Sunday, 18 October 2015

Whether notice demanding higher rent than agreed is valid?

The first appellate Court, however, relied on the judgment reported in 2010 (3) Mh.L.J. 807 (Vinayak Narayan Deshpande and others. v.
Deelip Pralhad Sisode) to hold that the notice was bad-in-law and the suit was not maintainable. It is clear from the various decisions of this Court that the notice was not bad-in-law and it was open for the respondent-tenant to deposit the admitted arrears of rent. The tenant, having failed to deposit the admitted rent, was liable to hand over the possession of the property to the landlady under Section 15 of the Maharashtra Rent Control Act, 1999.
Bombay High Court
Smt.Fehameeda Begum vs Shri Abdul Hafiz on 11 February, 2013
Bench: V. A. Naik
Citation: 2013(4)ABR877, 2013(3)ALLMR257, 2013(3)BomCR877, 2013(2)MhLj524

The only issue that arises for determination in this petition is whether a notice under Section 15 of the Maharashtra Rent Control Act, 1999, demanding a higher rent than the rent agreed between the landlord and the tenant is bad-in-law or whether the notice would be valid and the tenant would be required to pay the arrears of admitted rent within a period of ninety days from the receipt of the notice and/or within a period of ninety days from the receipt of the suit summons.
The petitioner is the landlady. The petitioner had issued a notice under Section 15 of the Maharashtra Rent Control Act, 1999 to the respondent seeking the arrears of rent for the period from 01/11/2002 till 31/10/2005 at the rate of rupees four hundred and fifty per month.
In spite of the service of the notice, the respondent-tenant did not pay the rent. A suit was, therefore, instituted by the landlady against the tenant seeking recovery of possession under Sections 15 and 16(1)(g) of the Maharashtra Rent Control Act, 1999. The trial Court decreed the suit of the landlady and directed the respondent to hand over the possession under the provisions of Section 15 thereof. The trial Court rejected the claim of the landlady for possession of the property under Section 16(1)(g) of the Maharashtra Rent Control Act, 1999. The respondent-tenant filed an appeal against the judgment and decree passed by the trial Court. A cross appeal was filed by the landlady seeking possession of the property under Section 16(1)(g) of the Maharashtra Rent Control Act, 1999. The appeal filed by the respondent-tenant was allowed by the first appellate Court. It was held by the first appellate Court that the notice issued by the landlady under Section 15 of the Act of 1999 was bad-in-law inasmuch as the landlady had sought the rent at the rate of rupees four hundred and fifty per month when the admitted rent between the parties was rupees two 1102wp4253.12-Judgment 3/7 hundred per month only. The petitioner has challenged the impugned judgment dated 22/03/2012 in the instant petition.
Shri Dhoble, the learned counsel for the petitioner, submitted that the first appellate Court was not justified in reversing the decree passed by the trial Court and holding that the notice under Section 15 of the Maharashtra Rent Control Act, 1999 was bad-in-law. The learned counsel relied on the judgments reported in 1983 Mh.L.J. 254 (Chhaganlal Mulchand Jain v. Narayan Jagannath Bangh), 1998 (3) Mh.L.J. 237 (Lalji Lachhamdas v. Amiruddin Amanulla and another) and 2011 (2) Mh.L.J. 156 (Shriniwas Babulal v. Ramakant s/o Shivnarayan Jaiswal) to substantiate his submission that the notice would not be bad-in-law and the respondent-tenant had an option to pay the arrears of admitted rent at the rate of rupees two hundred per month within a period of ninety days from the receipt of the suit summons. According to the learned counsel, even the admitted rent was not paid by the tenant within a period of ninety days from the receipt of the notice under Section 15 of the Act of 1999 or within ninety days from the receipt of the suit summons. It is submitted that the first appellate Court erroneously relied on the judgment of the learned Single Judge of this Court, reported in 2010 (3) Mh.L.J. 807 (Vinayak Narayan Deshpande and others. v. Deelip Pralhad Sisode) to answer the issue in regard to the validity of notice in favour of the tenant, without considering the other decisions which were holding the field.
1102wp4253.12-Judgment 4/7 Shri Khati, the learned counsel for the respondent, supported the judgment passed by the first appellate Court and submitted that the first appellate Court rightly considered the judgment reported in 2010 (3) Mh.L.J. 807 (Vinayak Narayan Deshpande and others. v.
Deelip Pralhad Sisode) to hold that the notice of demand was not issued in accordance with law and the suit seeking a decree of recovery of possession on the ground of non payment of rent was not maintainable on the basis of such a notice. It is submitted that in any case the tenant has deposited a sum of rupees twenty three thousand nine hundred and thirty five in the trial Court even though the tenant is liable to pay only a sum of rupees twenty three thousand till this date. The learned counsel sought for the dismissal of the writ petition.
On hearing the learned counsel for the parties and on a perusal of the judgments referred herein above, it appears that the first appellate Court was not justified in reversing the decree passed by the trial Court in favour of the landlady. The first appellate Court was not justified in holding that the notice issued by the landlady under Section 15 of the Maharashtra Rent Control Act, 1999 was bad in law as the landlady claimed the arrears of rent at the rate of rupees four hundred and fifty per month instead of seeking the rent at the rate of rupees two hundred per month, which was admitted. The first appellate Court while relying on the judgment reported in 2010 (3) Mh.L.J. 807 (Vinayak Narayan Deshpande and others. v. Deelip Pralhad Sisode), 1102wp4253.12-Judgment 5/7 failed to consider the subsequent judgment of this Court reported in 2011 (2) Mh.L.J. 156 (Sriniwas Babulal v. Ramakant s/o Shivnarayan Jaiswal) which in turn had referred to the judgments reported in 1983 Mh.L.J. 254 (Chhaganlal Mulchand Jain v.
Narayan Jagannath Bangh) and 1998 (3) Mh.L.J. 237 (Lalji Lachhamdas v. Amiruddin Amanulla and another). It appears that when the learned Single Judge was considering the question of validity of the notice under Section 15 of the Maharashtra Rent Control Act, 1999 in the judgment reported in 2010 (3) Mh.L.J. 807 (Vinayak Narayan Deshpande and others. v. Deelip Pralhad Sisode), the judgment of the Division Bench reported in 1983 Mh.L.J. 254 (Chhaganlal Mulchand Jain v. Narayan Jagannath Bangh) and the judgment of the learned Single Judge reported in 1998 (3) Mh.L.J.
237 (Lalji Lachhamdas v. Amiruddin Amanulla and another) were not brought to the notice of the learned Single Judge. It was held by the Division Bench of this Court in the judgment reported in 1983 Mh.L.J. 254 (Chhaganlal Mulchand Jain v. Narayan Jagannath Bangh) that a notice seeking arrears of rent should not be construed strictly and if the notice seeks an amount higher than the admitted rent, it would be open to the tenant to send such amount as according to him is due subject to the liability that if ultimately a larger amount is found to be due, he could not be said to have complied with the requirements of the notice. A similar view was expressed in the judgment reported in 1998 (3) Mh.L.J. 237 (Lalji Lachhandas v. Amiruddin Amanulla and1102wp4253.12-Judgment 6/7 another) wherein this Court has held that the notice of demand by a landlord seeking arrears of rent at the rate of Rs.13.56 per month as against the standard rent at the rate of Rs.12.00 per month was not bad-in-law and the tenant had an option to pay the undisputed amount at the rate of Rs.12.00 per month and raise a dispute as regards the claim made by the landlord. Admittedly, in the instant case the respondent-tenant had not paid the arrears of rent at the rate of rupees two hundred per month within a period of ninety days from the receipt of the notice. So also, the tenant had admittedly not deposited the arrears of rent at the rate of rupees two hundred per month within ninety days from the receipt of the suit summons in the trial Court. The trial Court, therefore, rightly held that the landlady was entitled to possession under Section 15 of the Maharashtra Rent Control Act, 1999.
The first appellate Court, however, relied on the judgment reported in 2010 (3) Mh.L.J. 807 (Vinayak Narayan Deshpande and others. v.
Deelip Pralhad Sisode) to hold that the notice was bad-in-law and the suit was not maintainable. It is clear from the various decisions of this Court that the notice was not bad-in-law and it was open for the respondent-tenant to deposit the admitted arrears of rent. The tenant, having failed to deposit the admitted rent, was liable to hand over the possession of the property to the landlady under Section 15 of the Maharashtra Rent Control Act, 1999.
Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned judgment is quashed and set aside. The judgment passed by the trial court on 18/08/2010 stands confirmed.
Rule is made absolute in the aforesaid terms with no order as to costs.
An oral request made by the learned counsel for the respondent for staying the judgment for a period of six weeks, though opposed by the counsel for the petitioner, is granted. The stay would automatically stand vacated after the expiry of the period of six weeks.
JUDGE KHUNTE
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