Delhi District Court
S.K. Gupta vs Sh. Balbir Singh on 22 August, 2014
E. No.10/2011 1 22.08.2014
IN THE COURT OF MS. KIRAN GUPTA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER: PATIALA HOUSE COURTS: NEW DELH
E.No.10/2011
Unique ID No.02403C0079102011
S.K. Gupta
S/o Late Sh. Devi Charan Gupta,
R/o 6, Under Hill Road,
Civil Lines, Delhi110054
....... Petitioner
Versus
1. Sh. Balbir Singh
84, Tolstoy Lane, Janpath,
New Delhi110001
2. Sh. Swaran Singh
84, Tolstoy Lane, Janpath,
New Delhi110001
........ Respondents
Date of institution: 09.06.2011
Date of arguments : 02.08.2014
Date of decision : 22.08.2014
J U D G M E N T
1. Present petition is under section 14 (1) (a) of the Delhi Rent Control Act, 1958 (hereinafter referred as the Act) for recovery of possession of premises consisting of three rooms admeasuring about 450 sq. ft. on the ground floor of property bearing no. 84, Tolstoy Lane, Janpath, New Delhi110001(hereinafter referred as the tenanted premises), for non payment of rent. The entire property no. 84, Tolstoy Lane, Janpath, New Delhi110001 hereinafter shall be referred as the 'property'.
S.K. Gupta Vs. Balbir Singh & anr. Page 1 of 16E. No.10/2011 2 22.08.2014
2. Case of petitioner is that he is the absolute owner and landlord of the entire property by virtue of registered will dt. 19.06.2000 and registered relinquishment deed dt. 12.03.2003 executed by joint owners Sh. Devi Charan Gupta and Smt. Kailash Gupta. The respondents who are the old tenants were initially inducted as cotenants by Sh. Devi Charan Gupta, the predecessor in title and interest of the petitioner in or around December, 1974 in respect of portion of the ground floor of the property comprising of six rooms, however, in May/June 1975, respondents surrendered half portion and continued with the tenancy in three rooms admeasuring 450 sq. ft. i.e. the tenanted premises for rent at the rate of Rs. 125/ per month. The tenanted premises was let out to the respondents as cotenants for jointly carrying out their business. The tenanted premises was provided with usual amenities and fittings. The rate of rent of the tenanted premises was Rs. 290.40/ per month in the year 2010 to be paid in advance every month besides other charges. The said rate of rent by virtue of notice dt.25.03.2011 stands increased to Rs.320/ per month w.e.f. 28.04.2011 to be paid in advance every month besides other charges. The premises is assessed to house tax and other municipal taxes and cess as per the municipal regulations. The electricity and water charges for consumption of the same are paid by the respondents. It is alleged that the respondents have defaulted in payment of rent and are in arrears of rent at the rate of Rs.290.40 per month w.e.f 01.01.2011 which has neither been paid nor tendered despite demand and receipt of notice dt.25.03.2011 served by registered post. Vide notice dt.25.03.2011, increase in rent at the rate of 10% per annum as per provisions of law has also been demanded by the petitioner, hence the rate of rent became Rs.320/ per month w.e.f 28.04.2011 onwards which has neither been paid nor tendered by the respondents. Petitioner has also demanded interest at the rate of 15% on the arrears of rent. The petitioner in addition to the present petition, has filed various other cases in respect of unauthorised construction, causing substantial damage to the premises S.K. Gupta Vs. Balbir Singh & anr. Page 2 of 16 E. No.10/2011 3 22.08.2014 against the respondents which are pending in the other courts.
3. In reply filed by the respondents, it is stated that the petition is not maintainable in the present form as the same is result of malafide on the part of petitioner who has not come with cleans hands and has concealed and distorted the material facts. It is stated that present petition is without any cause of action and has been filed only to harass the respondents who have been continuously and regularly tendering rent to the petitioner but it was the petitioner who deliberately and intentionally did not receive the rent and refused to take the same and returned it to the respondents. It is admitted that the premises were taken on rent in the month of December, 1974 for carrying business and in the month of May/June, 1975 , half portion of the original tenanted premises was surrendered to the petitioner/predecessors in title and interest of the petitioner and the rent was agreed to the tune of Rs.125/ p.m excluding electricity and water charges. The respondents have made no alteration, additions or modification or structural alteration or caused any damage to the tenanted premises, except for interior decoration. At present the rent is being paid at the increased rate as demanded by the petitioner i.e. Rs. 320/ p.m. It is stated that the respondents are continuously and regularly paying rent to the petitioner and petitioner/predecessor in title and interest of the petitioner deliberately and intentionally failed to issue the rent receipt since March, 1998 and thereafter the rent was tendered through money order and when they refused to receive the same, it was deposited in the court for the different period. The petitioner again started receiving the rent through money order, but failed to issue the rent receipts to the respondents. The respondents never defaulted in paying the rent to the petitioner.
3.1 The rent at the increased rate as demanded had been tendered but the petitioner intentionally with malice intention refused to receive the same. It is stated that the rent for the period January, 2011 was sent through S.K. Gupta Vs. Balbir Singh & anr. Page 3 of 16 E. No.10/2011 4 22.08.2014 money order on 01.01.2011 which was received back on 06.01.2011. Again the rent for the period January to February, 2011 was sent through money order on dated 01.02.2011 which was also received back on dated 04.02.2011. Again the rent for the period January to March, 2011 was sent through money order on dated 14.03.2011 which was also received back on 17.03.2011. Thereafter, the rent for the period from January to April, 2011 at the rate of 290.40 was sent through money order on dated 03.06.2011 and rent for the period from May to June, 2011 at the increased rate as demanded was sent on dated 03.06.2011 but again the same was received back on 08.06.2011. However, the rent was again tendered to the petitioner on 01.07.2011 which has been received by the petitioner but no rent receipt has been issued to this effect. It is stated that the rent is being paid at the increased rate i.e. 320/ p.m excluding electricity and water charges as demanded by the petitioner. The notice regarding demanding the increase in rent at the rate of 10% p.a was received by the respondents and the rent as per increased rate i.e. Rs.320/ p.m. w.e.f. 28.04.2011 is being tendered through money order to the petitioner but the petitioner deliberately and intentionally did not receive the same and filed the present application which is false and baseless and liable to be dismissed with heavy costs.
4. In the replication filed on behalf of the petitioner, he while denying the allegations levelled in the reply has reiterated the facts as stated in the petition. Petitioner has denied that rent from 01.01.2011 to June, 2011 was sent by money order by the respondents as alleged. It is stated that no rent was deposited in court after return of alleged money orders. The present petition was filed on 08.06.2011 and thereafter the rent was sent by two money orders for Rs. 1162/ and Rs.960/ which was received on 02.07.2011 after filing of the present petition and this fact cannot give any help to the respondents.
5. The Ld. Predecessor vide order dt.21.11.2011, decided the S.K. Gupta Vs. Balbir Singh & anr. Page 4 of 16 E. No.10/2011 5 22.08.2014 application u/s 15 (1) of the Act and the respondents were directed to tender the rent for the month of January, 2011 till 02.07.2011 in the court with interest @ of 15 % per annum. Respondents were further directed to deposit rent for the period 01.10.2011 till 21.11.2011 and thereafter, month by month, by 15th of each succeeding month, rent @ of Rs.320 per month.
6. Petitioner in order to support his contention has examined his attorney, Shri Rajive Gupta as PW1 who has tendered his evidence by way of affidavit Ex. P1 and relied upon the documents i.e. the copy of the power of attorney Ex.PW1/1, site plan Ex.PW1/2, copy of the notice dt. 25.03.2011 Ex.PW1/3 and postal receipts as Ex.PW1/4 to PW1/5. PW2 is Sh. Naresh Kumar Gupta, Post Master, Civil Lines Post Office who has proved the original letter dt.31.10.11 Ex. PW2/1, which was earlier Mark I. He also proved the certificate showing that the delivery record for 2011 has been weeded out as per Ex. PW2/2. He further proved the attendance register of the post office containing the attendance of Sub Post Master, Sh. Pawan Mehta as PW2/3.
7. Respondents in order to support their contentions have examined Sh.Balbir Singh as RW1 who has tendered his evidence by way of affidavit Ex. R1. He has relied upon the photocopy of money order form dt. 01.01.2011, 01.02.2011 as mark A and C. The postal receipts of the money orders as mark B and D. The photocopies of money order form dt.03.06.2011 as mark E and F and postal receipts dt.03.06.2011 as Ex.RW1/1 (colly.), and its refusal receipts received from postal department as Ex.RW1/2 (colly.). Photocopy of money order forms dt.01.07.2011 as Mark G and H and postal receipts as Ex.RW1/3 (colly.). RW2 is Sh. Sanjay Bora, Postal Assistant, Office of Spdt. Of Post Offices, New Delhi Central Division, Meghdoot Bhawan, who has proved the record pertaining to money order dt. 02.07.2011 as Ex. RW2/1 and the report of the money orders which were S.K. Gupta Vs. Balbir Singh & anr. Page 5 of 16 E. No.10/2011 6 22.08.2014 received back as refused as Ex.RW2/2.
8. It is argued by the counsel for the petitioner that the respondents have defaulted in payment of rent despite of service of notice dt. 25.03.2011 and the petitioner has proved his case, hence eviction order u/s 14 (1) (a) of the DRC Act be passed accordingly. It is further argued that the notice was received by the respondents on 28.03.2011 which is evident from the testimony of PW2, however, despite service of the notice on 28.03.2011, respondents have not tendered rent within the stipulated period. The entire written statement is silent as to when the notice was received by the respondents. In para 4 of the written statement, respondents have admitted that they paid the increased rent from May, 2011 to June, 2011, hence it is established that they received the notice and thereafter, paid the increased rent. It is further argued that no date of receiving the notice finds mention in the entire written statement or in the affidavit of RW1. Only during the cross examination of RW1, he deposed that he came to know about the notice in the first week of April 2011. The respondents have not led any evidence to prove the assertion that they received the notice in first week of April 2011, while the petitioner has categorically proved that he sent the notice on 25.03.2011 which was served on the respondents on 28.03.2011. It is further argued that in the entire testimony of PW1, there is no suggestion that the respondents received the notice in April and not in March. Further the refusal is not pleaded in the entire written statement. Further, even if it is assumed that there was refusal, the respondents did not file any petition u/s 27 of the Act for deposit of the rent. Further, the intention of the respondents is evident from the fact that earlier the rent was being paid either in cash or by way of cheque but suddenly in January, 2011, respondents changed the mode of tender of rent by way of money order.
9. Per contra, it is argued by the counsel for the respondents that the respondents received the notice in the first week of April 2011 and paid S.K. Gupta Vs. Balbir Singh & anr. Page 6 of 16 E. No.10/2011 7 22.08.2014 the rent within two months in first week of June, 2011. It is further argued that the petitioner has maliciously created arrears of rent, in actual there was no default by the respondents. It is the petitioner who refused to accept the money order as is evident from the testimony of RW2. It is argued that though the petitioner has stated that he sent the notice on 25.03.2011, however, no document that the respondents were served on 28.03.2011 with the notice except Mark I has been placed on record by the petitioner. Mark I was only confronted to RW1 during his cross examination. The said document has been received by the petitioner as a reply to his complaint under RTI Act and it in no way proves the service of notice on 28.03.2011. It is neither authenticated document, nor has been proved by the person who issued it. Further, no person who effected the service has been examined by the petitioner. It is submitted that since the respondents have tendered the rent within the stipulated period of two months from the date of service of the notice, no ground of eviction u/s 14 (1) (a) is made out and the petition be dismissed accordingly.
10. Heard counsel for the parties. Perused the complete record file. Section 14 (1) (a) provides that, "the Controller may, on application made to him in the prescribed manner, make an order for the recovery of possession of the premises on the ground that if 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."
11. In the present case, the relationship of landlord and tenant between the parties and the rate of rent and consequent increase in rent is admitted between the parties. The service of the notice dt.25.03.2011 is also S.K. Gupta Vs. Balbir Singh & anr. Page 7 of 16 E. No.10/2011 8 22.08.2014 admitted between the parties, however, the date when the notice was served/received is disputed. As per the petitioner, the notice was served to the respondents on 28.03.2011. On the contrary, as per the respondents they received the notice in the first week of April 2011.
12. In the present case, petitioner in para 11 of the petition has stated that the rent was to be paid in advance every month besides other charges and rent by virtue of notice dt.25.03.2011 stands increased to Rs. 320/ per month w.e.f 28.04.2011 to be paid in advance every month besides other charges. In the reply to the said para, the respondent has stated that it is admitted to the extent that Rs.290.40/ per month was to be paid every month and the respondents are continuously paying the same since the inception of the tenancy. There is no denial to the averment of petitioner that the rent was not payable in advance. Thus, in the absence of any denial to the averment of the petitioner that the rent was payable in advance, it is evident that the rent was to be paid by the respondents in advance.
13. It is argued by the counsel for the petitioner that the rent could no be tendered by the respondents by way of money order as prior to January 2011, the rent was either paid in cash or by way of cheque. The same is denied by the counsel for respondent and he has relied upon the document PW1/RX1 i.e. the receipt of money order sent by respondents to petitioner. Let the said arguments be considered on the basis of the evidence adduced by both the parties. PW1 during his cross examination admitted that the petitioner had been issuing the rent receipts in favour of the respondents on a printed form bearing the name of Sh. Devi Charan Gupta prior to 1975 and subsequently the rent receipts were being issued on a printed form bearing the name of Sh. Devi Charan Gupta, Smt. Kailash Gupta and Mr. S.K. Gupta. The rent receipts were issued in favour of the respondents till March 1998. He denied the suggestion that after March, 1998, petitioner deliberately stopped issuing rent receipts in favour of the S.K. Gupta Vs. Balbir Singh & anr. Page 8 of 16 E. No.10/2011 9 22.08.2014 respondents. He volunteered that after March, 1998, no person on behalf of the respondents came to collect the rent receipts. He admitted that after March, 1998, the respondents had sent the rent to the petitioner by money orders and cheques which was sent by post. When he was asked that the respondents deposited the rent in the court, when the petitioner refused to accept the same, PW1 replied that the petitioner never refused to accept the rent but admitted that the rent was deposited by the respondent in the court of Rent Controller. He admitted that in the month of December, 2010, petitioner has received the rent sent by the respondents by way of money order. He admitted his signatures on the document PW1/RX1 i.e. the receipt of the money order sent by the tenant under the name Balbir Singh Mayal, New Airways Travel Delhi Pvt. Ltd., Janpath, New Delhi110001. He deposed that the same was accepted at the request of the respondents as they assured that in future the rent would be sent in the name of the respondents. He denied the suggestion that prior to December, 2010 also, the respondents had been tendering rent under the name as mentioned on PW1/RX1 and that the petitioner has been accepting such rent. Thus, from the admission by PW1 during his cross examination that the respondents had sent the rent by money orders after March, 1998 and Ex.PW1/RX1, it is evident that the rent was also paid by way of money order, in addition to payment by cash or cheque. Thus, the argument of Ld. Counsel for petitioner in this regard is misconceived and untenable.
14. Now, coming to the contention of the petitioner that the respondents have not paid the rent w.e.f January 2011, within the stipulated period, despite service of the notice dt. 25.03.2011. The respondents have refuted the same and stated that he has sent the rent for the period January 2011, February 2011, January to March 2011 through money order on 01.01.2011, 01.02.2011 and 14.03.2011, however, these money orders were received back on 06.01.2011, 04.02.2011 and 17.03.2011. The respondents have placed on record the money order receipts, vide which, the rent was S.K. Gupta Vs. Balbir Singh & anr. Page 9 of 16 E. No.10/2011 10 22.08.2014 sent to the petitioner as mark A, mark B, mark C and mark D. However, the respondents have not placed on record any document to show that the said money orders were received back as refused by the petitioner. Respondent has examined RW2, Mr. Sanjay Bora, Postal Assistant in this regard. Though, in his testimony, he has deposed that as per record, money order dated 01.01.2011 and 01.02.2011 was refused by petitioner on 05.01.2011 and 03.02.2011, however, there is no such record on which he rely in the court file. PW1 during his cross examination denied the suggestion that the rent for the month of January, 2011 was tendered by the respondents by way of money order and it is the petitioner who refused to accept the said rent. He denied the suggestion that rent for the month of January and February, 2011 was also tendered by the respondents by way of money order but was refused by the petitioner. He denied the suggestion that by way of money order sent on 14.03.2011, the respondents tendered the rent for the period January, February and March 2011 and petitioner again refused to accept the money order. He denied the suggestion that on 03.06.2011, the rent for the period January, 2011 to April, 2011 at the rate of 290.40/ per month was tendered by the respondents by way of money order and the petitioner refused to accept the same. He denied the suggestion that on 03.06.11 itself the rent for the months of May and June, 2011 @ of Rs. 320/ per month i.e. increased rent as demanded by the petitioner was tendered by way of money order and petitioner refused to accept the same. He admitted that on 02.07.2011, he received the rent for the period January, 2011 to April, 2011 @ of Rs. 290.40/ paise per month and for the period May, 2011 to July, 2011 @ of Rs. 320/ per month by way of two money orders. He admitted that the petitioner has received the rent for the month of August and September, 2011 @ of Rs. 320/ per month by way of money orders.
15. PW1 has stood the test of cross examination and vehemently denied that the rent for the month of January, February and January to S.K. Gupta Vs. Balbir Singh & anr. Page 10 of 16 E. No.10/2011 11 22.08.2014 march was tendered by the respondents by way of money orders and that the same was refused by the petitioner. Even the respondents have not placed on record any documents to show that the rent was refused by the petitioner.
16. At this stage, it is argued by the counsel for the petitioner that the respondents never tendered any rent by way of money order, hence no question for refusal arises and due to this reason, since no rent was ever sent by the respondents, no such refusal receipts have been placed on record. It is further argued that even if it is assumed that there was refusal by the petitioner, the respondents should have tendered the rent under Section 27 of the Act to show their bonafide, however, the respondents did not even file any such petition. Hence, it is proved that the respondents never sent any rent since January, 2011, due to which the notice dated 25.03.2011 was sent to the respondents. No reliance can be placed on the documents mark A to D, as no such rent was ever tendered by way of money order or refused by the petitioner.
17. The said argument of the counsel for the petitioner is plausible as Section 27 of DRC Act prescribes the manner and the mode in which the rent has to be paid by the tenant in case the landlord refuses to accept the rent tendered by him within the specific period. In such a case the tenant is required to deposit rent in the court of Rent Controller by giving the necessary particulars as required under Section 27(2). Courts have time and again held that the rent which has been deposited somewhere else and not as per the procedure prescribed under Section 27 is no 'tender' of rent within the meaning of Section 14 (1) (a) and would amount to a nonpayment of rent. This has been reiterated by the Apex Court in Atma Ram Vs. Shakuntla Rani (2005) 7 SCC 211. In this case, the tenant had deposited the rent under the provisions of the Punjab Relief of Indebtedness Act, 1934; it was held by S.K. Gupta Vs. Balbir Singh & anr. Page 11 of 16 E. No.10/2011 12 22.08.2014 Apex Court that this would not be a valid deposit by the tenant and would be construed as a default as it was not a tendering of the rent in the manner as required by law. In this context, the Apex Court had inter alia held as under:
"It will thus appear that this Court has consistently taken the view that in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so, he cannot take advantage of the benefit conferred by such a provision."
17.1 The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specific period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by subsection (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of Rent Controller as required by Section 27 of the Act and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.
17.2 In the judgment of Sarla Goel and others Vs. Kishan Chand (2009) 7 SCC 658 the Apex Court had construed the word 'may' as appearing in Section 27 of the DRC Act as 'shall'; it has been construed to be mandatory; i.e. the procedure as prescribed under Section 27 of the DRC Act has to be strictly followed in all those cases where either landlord refuses to accept the rent or the tenant is not sure as to whom the rent is payable i.e. S.K. Gupta Vs. Balbir Singh & anr. Page 12 of 16 E. No.10/2011 13 22.08.2014 either to A or B. The ratio being that if the tenant wishes to avail of the beneficial legislation of the DRC Act in order to seek a protection under its cover he ought to strictly follow the procedure contained therein.
18. In the present case, the respondents have neither proved the refusal by the petitioner in respect of the rent tendered by them, nor they have placed on record any document/petition to show that they invoked the provision u/s 27 of the Act for deposit of rent, on refusal to accept the same by the petitioner.
19. In the present case, though the service of notice Ex.PW1/3 is admitted, however, the date of service of the notice is disputed by both the parties. The notice is dt.25.03.2011. As per the petitioner, the said notice was served on 28.03.2011, whereas as per the respondents they received the notice in the first week of April, 2011. In pleadings of either of the parties, the date of service or the consequent receiving has not been stated. Petitioner during the cross examination of RW1 confronted him with one document Mark I which at the later stage has been Exhibited as Ex.PW2/1. As per the petitioner, from Ex. PW2/1, it is proved that the respondents were served with the notice dt. 25.03.2011 on 28.03.2011. The respondents in their WS have stated that the rent for the period from January, 2011 to April, 2011 @ of Rs. 290.40/ per month were sent through money orders dt. 03.06.2011 and rent for the period from May, 2011 to June, 2011 at the increased rate @ of Rs. 320/ per month were sent on 03.06.2011 but both were received back on 08.06.2011. There is no denial of the fact that as per the notice Ex.PW1/3 dt. 25.03.2011, the rent was to be increased w.e.f 28.04.2011. RW1 during his cross examination volunteered that the notice dt. 25.03.2011 was received in the first week of April, 2011. He admitted that in compliance of the notice, no cheque was sent to the petitioner.
S.K. Gupta Vs. Balbir Singh & anr. Page 13 of 16E. No.10/2011 14 22.08.2014
20. Now coming to the document Ex.PW2/1 (mark I), it is the reply to some complaint filed by Sh. Rajive Gupta. In the said document, it is stated as under : ''in continuation of our letter regarding the complaint no. 11005400106, it is to inform you that the complaint of non delivery of articles of registered letters and transactions no. B1986 on 26.03.2011 of Civil Lines (North Delhi)110054 is settled on 31.10.2011 with the following information that delivered on dt. 28.03.2011.''
21. When RW1 was confronted with (Mark I)Ex.PW2/1, he deposed that it does not bear signature of the respondents and further has not been authenticated by his office. He came to know about the notice in the first week of April, 2011. Petitioner in order to prove the said document, has examined PW2 Sh. Naresh Kumar Gupta, Post Master, Civil Lines, Post office, Delhi, who deposed that he has seen the original letter dated 31.10.2011 and the Mark I was consequently exhibited as PW2/1. He also produced the certificate showing that the delivery record for 2011 has been weeded out in due course vide Ex.PW2/2. When he was shown Ex.PW2/1, he failed to identify the signatures on the said letter. During crossexamination he admitted that there is no official record in respect of Ex.DW2/1. He deposed that there is a official record, that is, the attendance register, which shows the genuine signatures of the then SPM, Civil Line and he can produce the record. Thereafter, he produced the attendance register of the post office and deposed that sub post master Sh. Pawan Mehta was employed with the post office, Civil Lines in the year 2011 and that the attendance register Ex.PW2/3 bears his signatures at point A. He further deposed that though the record pertaining to Ex.PW2/1 is not traceable but he can say that the document has been issued by their department as the same bears the stamp of the department and also on the basis of the attendance register, where the attendance of sub Post Master Sh. Pawan Mehta is marked as present of the S.K. Gupta Vs. Balbir Singh & anr. Page 14 of 16 E. No.10/2011 15 22.08.2014 said date. He further deposed that he is posted in Civil Lines Post office since 2013 and has no personal knowledge as to when Ex.PW2/1 was issued. The stamp of the postal department is special stamp which is got prepared from Aligarh. He deposed that he can not say whether the signatures at point A of Ex.PW2/1 are of Sh. Pawan Mehta but volunteered that he has brought the official record, that is, the attendance register which contains the signatures of Pawan Mehta and whatever he has deposed is on the basis of attendance register as it also bears the signatures of same date of Sh. Pawan Mehta, when Ex.PW2/1 was issued.
22. Petitioner in his petition alongwith the legal notice Ex.PW1/3 has also filed the postal receipts dated 26.03.2011 Ex.PW1/4 and Ex.PW1/5 bearing no. B1986 and B1987. As per Ex.PW2/1, the transaction no. B1986 dated 26.03.2011 was delivered on 28.03.2011. Thus from the document Ex.PW1/4 and PW2/1 and the testimony of PW2 it is proved that the legal notice dated 25.03.2011 was delivered to Balbir Singh on 28.03.2011. Even otherwise also, the service of the notice is not disputed by the respondents, however, it is contended that they received the notice in the first week of April, 2011. The petitioner has proved the document Ex.PW2/1, which was initially Mark I and was duly confronted during the testimony of RW1. Respondent has not placed on record any document or examined any witness to prove that they received the notice in first week of April. In the absence of any evidence to contrary, I am of the opinion that the petitioner has proved that the legal notice Ex.PW1/3 was served upon the respondents on 28.03.2011.
23. Under Section 14(1)(a) of the Act, the default for non payment of rent is to be reckoned from the expiry of two moths of the demand. In the present case, the arrears of rent, with effect from, January 2011 was demanded by the petitioner by notice dated 25.03.2011, which was delivered to the respondents on 28.03.2011. Thus, the respondents after the service of S.K. Gupta Vs. Balbir Singh & anr. Page 15 of 16 E. No.10/2011 16 22.08.2014 the notice on 28.03.2011, were under the obligation / liability to pay the rent within two months, that is, by 28.05.2011. In the present case, the respondents have tendered the rent for January to June, 2011 by way of money order on 03.06.2011 which is Ex.RW1/1 and the report for refusal is Ex.RW1/2. Though, the rent was tendered as per the demand notice, however, it was after expiry of the period of two months from the date of the service of the demand notice.
24. Hence, on the basis of above discussion, the petitioner has successfully proved that there were arrears of rent against the respondents w.e.f from January 2011, when the notice for demand dated 25.03.2011 was sent to the respondents vide postal receipts Ex.PW1/4 on 26.03.2011. The said notice was delivered to the respondents on 28.03.2011. The respondents despite receiving the demand notice, did not tendered the rent within the stipulated period of two months. Thus, the ground of eviction under clause (a) of proviso to subsection (1) of section 14 of Act 59 of 1958 has been proved against the respondents.
25. There is no material before the court to suggest that in any other proceedings under clause (a) of proviso to subsection (1) of section 14 of Act 59 of 1958 initiated by the petitioner against the respondents in respect of the tenanted premises, the ground of eviction was established against the respondents and the respondents were given benefit under section 14(2) of the Act 59 of 1958. Thus, it is a case of first default on the part of the respondents and therefore, eviction order cannot be passed straightaway.
ANNOUNCED IN OPEN (KIRAN GUPTA)
COURT ON 22.08.2014 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
S.K. Gupta Vs. Balbir Singh & anr. Page 16 of 16