Mrs. Periyanayaki Selvaraj v. The Managing Director Tamil Nadu State Marketing Corporation Ltd. & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 13.09.2010CORAMTHE HONOURABLE Ms. JUSTICE K.B.K.VASUKIW.P.No.6356 of 2010 & M.P.Nos.1 & 2 of 2010Mrs.Periyanayaki Selvaraj... Petitionervs.1.The Managing Director.Tamil Nadu State Marketing Corporation Ltd., (TASMAC)4th Floor, CMDA Towers, Gandhi Irwin Road,Egmore, Chennai – 600 008.2.The Senior Regional Manager (south),Tamil Nadu State Marketing Corporation Ltd., (TASMAC)LLA Building, Mount Road, Chennai-6.3.The District Manager (South),Tamil Nadu State Marketing Corporation Ltd., (TASMAC)Egmore, Chennai-8...RespondentsPrayer :Writ petition filed under Article 226 of the Constitutionof India praying for the issuance of Writ of Certiorarified Mandamusto call for the records relating to the proceedingsNo.Na.Ka.No.A1/542/04 dated 07.05.2004 of the 3rd respondent to quashthe same and to direct the respondents 1 to 3 to pay the arrears ofrent, electricity charges for the period from February 2004 to July2007 at the rate of Rs.25,000/- per month for the property bearingDoor.No.8, Velecherry Road, Little Mount, Chennai-15 and also toreimburse Rs.28,118/- towards electricity charges paid by thepetitioner totally amounting to Rs.12,04,733/-For Petitioner... Mr.S.S.JagadevFor R1 to R3 ... Mr.J.RavindranORDEROn consent, the writ petition is taken up for final hearing atthe admission stage. https://hcservices.ecourts.gov.in/hcservices/

2. The writ petition is filed against the order of the 3rdrespondent in his proceedings dated 07.05.2004 to quash the same andto consequentially direct the respondents 1 to 3 to pay the arrearsof rent for the period from February 2004 to July 2007 at the rate ofRs.25,000/- per month and also reimbursement of Rs.28,118/- towardselectricity charges paid by the petitioner totally amounting toRs.12,04,733/- for the property bearing Door.No.8, Velacherry Road,Little Mount, Chennai-15.3. The fact that the petitioner is the owner of the property inquestion and the same was taken on lease from December 2003 onwardsfor running Wine Shop No.723 with Bar attached for monthly rent ofRs.25,000/- as per the terms of the agreement dated 06.01.2004. Therespondent/TASMAC authority paid rent at Rs.25,000/- per month andthe electricity consumption charges for two months for December 2003and January 2004.4. While so, the petitioner received the notice dated 8.02.2004from the 3rd respondent on 25.03.2004 in and under which the 3rdrespondent sought the consent of the petitioner/owner to reduce therent from Rs.25,000/- and the petitioner herein has by her replydated 08.04.2004 expressed her unwillingness to receive lower rentand has further insisted the authority to pay rent either atRs.25,000/- as agreed between the parties or to vacate and hand overthe vacant portion of the premises to the petitioner. But, the 3rdrespondent has unilaterally and arbitrarily reduced 14 months rent toRs,12,500/- from February 2004 and the 3rd respondent has also notpaid any rent either at the rate agreed between the parties or at thereduced rate from February 2004 onwards and the 3rd respondent hasalso not paid electricity consumption charges for the period inquestion in spite of the repeated demands made by the petitionerherein and the same compelled the petitioner to issue repeatedindividual and lawyer notice demanding payment of rental arrears andelectricity charges and for handing over vacant possession of theproperty in question.5. The TASMAC authority handed over the possession only on13.07.2007, but failed to pay the rental arrears and electricityconsumption charges to the tune of Rs.12,04,733/- which compelled thepetitioner to approach this court for the relief as cited supra.6. While according to the learned counsel for the petitioner therespondent is bound to pay the rent at the agreed rate and the agreedrent cannot be unilaterally reduced without the consent of thepetitioner, the learned counsel for the respondent would attempt tojustify the validity and enforceability of the impugned order on theground that the rent already fixed is highly exorbitant.7. I have considered the rival submissions made on both sides. https://hcservices.ecourts.gov.in/hcservices/

8. As already referred to, the lease of the petition mentionedpremises in favour of the respondent is evident from the rentalagreement executed on 06.01.2004 between the petitioner and theTASMAC represented by Senior Regional Manager enclosed at pages 1 to5 of the typed set of papers. The lease is subject to terms andconditions contained therein, as per which the monthly rent agreed isRs.25,000/- including electricity charges and the same was payable onor before 10th of every succeeding month. Whereas, the exchange ofnotices between the owner and the tenant enclosed at pages 7 to 9 ofthe typed set of papers reveals that the quantum of the agreed rentis unilaterally reduced to Rs.12,500/- without the consent of thepetitioner.9. As rightly argued by the learned counsel for the petitionerthe respondent cannot unilaterally reduce the rent that too in theabsence of the specific clause in the rental agreement and contraryto the intention expressed by the owner of the property to retain theagreed rent at Rs.25,000/- per month and the 3rd respondent has by theimpugned action not only violated the terms of the contract butfurther defaulted in paying the rent as well as the electricitycharges from February 2004 onwards. Such action of the 3rd respondentin unilaterally reducing the quantum of the agreed rent and indefaulting in payment of the rental arrears as well as electricitycharges is wholly unjustified, unfair, improper, illegal and the samehas now compelled the petitioner to approach this court forappropriate relief.10. However, the learned counsel for the respondent has withoutdenying the default committed in payment of rental arrears andelectricity charges sought to question the maintainability of thewrit petition by relying upon the order dated 13.3.2010 inWP.No.34455 of 2007 in P.Cholaraja Vs. The Managing Director, TASMAC,Chennai and two others. The reading of the judgment reveals that thefacts in the case are materially distinguishable with the factsinvolved in the instant case. In the case referred above therespondent defaulted in making payment of rental arrears andelectricity consumption charges the civil proceedings against TASMACis barred u/s.65 of the TASMAC Act the writ petition filed for therecovery of the amount was dismissed, by directing the petitionertherein to institute appropriate civil proceedings to collect thearrears of rent. The High Court held so not on the ground that thewrit jurisdiction is not maintainable but only in view of the disputeraised over the liability of the TASMAC to pay the same i.e, as towhether one Gunasekaran in whose favour the shop was rented out isliable to pay the consumption charges and only in the light of suchfactual controversy the writ petition was dismissed.11. Whereas the learned counsel for the petitioner has cited thejudgment of the Supreme Court reported in 2004 (3) SCC 553 in ABLInternational Ltd., and another Vs. Export Credit Guarantee https://hcservices.ecourts.gov.in/hcservices/ Corporation of India Ltd., and others; AIR 2002 P&H 68 in The Stateof Punjab and others Vs. Surjit Kaur and others for the legalpreposition, that in appropriate cases writ court has jurisdiction toentertain the writ petition involving dispute of questions of fact,in spite of suitable efficacious alternative remedy available by wayof suit involving consequential relief of monetary claim particularlywhen the impugned action of instrumentality of the state is arbitraryand unreasonable and invalid on valid legal grounds. That being thelegal position, there is no difficulty in entertaining the presentwrit petition for the relief sought for in this writ petition, whichis not relating to mere money claim but is mainly against theunilateral and arbitrary action of the respondent in reducing therent and the relief sought for recovery of money is onlyconsequential in nature. As this court, in the forgoing paragraphhas held that the action of the respondent is without any authorityand the respondent is consequently bound to pay rental arrears asagreed between the parties as well as electricity consumption chargesfor the electricity consumed by the respondent tenant, the impugnedorder negativing the legitimate claim made by the petitioner cannotbe factually and legally sustained. The writ petitioner has also inparagraphs 10 and 11 at Page 4 of her petition furnished theparticulars as to how the rental arrears is arrived at as per whichthe total amount payable, after adjusting the advance amount ofRs.2,50,000/- is Rs.8,14,013/-. In addition to the same, thepetitioner is also entitled to get the electricity consumptioncharges for the electricity consumed by the respondent.12. The learned counsel for the petitioner, in support of theclaim for interest at 18% per annum produced the latest judgment ofour High Court reported in 2010 CIJ 272 ALJ in Bank of India Vs.G.Naradan and another. Wherein the High Court has by following thelaw laid down by the Apex Court in (i) AIR 1990 SC 185 in LifeInsurance Corporation of India and another V. Gangadhar VishwanathRanade (Dead) by LRs; (ii) AIR 2000 SC 2003 in Ghaziabad DevelopmentAuthority V. Union of India and another and (iii) AIR 2003 SC 3411 inAditya Mass Communications (P) Ltd., Vs. APSRTC held that thedefendants Bank who has improperly retained the amount is liable topay the same with reasonable interest at 18% per annum. The readingof the judgment of Apex Court would support the claim for interest asmade by the petitioner herein. The Apex Court in the judgment abovereferred is pleased to hold that when a party has been wrongly denieduse of its own money it is the duty of the court to see that the saidparty is appropriately compensated.... and the rate of interestawarded in equity should neither be too high nor too low and the sameis governed by the facts of the case not by precedent in law, unlessof course limited by statue. Following the same our High Court hasdirected the respondent Bank to pay the amount with 18% simpleinterest. https://hcservices.ecourts.gov.in/hcservices/

13. Applying the same ratio, the claim of the petitioner for therecovery of the amount due to her with simple interest at 18% perannum having regard to the fact that the building was used forcommercial purposes has to be necessarily up held.14. In the result, writ petition is allowed as prayed for. Nocosts. Consequently, connected miscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartshTo1.The Managing Director.Tamil Nadu State Marketing Corporation Ltd., (TASMAC)4th Floor, CMDA Towers, Gandhi Irwin Road,Egmore, Chennai – 600 008.2.The Senior Regional Manager (south),Tamil Nadu State Marketing Corporation Ltd., (TASMAC)LLA Building, Mount Road, Chennai-6.3.The District Manager (South),Tamil Nadu State Marketing Corporation Ltd., (TASMAC)Egmore, Chennai-8. 1 cc To Mr.J.Ravindran, Advocate, SR.67587WP.No.6356 of 2010NSM(CO)sra 22/10/2010