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H. Moahmed Zaid & Others v/s M/s. Aero Star Travels India Pvt. Ltd., Rep. by its Director, M.S. Mohamed Ansari

    C.R.P. (NPD) Nos. 46 & 47 of 2019

    Decided On, 09 April 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN

    For the Petitioners: R. Bharath Kumar, Advocate. For the Respondent: P.B. Balaji, Advocate.



Judgment Text

(Prayer In C.R.P(NPD).No. 46 of 2019: Civil Revision Petition filed under Section 25(1) of Tamil Nadu Buildings (Lease & Rent Control) Act, against the Judgment and Decree dated 14.08.2018 made in R.C.A.No. 207 of 2015 on the file of IX Judge, Small Causes Court, Chennai, reversing the fair and final order dated 19.11.2014 made in M.P.No. 65 of 2014 in R.C.O.P.No. 1122 of 2013 on the file of X Rent Controller Judge, Small Causes Court, Chennai.

Prayer In C.R.P(NPD).No. 47 of 2019: Civil Revision Petition filed under Section 25(1) of Tamil Nadu Buildings (Lease & Rent Control) Act, against the Judgment and Decree dated 14.08.2018 made in R.C.A.No. 208 of 2015 on the file of IX Judge, Small Causes Court, Chennai, reversing the fair and final order dated 15.12.2014 made in R.C.O.P.No. 1122 of 2013 on the file of X Judge, Small Causes Court, Chennai.

Common Order:

Civil Revision Petition No. 46 of 2019 has been filed taking advantage of Section 25(1) of Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 [the Act] as amended, by the landlords, questioning the Judgment and Decree dated 14.08.2018 made in R.C.A.No. 207 of 2017 passed by the learned IX Judge, Small Causes Court, Chennai, reversing the fair and final order dated 15.12.2014 made in M.P.No. 65 of 2014 in R.C.O.P.No. 1122 of 2013 passed by the learned X Rent Controller Judge/Rent Controller, Small Causes Court, Chennai.

2. Civil Revision Petition No. 47 of 2019 has been filed taking advantage of Section 25(1) of Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 [the Act] as amended, by the landlords, questioning the Judgment and Decree dated 14.08.2018 made in R.C.A.No. 208 of 2018 passed by the learned IX Judge, Small Causes Court, Chennai, reversing the fair and final order dated 15.12.2014 made in R.C.O.P.No. 1122 of 2013 passed by the learned X Judge/Rent Controller, Small Causes Court, Chennai.

3. The petitioners herein had filed R.C.O.P.No. 1122 of 2013 primarily under Section 10(2)(i) of the Act seeking eviction of the respondent from the schedule mentioned property and put the petitioners in vacant possession.

4. The schedule mentioned property consists of shop Nos. 1 and 11 measuring about 300 sq.ft., on the ground floor of the building known as Hameeda Building at Old Door No. 95, New No. 200, Angappa Naicken Street, George Town, Chennai – 600 001 on one side and Door No. 2, Post Office Street, Chennai – 600 001 on the other side.

5. It is claimed by the petitioners that they are the co-owners of the said building and the respondent was inducted as a tenant in shop Nos. 1 and 11 in the ground floor on a monthly rent of Rs.3500/-. The respondent had also deposited a sum of Rs.35,000/- as refundable rental advance. It is claimed by the petitioners that the respondent was not regular in the payment of monthly rent. The petitioners also claimed that the respondent is liable to pay service tax.

6. It is claimed by the petitioners that the respondent did not pay the rent from the month of March 2010 to the month of March 2012 for 25 months which aggregated to Rs.87,500/- at Rs.3,500/- per month. Further, the service tax amount had also accrued to Rs.6726/- for the said period. It must also be mentioned that the petition had also been filed under Section 10(2)(a)(iii) and also under Section 10(2)(a) of the Act.

7. On receipt of notice of the filing of the petition, the respondent filed their counter. They claimed that they had paid a sum of Rs.9,50,000/- as advance and further claimed that the allegation that they had deposited only Rs.35,000/- as advance was not correct. They also denied the allegation that they were irregular in the payment of monthly rents. They claimed that they had sent the monthly rents periodically by money orders from March 2010 to October 2013 to the petitioners and the petitioners had refused to receive the rent. They also questioned their liability to pay service tax. As a matter of fact, they claimed that service tax, as a concept was not imposed at the time when they entered into tenancy in the year 2001. They also denied the allegations relating to seeking eviction under Section 10(2)(a)(iii) and under Section 10(2)(a) of the Act. They claimed that the petition should be dismissed.

8. Pending the petition, the petitioners filed M.P.No. 65 of 2014 under Section 11(4) of the Act. They claimed that the respondent was in arrears of payment of monthly rent from March 2010 to November 2013 for 45 months aggregating to Rs.1,57,500/- at Rs.3,500/- per month. They also claimed that service tax of Rs.10,058/- was also payable by the respondent. They also stated that a legal notice dated 14.04.2012 was issued which though served was not replied by the respondent.

9. A counter was filed to the said petition by the respondent once again reiterating the stand taken by them that they had actually paid a sum of Rs.9,50,000/- as advance. They also gave the details of the dates of the said payment. They denied that they were in arrears of rent and claimed that they had sent the rent periodically by money orders and that the petitioners had refused to receive the same. They also stated that they were not liable to pay any service tax.

10. This petition came up for consideration before the learned X Judge, Court of Small Causes, Chennai on 19.11.2014. The learned Judge held that there was no proof advanced by the respondent for payment of Rs.9,50,000/- as advance. The learned Judge therefore held that the advance paid was only Rs.35,000/- as contended by the petitioners. The learned Judge also held that there was no proof for sending the monthly rent by way of money orders. That contention was therefore rejected.

11. The learned Judge also pointed out that the respondent had filed M.P.No. 375(A) of 2014 under Section 11(3) of the Act wherein they had admitted that they were due to pay the rent from March 2010 onwards. With respect to service tax, the learned Judge held that the said tax cannot be directed to be paid by the respondent and that the petitioners are at liberty to prove the liability to pay service tax during the course of trial. The learned Judge also held that under law, one month rent alone can be held back as advance and therefore, directed the respondent to pay a sum of Rs.1,64,500/- as arrears of rent from March 2010 to October 2014 at the rate of Rs.3,500/- per month after deducting the advance amount of Rs.31,500/-. This amount was directed to be paid on or before 03.12.2014.

12. The learned Judge also dismissed the petition filed in M.P.No. 375(A) of 2014 which had filed under Section 11(3) of the Act.

13. It must also be mentioned that the respondent had also actually filed R.C.O.P.No. 1680 of 2014 under Section 8(5) of the Act, which petition had also been dismissed.

14. The respondent herein did not comply with the conditional order but rather, filed M.P.No. 721 of 2014 seeking extension of time till the middle of January 2015 for complying with the condition to deposit the arrears of rent. That petition was dismissed on 15.12.2014 and consequently, since the conditional order passed in M.P.No. 65 of 2014 was not complied, the said M.P.No. 65 of 104 was allowed and further proceedings in R.C.O.P.No. 1122 of 2013 were stopped and eviction was ordered by order dated 15.12.2014. Time of two months was granted for vacating the premises.

15. As against these orders, the respondent filed R.C.A.No. 207 of 2015 and R.C.A.No. 208 of 2015. The respondent filed R.C.A.No. 207 of 2015 questioning the order in M.P.No. 65 of 2014 and R.C.A.No. 208 of 2015 questioning the order in R.C.O.P.No. 1122 of 2013. Both these applications came up for consideration before the Rent Controller Appellate Authority, IX Court of Small Causes, Chennai, Special Judge to deal with MCOP cases on 14.08.2018. A common order was passed in both the appeals.

16. The learned First Appellate Judge found that since no proof was given by the respondent herein with respect to payment of advance of Rs.9,50,000/- and also for tendering amounts through money order, the order of the learned Rent Controller did not warrant any interference for determining the advance amount as Rs.35,000/- and also for holding that the monthly rents were not paid through money order. The learned Judge however relied on 2004 (5) CTC 314 [ G.V.H. Prasad alias Jothi Prasad Vs. K.R. Rajaram]. The learned Judge relied on the said Judgment for the fact that along with Rent Control Appeals, the respondent herein had also filed applications in M.P.Nos. 101 and 102 of 2015 seeking stay and they were directed to pay the arrears of rent and the entire arrears of rent had been paid without prejudice to the contentions raised in the Rent Control Appeals. It had been therefore contended that based on the said dictum laid in the said Judgment that since the entire arrears had been paid, the order of the trial Court will have to be set aside. The learned Judge restored R.C.O.P.No. 1122 of 2013.

17. These two orders have been questioned in the present Civil Revision Petitions.

18. It is the contention of Mr.R. Bharath Kumar, learned counsel for the petitioner that by restoring the Rent Control Petition, the learned Appellate Authority had made a mistake since the issue that there was willful default had already been adjudicated by the fact that there was a direction to pay the arrears amount. This direction was not complied with and an application was filed seeking extension of time. That application was also dismissed. Appeals were filed and pending the appeals, the arrears amount of rent had been tendered. The learned counsel therefore stated that reliance placed on the Judgment in 2004 (5) CTC 314 [ G.V.H. Prasad alias Jothi Prasad Vs. K.R. Rajaram] would not be appropriate.

19. The learned counsel also stated that the Hon'ble Supreme Court had occasion to examine a somewhat identical case reported in 2006 (5) CTC 698 [ Maragathammal Vs. Kamalammal].

20. On the other hand, learned counsel Mr. P.B. Balaji for the respondent however placed reliance on 2004 (5) CTC 314 G.V.H. Prasad, referred supra and stated that the learned First Appellate Judge had correctly restored the Rent Control Petition to file. It is the contention of the learned counsel that whether there was a willful default in the payment of rent is a matter to be adjudicated during trial and the respondent herein should have opportunity to explain as to why they did not pay the rent and also to produce documents particularly with respect to their contention that the rents have been paid by money order for the disputed period.

21. I have carefully considered the submissions made.

22. The fact that the petitioners herein are the landlords and the respondent herein is the tenant is accepted by both parties. The fact that the monthly rent was Rs.3,500/- is not disputed. It is the contention of the petitioners that an advance of Rs.35,000/- was paid. It is the contention of the respondent that an advance of Rs.9,50,000/- was paid. Both the Courts below had found as a fact that no proof had been produced to substantiate that an advance of Rs.9,50,000/- was paid. That issue cannot therefore be reopened again.

23. It is the case of the respondent that they had paid the monthly rents from March 2010 till October 2013 by way of money order and that the petitioners refused to receive the same. This is a fact which could have been easily substantiated by the respondent by producing the money order receipts sent and the returned slips. They have not chosen to do so. They have not even given any explanation why they have not produced it. Both the Courts below therefore found this statement against the respondent. I concur with such finding.

24. With respect to the issue of service tax, again both the Courts have stated that the respondent cannot be mulcted with that liability. That view is again concurred by me.

25. The only fact which remains to be decided is whether the Rent Control Appellate Authority was correct in condoning payment of arrears of rent and in restoring the Rent Control Petition to file.

26. Reliance had been placed on 2004 (5) CTC 314, G.V.H. Prasad referred supra. In that case, the learned Single Judge had stated that deposit of entire arrears of rent as directed by the Rent Control Appellate Authority could be taken as time granted for payment of rental arrears fixed by the learned Rent Controller and therefore, no further orders need be made in the petition filed under Section 11(4) of the Act. It had also been held that the fact that stay application was filed seeking stay of the order of the learned Rent Controller is to be construed as an application for extension of further time for depositing rental arrears. It was also held that the deposit of rental arrears during the pendency of the appeal as directed by the Rent Control Appellate Authority is to be construed as time granted by the Rent Control Appellate Authority for making entire deposit of rental arrears.

27. However, it must also be pointed out that the Hon'ble Supreme Court while exercising a similar fact situation had also gone into determining whether there was bona fide on the part of the respondent/tenant in complying with the directions of the Rent Controller.

28. In the instant case, the respondent has come to Court by stating facts which they substantiated. They stated that they had paid an advance of Rs.9,50,000/-. They have not established it. They stated that they paid the entire rental arrears through money order for the period between March 2010 to October 2013. They have not produced documents to substantiate the same. They were then given time by the learned Rent Controller to deposit the arrears. This was by order dated 19.11.2014 in M.P.No. 65 of 2014. Time was granted till 03.12.2014. They did not comply with the directions.

29. On the other hand, they filed M.P.No. 721 of 2014 seeking extension of time. This petition was filed on 02.12.2014 just one day prior to the last date fixed for compliance. That petition was dismissed. Thereafter, orders were passed stopping further proceedings in the Rent Control Petition and directing eviction. The Rent Control Appellate Authority failed to take note of this particular vital circumstance.

30. In 2006 (5) CTC 698 [ Maragathammal Vs. Kamalammal], the Hon'ble Supreme Court examined a case where the Rent Controller had directed the tenant to deposit the entire admitted arrears into Court on or before 22.11.1995. One day prior, on 21.11.1995, the tenant filed a lodgment schedule stating that he desires to deposit the rent. This came to be considered and the issue of challan for deposit of the amount was ordered on 29.11.1995. Even in that case, the Hon'ble Supreme Court wondered why the respondent lodged the schedule as late as on 21.11.1995 just a previous day prior to 22.11.1995. The order of the Madras High Court taking a considerate view was reversed by the Hon'ble Supreme Court and the tenant was granted two months time to vacate the premises in question, failing which it was directed that she will be evicted by using police force. I hold that this reasoning of the Hon'ble Supreme Court applies with full force to the facts of the present case.

31. Even in the instant case, the tenant did not pay the arrears as directed by the Rent Controller.

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One day prior to the last date, an application was filed seeking extension of time. That was rejected. Further orders were passed in the Rent Control Petition. I find no reason to interfere with that. However, the Rent Control Appellate Authority had interfered with the same and had restored the Rent Control Petition. I hold that order requires to be interfered with. It has to be set aside. 32. It is also to be pointed out that the Judgment of the Hon'ble Supreme Court cited supra in 2006 (5) CTC 698, [ Maragathammal Vs. Kamalammal] had also been relied by yet another learned Single judge of this Court in 2011 2 MWN (Civ) 138 [ G.Suresh Kumar Vs. O.L. Muthu]. In that case, the learned Single Judge had very specifically held that deposit of rents made by the tenant pursuant to the orders passed by the Appellate Authority as a condition for hearing the appeal cannot be construed as a bona fide deposit for the purpose of absolving the tenant from the default committed. The said reasoning is directly applicable. It has been rendered much subsequent to the Judgment relied on by the Rent Control Appellate Authority reported in 2004 (5) CTC 314, G.V.H. Prasad referred supra. The law has changed from that time. The law of the Hon'ble Supreme Court as reported in 2006 (5) CTC 698 [ Maragathammal Vs. Kamalammal] referred supra is now the law of the land. 33. These Civil Revision Petitions are therefore allowed. The order dated 14.08.2019 of the Rent Control Appellate Authority in R.C.A.Nos. 207 of 2015 and 208 of 2015 are set aside and the orders dated 19.11.2014 of the Rent Controller in M.P.No. 65 of 2014 and in R.C.O.P.No. 1122 of 2013 are restored. Time for eviction is two months. No order as to costs.
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