
intricate questions of fact and law cannot be decided in a
summary proceedings.
Accordingly, without prejudice to the rights and
contentions of the parties, the present petition is disposed off
with liberty to the respondent to withdraw the amount deposit
with court, if so advised.‖
30. Appeals RCT ARCT 01/2021, RCT ARCT 02/2021 and RCT
ARCT 03/2021 were preferred by Jalveen before the learned RCT,
challenging the aforesaid orders dated 3rd April, 2021 passed by the
learned ARC in DR 67/2020, DR 53/2020 and DR 61/2020
respectively.
Rival Contentions before the learned RCT
31. Jalveen contended, before the learned RCT, that none of the
three exigencies, in which alone permission to deposit rent with the
learned Rent Controller could be granted under Section 27 of the DRC
Act, applied in the present case. Inasmuch as rent had continuously
been deposited by Khanna in the bank account of Jalveen since 2017
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 19 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
(and, prior thereto, paid to OVFPL), it was contended, by Jalveen, that
Khanna could not plead any bonafide doubt regarding the person to
whom rent was payable. Khanna's contention that it had paid, to
Jalveen, the rent payable for the months of October and November
2020, was also contested. Apropos the purported deposits for the
months of October and November 2020, Jalveen contended that no
such valid deposit had taken place for two reasons. The first was that
the purported deposit had been made by way of RTGS to the bank
account of Jalveen which, as Jalveen had already informed Khanna
vide rejoinder legal notice dated 24th September, 2020, stood closed.
Khanna having been called upon, by Jalveen, by the said rejoinder
legal notice dated 24th September, 2020, as well as by the original
legal notice dated 27th August, 2020, to pay the rent directly to
Jalveen, it was contended that bank to bank RTGS transfer of rent by
Khanna could not be treated as valid payment. Jalveen contended that
the said RTGS transfer, by Khanna, was not bonafide, as Khanna was
well aware of the fact that the bank account was closed and that,
therefore, the payment would bounce back. Apparently, therefore,
Khanna was only attempting to create a smokescreen, to contend that
it had paid rent for the months of October and November, 2020,
without actually making such payment. No payment having been
made by Khanna to Jalveen for the months of October and November
2020, Jalveen contended that there could not, quite obviously, arise
any question of her refusing to accept rent from Khanna for the said
months.
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 20 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
32. Additionally, Jalveen contended that, in order to plead payment
of rent to the landlord, and refusal by the landlord to accept the rent so
paid, as a ground to seek permission to deposit the rent with the
learned Rent Controller under Section 27 of the DRC Act, the tenant
would have to establish that it had paid the proper quantum of rent.
Khanna had been specifically informed, vide legal notice dated 27th
August 2020, that Jalveen had enhanced the rent, under Section 6A of
the DRC Act, to ₹ 3,025/- per month, w.e.f. 1st October 2020. Jalveen
alleged that Khanna had, by not placing the said legal notice dated 27th
August 2020, on record, concealed and suppressed the fact of
enhancement of rent. Apart from contending that such concealment
and suppression itself constituted a ground to reject Khanna's
application for permission to tender rent in Court, in view of Section
28(2)15 of the DRC Act, Jalveen further asserted that, as rent stood
enhanced w.e.f. 1st October, 2020 to ₹ 3,025/- per month, the
purported payment, by Khanna, @ ₹ 2,750/- per month, for the
months of October and November, 2020, could not regarded as valid
payment for the purposes of Section 27(1) read with Section 26(1) of
the DRC Act.
33. Insofar as the period December 2020 to May 2021 was
concerned, Jalveen contended that Khanna had not even attempted to
make any payment of rent to her for the said period.
15
28. Time limit of making deposit and consequences of incorrect particulars in application for
deposit -
*****
(2) No such deposit shall be considered to have been validly made, if the tenant wilfully
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.
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 21 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
34. As, therefore, none of the three exigencies, in which alone
permission to deposit rent in Court could be granted under Section
27(1) of the DRC Act applied, Jalveen contended that the learned
ARC had erred in allowing Khanna's applications under Section 27 of
the DRC Act.
35. Responding to Jalveen's submissions, Khanna disputed the
contention that the bank account, in which rent was theretofore being
deposited by Khanna, stood closed, as stated by Jalveen in the
rejoinder legal notice dated 24th September, 2020. Khanna submitted
that, rather, the RTGS transfer effected by it of the rent payable for the
months of October and November 2020, had gone through, but was
later mischievously returned by Jalveen by way of a reverse entry.
This return, contended Khanna, amounted to refusal by Jalveen to
accept the rent tendered by Khanna.
36. Khanna further contended that the ownership of Jalveen over
the suit property was seriously in jeopardy. The validity of the Sale
Deed, whereunder Jalveen claimed to have obtained the title over the
suit property, was questioned. Additionally, Khanna also questioned
the validity and enforceability of the letter dated 14th October 2017
whereby Khanna had attorned to Jalveen in respect of the suit
property. It was contended by Khanna, that the said communication
dated 14th October 2017 was a consequence of the misleading
statement made by Capt Rajinder Singh Rosha before the learned
ARC on 23rd September 2017 [reproduced in para 17 (supra)] to the
effect that title in respect of the suit property stood transferred in
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 22 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
favour of Jalveen. The attornment of Khanna to Jalveen in respect of
the suit property being thus a consequence of an allegedly false and
fraudulent statement made by Capt. Rajinder Singh Rosha before the
learned ARC on 23rd September, 2017, Khanna sought to contend that
no valid attornment had, in fact, taken place.
37. As such, both on the ground of existence of a bonafide doubt
regarding the title and ownership of Jalveen over the suit property, as
well as of refusal by Jalveen to accept the rent tendered by Khanna,
Khanna contended that the learned ARC could not be held to have
erred in allowing Khanna to deposit rent in court for the months of
October 2020 and November 2020 and for the period December 2020
to May 2021.
38. Khanna placed reliance, in support of the case set up by it, on
the judgment of the Supreme Court in Bismillah Be v. Majeed Shah16
which, apropos Section 116 of the Indian Evidence Act17, held that,
while a tenant could not challenge the title of the landlord, during the
currency of tenancy, it was open to a tenant to challenge the derivative
title of a person who claimed to be the assignee or vendee of the
landlord.
Reasoning and decision of the learned RCT
16
(2017) 2 SCC 274
17
116. Estoppel of tenant; and of licensee of person in possession. - No tenant of immovable property,
or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny
that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and
no person who came upon any immovable property by the licence of the person in possession thereof, shall be
permitted to deny that such person had a title to such possession at the time when such licence was given.
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 23 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
39. The learned RCT has, in the impugned judgement, examined
the issue in controversy under three individual heads; firstly, with
respect to the plea of Khanna that it was entertaining a bonafide doubt
regarding ownership of Jalveen qua the suit property; secondly,
regarding the contention of Jalveen that Khanna had attorned to
Jalveen and, thirdly, regarding the plea of Khanna that Jalveen had
refused to accept rent tendered by Khanna in accordance with Section
26 of the DRC Act.
40. The learned RCT has rejected the contention of Khanna on the
first two issues.
41. Qua the first issue, the learned RCT holds that no case of
existence of any bonafide doubt, on Khanna's part, regarding
Jalveen's authority to collect rent in respect of the suit property, could
be said to exist. Qua the second, the learned RCT holds that the aspect
of attornment of Khanna to Jalveen lost significance, as Khanna had
specifically been directed, by OVFPL, to pay rent to Jalveen and had,
in fact, been paying rent to Jalveen since 2017.
42. On the third issue, the learned RCT has, however, held that rent
had, in fact, been tendered by Khanna for the months of October and
November 2020, even if the rent was not paid in accordance with the
directions contained in the legal notice dated 24 th August, 2020 and
the rejoinder legal notice dated 25th September, 2020 issued by
Jalveen to Khanna. The return, by Jalveen, of the rent transferred by
Khanna by RTGS to Jalveen's account, amounted, in the opinion of
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 24 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
the learned RCT, to refusal, on the part of Jalveen, to accept the rent.
The learned RCT noted that, however, no such mitigating
circumstance existed in respect of the period December 2020 to May
2021. Though Khanna claimed to have deposited rent, for the said
period, with the Rent Controller, the learned RCT held that this was
not permissible.
43. It on this basis that the learned RCT upheld the order of the
learned ARC qua the months of October and November 2020 and
reversed the order qua the period December 2020 to May 2021.
44. One may now advert, briefly, to the reasoning of the learned
RCT qua these individual aspects.
Re. plea of bonafide doubt
45. In holding that Khanna could not plead bonafide doubt
regarding the authority of Jalveen to accept rent in respect of the suit
property, the learned RCT noted that, contrary to the submission
advanced by Khanna, no undertaking had been given by Khanna, at
any point of time, before the learned ARC or before any other judicial
forum, to pay rent to Jalveen. Rather, as noted by the learned RCT,
this aspect had been accorded judicial consideration in two earlier
proceedings i.e. CS 275/1995 (B.D. Khanna Publicity v. Fateh Raj
Laxmi & Ors) and Petition 5234/16, filed by Khanna against OVFPL
for restoration of water supply. The learned RCT noted that CS
275/1995, in which Jalveen was one of the defendants, was disposed
of, recording the statement of the defendants (including Jalveen) that
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Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 25 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
Khanna would not be dispossessed except in accordance with law. In
Petition 5234/16, the learned RCT noted that, on 23rd September,
2017, OVFPL had specifically stated, before the learned ARC, that the
documents of title, in respect of the suit property, stood executed in
favour of Jalveen and that, therefore, rent, thenceforth, was required to
be paid to Jalveen. Jalveen also undertook, on the same date, not to
disrupt the water supply of Khanna.
46. Inasmuch as no undertaking had been given by Khanna, before
any judicial forum at any point of time, to start paying rent to Jalveen,
the payment of rent by Khanna to Jalveen since 2017 was being done
by Khanna suo motu. Having thus paid rent to Jalveen since 2017,
consequent to the statement of OVFPL recorded before the learned
ARC on 23rd September, 2017, the learned RCT held that it was not
open to Khanna to plead, before her, that Khanna was under a
bonafide doubt regarding the entitlement of Jalveen to receive rent in
respect of the suit property.
47. On the aspect of attornment, though the learned RCT examined
the concept of attornment vis-à-vis Section 10918 of the Transfer of
Property Act, 1882, and the judgment of this Court in Mohd. Ilyas v.
18
109. 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 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.
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 26 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
Mohd. Adil19, in some detail, she held that the aspect of attornment
paled into insignificance as, consequent to the statement of OVFPL
before the learned ARC on 23rd September 2017, Khanna had in fact
been paying rent to Jalveen since October 2017.
48. In this context, the learned RCT also relied on Section 116 of
the Evidence Act, which estops a tenant in occupation of demised
premises to deny the title of the landlord who let him into possession.
Referring to the decision in Bismillah Be10, on which Khanna sought
to rely, the learned RCT observed that though the said decision
recognized the right of a tenant to question the derivate title of an
assignee/vendee who claimed to obtain title from the original owner of
the property, this entitlement was subject to the condition that the
tenant had not attorned to the original assignee/vendee. Where such
attornment had taken place, the tenant was estopped from questioning
the right of the landlord to collect the rent. In this context, the learned
RCT also cited and relied upon Sri Ram Pasricha v. Jagannath20 and
Vinay Eknath Lad v. Chiu Mao Chen21. Further citing Apollo Zipper
India Ltd. v. W. Newman & Co. Ltd.22, the learned RCT held that
once the assignee/vendee proved her/his title to the property, the
tenant of the original owner became the tenant of such
assignee/vendee on the same terms and conditions as governed the
tenancy with the original owner. The assignee/vendee, in other words,
become a ―new landlord‖.
19
AIR 1994 Delhi 212
20
(1976) 4 SCC 184
21
(2019) 20 SCC
22
(2018) 6 SCC 744
Signature Not Verified
Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 27 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
49. In view thereof, the learned RCT held Khanna's plea of
bonafide doubt regarding the person to whom rent was payable in
respect of the suit property to be devoid of substance.
Re: refusal to accept rent
50. For the months of October and November, 2020, the learned
RCT held that Khanna had, indeed, paid the rent by RTGS transfer to
the account of Jalveen, even if it was not in accordance with the
directions contained in the legal notices dated 27 th August, 2020 and
25th September, 2020 issued by Jalveen to Khanna. The return of the
rent so transferred by a reverse entry amounted, in the opinion of the
learned RCT, to a refusal, by Jalveen, to accept the rent tendered by
Khanna and, consequently, satisfied the requirement of Section 27 of
the DRC Act. The decision of the learned ARC to allow Khanna to
deposit the rent for the months of October and November 2020, with
the learned ARC could not, therefore, in the opinion of the learned
RCT in the impugned order, be faulted.
51. The position, however, according to the learned RCT is
different, insofar as the period December 2020 to May 2021 was
concerned.
52. The Section 27 petition for the said period (DR 67/2020), it
was noted, had been filed by Khanna, on 18th December 2020. There
was no averment, in the said petition, that rent had been tendered to
Jalveen and refused by her. Rather, Khanna chose to deposit rent in
advance with the learned Rent Controller. The learned RCT holds that
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
Section 27 did not envisage, authorize or permit any such suo motu
deposit of rent with the learned Rent Controller, by the tenant. Deposit
of rent with the Rent Controller, instead of payment of rent to the
landlord, could only be with the permission of the court/Rent
Controller. As the plea of bonafide doubt, raised by Khanna, already
stood rejected by the learned RCT, and no rent had been tendered by
Khanna to Jalveen for the months of December 2020 to May 2021, the
learned RCT holds that Khanna was not entitled to the benefit of
Section 27(1) of DRC Act, insofar as the said period was concerned.
To that extent, therefore, in the opinion of the learned RCT, the
learned ARC had fallen in error.
53. Resultantly, the learned RCT has rejected Khanna's plea to
deposit rent in court for the period December 2020 to May 2021 and,
accordingly, allowed RCT ARCT 01/2021. The plea of Khanna for
being permitted for such deposit for the months of October 2020 and
November 2020 was, however, allowed and, consequently, the orders
passed by the learned ARC for the said months were affirmed by the
learned RCT, by dismissing RCT ARCT 02/2021 and RCT ARCT
03/2021.
Rival contentions
Submissions on behalf of Jalveen
54. Jalveen has, in her pleadings in CM(M) 644/2021 and CM(M)
62/2022, written submissions, as well as during oral arguments
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
advanced by Ms. Deepika Marwaha, learned Senior Counsel,
contended that the three conditions for availability, to Khanna, of the
benefit of Section 27 of the DRC Act, did not apply for any of the
periods for which the benefit was claimed. Ms. Marwaha contends
that payment of rent was a necessary prerequisite before Section 27
could be invoked by the tenant. The tenant would first have to
establish that an attempt was made to pay rent to the landlord. It was
only then that the tenant could seek permission to deposit the rent with
the Rent Controller. Specifically, referring to the three periods
forming subject matter of DR 53/2020, DR 61/2020 and DR 67/2020,
Ms. Marwaha submits that no rent had been tendered to Jalveen, or
paid or deposited in any fashion, by Khanna, before filing DR
53/2020. Similarly, no rent was tendered to Jalveen by Khanna before
filing DR 67/2020; instead, Khanna claimed to have deposited the rent
payable for the period December 2020 to May 2020 with the Rent
Controller which, as the learned RCT correctly held, was not
permissible. Insofar as DR 61/2020 pertaining to the month of
November 2020 was concerned, Khanna's contention was that an
amount of ₹ 2,750/- had been transferred by RTGS to the bank
account held by Jalveen in the GK-I branch of the PNB. This
payment, Ms. Marwaha sought to contend, could not constitute a valid
payment for the purposes of Section 27(1) as Khanna was well aware
of the fact that the bank account of Jalveen at GK-I branch of the PNB
was closed. Jalveen had specifically intimated Khanna in that regard
vide its rejoinder legal notice dated 24th September, 2020, the receipt
of which was not denied. Any attempt to transfer money into the
closed account by RTGS would, as Khanna was well aware, inevitably
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
result in a reverse entry of the money returning to the account of the
transferor. Ms. Marwaha submits that, therefore, the entire exercise of
RTGS transfer, by Khanna, of ₹ 2,750/- into the closed account of
Jalveen was devoid of bonafides, and was engineered in full
awareness of the fact that the money would return to the account of
Khanna. Ms. Marwaha submits that in these circumstances, the
learned RCT was in error in holding that rent had been paid by
Khanna for the months of October and November 2020.
55. In this context, Ms. Marwaha relies on para 8 of the
consolidated reply filed by Khanna in the three appeals before the
learned RCT, in which it is specifically averred that rents were paid
subsequent to filing of the applications under Section 27 of the DRC
Act on 17th October, 2020, 18th November, 2020 and 10th December,
2020 respectively.
56. Ms. Marwaha also underscores the fact that the rent paid was
inadequate and insufficient. Relying on Section 6A of the DRC Act
and the judgments of the Supreme Court in Rakesh Wadhawan v.
Jagdamba Industrial Corpn.23 and of this Court in Deepak Nijhawan
v. R.N. Abrol24 and Prof. Ram Prakash v. D.N. Srivastava25, Ms.
Marwaha submits that the right of the landlord to enhance rent by 10%
under Section 6A was absolute and unqualified and that the rent would
ipso facto stand enhanced on the expiry of 30 days from the issuance
of the notice under Section 6A. The rent payable by Khanna to
Jalveen, therefore, stood enhanced to ₹ 3,025/- per month on the
23
(2002) 5 SCC 440
24
226 (2016) DLT 188
25
126 (2006) DLT 6
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expiry of 30 days of 27th August, 2020, when the legal notice
envisaging such enhancement was issued by Jalveen to Khanna.
Payment of any amount less than ₹ 3,025/- would not, therefore, in
Ms. Marwaha's submission, constitute valid payment of rent for the
purposes of Section 27(1) of the DRC Act. As such, Ms. Marwaha
submits that no valid payment of rent having accompanied, or been
made prior to filing DR 53/2020, DR 61/2020 or DR 67/2020, all the
applications/petitions were liable to be dismissed even on that score.
57. Ms. Marwaha also invokes Section 28(2) of the DRC Act and
submits that the applications/petitions of Khanna under Section 27
were liable to be dismissed under the said provision, as they suffer
from concealment and suppression of material facts. She points out
that Khanna concealed, in its Section 27 applications, the legal notice
dated 27th August, 2020, whereby the rate of rent was enhanced by
Jalveen. Additionally, Khanna, also concealed the fact that the
purported RTGS transfer of ₹ 2,750/- had been effected by Khanna
only after DR 53/2020 was filed, and that there was, in fact, no
payment of any amount by Khanna prior to the said petition.
58. Ms. Marwaha further submits that the plea, of Khanna, that it
was entertaining a bona fide doubt regarding the entitlement of
Jalveen to receive rent in respect of the suit property, was completely
devoid of substance. While relying on the findings of the learned
RCT, in this regard, Ms. Marwaha submits that, having voluntarily
attorned to Jalveen vide letter dated 14th October, 2017, and having
voluntarily paid rent to Jalveen since then, Khanna could not seek to
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
raise a belated challenge to Jalveen's authority to collect rent and, on
that ground, seek to contend that it was entertaining a bona fide doubt
in that regard. In this regard, on the aspect of attornment, Ms.
Marwaha places reliance on Section 109 of the Transfer of Property
Act, by application of which Jalveen stepped into the shoes of OVFPL
and became the landlord of Khanna, in respect of the suit property.
Additionally, she submits that, by application of Section 116 of the
Evidence Act, Khanna was estopped from challenging the title of
Jalveen, or Jalveen's authority to collect rent in respect of the suit
property from Khanna. Apropos the judgment of the Supreme Court
in Bismillah Be15 on which Khanna relied, Ms. Marwaha echoes the
findings of the learned RCT to the effect that the right of the lessee to
challenge the derivative title of the vendee/assignee in respect of the
suit property would be available only if the lessee had not attorned to
such assignee/vendee. As, in the present case, Khanna had attorned to
Jalveen vide letter dated 14th October, 2017, the reliance by Khanna on
Bismillah Be15 was, she submits, rightly held by the learned RCT to be
misplaced.
59. Ms. Marwaha submits that for the aforesaid reasons, while the
learned RCT has correctly rejected Khanna's request for permission to
deposit rent in Court for the period December 2020 to May 2021, the
learned RCT was in error in upholding the decision of the learned
ARC to allow such deposit for the months of October and November
2020.
Submissions on behalf of Khanna
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Signing Date:04.07.2022
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60. Arguing per contra, Mr. Kamlesh Anand, learned Counsel for
Khanna submits that the contention of bona fide doubt existing in the
mind of Khanna, regarding the title of Jalveen with respect to the suit
property, had been raised by Khanna in all its Section 27 applications.
Mr. Anand submits that the Sale Deed dated 28th July, 2017,
whereunder title in respect of the suit property purportedly passed
from OVFPL to Jalveen, was a forged document. He has drawn my
attention to a recital in the said Sale Deed which referred to an earlier
Sale Deed dated 5th August, 1994, registered on 8th August, 1994, and
contends that no such earlier Sale Deed was in existence. The title of
OVFPL in respect of the suit property being itself in jeopardy, Mr.
Anand submits that OVFPL could not have transferred a valid title to
Jalveen. These contentions, he submits, were specifically advanced by
Khanna in its reply to the objections of Jalveen in response to Section
27 applications filed by Khanna.
61. Mr. Kamlesh Anand has, in this regard, also placed reliance on
the judgment of the learned Single Judge of this Court in Fateh Raj
Laxmi Devi (supra). The existence of a bona fide doubt regarding the
title and ownership of Jalveen constitutes an independent ground on
which Khanna could seek permission to deposit rent in Court and,
therefore, since such a valid ground existed, the decision of the
learned ARC to allow deposit of rent in Court by Khanna, was, in Mr.
Anand's submission, justified for all the periods in issue in the present
case.
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Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 34 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
62. Mr. Kamlesh Anand seeks to contest the interpretation being
placed by Ms. Marwaha on Section 27(1) of the DRC Act. He
submits that, in order to establish its entitlement to the benefit of the
said provision, a tenant is not required to show that, for each month
for which such benefit was being claimed, rent had been tendered by
the tenant to the landlord and refused by the landlord. He submits that
once the landlord had refused to accept the rent for a particular month,
such refusal would, for the purposes of Section 27(1), apply to all
periods in futuro, and the tenant would be entitled to seek permission
to deposit rent in Court for all subsequent periods. Once, therefore,
the RTGS payment made by Khanna to Jalveen on 29th October 2020,
had returned to Khanna's account by way of a reverse entry, it
amounted to refusal, on the part of Jalveen, to accept the rent tendered
by Khanna in perpetuo. No further refusal was required, in Mr.
Kamlesh Anand's submission, for his client to be entitled to the
benefit of Section 27(1) for future periods. As such, the absence of
any such refusal in respect of the rent tendered by Khanna to Jalveen
for the month of November 2020 or for the period December 2020 to
May 2021, he submits, could not operate as an inhibiting factor, to
disentitle Khanna to the benefit of Section 27(1).
63. Mr. Kamlesh Anand faults the learned RCT for having returned
a finding of ownership of Jalveen over the suit property. He submits
that such a finding could not have been returned by the learned RCT
without a trial. Mr. Anand further submits that his client had placed,
on record, documents which indicated that OVFPL never possessed
valid title in respect of the suit property. He submits that the only
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
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ground on which Khanna was seeking the benefit of Section 27(1) was
the existence of a bona fide doubt regarding the authority of Jalveen to
collect rent in respect of the suit property. The facts of the case, Mr.
Anand submits, clearly indicated the existence of such a bona fide
doubt. He reiterates the contention, advanced before the learned ARC
and the learned RCT that Jalveen was unable to produce any
document on the basis of which she could claim a valid title in respect
of the suit property.
64. Adverting to the deposit of consolidated rent by Khanna for the
months December 2020 to May 2021, Mr. Kamlesh Anand submits
that the law did not proscribe such a consolidated deposit. While a
tenant is entitled to pay rent in a consolidated fashion covering a
number of months, Mr. Anand submits that the landlord was entitled
to withdraw the rent only for the month for which it was due. He
relies, for this purpose, on Section 27(2)(b) read with Section 5(2)(b)
of the DRC Act26.
65. Mr. Anand also places reliance on the order dated 18th
December, 2020, passed by the learned ARC, which directed Khanna
to deposit rent with the learned ARC within 10 days, as a condition for
issuance of notice on Khanna's Section 27 petition. Apropos the
submission of Ms. Marwaha that Khanna had attorned to Jalveen, Mr.
26
5. Unlawful changes not to be claimed or received. -
*****
(2) No person shall, in consideration of the grant, renewal or continuance of a tenancy or sub-
tenancy of any premises, -
*****
(b) except with the previous permission of the Controller, claim or receive the
payment of any sum exceeding one month's rent of such premises as rent in advance.
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
Kamlesh Anand submits that such attornment, even if were presumed
arguendo to have taken place, did not divest Khanna of its right to
challenge the validity of Jalveen's title, or of the title of Jalveen's
predecessor-in-interest, i.e. OVFPL. The circumstances of the case,
submits Mr. Kamlesh Anand, were sufficient to raise a bona fide
doubt regarding the title of Jalveen in respect of the suit property and,
therefore, justify the decision of the learned ARC to allow Khanna to
deposit rent in Court.
66. Mr. Kamlesh Anand, therefore, concludes by submitting that the
orders of the learned ARC are required to be accepted in their entirety.
While endorsing the decision of the learned RCT to reject Jalveen's
appeals against the said orders, for the months of October 2020 and
November 2020, Mr. Kamlesh Anand submits that the learned RCT
was not justified in reversing the decision of the learned ARC for the
period December 2020 to May 2021.
Submissions of Jalveen in rejoinder
67. Advancing submissions by way of rejoinder, Ms. Marwaha
asserts that the entire argument of ownership of Jalveen in respect of
the suit property is irrelevant, as it does not constitute a valid
consideration for the purposes of Section 27(1). All that has to be
seen, she submits, is whether a valid relationship of landlord and
tenant between Jalveen and Khanna existed, or not. She has invited
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Signing Date:04.07.2022
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my attention to the definitions of ―landlord‖ and ―tenant‖, as contained
in Clauses (e)27 and (l)28 of Section 2 of the DRC Act.
68. Ms. Marwaha reiterates, in rejoinder, her submission that, not
having paid rent to Jalveen in the prescribed manner before or along
with its applications under Section 27(1) of the DRC Act, Khanna was
ipso facto disentitled to the benefit of the said provision. She has
invited my attention to the proviso to Section 27(1), which envisages a
situation in which bona fide doubt existed as to the person or the
persons to whom rent was payable. The proviso, she submits,
contemplates, in such a circumstance, remittance of the rent by the
tenant to the Rent Controller by postal money order. He submits that
Khanna did not adhere to the discipline of this proviso either and
could not, therefore, seek the benefit of Section 27.
69. Ms. Marwaha has also emphasized the words ―in the prescribed
manner‖, figuring in Section 27(1) of the DRC Act. The ―prescribed
27
(e) "landlord" means a person who, for the time being is receiving, or is entitled to receive, the rent of
any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other
person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be
entitled to receive the rent, if the premises were let to a tenant.
28
(l) "tenant" means any person by whom or on whose account or behalf the rent of any premises is or,
but for a special contract, would be, payable, and includes -
(i) a sub-tenant;
(ii) any person continuing in possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his
tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I
and Explanation II to this clause, such of the aforesaid person's--
(a) spouse,
(b) son or daughter, or, where there are both son and daughter, both of them,
(c) parents,
(d) daughter-in-law, being the widow of his pre-deceased son,
as had been ordinarily living in the premises with such person as a member or members of his
family up to the date of his death, but does not include,--
(A) any person against whom an order or decree for eviction has been
made, except where such decree or order for eviction is liable to be re-opened
under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act,
1976 (18 of 1976);
(B) any person to whom a licence, as defined by Section 52 of the Indian
Easements Act, 1882 (5 of 1882), has been granted.
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
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manner‖, she submits, is to be found in Rule 1029 of the Delhi Rent
Control Rules, 1959 (―the DRC Rules‖), which requires deposit of rent
under Section 27 to be made in cash and to be accompanied by an
application by the tenant in Form C annexed to the DRC Rules. She
has, thereafter, taken me to Form C annexed to the DRC Rules, which
is as under:
―FORM 'C'
(See rule 10)
Application for deposit of rent
Before Controller ......................................
Name Petitioner
Versus
Name Landlord
(1) The premises for which the rent is deposited with a
description sufficient for identifying the premises.
(2) The period for which the rent is deposited and the rate
per month.
(3) The name and address of the landlord or the person or
persons claiming to be entitled to such rent.
(4) The reasons and circumstances for which the
application for depositing the rent is made.
(5) The amount of the rent deposited.
(6) Whether electricity, water charges, property tax, etc.
are included in the rent and if so, particulars thereof.
29
10. Deposit of rent -
(1) A deposit of rent under section 27 shall be made in cash and shall be accompanied by an
application by the tenant in Form C.
(2) On such deposit being made, the Controller shall send a copy or copies of the application
accompanying the deposit, by registered post with acknowledgment due, at the cost of the
applicant, to the landlord or persons claiming to be entitled to the rent with an endorsement of the
date of the deposit.
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
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(7) How the rent was tendered to the landlord--whether in
persons or by postal money-order or by cheque, etc.,
and whether it was refused by him in writing or
otherwise.
(8) Whether there is a bona fide doubts as to the person or
persons to whom the rent is payable and if so, why.
(9) Date on which the rent was last paid to the landlord
and the receipt, if any, obtained from him therefor.
(10) Any other relevant information.
The statements made above are true to the best of my
knowledge and belief and I, the applicant/recognized agent
signed the application on day of 19 .
...................
Signature of the applicant/
recognized agent.‖
70. Ms. Marwaha submits that, in Form C as filed in the Section 27
applications of Khanna, rows (5) to (8) were missing. The Form
being, therefore, not in accordance with Rule 10(1) of the DRC Rules,
Ms. Marwaha submits that Khanna could not be treated as having paid
the rent ―in the prescribed manner‖, as required by Section 27(1) of
the DRC Act.
71. Ms. Marwaha has also taken me through the grounds urged in
the Section 27 applications/petitions filed by Khanna, i.e. DR 53/2020,
DR 61/2020 and DR 67/2020, and has sought to contend that Khanna
could not expand its case, for grant of the benefit of Section 27,
beyond the case set out in the said applications.
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Digitally Signed CM(M) 62/2022 & CM(M) 644/2021 Page 40 of 61
By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
72. Responding to Mr. Kamlesh Anand's reliance on Section
5(2)(b) of the DRC Act, Ms. Marwaha submits that the benefit of
Section 5(2)(b) would be available only if the landlord approached the
Court seeking permission under the said provision. Contravention of
Section 5, Ms. Marwaha points out, attracts penalties under Section
48(1). The reliance by Mr. Kamlesh Anand on Section 5(2)(b) of the
DRC Act is also, therefore, according to Ms. Marwaha, misplaced.
73. Ms. Marwaha submits that, while the procedure envisaged by
Section 27(1) of the DRC Act is summary in nature, deposit of rent by
the tenant seeking the benefit of the said provision has to be a valid
deposit. Deposit of any amount less than the rent which is required to
be paid cannot, in her submission, constitute such a valid deposit. Ms.
Marwaha points out that, in its reply dated 17th September 2020 to the
Section 8 notice dated 27th August 2020, Khanna did not challenge
enhancement of the rate of rent, as envisaged by the Section 8 notice,
and only sought to question the title of Jalveen qua the suit property.
Surrejoinder submissios on behalf of Khanna
74. Advancing, with the permission of the Court, submissions in
surrejoinder, Mr. Kamlesh Anand places reliance on the judgments of
the High Court of Punjab and Haryana in Balwant Singh v.
Harbhajan Singh30, the High Court of Himachal Pradesh in Satya
Devi v. M/s. Ram Gopal Angania31, and the High Court of Karnataka
30
1984 (2) RLR 34 (P & H)
31
1987 (1) RLR 41 (HP)
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
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in Pratapsingh v. Jaibunnisa Begum32. He further reiterated some of
the submissions advanced by him in his reply to the submissions of
Ms. Marwaha.
Analysis
Scope of the relevant statutory provisions and the plea of bona fide
doubt, addressed
75. It is important, at the outset, to understand the exact scope of
Section 27(1) to (3) of the DRC Act vis-à-vis Section 26 thereof.
76. Section 27(1) refers to three circumstances, satisfaction of
which is essential for the provision to apply.
75.1 The first is refusal, by the landlord, of any rent tendered by the
tenant within the time referred to in Section 26. Section 26(1) requires
a tenant to pay rent within the time fixed by contract or, in the absence
of any such contractually fixed time, by the 15th day of the month
following the month for which rent is payable. For the first
circumstance envisaged by Section 27(1) to apply, therefore, the
tenant is required to tender rent either within the time contractually
stipulated in that regard or by the 15th day of the month following the
month for which the rent is tendered. It is only if rent is tendered in
such fashion, and the landlord does not accept the rent so tendered by
the tenant, that the first circumstance envisaged by Section 27(1) can
be said to exist.
32
1988 (1) RLR 54 (Kant)
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
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75.2 The second circumstance envisaged by Section 27(1) is refusal,
or neglect, by the landlord, of the responsibility, also cast by sub-
section (2) of Section 26, to deliver a receipt, to the tenant, of the rent
paid. This circumstance does not arise for application in the present
case and may, therefore, be eschewed from further consideration.
75.3 The third circumstance envisaged by Section 27(1) is where
there is a bona fide doubt, in the mind of the tenant, as to the person or
persons to whom the rent is payable.
75.3.1 The two important ingredients which are required to
concurrently exist for this circumstance to apply are required to be
identified and noted. First, the doubt must be with respect to the
person or persons to whom the rent is payable. The provision does
not, either expressly or even obliquely, advert to the title over the suit
property of the person to whom the rent is payable. Considerable time
was expended, during arguments, on the aspect of whether Jalveen had
a valid title over the suit property, or was its owner. Mr. Kamlesh
Anand sought to contend that the Sale Deed, on the basis of which
Jalveen claimed to have acquired ownership of the suit property, was a
fraudulent document, as OVFPL, which had executed the Sale Deed,
was itself not a valid title holder of the suit property. To my mind,
this consideration is completely foreign to Section 27(1). So long as
the person to whom the rent is payable by the tenant is not in doubt,
the question of whether that person had or did not have a valid title
over the suit property, is completely irrelevant.
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
75.3.2 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 non-payment 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 tenant, 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.
75.3.3 One could, at this juncture, delve into the nooks and crannies of
―payability‖ as a jurisprudential concept, but, in the facts of the
present case, that would not be necessary. It is not in dispute that,
since October 2017, following the letter dated 14th October, 2017
addressed by Khanna to Jalveen, Khanna was paying rent to Jalveen
on a month to month basis. This letter, significantly, was a follow-
through to the communication dated 25th September 2017, addressed
by OVFPL to Khanna, following the statement made by Capt.
Rajinder Singh Rosha before the learned ARC on 23 rd September,
2017. On 23rd September, 2017, Capt. Rajinder Singh Rosha,
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Signing Date:04.07.2022
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representing OVFPL, asserted, on solemn affirmation, before the
learned ARC, that, vide Sale Deed dated 28th July, 2017, the suit
property had been sold by OVFPL to Jalveen. Following this, on 25th
September, 2018, OVFPL wrote to Khanna, requiring Khanna to
attorn to Jalveen and to commence paying rent to Jalveen. Khanna
agreed to do so, vide its response dated 14th October, 2017. Following
the said communication, Khanna commenced payment of rent to
Jalveen. While this itself would amount to ―attornment‖ of Khanna to
Jalveen within the meaning of Section 109 of the Transfer of Property
Act, it is not necessary to enter into the aspect of attornment, for
determining the controversy in issue. Suffice it to state that, in the
backdrop of these facts and in the backdrop of the fact that, following
the letter dated 14th October, 2017, Khanna was paying rent to
Jalveen, it could not lie in the mouth of Khanna to urge that it
entertained any bona fide doubt regarding the person to whom the
rent was payable.
75.3.4 To reiterate, the aspect of whether Jalveen or, for that matter,
OVFPL, had a valid title over the suit property is an irrelevant
consideration for the purposes of Section 27(1). In the facts of the
present case, it was clear that rent was payable - and, in fact, was
being paid - by Khanna to Jalveen since October 2017. The plea of
bona fide doubt, as urged by Khanna as a ground to seek the benefit of
Section 27(1) has, therefore, in my considered opinion, no legs
whatsoever to stand on. I completely endorse the finding of the
learned RCT in that regard.
Signature Not Verified
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
Re. plea of Khanna that refusal to accept rent would apply in futuro
77. In the event of any one of the aforesaid three circumstances
envisaged by Section 27(1) applying, the provision states that ―the
tenant may deposit such rent with the Controller in the prescribed
manner‖. The words ―such rent‖, as used in Section 27(1), and as read
in juxtaposition with the words ―any rent‖ used in the same provision
read with Section 26(1) which envisages payment of rent on a month
to month basis, indicates that Section 27(1) would also apply on a
month to month basis. This is clear from a reading of sub-section (1)
of Sections 26 and 27 in conjunction. Section 26(1) requires the
tenant to pay rent, to the landlord, for any particular month, by the 15th
day of the succeeding month (where no other contractually fixed date
of payment is forthcoming). Section 27(1) would apply where the
landlord does not accept the rent so tendered by the tenant, or refuses
to give a receipt for the said rent, or where a bona fide doubt in terms
of Section 27(1) exists. In any of these circumstances, Section 27(1)
permits the tenant to deposit such rent with the Rent Controller in the
prescribed manner.
78. Clearly, therefore, the rent which the tenant is permitted to
deposit with the Rent Controller, under Section 27(1), is the rent
which tenant tendered within the time stipulated in Section 26(1) and
which the landlord refused to accept.
79. The submission of Mr. Kamlesh Anand that the landlord having
refused to accept the rent tendered for a particular month, such refusal
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
would apply in futuro and forever, and entitle the tenant to, for all
times to come, deposit the rent in Court, is, therefore, contrary to the
express terms of Section 27(1) and Section 26(1) of the DRC Act. In
order for the tenant to seek the benefit of Section 27(1), the tenant is
required to positively establish that he had attempted to pay rent
within the time stipulated in Section 26(1) and that such payment had
not been accepted by the landlord. Then, and only then, could the
tenant seek permission to deposit such rent with the Rent Controller.
In other words, it is only the rent which was attempted to be paid by
the tenant to the landlord and which the landlord refused to accept,
that could be deposited, by the tenant, with the Rent Controller, under
Section 27(1).
80. Each application under Section 27(1) would, therefore, have
necessarily to aver and establish that (i) the tenant had sought to pay,
to the landlord, the rent forming subject matter of that application and
(ii) the landlord had refused to accept that rent. There could,
therefore, be no question of any request for permission to deposit he
rent in Court, under Section 27(1) if in the first instance, the tenant
had not sought to pay the said rent to the landlord and the landlord had
not refused to accept the said rent.
Re. plea of Jalveen that applications were liable to be dismissed for
non-payment of rent accompanying, or prior to, said applications
81. In the present case, insofar as DR 53/2020 and DR 67/2020 are
concerned, it is not in dispute that no attempt to make any payment of
rent to Jalveen was made, by Khanna, before filing the said
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By:SUNIL SINGH NEGI
Signing Date:04.07.2022
17:07:03
applications, let alone any refusal by Jalveen to accept such rent.
Even on this ground, therefore, the said applications were, in my
opinion, liable to be rejected. Ms Marwaha's submission, in this
regard, merits acceptance.
82. The structure of Section 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 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 entitled 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).
83. 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 DRC Act. An application seeking
permission to deposit rent in Court, unaccompanied by such deposit is,
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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.
84. In the present case, it is not in dispute that no deposit
accompanied, or preceded, DR 53/2020 which pertained to the month
October 2020. DR 53/2020 was, therefore, not maintainable as a valid
application under Section 27, and was liable to be rejected even on
that score.
85. The same situation obtains in respect of DR 61/2020. Khanna
sought to contend, in respect of the said application, that an amount of
₹ 2,750/- had been transferred by Khanna to Jalveen on 29th October,
2020 by way of RTGS transfer, but that the said transfer had bounced
back, boomerang-like, by a reverse entry. Irrespective of whether
such transfer and reversal could, in the circumstances, constitute
payment of rent by Khanna to Jalveen and refusal by Jalveen of such
payment - an aspect to I would allude presently - the fact remains that
no deposit of rent, for the month of November 2020, in respect of
which DR 61/2020 was preferred by Khanna, either accompanied the
application or preceded the application. Even if it were to be
presumed, arguendo, that the RTGS transfer of ₹ 2,750/- by Khanna to
Jalveen constituted payment of rent within the meaning of Section
26(1) and Section 27(1) and that the return of the said amount by a
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reverse entry constituted refusal, on the part of Jalveen, to accept the
rent, Khanna would, nonetheless, have had to deposit the rent with the
Rent Controller either along with the application under Section 27 or
prior thereto, for the application to be maintainable under sub-section
(2) of the said provision. It appears that Khanna rested content with
the return of the RTGS transfer effected by it to Jalveen's account on
29th October, 2020, and did not deem it necessary to deposit the said
amount with the Rent Controller along with its application under
Section 27. The application was, therefore, ipso facto, not
maintainable under Section 27(2). As in the case of DR 53/2020,
therefore, DR 61/2020 was also liable to be rejected even on this
ground.
86. Adverting, now, to DR 67/2020, it is acknowledged even by the
learned ARC in the order dated 6th April, 2021, passed by him, that the
rent for the period December 2020 to May 2021, in respect of which
Khanna had filed the said application, had not been paid or deposited
by Khanna and that it had, instead, ―straightaway‖ filed DR 67/2020.
The following passages from the order dated 6th April, 2021, of the
learned ARC in DR 67/2020 manifest this factual position:
―Vide the present petition, applicant seeks to deposit rent for
the month of December 2020 to May 2021 in court. It is the
case of the applicant that the non applicant is claiming herself
to be the owner of the property in question, but she has not
produced any ownership documents qua the property bearing
no. C - 10, first floor, New Delhi - 48 and therefore, there is
a genuine apprehension in the mind of the applicant that the
non applicant is not the owner of the property and is illegally
trying to dispossess the applicant/tenant from the property in
question. It is the case of the applicant that earlier an
undertaking was given dated 23.09.2017 before the
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predecessor of this court to pay a sum of Rs.2750/- to the non
applicant and therefore, the non applicant has filed the present
application to deposit the rent for the said period before this
court. It is also the case of the applicant that since the bank
account in which the rent was deposited earlier, therefore, the
present petition has been filed for deposit of rent.
*****
Perusal of the petition shows that admittedly from October
2017 till September 2020, applicant was paying the non
applicant at the rate of Rs.2750/. Now, for the period of
December 2020 to May 2021, applicant has not tendered the
rent for the non applicant and has straight away filed the
present petition on the ground that vide notice dated
27.08.2020, applicant was told that non applicant has closed
her account in which the rent was being deposited. It is also
claimed before this court that the applicant disputes the title
of the non applicant and has a genuine apprehension qua the
ownership of the property in question.‖
(Emphasis supplied)
87. As in the case of DR 53/2020 and DR 61/2020, DR 67/2020
was also, therefore, not maintainable under Section 27(2), as it did not
accompany any deposit made under Section 27(1).
88. As a result, all the three applications/petitions filed by Khanna,
i.e. DR 53/2020, DR 61/2020 and DR 67/2020 were not maintainable,
as they did not accompany the requisite deposit under Section 27(1),
as required by Section 27(2).
89. Additionally, the plea of bona fide doubt, raised by Khanna as a
ground to invoke Section 27(1), has also been found, by me, to be
bereft of substance, in which regard I concur entirely with the findings
of the learned RCT.
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90. All the three applications of Khanna, therefore, were liable to be
rejected even for these reasons.
Re. RTGS transfer of ₹ 2,750/-
91. I deem it appropriate, however, to also address the issue of the
deposit of ₹ 2,750/-, transferred by Khanna to the account of Jalveen
by way of RTGS on 29th October, 2020. Though, as all the three
Section 27 applications of Khanna were liable to be dismissed even
otherwise, this aspect may lose its determinative character,
submissions having been advanced, in that regard, it is but proper to
address them.
92. Mr. Kamlesh Anand sought to contend that the RTGS transfer
of ₹ 2,750/-, made on 29th October, 2020, amounted to payment of rent
within the meaning of Section 26(1) and the re-crediting of the amount
into the account of Khanna by way of a reverse entry, amounted to a
refusal by Jalveen to accept the rent. The learned RCT has found
merit in these submissions. With greatest respect to the learned RCT,
I am unable to agree.
93. In this regard, I find both the submissions advanced by Ms.
Marwaha worthy of acceptance.
94. Ms. Marwaha rightly contends that, once Khanna had been
informed, by Jalveen, vide the legal notice dated 27th August, 2020
followed by the rejoinder legal notice dated 24th September, 2020, that
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the account of Jalveen in the GK-I PNB branch stood closed, and had
been called upon to pay rent directly to Jalveen, Khanna could not
seek to urge that, by making an RTGS transfer to the said account of
Jalveen in the GK-I PNB branch, rent stood paid by Khanna to
Jalveen. Khanna has not disputed, at any point of time, the receipt of
the communications dated 27th August, 2020 or 24th September, 2020.
95. The contention of Jalveen that the aforesaid bank account in
GK-1, PNB branch had been closed has been seriously disputed by
Mr. Kamlesh Anand. He has sought to contend, on the basis of certain
documents which have been placed on record, that transactions were
taking place in the account even after the date of its alleged closure.
On the other hand, there is also on record a Certificate dated 17th
August, 2021, issued by PNB, sealed and signed by its official
signatory, certifying that the aforesaid account was frozen on 3 rd
October, 2020.
96. As to whether, on the date when the RTGS transfer was sought
to be effected by Khanna, the account was functioning, or not
functioning may, therefore, be disputable. That dispute need not,
however, detain us, as Jalveen had vide legal notice dated 27th August,
2020 and rejoinder legal notice dated 24 th September, 2020,
specifically directed Khanna not to deposit rent in the said account
and, instead, to issue a cheque for rent directly in favour of Jalveen.
Neither in the pleadings nor during oral arguments at the bar has any
justification been provided by Khanna for not depositing rent in
accordance with this request. The manner in which rent is to be
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received by the landlord is the prerogative of the landlord, so long as it
is in conformity with the law, and is not unreasonable or vexatious.
97. There is nothing to indicate that the reverse entry, by which the
money credited by RTGS on 29th October, 2020 came back into the
account of Khanna, was engineered by Jalveen, though a bald
allegation to that effect has been made by Khanna. Ms. Marwaha
would seek to contend, per contra, that the money bounced back as
the account stood closed. In any event, in the absence of any positive
material to indicate that Jalveen was responsible, directly or indirectly,
for the reverse entry by which the money stood re-credited into the
account of Khanna, it is not possible to treat such reverse entry as
amounting to ―refusal‖ by Jalveen to accept the rent tendered by
Khanna.
98. Resultantly, as there is no material to indicate that the rent was
tendered by Khanna, as in the manner requested by Jalveen in her
legal notices dated 27th August, 2020 and 24th September, 2020, or that
Jalveen had consciously returned the amount transferred, I am unable
to concur with the finding of the learned RCT that the said transfer
and return would amount to payment of rent and refusal thereof.
99. The learned RCT has also observed that, even if the payment of
rent was not in accordance with the direction contained in the letters
dated 27th August, 2020 and 24th September, 2020, from Jalveen to
Khanna, that would not be of much significance. Again, I venture,
respectfully, to disagree. The aspect, to my mind, is, rather, of
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considerable import, as tendering of rent, and refusal thereof, are
preconditions for Section 27(1) to apply. The importance or relevance
of a precondition statutorily contemplated in a plenary parliamentary
legislative instrument cannot be undermined by Court.
100. It is settled, from the time of Taylor v. Taylor33 through Nazir
Ahmad v. King Emperor34 and a whole host of judgments of the
Supreme Court which have followed the said decision (including as
recently as in Opto Circuit India Ltd v. Axis Bank35) that, where the
law requires a thing to be done in a particular manner, it has to be
done in that manner or not done at all. Prescription, by law, of a
manner of doing a particular act necessarily entails, in its legal wake,
proscription against doing of the act in any other manner.
101. If valid tender of payment of rent by tenant to landlord, and
refusal by landlord, have been envisaged as statutory preconditions for
Section 27(1) to apply, the provision can apply only if the said
provisions are satisfied. Ordinarily, conditions prescribed by statute
are to be treated as mandatory, though, where they are merely
procedural in nature and do not affect vested rights of parties to the lis,
compliance may be regarded as directory. Insofar as the requirement
of payment of rent in accordance with law is concerned, the decisions
in E. Palanisamy7 and Sarla Goel v. Kishan Chand36, are clear and
categorical. Significantly, Sarla Goel35 holds that the word ―may‖, as
contained in Section 27(1) has to be treated as imperative and as
33
1875 (1) Ch. D. 462
34
AIR 1963 PC 253
35
(2021) 6 SCC 707
36
(2009) 7 SCC 658
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equivalent to ―shall‖. For ready reference, paras 27 to 29 of Sarla
Goel35 may be reproduced, thus:
―27. Now we come to the most important provision
regarding the procedure under the Act to pay or deposit or
tender rent to the landlord, if be refuses to grant any receipt in
respect of the payment already made to him. As quoted
hereinearlier, Section 27 deals with deposit of rent by the
tenant. It clearly says that:
"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:‖
When the words ―bona fide doubt‖ have been added to
Section 27, the tenant may remit such rent to the Controller
by postal money order.
28. From a conjoint reading of this provision referred to
hereinabove and particularly Section 27 of the Act, in our
view, it cannot be doubted that the procedure having been
made by the legislature how the rent can be deposited if it
was refused to have been received or to grant receipt for the
same. If that be the position, if such protection has been given
to the tenant, the said procedure has to be strictly followed in
the matter of taking steps in the event of refusal of the
landlord to receive the rent or to grant receipt to the tenant. It
is well settled that whether the word "may" shall be used as
"shall", would depend upon the intention of the legislature. It
is, not to be taken that, once ,the word "may" is used by the
legislature in Section 27 of the Act, would not (sic) mean that
the intention of the legislature was only to show that the
provisions under Section 27 of the Act were directory but not
mandatory.
29. In other words, taking into consideration the Object of
the Act and the contention of the legislature and in view of
the discussions made hereinearlier, we are of the view that the
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word "may" occurring in Section 27 of the Act must be
construed as a mandatory provision and not a directory
provision as the word "may", in our view, was used by the
legislature to mean that the procedure given in those
provisions must be 'strictly followed as the special protection
has been given to the tenant from eviction. Such a canon of
construction is certainly warranted because otherwise
intention of the legislature would be defeated and the class of
landlords, for whom also the beneficial provisions have been
made for recovery of possession from the tenants on certain
grounds, will stand deprived of then.‖
(Emphasis Supplied)
102. I am, therefore, in agreement with Ms. Marwaha's submission
that the purported RTGS transfer of ₹ 2,750/- effected by Khanna into
the account of Jalveen on 29th October, 2020 could not be regarded as
―payment of rent‖ within the meaning of Section 27(1) read with
Section 26(1) of the DRC Act.
103. Equally, there is substance in the contention of Ms. Marwaha
that any valid payment of rent would have to be of the actual amount
of rent payable, and not of any lesser amount. Section 6A of the DRC
Act entitles the landlord to increase, every three years, the agreed rent
by 10%. This Court has held, in Deepak Nijhawan23, that, if a notice
in terms of Section 8 is issued by the landlord to the tenant, envisaging
increase of rent, in terms of Section 6A, the rent would, ipso facto,
stand increased from the expiry of 30 days from the receipt of said
notice. Nothing more is required to be done by the landlord in that
regard.
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104. As Ms. Marwaha correctly points out, Khanna in its response
dated 17th September 2020 to the legal notice dated 27th August, 2020
from Jalveen, did not contest Jalveen's proposal to enhance the rent.
Though, in the said response, Khanna did question the title of Jalveen
over the suit property, that, by itself, would not amount to disputing
the proposal of Jalveen to enhance the rent payable in respect thereof,
especially as Khanna had, since October 2020, been paying rent to
Jalveen in respect of the suit property. Khanna was, therefore, well
aware of the fact that the rent stood enhanced to ₹ 3,025/- per month
w.e.f. 1st October, 2020. That being so, the payment of any amount
less than ₹ 3,025/- per month could not be treated as a valid payment
of rent for the purposes of Section 27(1) read with Section 26(1) of the
DRC Act.
105. I am, therefore, also in agreement with Ms. Marwaha's
submission that the RTGS transfer of ₹ 2,750/-, purportedly effected
on 29th October, 2020, could not be regarded as amounting to a valid
payment of rent, as it was for an amount less than ₹ 3,025/-, to which
figure the rent had, by that time, been validly enhanced in accordance
with Section 6A of the DRC Act.
106. For these reasons too, therefore, the reliance, by Khanna, on
RTGS transfer of ₹ 2,750/- effected on 29th October, 2020, has to be
regarded as misplaced.
107. DR 61/2020 was, therefore, liable to be dismissed even on that
score, as no prior payment of rent by Khanna to Jalveen and refusal
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thereof by Jalveen could be said to have taken place for the month of
November 2020.
The ―attornment‖ controversy - no longer significant
108. Considerable debate also took place, at the bar, on the aspect of
whether, in fact, Khanna had attorned to Jalveen within Section 109 of
the Transfer of Property Act. This aspect does not retain significance,
in view of the finding, already returned by me hereinabove, that no
bona fide doubt could be said to exist regarding the fact that Khanna
was liable to pay rent, in respect of the suit property, to Jalveen. I do
not deem it necessary, therefore, to enter into the intricacies of the said
issue or to venture any finding thereon.
Re. other contentions
108. In view of the above discussion, no occasion remains to
examine the dispute that Mr Anand has sought to raise regarding the
title of Jalveen over the suit property. It is made clear, however, that
the impugned judgement, and the findings returned therein, would not
bind the learned Trial Court in the proceedings to follow, on the aspect
of the title and ownership of Jalveen over the suit property, if any such
issue were to arise for consideration.
109. Nor do I intend to return any finding on the plea, of Ms
Marwaha, regarding non-compliance, by Khanna, of Rule 10 of the
DRC Rules, or the effect thereof, essentially as I do not find that any
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such ground was urged before the learned RCT either in the appeal
filed by Jalveen or orally during arguments (as recorded in the
impugned judgement dated 6th August 2021).
110. These proceedings have been preferred under Article 227 of the
Constitution of India. The jurisdiction of this Court under Article 227
is supervisory in nature. The Court does not sit in appeal over the
decision of the Court below, nor does the Court correct errors of the
Court below except where they are errors of law warranting such
supervisory correction.37 The Court cannot, therefore, interfere or
return findings, while exercising Article 227 jurisdiction, on issues
which were not canvassed before the Court below.
Conclusion
111. For all the aforesaid reasons, I am of the opinion that all the
three applications/petitions filed by Khanna under Section 27 of the
DRC Act, i.e. DR 53/2020, DR 61/2020 and DR 67/2020 were liable
to be dismissed.
112. The impugned judgment of the learned RCT dated 6 th August,
2021, to the extent it reverses the order dated 6 th April, 2021 of the
learned ARC in respect of DR 67/2020 and, consequently, dismisses
the said Section 27 application of Khanna, are, therefore, affirmed and
upheld.
37
Refer Sadhana Lodh v. National Insurance Co. Ltd, (2003) 3 SCC 524
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113. In accordance with the findings hereinabove, the impugned
order dated 6th August, 2021, insofar as it upholds the decisions of the
learned ARC in DR 53/2020 and DR 61/2020 and allows the Section
27 applications filed by Khanna is, however, set aside. Resultantly,
DR 53/2020 and DR 61/2020 shall also stand dismissed.
114. As a result, CM(M) 644/2021 filed by Jalveen Rosha stands
allowed and CM(M) 62/2022, filed by BD Khanna Publicity, stands
dismissed.
115. There shall be no order as to costs.
116. Pending applications, if any, do not survive for consideration
and are, accordingly, disposed of.
C. HARI SHANKAR, J.
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