High Court
Case Details
CRP 158/2012 BEFORE THE HON’BLE MR. JUSTICE A. K. GOSWAMI
Legal Reasoning
he tenant could not have been branded a defaulter. There is no dispute in the instant case that the rent for the month of March, 20 09 was tendered by way of a cheque, dated 02.04.2009, on 07.04.2009 and the cheq ue was refused to be accepted on that date itself by the landlord. On such refus al, the tenant could have deposited the rent in Court in terms of Section 5 (4) of the Act which reads as follows: (cid:28)Where the landlord refuses to accept lawful rent offered by his tenant, the tenant may, within a fortnight of its becoming due, deposit in Court the am ount of such rent together with process-fees for service of notice upon the land lord, and on receiving such deposit, the court shall cause a notice of the recei pt of such deposit to be served on the landlord and the amount of the deposit ma y thereafter be withdrawn by the landlord on application made by him to the cour t in that behalf. A tenant who has made such deposit shall not be treated as a d efaulter under clause (e) of the proviso to sub-section (1) of this section. (cid:29) Rent was not deposited in Court by the tenant and on 27.04.2009, once again, a c heque of the same amount as was in the previous cheque was tendered. This had gi ven rise to the filing of the suit by the landlord. Mr. S. Dutta, learned counsel for the petitioner, submits that on earlier occasi on also, there was a practice of payment of rent with accumulated arrear after r enewal of the lease, and therefore, having regard to the said practice, as the r enewal of the lease was not effected, the petitioner had sought to pay the exist ing rent and when the cheque dated 27.04.2009 was once again refused to be accep ted by the opposite party, the tenant petitioner started depositing rent in the Court in terms of Section 5 (4) of the Act. Therefore, he submits that the learn ed Courts below had committed material irregularity in coming to the finding tha t the tenant petitioner was a defaulter in the eye of law. Mr. S. Murarka, learned counsel for the opposite party, on the other hand, submi ts that there is no materials on record to show that on earlier occasion, tenant had accepted rent beyond the due date. He, however, does not dispute the fact t hat on earlier occasion, after rent was re-settled, accumulated arrear was accep ted at a time. He emphatically submits that in the instant case, the payment of rent for the month of March, 2009, on the face of it, was beyond time and, there fore, there is no escape from the conclusion that the tenant was a defaulter. Dr awing the attention of the Court to the application filed by the opposite party to bring on record subsequent event relating to default on the part of tenant pe titioner to pay rent for the period April, 2012 to August, 2012, it is also subm itted by him that the tenant was liable to be ejected on that ground also. He al so makes a statement at the bar that even for the subsequent months of September , 2012 to January, 2013, no deposits have been made by the tenant before the Cou rt. To support his contention that subsequent events can also be taken into cons ideration, he has placed reliance on Abdul Matin Choudhury vs. Nilayananda Dutta Banik, reported in 1997 (2) GLT 590 and in Bansal Traders and Others (M/S) vs. Nandlal Sattani, reported in 2006 (3) GLT 715. In Kalikumar Sen vs. Makhan Lal Biswas and Another, reported in AIR 1969 Assam a nd Nagaland, 66, a full Bench of this Court had held as follows: i) That the Assam Act does not provide for payment of rent by money order . It provides for special procedure for deposit of rent. A deposit made or a mon ey order sent could not be regarded as a valid tender. ii) It has been held in the later case by this Court that the tenant in orde r to claim protection under sub-section (1) must prove that he has paid rent law fully due from him in respect of the house and the tender or deposit in Court ca n only be regarded as payment if it has been done under the provisions of sub-se ction (5). It is, therefore, clear that the tenant in order to claim benefit und er sub-section (1) of Section 6 of the Act must have paid the rent lawfully due from him in respect of the house. The rent ’lawfully due’ means the rent that is to be paid under contract or the fair rent if fair rent has been determined by the Court under the Act. The lawful rent has to be paid within the time stipulat ed by the contract and if the landlord refuses to accept the lawful rent offered by the tenant, the tenant may within a fortnight of the rent becoming due may d eposit it in Court in accordant with sub-section (5) of Section 6 and in that ca se the tenant will be deemed to have paid rent lawfully due to the landlord and he will not be considered as defaulter forfeiting the benefit under sub-section (1) of Section 6. Since in the instant case the tenant has been found to be a de faulter, on a proper consideration of Section 6(1) of the Act the plaintiffs are entitled to a decree for ejectment. iii) Whether a tenant will be defaulter or not will depend upon the payment o f the rent lawfully due within the stipulated period under the contract or on re fusal by the landlord, on the deposit of rent made in Court as provided under su b-section (5) of Section 6 of the Act. iv) In my considered opinion, in order to avoid the bar of defaulter as laid done in Clause (e) to the proviso, the rent must be paid to the landlord within the stipulated time and when the landlord refuses to accept, it must be deposit ed in Court within the period prescribed in sub-section (5). (cid:29) The admitted position is that the rent was refused by the landlord, may be, with out any justification, on 07.04.2009. In order to avail the protection granted, tenant was obliged to deposit rent in the Court in accordance with the provision of Section 5 (4) of the Act within a period of fortnight of rent falling due i. e., on or before 24.04.2009. No deposit, however, was made before the Court and once again rent was offered by way of cheque for the same amount on 27.04.2009. Clearly, the tenant has become a defaulter. Mr. Dutta has failed to produce before this Court any material to show that on e arlier occasions also, the landlord used to accept rent beyond the stipulated da te. Therefore, this Court is of the considered opinion that no interference is c alled for with the judgment of the learned Courts below. In Abdul Matin Choudhury (Supra) and Bansal Traders (Supra), this Court had held that subsequent events can be taken into consideration in deciding a plea of d efault. It was held that the tenant is under an obligation to make payment of re nt in accordance with law if he wants to avail the protection granted by the ren t control legislation. It was also held that even before the highest Court, the landlord can, by prudent manner, bring to the notice of the Court during the pen dency of the proceeding that the tenant had failed to discharge his liability in cluding payment of rent. No counter affidavit has been filed to the application filed by the opposite par ty. In the said application, a certificate given by the learned trial court that no rent was deposited for the period of April, 2012 to August, 2012 is also ann exed. On this count also, the tenant is liable to be held a defaulter. Before parting with the records, this Court needs to take note of the last submi ssion of Mr. Dutta, which is to the effect that in the event of this Court findi ng that there is no infirmity with the judgments of the learned trial court as w ell as the appellate court, the decree may not be allowed to be executed for a p eriod of one year in order to enable the petitioner to make alternative arrangem ent. This prayer was vehemently objected by Mr. Murarka in view of the fact that the petitioner has not made payment of rent for the period April, 2012 to Janua ry, 2013. Considering the matter in its entirety, I allow 6 (six) months time from today t o the petitioner to vacate the premises, subject to the condition that the accum ulated arrear shall be deposited within a period of one month from today and tha t the petitioner shall pay rent for the 6 (six) months at the same rate on or be fore the end of each month. The tenant petitioner, within a period of one month from to-day, shall also file an undertaking before the learned trial court to th e effect that he will vacate the premises after expiry of 6 (six) months from to day without execution. In the event of failure to make payment on the part of t he petitioner in the above mentioned terms and to file the undertaking, the land lord will be at liberty to execute the decree. The Revision Petition stands disposed of in terms of the above.
Arguments
Heard Mr. S. Dutta, learned counsel for the petitioner. Also heard Mr. S. Murark a, learned counsel for the opposite party. Both the courts below have concurrently held the petitioner/defendant to be defa ulter in the matter of payment of rent for the month of March, 2009. The petitioner and the opposite party had entered into an agreement creating a t enancy in respect of the suit premises, expiring on 20.02.2009. The agreement wa s for a period of 5 years commencing from 01.03.2004. The tenancy was a monthly tenancy and rent was payable on or before the 10th day of the succeeding month. Before the expiry of tenancy, the landlord had sent a notice to the tenant, sett ing down new terms and conditions with regard to rent payable. There was no repl y from the petitioner to the proposed rent. The petitioner continued to be in possession of the suit premises and the petiti oner was obliged, in the circumstances, to continue with the same terms and cond itions with regard to mode of payment of rent as well as amount of rent, till a new tenancy was created with such terms and conditions as agreed upon. The rent for the month of March, 2009, accordingly, was payable on or before 10. 04.2009. Section 5 (1) (e) of the Assam Urban Areas Rent Control Act, 1972, for short, the Act, is relevant for the purpose of this case and the same is quoted here in below: (cid:28)5(1). No order or decree for the recovery of possession of any house sh all be made or executed by any court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of tenancy: Provided that nothing in this sub-section shall apply in a suit or proceedings f or eviction of the tenant from the house:- a) b) c) d) e) of the house within a fortnight of its falling due? (cid:29) In view of the provision of Section 5 (1) (e) of the Act, if the tenant had paid rent on or before 24.04.2009, such payment of rent would have been lawful and t & & & & & & & & & & & & & & & & & & & & &.. & & & & & &.. & & & & & & & & & &. & & & &. Where the tenant has not paid the rent lawfully due from him in respect