Saturday, 22 August 2015

When tenant is liable to pay time barred rent to avoid eviction?

In Sriniwas Babulal (supra) relied upon by the learned
counsel for the respondent it was held that the demand of time
barred rent in a notice issued under Section 15 of the said Act
was not fatal and it was incumbent on the tenant to pay even

time barred arrears.   It is, therefore, clear that the expression
“then   due”   will   have   to   be   construed     to   include   amount   of
arrears that were due and payable  disregarding the fact that  part
thereof had become time barred.  In Khadi Gram Udyog Trust  Vs.
Ram Chandraji Virajman Mandir Sarasiya Ghat, Kanpur (1978) 1
Supreme Court Cases 44, it was held by the Supreme Court that
even if the remedy was barred, the debt was not extinguished and
if   the   tenant   wanted   to   seek   benefit   of   the   statute   then   for
avoiding the decree of eviction, the amounts due were required to
be paid.  Hence,  the expression “then due” in Section 15(3) of
the said Act would include the amount of arrears even prior to
three years of such notice.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
WRIT    PETITION     NO.   1639     OF     2014
Prabhakar Venkobaji Manekar,

VERSUS
Surendra Dinanath Sharma,

CORAM:   A. S. CHANDURKAR  J.
                           
                             Dated    :   FEBRUARY  12, 2015.
Citation; 2015(4) MHLJ351Bom

2] This Writ Petition at the instance of the tenant takes

exception to the decree for eviction passed by the trial Court
under   provisions   of   Section   15(3)   of   the   Maharashtra   Rent
Control Act, 1999 (for short the said Act) as upheld by the first
appellate Court.  The premises in question is a ground floor shop
that is  used for running business by the petitioner.   According to
the petitioner said premises were let out on monthly rent of Rs.
500/­ per month.  According to the petitioner said amount of rent
was   being   regularly   paid   till   the   year   2000   after   which   the
respondent­landlord stopped accepting the same.   Subsequently
money   orders   were   sent   by   the   petitioner   for   the   months   of
March, April and May 2000.  On 29.04.2008 notice came to be
issued by the landlord calling upon the tenant to pay arrears of
rent for the period from 01.07.2000 to 30.04.2008.  The arrears
were demanded at the rate of Rs. 5000/­ per month.  In response
to said notice the petitioner issued a reply on 02.06.2008 stating
that agreed rent of Rs. 500/­ per  month and that he was ready to
pay the same.  It was further stated that the claim for period prior
to three years was barred by limitation.  A cheque for amount of
Rs. 18,000/­ dated 09.07.2008 was remitted by the petitioner
which was accepted by the landlord.  This amount of Rs. 18000/­
was towards arrears of rent at the rate of Rs. 500/­ per month for
preceding three years.

3] As   according   to   respondent   the   petitioner   was   in
arrears of rent and as the respondent required the premises for
his bonafide occupation, Civil Suit No. 250 of 2008 came to be
filed on 08.08.2008. It was the specific case of the landlord that
rent payable was Rs. 5000/­ per month and the amount remitted
by the tenant did not cover the entire arrears.  The tenant filed
his written statement setting up a plea that agreed rent was Rs.
500/­ per month and having paid sum of Rs. 18,000/­ towards
arrears for preceding three years,  the tenant was not in default.
The claim as regards bonafide need was also denied.  
4] In   the   trial,   the   tenant   in   his   cross   examination
admitted   the   rent   to   be   Rs.   5000/­   per   month.     Hence,   on
19.04.2010 the landlord filed an application under provisions of
Order 15A Rule 1  of the Code of Civil Procedure (for short the
Code).  As per said application it was prayed that the tenant be
directed to deposit arrears for the period from 01.07.2000 to
30.04.2008 and also for the subsequent period at the rate of Rs.
5000/­ per month.  Said application was opposed by the tenant.
By order dated 18.08.2010 the trial Court allowed the application
and directed the tenant to pay rent at the rate of Rs. 5000/­ per
month   from   01.05.2008.   The   amounts   already   paid   were
permitted to be adjusted.  

5] The tenant being aggrieved by said order challenged
the same by filing Misc. Civil Appeal.  However, by order dated
10.01.2011 said appeal came to be dismissed.  This Court in Writ
Petition No. 1997 of 2011 did not interfere with the said order
but extended the time to deposit the amount of arrears.  In terms
of said order the tenant deposited the sums as directed. 
6] In   support   of   the   claim   for   eviction   the   landlord
examined himself and his son while the tenant examined himself
and another witness in support of his defence.   The trial Court
thereafter   by   its   judgment  dated   20.03.2012   decreed  the   suit
holding   that   the   tenant   was   in   arrears   of   rent.     It   held   that
rent payable was Rs. 5000/­ per month and by not paying the
entire arrears he was liable to be evicted on said count.  Eviction
was also ordered on the ground of bonafide need.   In appeal
preferred by the tenant the first appellate Court confirmed the
decree for eviction on the ground of arrears of rent.   It also
affirmed the finding that rent was payable at the rate of Rs.
5000/­ per month. It however set aside the decree as passed on
the ground of bonafide need.  This order is under challenge in the
present Writ Petition.  
7] Shri   A.   A.   Naik,   learned   counsel   appearing   for   the
petitioner   submitted   that   both   the   Courts   erred   in   ordering

eviction of the tenant on the ground that he was in arrears of
rent.   It was submitted that the agreed rent was Rs. 500/­ per
month and said fact was evident from earlier payments made and
duly accepted.   It was also submitted that in response to the
notice issued under Section 15(2) of the said Act the tenant had
paid sum of Rs. 18,000/­ which covered the arrears for preceding
three years.  He submitted that the landlord was entitled only to
amount of arrears that were legally recoverable on the date of
notice. Hence, having paid the arrears for the last three years at
rate of Rs. 500/­ p.m. the tenant was not in arrears of rent.  He
submitted that the words “then due” as used in Section 15(3) of
the said Act implied  arrears that are legally recoverable and not
those arrears that were time barred. He then submitted that the
finding recorded that rent was payable at Rs. 5000/­ per month
was   without   any   evidence   in   that   regard   being   led   by   the
landlord.  He submitted that a stray admission of the tenant in his
cross examination could not be the basis for arriving at such
finding that rent payable was Rs. 5000/­ per month.  He referred
to deposition of D. W. 2 vide Ex. 47 and submitted that rent in
the   adjoining   premises   was   Rs.   1000/­   per   month   which
supported the contention of the tenant  that the agreed rent was
Rs. 500/­ per month. 

It was then submitted that the landlord had moved an
application under provisions of Order 15A of the Code and had
sought directions against the tenant to deposit  arrears.  In terms
of   said   directions   the   tenant   had   deposited   all   the   arrears
calculated at the rate of Rs. 5000/­ per month.   He, therefore,
submitted having complied with aforesaid order, the provisions of
Section 15(3) of the said Act stood satisfied and hence there was
no occasion to evict the tenant on the ground of arrears of rent.
In support of his submission that arrears recoverable could only
be those arrears that could be recovered in law, he relied on
decision of Supreme Court in  Bhimsen Gupta   Vs.   Bishwanath
Prasad Gupta AIR 2004 Supreme Court 1770  and  Kamla Bakshi
Vs.   Khairati Lal AIR 2000 Supreme Court 1808.   He therefore
submitted that the decree for eviction as passed on the ground of
arrears of rent was totally unwarranted.  
8] On the other hand Shri R. M. Sharma, learned counsel
appearing for the respondent opposed  aforesaid submissions and
urged that by failing to clear all arrears as demanded by the
notice dated 29.04.2008, the tenant was in arrears of rent.  He
submitted that the tenant was liable to pay the entire amount due
on the date of notice and it was the liability of the tenant even to

pay rent that was otherwise time barred.   He further submitted
that the tenant having admitted in his cross examination that the
rent  was payable at the rate of Rs. 5000/­ per month, it was not
open  for  the  tenant  to urge  that the  rent was Rs. 500/­ per
month.   He then submitted that   deposit of arrears in terms of
directions   issued   under   provisions   of   Order   15A   of   the   Code
would not amount to complying with requirements of provisions
of Section 15(3) of the Act.  Without prejudice he submitted that
even if the rent was payable at Rs. 500/­ per month, by paying
arrears only for the last three years  there was non­compliance of
the demand as made in the notice.  He also submitted that it was
the   duty   of   the   tenant   to   regularly   deposit   the   rent   during
pendency of the proceedings.   It was only after the trial Court
passed orders on the application preferred by the landlord that
the amounts came to be deposited.  He, therefore, submitted that
there was no reason what so ever to interfere with the decree for
eviction passed on the ground of arrears of rent.  In support of his
submission   learned   counsel   for   the   respondent   relied   on   the
following judgments: 
1]   Mranalini   B.   Shah   and   another     Vs.     Bapalal
Mohanlal Shah (1980) 4 Supreme Court Cases 251; 
2]   Narayan   Ganpat   Bhoite     Vs.     Smt.   Rampyari

Suchitram   Gupta   since   deceased   through   heirs
Hariprasad   Surajbally   Gupta   and   others   2001(3)
Maharashtra Law Journal 234;
3] Rajinder Kumar Joshi Vs. Veena Rani AIR 1991
Supreme Court 259;
4] Sriniwas Babulal Vs.   Ramakant s/o Shivnarayan
Jaiswal 2011(2) Maharashtra Law Journal 156;
5] Central Bank of India Bombay Vs.  Sion Bakers and
Confectioners Private Ltd. Bombay and others 2008(5)
Maharashtra Law Journal 772; 
6] Judgment of this Court in  Prabhakar Venkobaji
Manekar   Vs.   Surendra   Dinanath   Sharma   dated
10.07.2013.
9] I have carefully considered aforesaid submissions.  The
following questions require adjudication in the light of aforesaid
submissions:  
1] Whether the tenant in response to the notice
issued under provisions of Section 15(2) of the
said Act is liable to pay arrears that are lawfully
recoverable   or   whether   the   arrears   “then   due”
would   cover   arrears   that   are   otherwise   time
barred? 
2]   Whether   the   tenant   can   take   advantage   of
compliance   with   directions   issued   under
provisions of Order 15A Rule 1 of the Code to
avoid eviction under provisions of Section 15(3) of
the said Act?  
10] The tender of rent at the rate of Rs. 500/­ for the
month of March  to August 2000 is not in dispute.  It is further
not in dispute that after August 2000 the tenant did not pay any

amount of rent.   While it is the case of the tenant that rent
payable was Rs. 500/­ per month,  according to the landlord rent
payable was at the rate of Rs. 5000/­  per month.  The demand as
made   in   the   notice   dated   29.04.2008   is   for   the   period   from
01.07.2000 to 30.04.2008 at the rate of Rs. 5000/­ per month.  In
response thereto the tenant has paid a sum of Rs. 18,000/­ by
calculating the arrears at the rate of Rs. 500/­ per month for
preceding three years.  If it is held that there is due compliance of
notice issued under provisions of Section 15(2) of the said Act,
then there would be no cause to seek eviction of the tenant on the
ground of arrears of rent.  Hence said aspect of the matter would
have to be first considered.  
11] Under provisions of Section 15(1) of the said Act as
long as tenant pays, or is ready and willing to pay amount of
standard rent and permitted increases, the landlord would not be
entitled to recover possession of the premises on the ground of
arrears   of   rent.     It   is   well   settled   that   under   Rent   Control
legislation if the tenant wishes to take advantage of the beneficial
provisions   of   the   statute   then   he   must   strictly   comply   with
requirement of said statute.   In  Atmaram Vs.   Shakuntala Rani
(2005) 7 Supreme Court Cases 211 in para 19 it was observed as

under: 
“19.   It   will   thus   appear   that   this   Court   has
consistently   taken   the   view   that   in   the   Rent
Control legislations if the tenant wishes to take
advantage of the beneficial provisions of the Act,
he must strictly comply with the requirements of
the   Act.     If   any   condition   precedent   is   to   be
fulfilled   before   the   benefit   can   be   claimed,   he
must strictly comply with that condition.   If he
fails to do so he cannot take advantage of the
benefit conferred by such a provision.”   
Accordingly   to   learned   counsel   for   the   petitioner   the   tenant
having paid the amount of arrears that were lawfully payable, it
could   not   be   said   that   he   was   in   arrears   of   rent   after   such
payment.  According to him if the arrears prior to period of three
years were  not   legally recoverable then tenant could not be
evicted on  the  ground that  he  had not paid arrears for  such
period.   As recovery for said period was barred by the law of
limitation, same would not give a cause of action to the landlord
to seek eviction on that count.  
It is to be noted that the expression used in Section
15(3) of the said Act is arrears “then due”.  In the decision relied
upon by the learned counsel for the petitioner in Bhimsen Gupta
(supra),   the expression “lawfully payable” as used in Section
11(1)(d)   of   the   Bihar   Buildings   (Lease,   Rent   and   Eviction)
Control Act, 1983 was considered.   Similarly in Kamala Bakshi

(supra)   the expression “arrears of rent legally recoverable, as
appearing in Section 14(1) of the Delhi Rent Control Act, 1958
were under consideration.  
12] The expression “then due” was used in the provisions
of Section 12(3) of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947, which stood repealed as a result of said
Act   coming   into   force.     Considering   similar   arguments   as
advanced that if the amounts that were claimed to be due could
not be recovered on account of bar of limitation, then  the tenant
could not be evicted for being in arrears of such dues,  learned
Single Judge in Karamchand Deoji Sanghavi  Vs.  Tulshiram Kalu
Kumawat 1992 Maharashtra Law Journal 560,   held that if the
tenant intended to seek protection from eviction then the entire
amount of arrears even if time barred were required to be paid.  It
was held that the provisions of Section 12 of the Bombay Rent Act
did not alter the entitlement of the landlord in the light of law of
limitation.  
In Sriniwas Babulal (supra) relied upon by the learned
counsel for the respondent it was held that the demand of time
barred rent in a notice issued under Section 15 of the said Act
was not fatal and it was incumbent on the tenant to pay even

time barred arrears.   It is, therefore, clear that the expression
“then   due”   will   have   to   be   construed     to   include   amount   of
arrears that were due and payable  disregarding the fact that  part
thereof had become time barred.  In Khadi Gram Udyog Trust  Vs.
Ram Chandraji Virajman Mandir Sarasiya Ghat, Kanpur (1978) 1
Supreme Court Cases 44, it was held by the Supreme Court that
even if the remedy was barred, the debt was not extinguished and
if   the   tenant   wanted   to   seek   benefit   of   the   statute   then   for
avoiding the decree of eviction, the amounts due were required to
be paid.  Hence,  the expression “then due” in Section 15(3) of
the said Act would include the amount of arrears even prior to
three years of such notice.  
13] In this background if the response of the tenant to the
notice dated 29.04.2008 is considered, he has taken a stand that
demand as made was barred by limitation and hence he had
restricted the payment of arrears only   for the preceding three
years.   It is to be noted that in his cross examination he had
stated that there was no evidence to show payment of rent from
01.07.2000 to 30.04.2008.  Hence, even  without going into the
aspect whether rent was payable at Rs. 5000/­ as urged by the
landlord or Rs. 500/­ as urged by the tenant, on the own showing
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of the tenant he had not paid the entire arrears as demanded for
period of about eight years even at the rate of Rs. 500/­ per
month.  It is, therefore, clear that there is failure to comply with
the demand as made by the notice issued under Section 15(2) of
the said Act. Hence, the finding recorded that tenant was liable to
be evicted on the ground of arrears of rent cannot be faulted
with.  
14] As regards the submission that by complying with the
directions issued under provisions of Order 15A Rule 1 of the
Code the tenant was not liable to be evicted, it is to be noted that
under the provisions of Section 15(3) of the said Act within a
period of 90 days from the date of service of summons, the tenant
is required to pay in Court the amount of standard rent and
permitted increases along with simple interest on the amount of
arrears at 15% p. a.  The order passed under provisions of Order
15A Rule 1 of the Code is dated 18.08.2010, while the suit was
filed on 08.08.2008.  Hence, after period of 90 days from service
of summons the requirements of Section 15(3) of the said Act
were not duly complied with.   It is also necessary to note that
under provisions of Order 15A Rule 3 of the Code,   deposit of
amounts under this provision do not have the effect of prejudicing
the claim of the plaintiff and its receipt by the plaintiff cannot be
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treated as a waiver of notice of termination.  In the light of this
clear   provision,   the   claim   of   the   plaintiff­landlord   cannot   be
prejudiced by such deposit.  It is also to be noted that provisions
of   Section   15(3)   of   the   Act   require   the   tenant   to   voluntarily
deposit  the  amounts referred to therein  and it  is not  for  the
landlord in a suit for eviction to call upon the tenant to deposit all
arrears after such suit is filed.   On the contrary the same would
reflect on the conduct of the tenant in firstly not depositing the
arrears   as   required   under   Section   15(3)   of   the   said   Act   and
secondly, such deposit at the instance of the landlord cannot have
the effect of prejudicing the case of the landlord himself.  On the
contrary,   accepting   said   submission   would   have   the   effect   of
granting premium to the tenant who is in arrears of rent. Hence,
it is held that in the facts of the present case due compliance with
provisions of Order 15A  Rule 1 of the said Code would not have
the effect of wiping out the arrears of rent so as to avoid the
decree for eviction.  
15] It is, therefore, clear that the petitioner has been found
to  be in arrears of rent in terms of Section 15(3) of the Act.  The
eviction as ordered on said count is therefore in accordance with
law.     Hence,   there   is   no   case   made   out   to   interfere   in   writ
jurisdiction.   The petition is, therefore, dismissed.   Rule stands
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discharged.  No order as to costs. 
16] At this stage the  learned counsel  for the  petitioner
seeks time till  31.03.2016 to vacate the  suit premises on the
ground that he is operating a liquor shop under a license therein.
Said   request   is   opposed   by   the   learned   counsel   for   the
respondent.   Considering the facts of the present case and that
eviction has been directed only on the ground of arrears of rent,
time to vacate the premises till 31.03.2016 is granted subject to
the petitioner clearing all arrears of rent at the rate of Rs. 5000/­
per month within a period of four weeks from today.  Similarly,
the petitioner shall undertake to pay occupation charges at the
rate   of   Rs.   5000/­   per   month   till   31.03.2016.     He   shall   also
undertake not to alienate or create third party rights in the suit
property.  Such undertaking be filed within a period of two weeks
from   today.     On   such   undertaking   being   filed,   the   petitioner
would be entitled to occupy the suit premises till 31.03.2016. 
JUDGE
svk
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