Mukesh Kumar v. Jagdish Goel & ORS

$~22 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CM(M) 1373/2011 & C.M.No.21365/2011 MUKESH KUMAR ..... Petitioner Through Mr. Pankaj Gupta and Ms. Rimpy Gupta, Advs.

versus JAGDISH GOEL & ORS ..... Respondents Through Mr. S.N. Gupta, Adv.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

O R D E R

% 18.04.2016 The petitioner is aggrieved by the order dated 24.10.2011 passed by the Additional Rent Control Tribunal (ARCT) who had confirmed the order passed by the Additional Rent Controller (ARC) and had repelled the contentions raised by the landlord/petitioner (Mukesh Kumar) that the statement made by him on 08.01.2010 before the ARC could not be construed as a benefit under Section 14

(2) of the Delhi Rent Control Act (DRCA) to be afforded to the respondent/tenant; the order granting this benefit by the ARC in favour of the respondent was thus liable to be set aside. Record shows that the present eviction petition had been filed by the landlord under Section 14 (1) (a) and (j) of the DRCA. The suit property was a shop bearing No.3649, Gali Rura Acharwali, Chawri Bazar, Delhi. On 15.07.2008, an order was passed by the ARC

directing the tenant to pay/deposit arrears of rent w.e.f. 13.07.2004 at the rate of Rs.187/- per month and to continue to pay this future monthly rent at the same rate. Trial progressed and in fact the evidence of the petitioner/landlord was recorded. In the course of trial, the parties on 08.01.2010 made respective statements before the ARC. The statement of the landlord-Mukesh Kumar reads herein as under:- "Statement of Sh. Mukesh Kumar, petitioner alongwith Ld. Cl. Sh.K.N. Mahaseth, chamber No.62 Civil Wing, Tis Hazari Courts On SA I have heard the statement made by Ld. Cl. for respondents. My bank account name is Union Bank of India, Chawri Bazar and the account number is 307202010041514 and I have no objection if the future rent is deposited in the said bank account by the respondents. I further state that the order u/s 15(1) of DRC Act is under challenge before the Hon'ble High Court and grant of benefit U/s 14(2) of DRC Act will be subject to decision of Hon'ble High Court."

On the same date, the statement of the tenant/non-applicant through counsel Mr. S.K. Gupta, Advocate was also made. This statement reads herein as under:- "Statement of Sh. S.K. Gupta, Ld. Cl. for respondents, chamber no.331 Civil Wing, Tis Hazari Courts, Delhi W/o I have instructions to state on behalf of respondents that therelationship between the parties, the legally recoverable arrears of

rent as well as rate of rent is not disputed. Respondents have been depositing the rent in compliance of order U/s 15(1) of DRC Act. Though respondents are entitled to tender rent at the rate of Rs.187/- per month still I undertake to enhance the rate of rent by 10% w.e.f. 1.1.2010 and thus respondents will pay rent at the rate of Rs.206/- per month in the bank account of petitioner details of which may also kindly be supplied. It is accordingly prayed that benefit u/s 14(2) of DRC Act may kindly be accorded to respondents as I do not wish to contest the petition on merits." On 14.01.2010, two applications came to be filed by the landlord. In the first application, a modification was sought in the bank account number of the landlord. This application was allowed. The subsequent application filed on the same date was to the effect that on 24.8.2009, a legal notice had been sent by the landlord to the tenant seeking enhancement of rent; this enhanced rent not having paid, the tenant was guilty and as such the benefit under Section 14

(2) of the DRCA should not be made available to the tenant. On 14.09.2010, an affidavit of the landlord was filed wherein again, it was reiterated that during the pendency of the eviction petition, a legal notice dated 24.08.2009 had been sent to the tenant seeking enhancement of rent but this rent not having been enhanced and the tenant was only paying a 10 percent increase on the admitted rate of Rs.187/- per month, the benefit granted to the tenant under Section 14(2) was liable to be set aside.

These contentions and counter contentions raised in the Trial Court (pursuant to the statements recorded of the parties on 08.01.2010) were dealt with. The ARC on 19.8.2010 had noted that whether the benefit of Section 14 (2) can be granted or not will be considered on the following date. It was subsequent thereto that the affidavit dated 06.09.2010 (which as per the tenant was clarificatory in nature) was filed before the ARC. On 06.09.2010, the ARC had noted that the parties had made respective statements on 08.01.2010 wherein it was agreed that the enhanced rent of Rs.206/- per month (10% enhancement on the admitted rate of Rs.187/- per month) will be paid by the tenant which amount was acceptable to the landlord and that is why the RTGS account number had also been mentioned. This amount was admittedly paid. The ARC had noted that this being a case of first default only, the benefit of Section 14 (2) of the DRCA should be granted to the tenant. The petition was accordingly disposed of on 06.09.2010.

The landlord was aggrieved by this order. He filed an appeal before the RCT. Relevant extract of the order passed by the RCT who had extracted the statements made by the respective parties on 08.01.2010 and had held as under:- "A bare perusal of the abovesaid order disposing of the eviction petition would show that the only question for consideration remaining before the Ld. ARC was to consider, as to whether the respondent was entitled to the benefit U/s 14(2) of 'the said Act'. In

other words, whether the respondent had complied with the orderpassed U/s 15(1) passed on 15.7.2008 or not, was the only subjectpending consideration. No other right accruing in favour of the eitherparty as such was left open to be agitated or stood waived. Such an order, which is dated 8.1.2010, was never challenged by the appellant, if the appellant was aggrieved thereof, for any reason. Suffice to say, it proceeded on the statements made for such disposal by the appellant himself and his counsel and had thus, attained finality. By the application filed U/s 151 & 152 CPC, the appellant only sought to furnish his correct bank A/c No., which, as per the own statement of the appellant and his counsel, was for deposit of future rent by the respondent. It was disposed off on 19.8.2010, with the following order:

".......................................... The fresh account number has been furnished on the record. Let the same be taken as such and respondent can deposit the amount in the same and if he does not deposit the amount or does not come U/s 27 of the DRC Act, the consequences as per the Actwill follow."

No illegality can be seen in the abovesaid order nor has come to be pointed out either during the oral submissions or the written submissions filed later, but for the alleged defaults in deposit of rent for the period after 8.1.2010. Any default after the disposal of the eviction petition of course, could not be the subject matter to be gone into by the Ld. ARC but for making the observations that the consequences as per the Act will follow. Any contention

raised to the contrary is therefore, of no consequence. In the other application filed U/s 6A, 14(2) & 15(7) of 'the said Act', the appellant agitated the question of default in compliance of order passed U/s 15

(1) of 'the said Act' on the premise that the respondent had failed to deposit the rent month by month and that, the respondent had enhanced the rent by serving legal notice dated 24.8.09 w.e.f.

1.10.2009 but the respondent committed three consecutive defaults in making payment of due rent for the months of October, November and December and therefore, the respondent was not entitled to benefit U/s 14(2) of 'the said Act'. As regard the first plea of default in deposit of rent month by month in compliance of the order passed U/s 15(1) of 'the said Act', Ld. Counsel for the appellant strenuously contended that U/s 5(2)(b) of the said Act, rent exceeding one month's rent could not be deposited in advance except the previou s permission of the Controller and therefore, the deposits made in advance do not fulfil the directions given by the Ld. ARC for the deposit of rent month by month and such deposit cannot be said to be valid deposit and it tantamonts to default in compliance of the order passed U/s 15(1) of 'the said Act'. In support thereof, Ld. Counsel for the appellant has placed reliance upon (2009) 7 SCC 658 Sarla Goel &Ors Vs. Kishan Chand.

It is not a case, where the tenant respondent either did not deposit any rent for any month or deposited any such rent belatedly.Question relates only as regards the deposits made in advance. In Sarla Goel's

case (supra), the Hon'ble Supreme Court reiterated that in rent control's 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 and if any condition precedent, is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. There cannot be any dispute as regard the said proposition of law. Dictum of the Hon'ble Supreme Court has to prevail. Can it however be said, that it is to be applied mechanically?Question in hand is only, as regards the deposit of rent in advance.

Such deposit was accepted by the Ld. ARC on an application made for the purpose. Does it not imply, that the Ld. ARC granted the permission for the purpose as contemplated U/s 5(2)(b) of the said Act.In any event, such deposit was in compliance of the order passed U/s 15(1) of 'the said Act'

and not U/s 27 of 'the said Act'. Few of the deposits of rent in advance in compliance of the order passed U/s 15(1) of 'the said Act', only imply that the tenant/respondent has been extra cautious in ensuring due compliance of the order passed u/s 15(1) of 'the said Act' and ensure that there was no default in compliance,thereof. Be that as it may, assuming, there have been the defaults in strict compliance of the order passed U/s 15(1) of 'the said Act', such defaults in my considered view, were not intentional and contumaciou s and thereby, invoke Sec.15(7) or deprive the respondent of the benefit U/s 14(2) of 'the said Act'. Even in a case, where the tenant deposited the rent in advance U/s 27 of 'the said Act', our own

Hon'ble High Court, held that such deposit to be valid. Reliance CM(M) 1095/2008 Jinender Kumar Vs. Inder Preet Singh. Contention raised to the contrary by the Ld. Counsel for the appellant is therefore, misconceived and meritless. 5.

As regards the plea that the appellant had served the notice dated 24.8.09 and called upon the respondent to pay enhanced rent @ Rs.206/ in consonance with the provisions of Sec. 6A of the said Act w.e.f. 1.10.2009 but the respondent committed three consecutive defaults, suffice to say, no such pleading was there before the Ld. ARC till the disposal of the eviction petition on 8.1.2010 and the averments made to the said effect in the application, were specifically denied to by the respondent, in the reply filed to the application. In th e reply filed, the respondent had specifically dispute the receipt of any notice dated 24.8.2009. Not only that, even at the time of the disposal of the petition on 8.1.2010, the respondent had specifically stated that they were entitled to tender rent @Rs.187/ p.m.

but still undertook to enhance the rent. In other words, the respondent had impliedly denied the receipt of any notice, enhancing the rent and such a statement was accepted to by the appellant, when the eviction petition came to be disposed off. I therefore, do not find any merit even in said contention raised."

The finding returned by the RCT which is a concurrent endorsement of a fact finding returned by the younger Court i.e. by the ARC is in no manner perverse and does not call for any interference by this Court who is sitting in its powers of

superintendence under Article 227 of the Constitution. The judgments relied upon by the petitioner reported as 162 (2009) DLT 419 Ram Prakash (Prof.) Vs. D.N. Shrivastava and of the Apex Court reported as (2005) 12 SCC 383 Ram Lakhan Chaudhary and Others Vs. Haridwar Chaudhary and others have no applicability to the factual matrix of the instant case. There is no doubt to the proposition that the landlord during the pendency of an eviction petition can seek enhancement of rent but in the instant case, the notice dated 24.08.2009 relied upon by the landlord did not find mention at the time when the statements of the parties were recorded on a subsequent date which was on 08.01.2010. It also did not find mention in the first application filed by the landlord on 14.01.2010. The statement of the parties recorded on 08.01.

2010 is in fact explicit and clear. The petitioner/landlord had agreed to accept the enhanced rate of rent over and above Rs.187/- per month i.e. Rs.206/- per month in view of his categorical version. His subsequent application seeking a modification of that statement and his submission that the benefit of Section 14 (2) of the DRCA should not have been afforded to the tenant is an argument which has already been marshalled by the two Courts below and this Court again reiterates that the impugned order (in this background) does not call for any interference. Petition is without any merit. Dismissed with costs quantified at Rs.10,000/-.

At this stage, learned counsel for the petitioner submits that the proceedings under Section 14 (1) (j) of the DRCA had not been dealt

with; the statements recorded of the parties on 08.01.2010 only related to the proceedings under Section 14 (1)(a). Learned counsel for the respondent has no objection if the matter qua the eviction proceedings under Section 14 (1)(j) of the DRCA is dealt with by the ARC.

Thus only on the question of Section 14 (1)(j) of the DRCA, the eviction petition will be tried afresh for which purpose the parties are directed to appear before the ARC on 16.05.2016. Petition disposed of.

INDERMEET KAUR, J APRIL 18, 2016