Delhi District Court
Shri Asfaq Ahmad vs Smt. Shama Gupta on 28 April, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) cum ADDL. RENT
CONTROL TRIBUNAL, KARKARDOOMA COURTS, DELHI
MCA No.29/2011
Unique Case ID No.02402C0334352011
Shri Asfaq Ahmad
Prop. M/s Canon Opticas,
At shop No.4, Indraprastha Building,
E109, Pandav Nagar,
Delhi110092. ... Appellant
Versus
Smt. Shama Gupta
W/o Dr. R.S.Gupta
R/o Flat No.6/701, East End Apartments,
Mayur Vihar Extension,
PhaseI, Delhi110096. ... Respondent
Date of Institution : 05.11.2011
Date of order reserved : 18.04.2012
Date of order : 28.04.2012
O R D E R
By this order, I shall dispose of the appeal filed by the appellant under Section 38 of the Delhi Rent Control Act (hereinafter MCA No.29/11 Asfaq Ahmad vs. Shama Gupta Page 1 of 9 shall be referred to as the DRC Act) against impugned order dated 20.08.2011 passed by Ld. ARC (East) whereby application of the respondent under section 15(7) of the DRC Act striking off the defence of the appellant was allowed.
2 Trial Court record has been called. I have heard learned counsels for the parties and have gone through the material available on the record.
3 The facts leading to filing of the present appeal are that respondent/landlord had filed an eviction petition under Section 14(1)
(a) of the DRC Act against the appellant/tenant alleging therein that the appellant is tenant under her in respect of a shop on monthly rent of Rs. 1500/. It was also alleged that appellant was in arrears of rent w.e.f. 1.9.2003 which he failed to pay despite service of legal notice on him.
4 In the written statement filed by the appellant, it was denied that he was in arrears of rent w.e.f. 1.09.2003. However, rate of rent as Rs. 1500/ per month was not disputed.
5 During the course of pendency of eviction petition, an order under section 15(1) of DRC Act was passed on 21.10.2009 directing the appellant to clear the rent dues @ Rs.1500/ per month MCA No.29/11 Asfaq Ahmad vs. Shama Gupta Page 2 of 9 w.e.f. October, 2006. Subsequently, an application under Section 15(7) of the DRC Act was passed on 20.08.2011 and defence of the appellant was struck off. It is against this order, present appeal has been filed.
6 Being aggrieved with passing of impugned order dated 20.08.2011, present appeal has been filed on the grounds that impugned order is based on surmises and conjectures, respondent herself was negligent as she did not provide banking details of her saving bank account within a period of one week and had not provided correct account number to the appellant, Ld. Trial court erred in not considering the fact that appellant had deposited rent of Rs.54,000/ in bank account of the respondent on 13.09.2010. 7 Perusal of record shows that vide order dated 21.10.2009, Ld. ARC while adjudicating under section 15(1) of the DRC Act directed the appellant/tenant to clear the arrears of rent @ Rs 1500/ per month w.e.f. October, 2006 by depositing the same in the bank account of respondent/landlady. He was also directed to pay the future rent on 15th day of each succeeding month. Thereafter, on 10.08.2010 an application under section 15(7) of DRC Act was filed by the respondent/landlady for striking out defence of MCA No.29/11 Asfaq Ahmad vs. Shama Gupta Page 3 of 9 appellant/tenant. On 4.2.2011, an application under section 5 of Limitation Act for condonation of delay in deposit of arrears of rent was filed by appellant/tenant. Vide impugned order dated 20.08.2011, Ld. ARC refused to condone the delay and struck off the defence of the appellant/tenant.
8 The ground taken by the appellant/tenant for delay in deposit of arrears of rent was that he was supplied with the account number of respondent/landlady at belated stage and that he had given a sum of Rs. 60,000/ to one Naresh Kumar for the marriage of his daughter and that was the reason for not depositing the rent in time. 9 It is correct that initially the account number supplied by the respondent/landlady to the appellant was wrong but correct account number was furnished to him on 18.05.2010. In order dated 21.10.2009 appellant was specifically directed to clear the arrears of rent within one month from the date of the order. If so reckoned, the appellant ought to have deposited the arrears of rent by 21.11.2009 which he did not do. Even otherwise, as per appellant, correct account number was supplied to him on 18.05.2010, then he was required to deposit the arrears of rent by 18.06.2010 which he again did not do. He deposited the arrears of rent only on 13.09.2010 which MCA No.29/11 Asfaq Ahmad vs. Shama Gupta Page 4 of 9 was beyond the period of one month from the date of supply of fresh correct account number by the respondent/landlady. 10 The other ground taken by the appellant/tenant is that he had given Rs. 60,000/ to one Naresh Kumar which he returned in September, 2010 and then only he deposited the arrears of rent. appellant can not be allowed to take such a ground when he was facing the eviction proceedings. It does not appeal to reasons that a person who is facing eviction proceedings, would disobey the directions of the Court. In the present case, instead of depositing the arrears of rent, appellant went on to lend money to some other person which was a flagrant violation of the order dated 21.10.2009. 11 Ld. Counsel for the appellant has relied upon judgment in case of M/s Globetech Engineers vs. Ajay Chadha and another 2002 VI AD(Delhi) 672. The facts of the said case were that composite notice was given to pay the arrears of rent failing which eviction will take automatically effect on a default to occur in future. It was observed that Controller can not invoke the provisions of section 15(7) of the Act simultaneously while passing the order under section 15(1) of the Act.
12 The facts of abovesaid judgment are distinctive and MCA No.29/11 Asfaq Ahmad vs. Shama Gupta Page 5 of 9 different from the facts of the present case inasmuch as defence of the appellant was struck off under section 15(7) of the DRC Act as he failed to comply with the directions given while passing order under section 15(1) of the DRC Act. It is not even the case of the appellant that Ld. ARC put the conditions of eviction in case he fail to comply with order under section 15(1) of the DRC Act.
13 Ld. Counsel for appellant has argued that the power to strike out defence of the tenant is discretionary power and it has to be exercised judiciously. He has further argued that Ld. ARC has power to condone the delay in deposit of rent and cogent reasons were given by the appellant/tenant for not depositing the rent in time. In support of his contention, he has relied upon judgment in case of Santosh Mehta vs. Om Prakash and others AIR 1980 SC 1664 in which it was observed that powers under section 15(7) of the DRC Act must be exercised with due circumspection. It was further observed that striking out a party's defence is an exceptional step and not a routine visitation of a punitive extreme following upon a mere failure to pay rent. He has further referred to judgment in case of C.L.Nagpal vs. Dharam Pal Singh and others 27 ( 1985) DLT ( SN) 12 in which it was observed that Rent Controller has discretion under section 15(7) MCA No.29/11 Asfaq Ahmad vs. Shama Gupta Page 6 of 9 not to strike out the defence of the tenant and he has the power to extend the time for payment of future rent under section 15(1) where the tenant fails to make such payment due to circumstances beyond his control. On similar proposition of law, judgments in case of Nirmal Kapoor vs. Sushila Devi Jain and others 1986(10) DRJ 323; Ram Kishan Gupta vs. Nathu Ram Gupta 1993(2) RCR 513; Kanwar Kumar Seth vs. Mulkh Raj Malhotra 46(1992) DLT 122; Bharat Pulverising Mills P Ltd. vs. Tarachand Malik B.Trust etc. 1971 RLR(Note) 35; Jain Plastic Industry and others vs. Gopi Chand AIR 1990 Delhi 51; Hari Chand vs. Nand Lal 1972 RCR 387; Banarsi Dass and others vs. Bindra Ban Gupta 73(1998) DLT 607; Kamla Devi vs. Vasdev AIR 1995 SC 985; S.R.Bose vs. S.Gurbax Singh and others 49(1993) DLT 507; Ram Swaroop Kathuria vs. Nagpal Optical Co. 50 ( 1993) DLT 387 and Abdul Razak vs. Kali Charan 1995 I AD ( Delhi) 836 have been relied upon.
14 In the present case, Ld. ARC while passing order dated 21.10.2009 under section 15(1) of the DRC Act directed the appellant/tenant to deposit the arrears of rent in the account of the respondent/landlady within one month. The appellant/tenant did not MCA No.29/11 Asfaq Ahmad vs. Shama Gupta Page 7 of 9 comply with the order and deposited the arrears of rent at much later stage. First of all, he has taken the ground that he was not supplied with correct account number by the landlady but despite supplying the correct account number on 18.05.2010, he failed to deposit the arrears of rent within one month of it. Admittedly, he deposited the arrears of rent only on 13.09.2010 i.e. after about four months of supplying of fresh account number. Thus, there was delay of about three months in deposit of arrears of rent. He had taken the ground that he had advanced some money to one Naresh Kumar but he had not produced any material on record to show that he actually advanced money to him. In the absence of any such material, I am of the firm view that he had taken the said ground just for the sake of ground only and there is no basis in the same. Therefore, as there was deliberate and intentional delay by appellant/tenant in deposit of rent, Ld. ARC was justified in not condoning the delay and striking out his defence. In these circumstances, judgments referred to above are of no help to the appellant as the same are distinguishable from the facts of the present case.
15 The appellant/tenant had failed to make out any ground in support of his application to condone the delay in deposit of arrears MCA No.29/11 Asfaq Ahmad vs. Shama Gupta Page 8 of 9 of rent. On the other hand, it was well demonstrated by the respondent/landlady that he committed default in deposit of arrears of rent despite directions of Court and that is why his defence was struck off.
16 Consequently, I am of the considered opinion that there is no illegality, infirmity or impropriety in the impugned order. Appellant has failed to make out any ground in support of his appeal. Accordingly, present appeal is dismissed without being any merit. 17 A copy of the order along with trial court record be sent back to trial Court. Appeal file be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 28.04.2012 District Judge & ASJ, I/C (East)
Addl. Rent Control Tribunal
Karkardooma Courts : Delhi
MCA No.29/11 Asfaq Ahmad vs. Shama Gupta Page 9 of 9