Surestder Bajaj & Anr. v. Santosh Aggarwal

1. This petition under Article 227 ofthe Constitution of India is filed seeking to impugn the judgment passed by the Additional Rent Controller (liereinafter referred to as The ARC)dated 20.10.2012,the order passed by the SCI-cum-RC dated 3.9.2013 and the order passed by The Rent Controher in the appeal dated 2.2.2016 by which an eviction order has been passed againstthe p)etitioner under section 14(1)(a)ofthe DelhiRentContm.l Act,1958(hereinafter referred to as The DRC Act).

2. The respondent (landlord) filed an eviction petition against the pietitioner under section 14(l)(a)a.nd 14(l)(e)of the Delhi RentContiol Ac^. Theimpugned order has been passed under section 14(l)(a)oftheDRC Act. It wasave.iTed in the petition thatthe respondentisthe owner ofshop bearing No.1 in the proper!)^ bearing No.lX/6662,Nehru Gali,Gandhi Nagai,Dcihi- ]1003L The respondent purchased the property on 3.9.200'! through registered sale deed.Itis urged thatthelastpaymentofrentwas made by the CMpvl020S/2Q10. n PageloT^' petitioneron 18.9.2007forthe period 1.4.2005 till 31.3.2006@Rs.250/-per month. The tenant/petitioner,is said to have stopped paying rent including payment ofgovernmenttaxes like house tax since 1.4.2006. A legal notice was sent on 26.6.2008 to the petitioner. On 14.7.2008 the petitioner sent a reply denying that the respondent is the owner ofthe tenanted property but admitted aboutthe arrears.Hence,the petition was fil^d seeking eviction of the petitioner.

3. On 7.11.2009 the ARC noted that the relationship oflandlord tenant, rate ofrentandthe period ofarrears are admitted facts.Hence,it diiected the petitioner under section 15(1) of the DRC Act to pay the rent dues @ Rs.250/- per month w.e.f. 1.4.2006 till date by depositing the calculated amount directly in the bank account ofthe respondent,particulars oi which wereto befurnished bythe respondent.Itwas also directedthat monthlyrent ofRs.250/- per month shall be paid bythe 15^ ofeach succeeding month by depositing the same inthe bank.

4. On 20.10.2012 the ARC recorded the examination in chief of the petitioner, Shri Satish Bansal, where he has admitted the relationship of landlord tenant between the parties,the rate ofrent ofRs.250 per month and that he is in arrears ofrent w.e.f. 1.4.2006. Holding that there is nothing on record to show that there is any default earlier on the part ofthe petitionei, the ARC granted benefit to the petitioner under section 14(2)ofthe Act.It held that in case the petitioner has complied with the order under section 15(1)ofthe DRC Act passed on 7.11.2009,there shall be no eviction ofthe petitioner.

5. On 3.9.2013 on an application being filed by the respondent under section 14(2) of the DRC Act the ARC noted that as per the records. CM(MO 208/2016 Page2of[8] pursuant to the order dated 7.11.2009 the respondent had furnished particulars of the bank account on 7.1.2010. The petitioner thereafter deposited rent of Rs.11,250/- on 20.1.2010, Rs.6,000/- on 30.8.2011 and Rs.3,000/- on 24.4.2012.It was clear thatthe depositofrent by the petitioner was not in compliance ofthe orders passed by the court on 07.11.2009. The ARC also noted that the petitioner has moved an application seeking condonation ofdelay in depositing the rent with the plea that the rent could not be deposited due to communication gap between the petitioner and the office of the counsel. The ARC did not accept the plea holding that the petitioner cannot take shelter behind the office ofthe counsel and claim that he was notapprised by the counsel to depositthe renton a monthly basis and as such dismissed the application of the petitioner and passed an eviction order on 3.9.2013.

6. An appeal was filed by the petitioner under section 38 of the DRC Act.The Rent Controller noting the legal position held thatthe petitioner has failed to comply with the directions passed by the ARC under section 15(1) ofthe DRC Act vide order dated 7.11.2009.The Rent Controller rejected the submission ofthe appellant/petitioner that defaults after passing ofthe order under section 15(1)ofthe Act were not intentional or contemptuous or were due to wrong advice ofthe counsel for the petitioner. The order notes that there was delay in depositing ofrentfor several months.The appeal wasthus dismissed.

7. I have heard learned counsel for the parties. Section 14(l)(a), 14(2), 15(1)and 15(7)ofthe DRC Actread asfollows CM(MO 208/2016 Page3of[8] \ 14, Protection of teiiant against eviction.-(1) Notwithstanding anything to the contrary contained in any other law or contratt, no" order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed maimer, make an order for the recovery of possession of the premises on one or more of the following grounds only,namely (a) That the tenant has neither paid nor tendered the whole of the arrears ofthe rent legally recoverable from him within two months ofthe date on which,a landlord in the manner provided in section 106 of the Transfers of Property Act, 1882 (4 of 1882); 14(2) No order for the recoveiy of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15: Provided that no tenant shall be entitled to the benefit under this sub-section,if, having obtained such benefit once in respect ofany premises,he again makes a defaultin the paymentofrent ofthose premises for three consecutive months. i5(1)When a ieaantcan get the benefit of prntectiou against eviction.-(1)In every proceeding ofthe recoveiy ofpossession of any premises on the ground specified in clause (a) of the proviso to sub-section (1) of section 14, the Controller shall, after ghdng the parties an opportunit;/ of being heard, make an order directing tlie tenant to.pay to the landlord or deposit with the. Controller within one month of the date of the order, an amount calculated atthe rate ofrent at which it was last paid for the period for which the ari^ears of the rent were legally CM(MO 208/2016:. Page 4 ofS recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteen of each succeeding month, a sum equivalentto the rent atthat rate 15(7)If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out an proceed with the hearing of the application."

8. The petitioner has vehemently argued thatreliefunder section 15(7)of the DRC Act has not been given to the petitioner. It is urged that it was on account ofthe default ofthe lawyer and hence the petitioner should not be penalized as he is an illiterate person. Reliance is placed on judgment ofthe Supreme Court in Ram Murti vs. Bhola Nath and Another,(1984)3SCC 111 to contend that the ARC has sufficient powers and discretion under section 15(7)ofthe Act notto strike outthe defence ofthe tenant.

9. Learned counsel for the respondent has submitted that the petitioner filed the application for condonation of delay in compliance ofthe order of the court dated 07.11.2009 belatedly only at the stage offinal arguments in August 2013. In fact the application for condonation of delay itself states that the said application is being filed on the oral directions ofthe court. He submits that such belated application for condonation of delay has been rightly rejected.

10. There is not much controversy on the facts. The relationship of landlord and tenant is admitted. The fact that there are arrears of rent @ Rs.250/- per month w.e.f. 1.4.2006 is admitted. On 7.11.2009 an order was CM(MO 208/2016 Page 5 of[8]. _ 11 passed under section 15(1) of the Act directing the petitioner to pay the arrears of rent within,■one month and thereafter each month by the 15^'' of each succeeding month rent of Rs.250/- per month was to be deposited. Admittedly,needfulhas not been done. The only contentionraisedis that the ARChadpowers under section 15(7) ofthe Actto condone the delay andthe delay ought to have been condoned.

11. The Supreme Court in Ram Murti vs, Bhola Nath and Another (supmJMeid as follows:- • ^ - "The naiTow.construction placed by the Full Bench of the Delhi High Court inDelhi Cloth & General Milk Co. Ltd; v. Hem ChandAlR (1972) Del. 275 on the powers of the Controhei contained in Section 15(7) in the context ot Section 14(2).does not appeal to reason. It is not inconceivable that the tenant might fail to comply with the requirements of Section ' 15(1) by the date line due to circumstances beyond his control; For instance, it might not be possible lor the tenant to attend the Court to make the deposit on the last day if it is suddenly declared a holiday or oh account of a serious accident to himself or his employee, or while going to the treasury he is waylaid, or is.stricken with sudden illness, or held up on account of riots or civil commotion, or for thatmatter a clerk ofhis lawyer entrusted with,the money, instead of punctually making the deposit commits breach,of trust and disappears, or some other circumstances intervene v/hich make it impossible for him iOi reasons beyondhis control to physically make the deposit by the due date. There is no reason why the refusal.of the R^i.^nt Contioiler to strike out the defence of the lenant under Section 15(7) in such circumstances should-not enureto thebenefit of the tenant for purposes Section14(2)" Wdh respect, the observations in Hem Chand's case expiessing the view that the Rent Controller has no power to extend the time prescribed in Section 15(1) cannot be CM(M0 20S./2016 ^ PasertofO 12^ construed to mean that he is under a statutoiy obligation to pass an order for eviction of the tenant under Section 14(l)(a)without anything more due to the failure on his part to comply with the requirements ofSection 15(1). The question would still remain as to the course to be adopted by the Rent Controller in such a situation in the context ofSection 15(7)which confers on the Rent Controller a discretion not to strike out the defence of the tenant in the event of the contingency occurring, namely, failure on the part of the tenant to meet with the requirements ofSection 15(1)."

12. A perusal ofthe application under section 15(1)ofthe DRC Act filed by the petitioner seeking condonation ofdelay in depositing the rentin terms ofthe order dated 7.11.2009 would show that the only ground mentioned is that delay in depositing the rent was caused due to a communication gap between the office ofthe counsel and the respondent.It is stated thatin terms of the order of the ARC dated 03.09.2013 the respondent furnished the details of the bank account in the second week of January 2010 and the entire arrears as on that date were deposited in court. It is further urged that the delay took place thereafter due to no proper guidance and communication by the office ofthe counsel forthe respondent.

13. In my opinion, the excuse put forth in not paying the rent regularly each month as directed by the ARC under section 15(1)ofthe Act inspires no confidence The ARC and in the appeal the Rent Control Tribunal have exercised their jurisdiction and rejected the application for condonation of delay filed by the petitioner. The application was filed belatedly. In my opinion, there are no reasons to differ with the views of the two courts CM(MO 208/2016 Page 7of[8] »" -•I. In fc below. There is pendingapplications,ifany,alsostanddismissed. yLy N IT CM(MO 208/2016 (JAYANT NATH) JULY 05,2017 JUDGE Page[8] of[8]