Madras High Court
R.Sanjay Kapoor vs Mrs.T.Reddy Govindamma on 3 September, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.09.2014 CORAM : THE HONOURABLE MS.JUSTICE R.MALA C.R.P(PD).Nos.1103 and 1104 of 2014 and M.P.Nos.1,1 of 2014 R.Sanjay Kapoor .. Petitioner in CRP(PD)No.1103 of 2014 R.Deepak Kapoor .. Petitioner in CRP(PD)No.1104 of 2014 Vs. 1.Mrs.T.Reddy Govindamma 2.Mrs.Reddy Subbu 3.Mrs.Geetha Durai 4.Mr.S.Sri Sathyanarayana 5.M/S.D.N.S.Projects Pvt. Ltd. Rep. by its Managing Director No.72, Harleys Road, Kilpauk, Chennai-10. 6.N.Vijayalakshmi Surana 7.Mrs.Sindhuja 8.Saradha Priya .. Respondents in both CRPs. Prayer:- Civil Revision Petitions filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control Act), 18 of 1960 as amended by Act 23 of 1973, against the order of the Rent Control Appellate Authority, VIII Small Causes Court, Chennai, dated 14.08.2013 made in R.C.A.Nos.706 and 707 of 2011 confirming the order of the Rent Controller, XIV Small Causes Court, Chennai, dated 30.08.2011 made in M.P.Nos.137 and 136 of 2011 in R.C.O.P.Nos.779 and 702 of 2008 dismissing the applications for amendment filed by the petitioners. For Petitioners : Mr.S.Suresh Kumar (both CRPs.) For Respondents : No appearance C O M M O N O R D E R
C.R.P.(PD) No.1104 of 2014 is filed challenging the order passed in R.C.A.No.707 of 2011 dated 14.08.2013 confirming the fair and decreetal order passed in M.P.No.136 of 2011 in R.C.O.P.No.702 of 2008.
2.C.R.P.(PD) No.1103 of 2014 is filed challenging the fair and decreetal order passed in R.C.A.No.706 of 2011 confirming the fair and decreetal order passed in M.P.No.137 of 2011 in R.C.O.P.No.779 of 2008.
3.M.P.Nos.136 and 137 of 2011 are filed to amend the main R.C.O.P.Nos.702 and 779 of 2008 by adding paras-15 to 18 and renumbered paragraphs accordingly.
4.At the time of admission, argument of the learned counsel for the revision petitioners is heard in length.
5.The petitioners have filed R.C.O.P.Nos.702 and 779 of 2008 under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called as the 'Act') against eight defendants stating that originally the properties owned by respondents 1 to 4 and there are 68 shops and they were occupied by 40 tenants. But the respondents 1 to 4 sold the property to the respondents 5 to 8 under three sale deeds. The revision petitioners herein are the tenants and since they are not aware of the fact that to whom the rents have been paid, they filed R.C.O.P.Nos.702 and 779 of 2008 before the Rent Controller by invoking Section 9(3) of the Act for depositing the monthly rent for the petition mentioned premises.
6.The revision petitioners herein have also filed I.A.Nos.115 and 116 of 2010 for amending the petitions for depositing the rent under Section 8(5) alternatively Section 9(3) of the Act and in respect of the same, that applications were allowed and the petitioners are permitted to carry out amendment as petitions for deposit of rent under Section 8(5) of the Act or in alternative, Section 9(3) of the Act, and also on condition that the petitioners should pay a cost of Rs.500/- to the respondents 5 to 8.
7.Thereafter, the revision petitioners came forward with the petitions in M.P.Nos.137 and 136 of 2011 for amending the averments in R.C.O.P.Nos.779 and 702 of 2008, consequentially after amending the Section 8(5) of the Act. But the trial Court, after hearing both sides, dismissed the applications, against which, the revision petitioners have also preferred R.C.A.Nos.706 and 707 of 2011, which were also dismissed by the appellate Court, against which, the present revision petitions are preferred.
8.Even though the respondents were served with notice, neither they appeared in person nor through their counsel. Even though the matter was posted under the caption 'for orders', no one represented on behalf of them.
9.Heard the learned counsel for the revision petitioners and perused the typed set of papers.
10.The facts of the case are as follows:
(i)Originally, the respondents 1 to 4 are owners of the property, which consists of 68 shops and 40 tenants are in possession and enjoyment of the same. The revision petitioners herein are the tenants in the petition mentioned premises under respondents 1 to 4.
(ii)According to the revision petitioners, respondents 1 to 4 sold the property to the respondents 5 to 8 under three sale deeds. Since the revision petitioners are not aware of the fact that who is the owner of the property and to whom the rents have been paid, they filed R.C.O.P.Nos.779 and 702 of 2008 under Section 9(3) of the Act stating that originally there was a lease agreement entered into between the respondents 1 to 4 and one Ramaiya on 19.12.2000 with regard to the petition mentioned premises. The respondents 1 to 4 filed C.S.No.120 of 2003 against the said Ramaiya for several reliefs and a compromise was arrived at between the above said persons and in pursuance of the same, the suit was decreed on 23.12.2003. As per the decree, 34 tenants detailed in the annexure of the decree were recognised as tenants under respondents 1 to 4 with regard to the respective portions occupied by them as per the lease deed and that they shall have all the rights of a tenant under the earlier lease deeds executed by Ramaiaha and each of the tenants listed in the annexure, that the respondents 1 to 4 shall be liable to refund the advance received by Ramaiah from the tenants towards leased out shops in the event the tenants sought to vacate the shops and that the lease agreements entered into between Ramaiah and the tenants mentioned in the annexure shall continue, that the R.C.O.Ps. pending filed by the respondents 1 to 4 as well as by the tenants against each other shall be withdrawn. The petitioners' names have been mentioned in the memo of compromise annexed to the decree in C.S.No.120 of 2003 and subsequent to that, the petitioners were tendering the rents to the respondents 1 to 4 up to the month of September 2007.
(iii)In December 2007, the petitioners came to know that the entire properties were sold by the respondents 1 to 4 to the respondents 5 to 8. So the petitioners sent notice dated 14.12.2007 to the respondents calling upon them to know who is the real owner of the property and they were ready to pay the monthly rent to the proper person. Even though respondents 1 to 4, 7 and 8 were received the notice, they have not been sent any reply. Subsequently, the revision petitioners received a letter dated 01.03.2008 from the fifth respondent stating that they had purchased the property and directing the revision petitioners to pay all the rents/outstanding rents, maintenance and outstanding maintenance to them.
(iv)The revision petitioners also sent reply dated 12.03.2008 and the same was received by the fifth respondent. In the reply notice, petitioners stated that since no reply was received from either the landlords or the purchasers with regard to the payment of rent, the petitioners' were not in a position to pay the rent for the shop under the petitioners' occupation. Further, they had stated that they paid the rent without any default to the respondents 1 to 4 upto the month of September 2007. Hence, they filed the petitions in R.C.O.P.Nos.702 and 779 of 2008 for the following reliefs:
a) that the petitioner may deposit the monthly rent for the petition premises due for the period from September 2007 to March 2008 before this Hon'ble Court or before such authority and in such manner as may be prescribed by this Hon'ble Court and continue to deposit the future rent, which may subsequently become due in respect of the petition premises before the same authority and in the same manner until the doubt and dispute as to the person who is entitled to receive the rent for the petition premises is settled by the decision of a competent Court or by a settlement between the parties as the case may be;
b) For costs;
11. The respondents 1 and 2 sent a letter of attornment of tenancy dated 25.05.2009 to the petitioners directing the petitioners to attorn the tenancy in favour of DNS Projects Private Limited and to pay the arrears of rent for the period from October 2007 and also the future rents to the respondents 5 to 8. Thereafter, the petitioners paid the rent from October 2007 to July 2009.
12.Then the petitioners also filed the applications in I.A.Nos.115 and 116 of 2010 to amend the provision of law under Section 8(5) of the Act in R.C.O.P.Nos.702 and 779 of 2008. At the time of filing the applications, the petitioners sought for the following reliefs:
a) The heading of the petition may be amended as follows:
Petition for deposit of rent under Section 8(5) and 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
b) In the prayer column the following prayer may be added as clause (b) In the alternative the petitioner may be permitted to deposit the monthly rent for the petition premises due for the period from August 2009 to February 2010 before this Hon'ble Court, after deducting the sum of Rs.16,020/- paid by the petitioner to the Corporation of Chennai towards property tax for the petition premises, or before such authority and in such manner as may be prescribed by this Hon'ble Court and continue to deposit the future rent, which may subsequently become due in respect of the petition premises. The trial Court, after hearing both sides, allowed the above said applications. While filing the applications, the petitioners have not sought for amendment in respect of body of the petitions.
13.At this juncture, it is appropriate to consider the Sections 9(3) and 8(5) of the Act, which runs as follows:
Section 9(3)__Where any bona fide doubt or dispute arises as to the person who is entitled to receive the rent for any building, the tenant may deposit such rent before such authority and in such manner as may be prescribed and shall report to the Controller the circumstances under which such deposit was made by him and may continue to deposit any rent which may subsequently becomes due in respect of the building before the same authority and in the same manner until the doubt is removed or the dispute is settled by the decision of a competent Court or by a settlement between the parties or until the Controller makes an order under clause (b) of sub-section (4), as the case may be.
Section 8(5)__ If the landlord refuses to receive the rent remitted by Money Order under sub-section (4), the tenant may deposit the rent before the Controller and continue to deposit with him any rent which may subsequently due in respect of the building.
14.It is the duty of the revision petitioners/tenants to amend the body of the petitions, while filing the applications for amending the provision of law from Section 9(3) to Section 8(5) of the Act, but they have not sought for such amendment. They sought for amendment only in respect of provision of law in the prayer. As per the Section 9(3) of the Act, where any bona fide doubt or dispute arises as to the person who is entitled to receive rent for any building, the tenant may deposit such rent before such authority. So there is a dispute in respect of the ownership of the property. But whereas Section 8(5) of the Act is concerned, if the landlord refuses to receive the rent remitted by money order under sub-Section (4), the tenant may deposit the rent before the Rent Controller and continue to deposit with him. So there is a vital difference between the petitions filed under Section 9(3) and Section 8(5) of the Act. In view of the same, the petitioners ought to have filed separate applications under Section 8(5) of the Act.
15.Learned counsel for the petitioners fairly conceded that the petitioners received the letter of attornment of tenancy dated 25.05.2009 from respondents 1 and 2, in which, it was specifically stated that to attorn the tenancy in respect of above shops in favour of M/S.DNS Projects Private Limited and pay the arrears of rent for the period from October 2007 to them and also future rents. It shows that there is no dispute in respect of ownership and who is owner of the petition mentioned premises.
16.According to the learned counsel for the petitioners, petitioners paid the rent by way of cheques and he would draw attention of this Court through a letter dated 22.06.2009 to the respondents 5 to 8 by the petitioners, in which, in Item Nos.18 and 19 it was stated as follows:
Name of the tenant Shop No. Floor Cheque/D.D.No. Date Bank Amount in Rs.
R.Sanjay Kapoor, Old No.10, New No.19, Raju Naicken Street, West Mambalam, Chennai-33.34
First Floor 454613 451614 4.5.2009 4.5.2009 PNB 51,180/-
2,820/-
R.Deepak Kapoor, Old No.10, New No.19, Raju Naicken Street, West Mambalam, Chennai-33.
35First Floor 454611 454612 4.5.2009 4.5.2009 PNB 51,180/-
2,820/-
But the petitioners have not filed any document to show that the landlord refused to receive the rent thereafter.
17.Furthermore, in para-6 of the above letter, it was stated as follows:
6.My clients state that by letter dated 25.05.2009 their landlords have intimated that the tenancy in respect of their shops should be attorned in favour of M/S.DNS Projects Pvt. Ltd. and that M/S.DNS Projects Pvt. Ltd. undertakes the liability and takes full responsibility to repay the rental advance of Rs.2,00,000/-. My clients therefore hereby attorn their tenancy with respect to the shops under their possession and occupation in favour of M/S.DNS Projects Pvt. Ltd. My clients have deposited with me cheques/demand drafts for a sum of Rs.54,000/- towards the arrears of rent for each shop for the period from October 2007 till May 2009. The details of the cheques/drafts towards payments of the arrears of rent from October 2007 till May 2009 at the rate of Rs.2,670/- per shop are mentioned in the annexure enclosed along with this notice. .. .. In the above para, it was specifically stated that the petitioners attorned the tenancy in respect of shop under their possession in favour of DNS Projects Pvt. Ltd. and issued cheques for the rent arrears from October 2007 till May 2009. But there is no evidence to show that the landlord has refused to receive the rent.
18.Admittedly, R.C.O.Ps. are filed in the year 2008 and the rents have been paid up to May 2009 and the same have been received by the landlord. In such circumstances, there is no need to file application under Section 8(5) of the Act, since no cause of action for filing application under Section 8(5) of the Act arose. Because cause of action for filing application under Section 9(3) of the Act is entirely different from cause of action for filing the application under Section 8(5) of the Act. Once the petitioners attorned the tenancy and paid rents by way of cheques and the same have been received by the landlord, there is no cause of action for filing the application under Section 8(5) of the Act. So the petitioners are not entitled to pursue the applications and moreover, they have not filed any scrap of papers to prove that the landlord refused to receive the rent after June 2009. In such circumstances, I am of the view, the applications filed for amendment for including para-15 to 18 in the main petitions in R.C.O.P.Nos.702 and 779 of 2008 under Section 9(3) of the Act become infructuous, since the petitioners attorned the tenancy in favour of respondents 5 to 8 and paid rents from October 2007 to May 2009. So the trial Court rightly dismissed the petitions in M.P.Nos.136 and 137 of 2011.
19.Learned counsel for the petitioners mainly focused upon the applications in I.A.Nos.115 and 116 of 2010 stating that since they have been allowed by amending the provision of law, the Rent Controller ought to have allowed the amendment applications to include paras-15 to 18 in the main petitions, does not merit acceptance.
20.As already stated that cause of action for filing of petition under Section 9(3) of the Act is entirely different from the cause of action for filing of petition under Section 8(5) of the Act. So the trial Court has rightly dismissed the petitions in M.P.Nos.136 and 137 of 2011 and the same have been rightly confirmed by the appellate Court in R.C.A.Nos.707 and 706 of 2011. In my considered opinion, both the Courts below rightly considered all the aspects in proper perspective and came to the correct conclusion and so the concurrent findings of both the Courts below does not warrant any interference. I do not find any merits in the revision petitions and the revision petitions are dismissed as devoid of merits.
21.In the result, the Civil Revision Petitions are dismissed by confirming the fair and decreetal order passed in R.C.A.Nos.706 and 707 of 2011 which confirms the fair and decreetal order passed in M.P.Nos.136 and 137 of 2011. No costs. Consequently, connected Miscellaneous Petitions are closed.
03.09.2014 Internet:yes kj To
1.The Rent Control Appellate Authority (VIII Small Causes Court, Chennai).
2.The Rent Controller ( XIV Small Causes Court, Chennai).
R.MALA,J.
kj Pre-delivery order in C.R.P(PD).Nos.1103 and 1104 of 2014 and M.P.Nos.1,1 of 2014 03.09.2014