Kerala High Court
P.G.Rakesh Menon vs Homex Trade Links Pvt Ltd on 17 August, 2012
Author: Pius C.Kuriakose
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 17TH DAY OF AUGUST 2012/26TH SRAVANA 1934
OP (RC).No. 2667 of 2012 (O)
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IA.NO.1414/2012 IN RCA.20/2012
OF RENT CONTROL APPELLATE AUTHORITY ERNAKULAM
PETITIONER(S):
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P.G.RAKESH MENON,
S/O.P.B.GOPALAKRISHNAN
PUKALAKKATTU ETTUKETTIL HOUSE
PALARIVATTOM.P.O. KOCHI -25
BY ADVS.SRI.ASP.KURUP
SRI.SADCHITH.P.KURUP
RESPONDENT(S):
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HOMEX TRADE LINKS PVT LTD.
REPRESENTED BY ITS MANAGING DIRECTOR ABDUL AZEEZ HYDROSE
RESIDING AT B1
KENT NALUKETTU HERITAGE VILLAGE, ARKKAKADAVU ROAD
VENNALA 22.
BY ADV. SRI.ANUP.R.
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 17-08-
2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PIUS C.KURIAKOSE &
A.V.RAMAKRISHNA PILLAI JJ.
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OP(RC) . NO. 2667 OF 2012
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Dated this the 17th day of August, 2012
JUDGMENT
Pius C.Kuriakose,J Under challenge in this original petition filed by the landlord under Article 227 of the Constitution is Ext.P8 order passed by the learned Rent Control Appellate Authority ( VIth Additional District Court, Ernakulam) in RCA No.20/2012. We find that under Ext.P8, the Hon'ble Rent Control Appellate Authority has extended the order of stay of execution passed in favour of the respondent/tenant against whom the Rent Control Court passed summary order of eviction under Section 11 (3) of the Act 2 of 1965. The ground raised by the original petitioner/landlord is that the Rent Control Appellate Authority has granted an absolute stay against the execution of the summary order of eviction passed by the Rent Control Court against the respondent/tenant without imposing any conditions. Ext. P1 is the copy of the amended rent control petition. Ext.P4 is the statement of objections filed by the tenant to the OP (RC) No. 2667 /2012 2 Rent Control Petition. A careful reading of Exts.P1 and P4 will show that the respondent did not dispute that Rs.4 Lakhs per month is the contract rent. The allegation of the landlord in the rent control petition was the rent is in arrears since November 2010 at the above rate. We find on going through Ext.P4 that the above allegation that the rent has not been paid is not disputed. On the contrary, what is contended in paragraph 12 of Ext. P4 is as follows;
"This Respondent is prepared to remit the arrears of rent actually due and entitled to the Petitioner after deducting the amount of Rs.27,72,933/- as stated above. This respondent also expresses his readiness to deposit the monthly rent for the future months before this Hon'ble Court without prejudice to the contentions of the Respondent, which also should eminently protect the interim interest of the Petitioner under law and equity. Under these circumstances, in the light of the claim put forward by the respondent, this Hon'ble Court OP (RC) No. 2667 /2012 3 may be pleased to dismiss the petition. It is prayed accordingly."
2. Significantly the tenant has expressed his readiness to deposit the monthly rent for future months without prejudice to the contentions of the respondent. Submission of Sri.Sadchith.P.Kurup learned counsel for the original petitioner was that despite the readiness so expressed by the respondent/tenant through Ext.P4, the Appellate Authority has granted absolute stay.
3. Sri. R.Anup learned counsel for the respondent/tenant submitted that the Rent Control Petition, in so far as it instituted on the ground of arrears of rent, is not maintainable for want of the statutory notice under proviso to Section 11(2)
(b). According to him, notice was addressed not to the company, the real tenant. In stead, the notice was addressed to the Managing Director of the company in his personal capacity. Though the rent control petition was subsequently amended, the same cannot amounts to amendment of the statutory notice. The learned counsel submitted that there is no application under Section 12 filed by the original petitioner/landlord against the OP (RC) No. 2667 /2012 4 company which is the real tenant. The learned counsel submitted that an application under Section 12 is mandatory under the provisions of the Lease and Rent Control Act.
4. Having given our anxious consideration to the rival submissions addressed at the Bar and having kept in mind the statutory provisions, we are of the view that the petitioner/landlord is perfectly justified in seeking modification of the impugned order by directing the respondent/tenant to pay at least the rent that has fallen due subsequent to the institution of the rent control petition. The rent control petition was instituted on 12/4/2011 and the request of the learned counsel for the landlord was that there may be direction that the rent which has fallen due from that day be directed to be paid as a condition for continuance of Ext.P8. Section 12 of Act 2 of 1965 obliges a tenant, against whom a petition for eviction has been filed by a landlord under any one of the various eviction grounds provided under Section 11 to pay or deposit with the Rent Control Court or the Appellate Authority as the case may be, all arrears of rent admitted by him to be due in respect of the building and also to continue to pay or deposit any rent which may OP (RC) No. 2667 /2012 5 subsequently become due in respect of the same building until the termination of the proceedings before the Rent Control Court or the Appellate Authority as the case may be.
5. Hence the argument that the landlord has to file a petition under Section 11 cannot be accepted. If the rent control court or the appellate authority notices that the arrears of rent admitted or the rent that fell due subsequently is not paid or deposited within the period specified in Section 12, it is the duty of the rent control court or the appellate authority to follow the procedure envisaged by that section.
6. In the instant case we do not find any specific denial of the rent alleged to be in arrears. On the contrary, what is contended is that the landlord is not entitled to demand payment as the tenant is entitled for adjustment of certain substantial amount expended by him towards effecting modification of the building. We will construe, for the purpose of this case, that the above contention amounts to denial of the rent alleged to be in arrears. But the question is whether there is any denial of the rent that has fallen due in respect of the building. The above question can be answered easily in favour of the landlord OP (RC) No. 2667 /2012 6 especially in the light of the observations in paragraph 12 of Ext.P4. We are of the view that the learned Appellate Authority was not justified in granting absolute stay of execution proceedings. We, therefore, modify Ext.P8 and order that Ext.P8 will continue only subject to the following conditions:
i). The respondent/tenant pays to the petitioner/landlord either directly or through the petitioner's advocate in this court or before the court below a sum of Rs.64,00,000/- ( Rupees Sixty Four Lakhs only) being the rent which fell due in respect of the building after the institution of the Rent Control Petition.
Payment, as directed above, shall be made within the statutory period of two weeks from today.
ii). If the payment or deposit is not made as directed above, the order of stay passed under Ext.P8 will stand vacated.
Sd/-
PIUS C.KURIAKOSE, JUDGE A.V.RAMAKRISHNA PILLAI, JUDGE.
dpk /True copy/ P.A to Judge.
OP (RC) No. 2667 /2012 7