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C.T. Meyammai v/s S. Mohamed Kamil, Proprietor, Fashion N Style

    Civil Revision Petition (N.P.D.) No. 1377 of 1998

    Decided On, 25 May 2004

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.SARDAR ZACKRIA HUSSAIN

    Mr.Habibullah Basha, Senior Counsel for Mr.R.Suresh Kumar for Petitioner. Mr.R.Soundararajan, Advocate for Respondent.



Judgment Text

1. The landlady is the revision petitioner in this Civil Revision Petition. This Civil Revision Petition has been filed against the judgment passed in the Rent Control Appeal preferred by tenant, which was allowed by the Rent Control Appellate Authority setting aside the eviction of the tenant from the petition non-residential premises in the ground floor bearing Door No. 108 Usman Road, T.Nagar, Chennai - 17, ordered by the Rent Controller on the ground of wilful default in payment of rent.


2. The landlady as petitioner filed the Rent Control Original Petition stating that the respondent is a tenant under the petitioner in respect of a portion in the ground floor in the premises bearing Door No. 108 Usman Road, T.Nagar, Chennai - 17, and is carrying on business in textile shop on a monthly rent of Rs.900. The respondent is irregular in payment of rent and inspite of repeated demands, he used to pay the rent by cheques belatedly. The respondent issued a cheque dated 25.9.1991 in favour of the petitioner for a sum of Rs. 7200 towards arrears of rent from January 1991 to August 1991 and when the cheque was presented for encashment, it was returned with endorsement ?Insufficient Funds?. The return of the cheque was intimated to the staff of the respondent since the respondent was not available to be personally contacted. The dishonour of cheque issued towards arrears of rent is nothing but wilful and as such, the respondent is liable to be evicted from the petition premises on the ground of wi lful default in payment of rent.


3. The Rent Control Original Petition was challenged by the tenant as respondent by filing counter admitting tenancy and quantum of rent and further stating that he is running the business in the name and style of ?Fashion ?N? Style? as a Proprietory concern, which was carried on in the name and style of ?Shams Textiles?. The unaccounted money equal to the rental amount was paid in advance for the entire year and accordingly, when the respondent went to Australia in January 1991, he paid the unaccounted money for the entire year 1991. He also issued two post-dated cheques dated 15.2.1991 and 28.3.1991 for Rs.1800 each towards the rent for the months of October 1990 to December 1990 and January 1991. The respondent instructed his wife to pay the rent alone to the petitioner?s son Rajendran from February 1991. Though the respondent signed the cheque leaves and handed over the same to his wife to enable her to pay the rent, the petitioner?s son Rajendran did not collect rent from the wife of the respondent. When it was tendered to the petitioner?s son Rajendran through the Accountant, it was not accepted on some pretext. The bearer cheque (uncrossed) for a sum of Rs.7200 dated 25.9.1991 drawn on Vijaya Bank, Adyar Branch, was issued on 24.9.1991 instructing Rajendran to present the same at 10.00 am on 25.9.1991. But the cheque was presented at 8.30 am on 25.9.1991 and was returned. The respondent?s accountant deposited a sum of Rs.7200 at 9.00 am on 25.9.1991. The return of the cheque was not informed to the wife of the respondent till the eviction notice was received by her from the Court in the Rent Control Original Petition. It is stated that inasmuch as the entire amount was deposited on 25.9.1991, there is no wilful default as claimed by the landlord. It is also stated that when the wife of the respondent contacted the son of the petitioner Mani, on receipt of the eviction notice, he informed her that the matter can be amicably settled on return of the respondent to India. On his return to India on 12.2.1992, the respondent changed the counsel on record and paid the entire rental amount of Rs.10,800 for the period from February 1991 to January 1992. There was no wilfulness or any deliberate attitude on the part of the respondent in withholding the rent. On these grounds, the respondent/tenant sought for dismissal of the petition.


4. The Rent Controller, after considering the evidence adduced by the son of the landlady C.T.Palaniappan alias Mani as P.W.1 on the side of the petitioner and that of the respondent as R.W.1 and one Yusuf as R.W.2 on the side of the respondent and the Exhibits P.1 to P.7 marked on the side of the petitioner, Exhibits R.1 to R.17 marked on the side of the respondent and Exs. C.1 to C.3, recorded finding that the tenant committed default wilfully in payment of rent from January 1991 to August 1991 and accordingly, ordered eviction of the respondent from the petition non-residential premises on the ground of wilful default in payment of rent. The said order of eviction was challenged in the Rent Control Appeal and the Rent Control Appellate Authority further examined R.W.1 as per order in C.R.P. No. 986 of 1997 and considering such further evidence and evidence available on record oral and documentary and also Ex.P.8 marked before him, the Rent Control Appellate Authority reversed the order of eviction and allowed the Rent Control Appeal. Hence, the landlady has preferred this revision petition.


5. Heard the learned senior counsel appearing for the revision petitioner/landlady and the learned counsel for the respondent/tenant.


6. The landlady filed R.C.O.P. No.1841 of 1993 claiming that the tenant had committed default in payment of rent wilfully for the month of December 1990. It appears that the said R.C.O.P. was dismissed as withdrawn and it is also admitted by P.W.1, son of the landlady, that two cheques each for Rs.1800 were given by the petitioner towards rent for the months of October 1990 to December 1990 and January 1991. The Vijaya Bank, Adyar Branch, issued a Certificate, as seen in Ex.R.13, stating that the two cheques bearing Nos. 736009 and 736011 dated 15.2.1991 and 28.3.1991 respectively for Rs.1800 each issued in favour of C.T.Meyammai, have been passed by them on 21.2.1991 and 2.4.1991 by payment to one J.Swaminathan and by clearing cheque through Karur Vysya Bank, T.Nagar, respectively. Such entries have also been made in the Bank Pass Book under Ex.R.15. Therefore, it is clear that the rent till January 1991 was paid.


7. It is stated by the landlady that the tenant has committed default wilfully in payment of rent from January 1991 to August 1991 and when the cheque Ex.P.1 dated 25.8.1991 for Rs.7200 was presented for encashment, the same was returned with endorsement ?insufficient funds? and as such, according to the learned counsel for the landlady, such default in payment of rent amounts to wilful default. Mr.Habibullah Basha, learned senior counsel appearing for the landlady, vehemently contended that the rent for the months of February 1991 to August 1991 was not paid every month, that the cheque Ex.P.1 dated 25.9.1991 for Rs.7200 towards rent for 9 months, when presented for encashment, was returned with endorsement as ?Insufficient Funds?, and that the rent was not paid for the said months till the filing of the Rent Control Original Petition on 22.10.1991 and such default in payment of rent for the period from February 1991 to August 1991 is wilful inasmuch there have been indifference and callousness on the part of the respondent / tenant. The learned counsel further argued that though the rent for 9 months to the tune of Rs.7200 was deposited on 25.9.1991 after the return of the cheque Ex.P.1 on the same day, merely because of such deposit, no inference can be drawn that the tenant has not committed wilful default in payment of rent for the period from February 1991 to August 1991. The learned counsel brought to the notice of this Court that in fact the rent for the months of December 1990 and January 1991 was paid on 28.3.1991.


8. In support of the contention that the tenant has committed default wilfully in payment of rent for the period from February 1991 to August 1991, the learned senior counsel appearing for the revision petitioner placed reliance on the decision of this Court in A.M.Chakrapani Reddiar v. Issa Muniratnam Chetty, 1966 (79) L.W. 600, wherein it was held that it cannot be said that merely because the default is only for one month, it could straightaway be deemed to be not wilful and that the action of the tenant in issuing a cheque, which he obviously knew would be dishonoured, is certainly a pointer and should be bad regard to in coming to any conclusion on that head.


9. Learned counsel also relied on a decision of this Court in Thayammal v. K. Subramaniam, 1989 (1) L.W. 228, wherein Srinivasan, J. (as he then was) has held that the fact that the tenant sent the rent as soon as a notice was issued to her with reference to the wilful default, will not enable the tenant to plead that there was no wilful default.


10. In Deluxe Road Lines Represented By Its Partner, Vishalchand B.Shah v. K.Palani Chetty, 1992 (2) M.L.J. 481, Srinivasan, J. (as he then was) has held as follows:


?An unexplained default is undoubtedly wilful. A reading of the main section and Proviso makes it clear that it is for the tenant to prove that his default is not wilful. It is only the tenant who knows the relevant facts and he should plead the same and prove them before the Controller in order to satisfy the Controller that the default was not wilful. If the tenant is not able to satisfy the Controller that there were circumstances, which prevented him from carrying out his contractual or statutory obligation of having paid the rent, then the necessary consequential inference is that the default is wilful. No doubt, the explanation introduced by the Amending Act of 1973 is to the effect that a default should be construed as wilful if the tenant fails to pay even after issue of two months? notice by the landlord claiming the rent. But it is not necessary in every case that a notice should have been issued by the landlord to the tenant in order to hold that the default is wilful. Even in cases where there was no notice calling upon the tenant to pay the rent, the default could still be held to be wilful.?


11. The learned counsel for the revision petitioner relied on the decision of the Full Bench of the Supreme Court in Balwant Singh and others v. Anand Kumar Sharma and others , 2003 (2) CTC 125 : 2003 (2) Supreme 182, wherein in paragraph 4, it has been held as follows:


?The provisions of the Bihar Buildings (Lease, Rent and Eviction Control) Act would clearly show that unlike Rent Control Statutes of other States, the expression ?wilful default? or ?habitual default? has not been used therein. The words are ?is in arrears?. In the event, rent for two months is not paid a cause of action arises. The statute mandates that the rent should be paid within the time fixed by the contract and in absence thereof by the last date of the month next following. The obligation on the part of the tenant to pay rent in the manner laid down under the Act, being a statutory one, he must comply therewith strictly. The statute, therefore, in other words, prescribes the period within which the rent must be rendered to the landlord by a tenant. When the statute lays down the period during which the rent is required to be paid or deposited, the same is required to be complied with.?


12. The learned counsel also placed reliance on the decision of this Court in K.Chinnathambi Rowther v. K.Shanmugam, 2004 (1) CTC 407, wherein it was held that the tenant in that case did not establish payment of advance and that he did not obtain receipts from the landlord for payment of rent or advance. It was held that law casts duty on tenant to receive receipts and in the event of the landlord refusing to issue receipts, the tenant ought to proceed under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ?the Act?).


13. The learned senior counsel appearing for the revision petitioner / landlady submitted that since it is set out that the landlady was not in the habit of issuing receipts for the rental amount paid, the tenant should have proceeded as contemplated under Section 8 of the Act.


14. The tenancy and the quantum of rent is admitted. It is not disputed that the tenant has committed default in payment of rent for the period from February 1991 to August 1991. But, according to the tenant, it is not wilful and there is no indifference and callousness on his part in not paying the rent for the said months. According to the tenant, he also used to pay unaccounted money, equal to the monthly rent, in advance for the entire year in January itself and accordingly, he also paid the rent in advance for the year 1991 in January 1991 when he left for Australia. Before leaving so, he also gave two post-dated cheques dated 15.2.1991 and 28.3.1991 for Rs.1800 each towards the rent for the months of October 1990 to December 1990 and January 1991 and instructed his wife to pay the rent from February 1991 onwards and in fact, he also signed the cheque leaves and handed over the same to his wife, enabling her to pay the rent. Though the rent was tendered through the Accountant of the respondent, the petitioner?s son Rajendran, under one pretext or other, was postponing to accept the same. However, on 24.9.1991, the wife of the respondent, through the accountant, issued Ex.P.1, bearer (uncross) cheque dated 25.9.1991 for a sum of Rs.7200 drawn on Vijaya Bank, Adyar Branch, instructing the petitioner?s son Rajendran to present the same at 10.00 am on 25.9.1991. Since it was presented at 8.30 am on 25.9.1991, the cheque was returned. But, however, the accountant of the respondent deposited the sum of Rs.7200 at 9.00 am on 25.9.1991. Therefore, inasmuch the entire rental amount for the period from February 1991 to August 1991 was deposited, such default in payment of rent, according to the learned counsel for the respondent/tenant, cannot be construed as wilful.


15. Learned counsel also argued that there was no mens rea in paying the rent for the period from February 1991 to August 1991 as per cheque Ex.P.1 dated 25.9.1991. However, the learned counsel also pointed out that inasmuch as the return of cheque was not informed to the wife of the respondent, immediately on return to India, the respondent paid a sum of Rs.10,800 on 12.2.1992 towards rent for the period from February 1991 to January 1992 and as such, the tenant has not committed wilful default in payment of rent for the period from February 1991 to August 1991. In support of the contention, learned counsel also contended that this Court cannot interfere with the finding of the Rent Control Appellate Authority under Section 25 of the Act in view of the fact that the Rent Control Appellate Authority is the final authority. Learned counsel also argued that it cannot be held that the tenant has committed wilful default merely because there is failure on the part of the respondent for resorting to procedure under Section 8(5) of the Act for deposit of arrears of rent.


16. Learned counsel for the respondent / tenant, in support of the contentions relied on the following decisions:


(i) Khivraj Chordia v. G.Maniklal Bhattad, A.I.R. 1966 Mad. 67; (ii) R.Lakshmia v. G.Venkataswamy Naidu , 1974 (87) L.W. 87; (iii) S.C.Basappa v. Jumnadoss also known as Jumnadoss Manickchand , A.I.R. 1979 (1) M.L.J. 317; (iv) S. Sundaram Pillai, Etc. v. V.R.Pattabiraman, Etc. Batch, A.I.R. 1985 SC 582 (FB); (v) K.L.Suganthi v. T.Sambalingam, 2000 (2) M.L.J. 31; (vi) Mahalingam v. Pichaiammal , 2000 (2) M.L.J. 202; (vii) M/S Chordia Automobiles v. S.Moosa and others, 2000 (I) CTC 742; (viii) Raja Muthukone (Dead) by Lrs. v. T.Gopalasami and another , 2002 (4) SCC 204; (ix) G.Rangaraju v. Parthasarathi, 1964 (2) M.L.J. 12; (x) Chithiraivadivu Ammal v. Dr. Moses T. Sundar , 1982 T.L.N.J. 57; (xi) P.M. Punnoose v. K.M.Munneruddin and others , 2003 (3) CTC 348 : 2003 (3) M.L.J. 138 (S.C.); and (xii) Tamil Nadu Motors, Represented by Gowtham, Madras-29, v. N. Lakshmi, 1999 (3) L.W. 284.


17. In the counter filed by the tenant in the Rent Control Original Petition, it is stated by him that when he left for Australia in January 1991, he instructed his wife to pay the rent alone to the petitioner?s son Rajendran from February 1991 for which purpose he also signed the cheque leaves and handed over the same to his wife to enable her to pay the rent. But the petitioner?s son Rajendran did not collect the rent from his wife. It is further stated in the counter that when it was tendered to the petitioner?s son Rajendran through the accountant, it was not accepted on some pretext. Though such case is set out in the counter, the cheque leaves signed by the tenant and handed over to his wife to facilitate the payment of rent every month from February 1991, which cheques are said to have been not collected by the petitioner?s son Rajendran, have not been marked as Exhibits to accept the case of the tenants. The tenant is expected to pay rent every month regularly if agreed otherwise. The tenant admittedly committed default in payment of rent for the period from February 1991 to August 1991. In fact, the bearer cheque Ex.P.1 dated 25.9.1991 for Rs.7200 towards rent for the months of August to September 1991 was handed over on 24.9.1991 with instruction to present the same at 10.00 am on 25.9.1991 but since it was presented at 8.00 am on 25.9.1991, the cheque was returned as ?insufficient funds?. Therefore, it is clear that there have been indifference and evasiveness on the part of the tenant in is suing the cheque Ex.P.1 dated 25.9.1991 and handing over the same on 24.9.1991 without even verifying as to whether there was so much amount in the Bank Account. Ex.P.1 cheque amount of Rs.7200 was actually deposited only at 9.00 am on 25.9.1991 and even before that, the cheque was presented and returned as insufficient funds. Merely because the said amount was deposited at 9.00 am on 25.9.1991 in the Bank account of the tenant, it cannot be said that by depositing the amount as such towards the rent fo r the months of February 1991 to August 1991 such default is not wilful. It is also not proved that the tenant has actually handed over the cheques signed by him to his wife for the purpose of paying rent from February 1991. Even assuming that such cheques were handed over to his wife and in fact, the rent for the months of February 1991 to August 1991 was tendered by the wife of the tenant or by his accountant and that the cheques were not accepted by petitioner?s son Rajendran under some pretext, then the remedy available under Section 8(5) of the Act has not been resorted to by the tenant.


18. According to the landlady, the return of cheque Ex.P.1 as insufficient funds was informed to the staff of the tenant and the Rent Control Original Petition was filed on 22.10.1991. The first hearing of the case was on 27.11.1991 on which date, the vakalat was filed by the counsel for the tenant and time was extended for filing counter and the tenant on his return to India in February 1992 paid th

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e rental amount of Rs.10,800 for the period from February 1991 to January 1992. The respondent wilfully withheld the rent payable to the landlady for the period from February 1991 to August 1991. Such default committed in payment of rent is not for one or two months but from February 1991 to August 1991. As such, there has been indifference and callousness in not paying the rent wilfully for the months from February 1991 to August 1991. There is no dispute with regard to the quantum and arrears of rent payable for the months from February 1991 to August 1991, which actually was paid on 21.2.1992 by the tenant on his return to India from Australia, and after the return of the cheque Ex.P.1 as insufficient funds when presented for collection on the same date. The tenant has failed to prove that he has not committed default wilfully in payment of rent from February 1991 to August 1991. There have been deliberate intention in the default committed by the tenant in payment of rent for the period from February 1991 to August 1991, which amounts to wilful. Admittedly, the rent for the period from February 1991 to August 1991 was not paid or tendered every month and the cheque Ex.P.1 for Rs.7200 was also issued without the amount in the Bank account of the tenant. Therefore, a clear case is made out and the landlady has proved that the tenant has committed wilful default from February 1991 to August 1991 and the finding of the Appellate authority being erroneous, is to be set aside. 19. In the result, the Civil Revision Petition is allowed with costs setting aside the judgment passed by the Rent Control Appellate Authority. Order of eviction passed by the Rent Controller is restored. After pronouncement of the order, the learned counsel for the respondent/tenant sought time for eviction. Considering such request, four months time is granted for eviction, on the respondent / tenant filing an undertaking affidavit within two weeks from the date of receipt of copy of this order that he would hand over possession of the petition premises without resorting to execution proceedings.
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