Jayems Engineering Co. Ltd. vs Mr. M.A.A. Wahab and 4 others

Srinivasan, J.—The revision petition arises out of the petition filed by the respondents for eviction under S.10(2)(i) of the Tamil Nadu

Buildings Lease and Rent Control Act, hereinafter referred to as the Act, the respondents, hereinafter will be referred to as the landlords and the

petitioner will be referred to as tenant. The case set out in the petition for eviction is as follows:

The tenant is in occupation of an area of 2,547 sq. ft. in the ground floor of premises hearing No. 138, Thambu Chetty Street, Madras-1 and

paying a rent of Rs. 1,200/- per mensem and purpose of the tenancy is nonresidential. The tenant was paying rent all along by cash or cheque and

the landlords used to issue receipt then and there as soon as the payments are made. The last payment of the rent was for the month of April 1987

paid in May 1987. Thereafter, the tenant did not pay any rent i.e. from May 1987. The building has three floors apart from the ground floor and

one S.P. Balasubramaniam became tenant in 1984 with respect to floors 1, 2 and 3 excepting for a small portion in the first floor. He never paid

rent and there were arrears of Rs. 2,70,000/- The landlords wrote to the Corporation of Madras to collect the property tax from the said S.P.

Balasubramaniam. The Corporation apparently colluding with the said S.P. Balasubramaniam did not collect it from him inspite of the landlords,

letters dated 20.7.1987 and 17.8.87. While so the Corporation issued a demand notice for a sum of Rs. 87,000/- to the tenant. The landlords

expressly directed the tenant not to pay the tax to the Corporation as there was a serious dispute with regard to the quantum and the liability to pay

taxes. Inspite of that, the tenant wrote a letter dated 15.9.1987 to the landlords declaring that he was going to pay the Corporation Tax and he

would not pay the monthly rent due to the landlords. The landlords wrote another letter on 21.9.1987 that the tax demanded by the corporation

was in dispute and the tenant shall not pay the same, and informed the tenant that if he paid tax to the Corporation and failed to pay rent, it would

be considered as wilful default and his payment to the Corporation would be treated as voluntary payment. Inspite of that, the tenant was in arrears

from 1.5.1987 to 28.2.1988 both months inclusive and the default was wilful and wanton. There was no agreement or understanding between the

parties that the tenant should pay Corporation Tax. On the contrary, there was an express prohibition by the landlords against any payment to the

Corporation. The tenant did not receive any notice intimating him of coercive proceedings to be initialed by the Corporation for payment of tax.

Hence the payments said to have been made by the tenant to the Corporation were voluntary payments and they would not absolve him from the

consequences of wilful default in payment of rent.

The tenant filed a counter statement. He did not controvert the statements made in the petition that there was no arrears upto May 1987. He stated

that the Corporation authorities threatened to take coercive action against him by virtue of the powers conferred upon them under Rule 29

Schedule 4 of the Madras City Municipal Corporation Act, and he was forced to pay the amount to the Corporation authorities. He referred to the

notice dated 1.6.1987, issued by the Corporation in which the arrears of tax were stated as Rs. 72,853,00. According to the tenant there were

similar threatening notices from Madras Water Supply and Sewerage Board for the payment of water taxes, under threat of disconnection for of

water supply. According to the tenant, he paid the rent directly to the Corporation to be adjuster towards property tax payable by the landlords

and a statement of such payments was appended to the counter statement which would reveal that there was no default committed by the tenant

for the period in question. According to the statement filed by the tenant along with the counter statement, some amounts were due by the

landlords to him and he had actually paid over and above the rent due to the landlords.

The Rent Controller held that there was no wilful default on the part of the tenant and dismissed the petition for eviction. On appeal, the 12th

Judge, in the Court of Small Causes reversed the conclusion of the Rent Controller and held that the tenant was guilty of wilful default as his

payments to the Corporation of Madras were voluntary and against the express prohibition by the landlords. Consequently, the order of eviction

was passed against the tenant

It is the said order which is questioned in this revision petition. It is argued by the Learned Counsel for the tenant that even if there is any default

in payment of rent, it is not wilful as the tenant had been paying to the Corporation of Madras, the amount due towards property tax which could

be adjusted towards the rent due to the landlords. He contended that infact, the tenant has been making payments towards water tax and property

tax ever since 1979-80 and there were payments in excess over and above the rent due to the landlords. It is further argued that the Corporation

of Madras issued as many as three coercive notices on the basis that the tenant was the occupier of building and after receipt of such notices, the

tenant had duly informed the landlords about the receipt of the same and inspite of that the landlords had not taken any steps to make the payments

or to get an order of injunction against the Corporation of Madras restraining them from taking further action pursuant to such notice. In these

circumstances the payments made by the tenant were not voluntary and they should be adjusted towards the rent payable to the landlords and

consequently there was no wilful default on the part of the tenant.

Per contra, it is argued by the Learned Counsel for the landlords that the period of default set out in the petition is 1.5.1987 to 29.2.1988.

During that period there is only one payment by the tenant of a sum of Rs. 4,930.40 under Ex. R.68 towards water tax due for two half years

namely by 1986-87 and 1987-88. It is also submitted that the Corporation of Madras had increased the property tax abnormally from Rs. 8,609/-

per half year to Rs. 14,222/- and landlords had challenged the validity of the same in a Civil Suit namely O.S. No. 6173 of 1988 on the file of City

Civil Court, Madras. It is also contended that the water tax was increased from Rs. 764.40 per half year to Rs. 4,166.60 which was also

challenged by the landlords. Admittedly, according to him, there was no payment whatever during the 10 months after which the petition for

eviction has been filed. It is also submitted that there is absolutely no evidence of any coercive proceedings by the Corporation as against the

tenant. It is contended that once the notice is issued by the landlords expressly prohibiting the tenant from making any payment to the Corporation

of Madras, it is not open to the latter to make payments and claim that they would be adjusted towards the rent due. It is argued that such

payments are only voluntary payments and they would not absolve the tenant from the consequences of wilful default.

As pointed out already the counter statement filed by the tenant, does not make any reference whatever to the excess payments alleged to have

been being made by the tenant prior to May 1987. In spite of the express averment in the petition for eviction that the rent was paid upto the end

of April 1987, the tenant did not put forth a case that he had made payments over and above the amount due, to the landlords and the latter was

liable to refund the same or adjust it towards future rents due for the subsequent period. It is not the case of the tenant that there was any

agreement between the landlords and the tenant that the latter should pay the taxes due to the Corporation by way of water tax or property tax.

However, in the course of the evidence, the tenant produced several documents to show that he had made payments towards water tax and

property tax even from 1979-80. A tabular statement has been prepared by Learned Counsel for the respondents giving the particulars of

documents filed by the tenants in support of his case of payments made to the Corporation of Madras and M.M.W.S.S.B. It is seen that during the

year 1980, the tenant had paid a total sum of Rs. 4,854,40. There are five receipts marked as Exs.R-14, R.24, R.25, R-26 and R-27. Under the

five receipts the above amount has been paid. That shows that there was no excess payment during the year 1980 as the total rent due for a year is

Rs. 14,400/-. In 1981, there was 9 payments as evident from Exs.R-12, R13, R-15, R20, R-25 R-30''). R-31, R-32 and R-33. The total comes

to Rs. 8,832.72. Again the total payment did not exceed the total rent due for the year 1981. In the year 1982, there were only two payments as

evident from Exs.16 and R17 totalling Rs. 1,528.80. It is nowhere near the rent due namely Rs. 14,400/-. In 1983, there were three payments

under Exs.R18, R-19 and R-36. The total amount comes to Rs. 2,728.80 which is less than the total rent payable. In 1994, there were six

payments under Exs.R-34 R.35, R-37, R-38, R-39 and R-40. The total amount is Rs. 8,509.88. In 1985, there were five payments under Exs.R-

20, R-21, R-22, R-42 and R-43. The total comes to Rs. 4,693.20. In 1986, there is one payment under Ex. R-67 for Rs. 764.40. In 1987 there

is again one payment under Ex. R-68 for Rs. 4,930.40. It is seen that in none of the years from 1980 to 1987 for which the documents have been

produced by the tenant, there was any excess payment over and above the sum of Rs. 14,400/- due by way of rent for the year. It is not the case

of the tenant that in addition to payments made to the Corporation and M.M.W.S.S.B. as evident from the receipts produced by him, he was

paying rent regularly to the landlords every month. Advantage is now sought to be taken in the course of reply to arguments by Learned Counsel

for the tenant of the plea in the RCOP that the rent was being paid by cash or cheque by the tenant upto April 1987 to the landlords and it is

contended that the payments made to the Corporation and M.M.W.S.S.B. were in addition to the regular payments of rent made to the landlords.

There is no warrant for such a contention as there is no pleading to that effect in the counter statement and there is no evidence on the side of the

tenant to that effect. It is also not the case of the tenant that he made other payments to the civic authorities but the receipts are not available.

The other receipts which are marked as Ex. R44 to Ex. R65 and R67 relate to the period subsequent to the filing of the petition for eviction.

They do not help the tenant in any way to show that he had made payments over and above the rent due for the periods, prior to the period in

question in the eviction petition, and that the same should be adjusted towards the rent due for the period mentioned in the petition for eviction.

Much reliance is placed on Exs.R-69 and R-70 which are the two statements of accounts filed by the tenant along with the counter statement.

According to Ex. R-69 there was a debit balance of Rs. 6,764.40 on 1.7.1986 in the account of the landlords in the ledgers of the tenant. It is

argued that the tenant had paid over and above the rent due to the landlords during the previous periods a sum of Rs. 6,764.40 by making

payments to the civic authorities. In Ex. R-70 there is a debit balance of Rs. 8,264.40, which is carried over from Ex. R-69. An objection was

raised at the time when they were sought to be marked in evidence by the tenant. The Rent Controller noted that an objection was raised and yet

marked the same. The Rent Controller did not give any finding as to whether the documents were admissible. Now it is argued by the tenant that

the Exs.R-69 and R-70 do have a probative value and they should be taken as conclusive evidence of the payments made by the tenant on the

dates mentioned therein. The only witness examined by the tenant is R.W.1 who is the Branch Manager of the tenant''s concern. He was cross

examined in detail as regards Exs.R-69 and R-70. He deposed that there were ledgers in the company with reference to the details set out in

Exs.R.69 and R.70. They were not produced. In spite of the specific cross examination as to the production of the ledgers, the tenant has not

chosen, to produce the same. It is contended that the landlords ought to have issued a notice to produce the ledgers and in the absence of such

notice, the two documents namely Exs.R-69 and R70 should be accepted as proper evidence. There is no substance in this contention and it is

wholly untenable. It is for the tenant, who pleads that he has made payments, to prove the same. It is the duty of the tenant to pay rent to the

landlords and once it is admitted that rent has not been paid during the period in question, the burden of proving excess payment earlier is on the

tenant to show as to how he seeks adjustment by payments made to persons other than the Landlords. If the tenant wanted to establish his

payments to the corporation of Madras during the period in question or earlier, he ought to have produced the ledgers or such documents other

than the receipts filed by him, which prove only one payment in the year 1987. There is no evidence to show that the tenant has made payments

during the period in question to the Corporation or to the landlord himself or excess payment in the previous years.

There is absolutely no evidence in this case to prove the excess payments alleged to have been made by the tenant. Consequently the opening

entry in Ex. R-69 showing a debit balance of Rs. 6,764.40 cannot be relied upon by the tenant. Reliance is placed an Ex. R-23 and the entry

dated 18.4.1987 in Ex. R-69 according to which a sum of Rs. 2,000/- was paid to the landlords towards rent. Significantly R.W.1 deposed that

he did not know whether payment under Ex. R-23 was towards rent. P.W. 1 was not asked about Ex. R-23 or the entry in Ex. R-69. In the

circumstances neither Ex. R-23 nor the entry dated 18.4.1987 in Ex. R-69 helps the tenant in proving excess payments.

Learned Counsel for the landlords rightly draws my attention to the admission made by R.W.1 in his evidence that for a period of 13 months,

from May 1987, no rent was paid to the landlords. According to the witness, the payment was made to the Corporation of Madras which is not

proved either by production of receipts or production of books of account said to have been maintained by the tenant.

The case that there was initiation of coercive proceedings by the Corporation of Madras against the tenant to make payments to the

Corporation and the payments made by the tenant pursuant thereto should be adjusted towards the rent due to the landlords, cannot be accepted.

There is no evidence to show that after notices under Rule 29 Schedule 4 of the Madras City Municipal Corporation Act were issued to the

tenant, he made payments towards the amounts set out in such notice. The three notices produced by the tenant are marked as Exs.R-11, R-65,

and R-66, Ex. R-69 is dated 4.11.1985. It is a notice under Rule 29 Schedule IV of the Madras City Municipal Act IV of 1919. According to the

notice, the amount due was Rs. 45,281.28 due for half years. 1/1983/84/1/1984-85, 2/1984-85 and 1/1985-86. There is no evidence before the

Court that after receipt of such notice, the tenant made payment of the amount claimed in the said notice, to the Corporation of Madras. I have

already referred to the payments made by the tenant in the year 1985. After the receipt of the said notice, Ex. R-65, there was only one payment

of Rs. 1,200/- made on 28.11.1985 under Ex. R-43 for the second half year of 1983-84. Other payments made in 1985 were long before the

receipt of notice and three of them were towards water tax which had nothing to do with the notice relating to property tax. In 1986, there was

only one payment in November 1986 towards water tax and that was also not towards property tax. Hence the receipt of R-65 by the tenant

under Rule 29 Schedule 4 of the Madras City Municipal Act had no effect at all on him and he practically ignored the same. He did not make any

payment to the Corporation pursuant to the said notice towards the property tax due excepting the amount pointed out already. Ex. R-66 is a

notice dated 1.8.1986. As per that notice, the total amount due was Rs. 64.699.30 for the first half of 1984-85, 2/1984-85, 1/1985-86, 2/1985-

86 and 1/1985-86. It is to be noted that the claim for the second half of 1983-84 made in Ex. R-65 is not repealed in Ex. R-66 inspite of the fact

that there was no payment of the amount due for the said half year. The only payment as referred to earlier was of Rs. 1,200/- made under Ex.

R43. The amount claimed for second half year 1983-84 was Rs. 2,609.80. There is no explanation as to how the claim for the second half of

1983-84 is omitted in Ex. R.66. Again after the receipt of Ex. R-66 there was no payment whatever in 1986 by the tenant towards property tax

nor was there any payment subsequent to that till the filing of the petition. The two payments made in 1986 and 1987 were only towards water tax

and not towards the property tax. This proves that neither Ex. R-65 nor Ex. R-66 had any effect on the tenant and they were not really coercive.

As a matter of fact, the tenant did not give any credence thereto and chose to ignore them in the matter of making payment though he seems to

have informed the landlords about the receipt of the same.

Ex. R11 is a notice dated 1.6.1987. It is for the period 1/1984-85 to 2/1986-87. The total amount comes to Rs. 72,853. But the landlord''s

dispute the genuineness of this notice. The bill number mentioned in the notice is 130/51 whereas the bill number mentioned in Ex. R-65 and R-66

is 113/51. R.W.1 has been questioned about Ex. R.11. He is not able to explain the discrepancy in the bill number mentioned in Kx.R11. Under

these circumstances no reliance can be placed on Ex. R11. Apart from this, even after receipt of Ex. R.11, the tenant has not made any payment

towards property tax before the filing of the petition for eviction. All this payments are only subsequent to the filing of the petition.

Hence there is no evidence to prove that the tenant made payments on account of initiation of coercive proceedings by the Corporation of

Madras and M.M.W.S.S.B. There is nothing on record to show that M.M.W.S.S.B. issued a threatening or coercive notice excepting a letter by

the tenant himself to the landlords that there was such a threat. It is quite obvious that the tenant was misusing the notices issued by the civic

authorities in order to avoid payment of rent to the landlords but at the same time, he did not pay any amount to the authorities either. Added to it,

the tenant prepared false statements of account and filed them in Court as Exs.R69 and R-70 in order to mislead the Court. What else is required

to prove that the default in payment of rent is willful ?

Of course there is evidence to show that some payments were made by the tenant towards property tax and water tax even from 1979-80.

But that would not prove any arrangement between the tenant and the landlords that the former should pay the taxes due to the corporation or

M.M.W.S.S.B. nor is there any pleadings to that effect. Even assuming that it was the usage as between the parties that the taxes due to the

Corporation and M.M.W.S.S.B. should be paid by the tenant, that was put an end to by the express prohibition by the landlords in their letters

which are exhibited in this case. Ex. R-2 is a letter dated 23.7.1987 by the landlords to the tenant. Landlords had informed the tenant that the latter

was not justified in making payment voluntarily to the M.M.W.S.S.B. and the action of the tenant was causing great prejudice to the landlords''

interests as the tax demanded was arbitrary and exorbitant. The last paragraph of the letter reads thus:

Further please note that you are also not to pay any tax to the Corporation towards property tax. If you still pay notwithstanding such a demand,

the same will be construed as voluntary payment and you will also be liable for action.

Similar letters are sent by the landlords to the tenant under Ex. P3 dated 7.8.1987 and Ex. P6 dated 21.9.1987. A letter was issued on 15.2.1988

by the landlords to the tenant in which the following statement is found:

It is clear that you are adopting a course of conduct of this nature is only to cause wrongful loss to me. Notwithstanding the above, you have now

claimed to have paid Rs. 4,166/- to the Sewerage Board. Your payment to the Board cannot be accepted or recognised you have no authority to

pay rent. Your alleged payments can not be accepted. Hence you cannot deduct the alleged payment from the rent you are bound to pay and

failure on your part to pay full rent will, therefore, be considered as default.

The tenant is claiming now that towards water tax and property tax he had made payments and such payments are only after the filing of the

petition for eviction. Hence the tenant cannot take advantage of such payments and claim that there is no default in payment of rent. The payments

are clearly voluntary and the tenant is therefore guilty of wilful default. The question has been considered by the Supreme Court in Rashik Lal and

Others Vs. Shah Gokuldas, . The following passage of the judgment is relevant and instructive:

We do not see any reason for holding that unless the rent was paid and accepted at a fixed period of interval, no such implied agreement can be

inferred. In the S.P. Deshmukh''s case (supra) the rent had been paid at the varying interval of 3 or 4 months. The crucial test appears to be the

conduct of the landlord in receiving the rent-officer, belatedly. If he receives the same under a protest and warns the tenant to be regular in

payment in the future, he cannot be assumed to have agreed to a modified agreement in the regard. But if he, without any objection and without

letting the tenant know his thought process, continues to receive at intervals of several months, he cannot be allowed to spring a surprise on the

tenant by suddenly starting a proceeding for eviction. I having filled the tenant in the belief that things were all right, the landlord was under a duty to

serve him with notice demanding regular payment, if the wished to insist open it. In the case before us there was no objection what some raised on

behalf of the landlord against the delayed payments.

In Jeganatha Chetty Case 97 L.W. 182 Justice Ratnam held that payments made by the tenant to the Corporation of Madras without the

permission of the landlord will be voluntary payments and the tenant cannot escape form the consequences of wilful default in payment of rent. This

judgment is sought to be distinguished by the Learned Counsel for the tenant by pointing out that in that case there was no information given by the

tenant to the landlord of the receipt of the notices from the Corporation. It is also pointed out that there was no evidence to disclose that on a prior

occasion the landlord had directed the tenant not to pay the property tax or water tax payable by him. According to the Learned Counsel those

facts distinguished that case from the present case and in as much as there were previous payments by the tenant towards property tax and water

tax from 1979-80 and the continuance of such conduct by the party will show that there was an arrangement between the parties that the tenant

should pay tax demanded by the Corporation and then adjust the same towards the rent due to the landlord.

Assuming that such an arrangement could be spelt out from the evidence even in the absence of any pleading or express evidence, the ruling of

the Supreme Court will govern this case and after issuing of the notices above referred to by the landlords to the tenant, it is not open to the tenant

to contend that he would make payments to the Corporation of Madras or M.M.W.S.S.B. and adjust the same towards rent.

Learned Counsel for the tenant placed reliance on the judgment of the Supreme Court in Vithalbai v. Dr. Radhyshyam Judgment Today

1992(4) S.C. 208. The question in that case was whether the tenant was habitually in arrears in the payment of rent. The question was answered in

the negative as it was proved on the facts of the case that payments were made in lump sums to the landlord by the tenant and they were being

accepted by the landlord and it was the practice which prevailed between the parties. The relevant passage in the judgment reads thus:

There was an established practice to pay rent to Raghuji Munim who used to collect the same as per his convenience. Thus it is proved beyond

any manner of doubt that the parties had adopted the practice of payment of rent in lump sum and not month by month and which continued from

1.1.1972 to the date of filing the present application under clause 13 of the Rent Control Order.

Admittedly, even on the date of filing such application there were no arrears of rent due against the appellants and in these circumstances both the

Rent Controller as well as the Resident Deputy Collector were right in holding that the tenant-appellants cannot be considered as habitual

defaulters in the payment of rent.

The Court referred to the ruling in Rashik Lal and Others Vs. Shah Gokuldas, and applied the ratio of the judgment in that case. The ruling has no

bearing in the present case.

In the circumstances there is no escape from the conclusion that the tenant is guilty of wilful default in payment of rent for the period May 1987 to

February 1988 and he is liable to be evicted. The order passed by the appellate authority does not call for any interference and the order is

confirmed. This revision petition is dismissed with costs.