L. Prem vs Rajan C. Ramchandani

V. Periya Karuppiah, J.—This revision has been filed by the revision Petitioner who was the Appellant before the Rent Control Appellate

Authority and Respondent before the Rent Controller, aggrieved against the order passed in R.C.A. No. 150 of 2007 dated 31.3.2009 confirming

the eviction order passed by the learned Rent Controller in R.C.O.P. No. 1083 of 1999 dated 31.01.2007.

For convenience sake, the status of the parties as to the tenancy agreement is maintained in this judgment.

Heard Mrs. Vedavallikumar, learned Counsel for the revision Petitioner and Mr. D.N. Dhurgasha, learned Counsel for the

Respondent/landlord.

Learned Counsel for the revision Petitioner/tenant would submit in her arguments that the learned Rent Control Appellate Authority was not right

in confirming the order of eviction passed by the learned Rent Controller. She would further submit that there was no relationship of landlord and

tenant in between the parties and therefore, the Rent Control Original Petition itself is not maintainable. She would further submit that the tenant

originally became the tenant of the premises under Seetha Nirmaldoss and for that purpose only, the lease deed was sought to be produced as

Ex.R7 into Court. She would further submit that the said document, even though not registered under the provisions of Registration Act, can be

used in evidence for collateral purpose as envisaged u/s 49 of the Registration Act. She would further submit that the said document Ex.R7 was

admitted in evidence after paying the stamp duty and penalty to an extent of Rs. 87,450/- and therefore, the said document can be treated as

unregistered document attracted u/s 49 of the Registration Act. She would further submit that the quantum of rent was decided at Rs. 2,000/- per

month. Even though, it has been mentioned in the unregistered lease deed, the lower Courts have not accepted that a sum of Rs. 1,75,000/- was

paid as advance to the erstwhile landlord Seetha Nirmaldoss. She would further submit in her arguments that the tenant deposited a sum of Rs.

2,000/- per month in a separate Bank account since he did not know who was the landlord after the death of Seetha Nirmaldoss and the said fact

ought to have been taken into account and ought to have been found that the tenant did not commit any willful default. She would also submit that

the tenant had also paid nearly a sum of Rs. 2,00,000/- towards arrears of tax for the premises and therefore, he could not mobilise a sum of Rs.

1,42,000/- to deposit as per the orders passed in RCA No. 876 of 2000. She would also submit that the said tax was paid by the tenant since the

authorities had threatened the tenant to cut the service connection if the tax is not paid and therefore, the amount paid by the tenant ought to have

been given credit to payment of rent. She would also submit that the said default committed by the tenant was not willful since he had deposited

monthly rent into a separate Bank account. She would also submit in her arguments that the advance paid to the former landlord has to be taken

into account for the continuance of lease in respect of the property with the present landlord. She would further submit that the advance amount

paid was to the tune of Rs. 1,75,000/- and even without payment of advance, the lease can be created in between the parties and the payment of

advance amount more than the amount of rent per month can at any time be refunded to the tenant or adjusted with the rent payable by the tenant

for the demised premises. Therefore, she would submit in her argument that the payment of advance is not a separate one but collateral transaction

which does not require registration and therefore, it would attract u/s 49-C and the proviso of the Registration Act. The payment of advance paid

under Ex.R7 ought to have been taken as collateral transaction and ought to have been adjusted towards the arrears of rent, if any. She would

further submit that if the said advance is adjusted towards the alleged arrears of rent on the date of filing of the petition, there will not be any arrears

of rent to be paid on the date of petition. She would further submit that there could not be any arrears to be paid from October 1996 to April

1999 for 31 months to the tune of Rs. 64,000/- She would also submit that the said point of adjustment of rent from and out of the advance

amount has been stated in the judgment of the Apex Court reported in K. Narasimha Rao Vs. T.M. Nasimuddin Ahmed, . In the said case, it has

been categorically laid down by the Honourable Apex Court that whenever an advance amount was obtained by the landlord for exceeding one

month rent from the tenant, obligation is imposed by the Rent Act on the landlord to refund the excess amount to the tenant immediately or to

adjust the same towards the rent due. She would also submit that this Court has also come to a similar conclusion following the said decision of the

Honourable Apex Court reported in 1996 TNLJ 407 (Selvaraj v. Meenakshi Bai and Anr.). She would further submit that if the advance amount

has been adjusted towards the rent, there would not be any arrears of rent on the date of filing of RCOP. Therefore, there could not be any willful

default. She would also submit that the rent payable during the pendency of the Rent Control Original Petition as well as the Rent Control Appeal

were also duly paid by the tenant and he had bonafide maintained separate bank account for the deposit of monthly rent at Rs. 2000/- per month

after paying the taxes from and out of it. Therefore, she would submit in her argument that there is no willful default committed by the tenant and the

judgments of both the forums below are not in accordance with law, especially, in respect of the admissibility of the payment of advance amount as

the collateral transaction to the main transaction of Ex.R7 lease deed. Therefore, she would request the Court to interfere with the orders of the

learned Rent Control Appellate Authority and set aside the orders passed thereon and to dismiss the Rent Control Original Petition filed before the

learned Rent Controller.

Learned Counsel for the Respondent/landlord would submit in his argument that the tenant was originally entered into the tenancy agreement

with Seetha Nirmaldoss agreeing to pay a sum of Rs. 9,000/- per month to the demised premises and the said Seetha Nirmaldoss died and

thereafter, Lachu Nirmaldoss had collected the rent payable for the demised premises from the tenant of the said Lachu Nirmaldoss also died and

the other brother of Lachu Nirmaldoss and Seetha Nirmaldoss also died. He would refer to the death certificates and those particulars produced in

Exs.P5 to P7 and submit that all the three had no issues and therefore, the landlord being the paternal uncle''s son was the legal representative and

he has filed a suit in O.S. No. 2814 of 1998 before the City Civil Court for declaring him as the legal representative of Lachu Nirmaldoss and the

said suit was decreed in his favour. He would further submit that the judgment and decree passed in the said suit have been produced as Exs. P1

and P2 and further, the landlord had applied for letters of administration, after joining his brothers who are also standing on the same footing before

this Court and the letters of administration was also granted in favour of the landlord on 13.2.1999 produced in Ex.P4. He would further submit

that the landlord has been recognised as the owner of the demised premises and the rent payable to the demised premises ought to have been paid

by the tenant to him. He would further submit in his arguments that the notice sent by the landlord to the tenant on 1.4.1999 demanding the rent

from October 1996 to till date, he didl not reply nor paid the amount. He would further submit in his argument that if really the tenant had already

entered into lease agreement with Seetha Nirmaldoss through Ex.R7 it should have been mentioned in the reply or in the counter filed by the tenant

in the main O.P. with relevance to the payment of a sum of Rs. 1,75,000/- as advance and the monthly rent was only Rs. 2000/- and not Rs.

9,000/-. He would also submit in his argument that the tenant was very much irregular in paying the rent and he is not complying with the orders

passed by the court for depositing the sum of Rs. 1,42,000/- into Court. He would also submit that the default in payment of the rent during the

pendency of the proceedings can also be taken note of for the purpose of assessment of the willful default committed by the tenant. The arguments

advanced by the learned Counsel for the tenant would not be sustained because the payment of advance is also a part and parcel of lease entered

through the lease deed Ex.R7 and it cannot be treated as a separate transaction. He would further submit that the findings of both the Rent

Controller as well as the Rent Control Appellate Authority are concurrent and that there is no illegality in their orders and the orders do not show

any perversity also. The default committed by the tenant towards payment of rent during the relevant period coming from 01.10.1996 to

30.04.1999 and thereafter, during the pendency of the proceedings are certainly amounting to willful and therefore, the finding of both the forums

below need not be interfered and the revision may thus, be dismissed.

I have given anxious consideration to the arguments advanced on either side.

The title to the demised property was originally disputed by the tenant. However, the landlord has produced Ex.P1 and P2, the judgment and

decree passed of a competent Civil Court declaring that the landlord is the legal representative of the deceased Lachu Nirmaldoss to succeed as

landlord of the demised premises. Apart from that, the letters of administration granted by this Court in a lawful proceedings by its order dated

3.12.1999 is also produced as Ex.P4. It recognised the landlord to administer the properties belonging to Lachu Nirmaldoss, Seetha Nirmaldoss

and Roop Kumar who died issueless. Originally, it was contended by the tenant that the original landlord Seetha Nirmaldoss died issueless and

therefore, the property vested with the Government. The said theory that the Administration General and the Official Trustee alone is entitled to

proceed with the property cannot be sustained in view of the orders of competent forums in Exs.P1, P2 and P4 also because the orders passed by

the learned Rent Controller in M.P. Nos. 365 and 366 of 2000 for the impleadment of Administration General and Official Trustee to take care of

the measurement of the properties were dismissed and no appeals have been preferred against the said order. In the said circumstances, it can be

seen that the landlord is the correct person to administer the property and to receive the rents from the tenant as per the order of this Court made

in Ex.P4.

As regards the payment of rent payable to the demised premises is concerned, we have to decide as to whether the non-payment of rent

payable for the period commencing from 01.10.1996 to 30.04.1999 or till the date of filing the RCOP before the Rent Controller and the non-

payment of rent payable to the demised premises by the landlord during the pendency of the proceedings are willful and wanton. It is no doubt true

that the original owners of the property Lachu Nirmaldoss, Seetha Nirmaldoss and Rup Kumar were no more. They died issueless. After the death

of Seetha Nirmaldoss, Lachu Nirmaldoss was looking after the demised property along with other properties. He also died. Therefore, there could

not be any payment of rent payable to the premises by the tenant to the landlord as well as the tenant in respect of the demised premises.

However, a suit has been filed by the landlord herein to declare himself as the legal representative of Lachu Nirmaldoss and it was decreed as per

Exs.P1 and P2. The landlord sent a notice on 1.4.1999 to the Respondent stating all these facts and demanded the payment of rent at Rs. 9,000/-

per month for the period commencing from 01.10.1996 to 30.04.1999. The said notice was not replied even though it was received by the tenant.

However, the landlord has launched an action by filing a petition before the learned Rent Controller and the tenant filed counter affidavit

questioning the proprietorship of the landlord to demand rent and also the quantum of rent. However, it has been decided by the learned Rent

Controller in an application filed u/s 11(4) of the Act and a direction has been made by the learned Rent Controller in M.P. No. 496 of 1999

against the said order, RCA was preferred by the landlord in RCA. Nos. 876 and 877 of 2000 wherein the Rent Control Appellate Authority

directed the tenant to pay a sum of Rs. 1,42,000/- and also directed the tenant to pay Rs. 2,000/- per moth till the disposal of R.C.O.P. and the

said order was not complied with. The tenant had produced various rental receipts issued to him by Seetha Nirmaldoss for the payment of rent for

the demised premises at Rs. 2,000/- per month. They are produced as Ex.R1 series. In the said receipts, we can see that the monthly rent was

only Rs. 2,000/- and therefore, the case of the landlord that the monthly rent payable was at Rs. 9,000/- cannot be true. Therefore, the findings of

the learned Rent Controller as well as the learned Rent Control Appellate Authority that the monthly rent payable to the demised premises at Rs.

2,000/- is correct.

It has been further argued by the learned Counsel for the Petitioner/tenant that a sum of Rs. 1,75,000/- was paid and therefore, there could not

be any arrears of rent payable on the date of filing of the petition. The learned Rent Control Appellate Authority had come to a conclusion that

Ex.R7 is an unregistered lease deed and even though stamp duty and penalty were paid to the tune of Rs. 87,0000/-was left unregistered and it

would hit u/s 17 of the Registration Act and therefore, it is not admissible. However, learned Rent Control Appellate Authority had discussed the

exemption given under the provisions of Section 49 of the Registration Act and came to the conclusion that the tenant wanted to enforce the terms

of the lease deed agreement by showing he paid a sum of Rs. 1,75,000/- as advance and therefore, it would not attract the exemption given u/s 49

of the Registration Act.

No doubt Ex.R7 is a document without sufficient stamp duty and registration. However, the deficit stamp duty has been paid with penalty and

it was made good. The flaw of non-registration is still attached to that document and therefore, the said document is covered by the provisions of

Section 17 of the Registration Act. The said document has been admitted in evidence subject to the objection of the other side as Ex.R7. It was

the argument advanced by the learned Counsel for the tenant that Section 49 is attracted for the collateral transaction of payment of advance

amount and therefore, it is admissible to that extent.

Now, we have to consider whether Ex.R7 is an admissible to prove the payment of advance of Rs. 1,75,000/- as the collateral transaction to

the main transaction of lease. Firstly, when we analyse the words ''collateral transaction'', the root meaning of the word collateral is running together

or running on parallel lines. The transaction as recorded would be a particular or specific transaction, But it would be possible to read in that

transaction what may be called the purpose of the transaction and what may be called as a collateral purpose, the fulfillment of that collateral

purpose would bring into existence a collateral transaction, a transaction which may be said to be a part and parcel of the transaction but

nonetheless a transaction which runs together with or at parallel lines with the same.

For the purpose of understanding the case promptly, it is necessary to extract Section 49 of the Registration Act.

Effect of non-registration of documents required to be registered No document required by Section 17 (or by any provision of the transfer of

Property Act, 1882 (IV of 1882) to be registered shall -

(a)affect any immoveable property comprised therein or

(b)confer any power to adopt, or

(c)be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

(Provided that an unregistered document affecting immoveable property and required by this Act or the transfer of Property act, 1882 (IV of

1882) to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act,

1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.)

According to Section 49 of the Registration act, an unregistered document without complying the provisions of Section 17 are not admissible in

evidence towards affecting such property or conferring such power unless it has been registered and subject to the provisions that an unregistered

document of such nature may be received as evidence for any collateral transaction which collateral transaction is not required or not required to

be effected by a registered instrument. On a careful analysis of his argument it has to be seen whether the payment of advance could be a collateral

transaction or be granted as part and parcel of lease transaction. No doubt it is true that a lease can be entered into between parties without

payment of advance or fixing one month advance or any other sum as they wish and create a lease. The payment of advance is not necessarily a

compulsory one for entering into lease transaction. Similarly such payment of advance can be entered into by a separate document through or by

an issuance of receipt which need not be required to be registered u/s 17 of the Registration Act. Therefore, we could see that the transaction of

payment of advance amount even though a separate and divisible transaction can be clubbed with the lease agreement entered into between the

parties. Therefore, it is sheerly a collateral transaction not required to be effected by a registered instrument. According to the provisions of Section

7(2) and (3) of the Tamil Nadu Buildings (Lease and Rent Control ) Act receipt of more than one month''s rent shall be refunded or adjusted with

the future rent. In case, the tenant wanted to get refunded from the landlord it could be taken as a separate transaction but with collateral purpose.

Therefore, the document in Ex.R7, the lease agreement though unregistered is receivable in evidence as evidence of payment of advance amount

paid by the tenant to the former landlord. The said payment of advance amount will go along with the property and therefore, the landlord who has

been approved as administrator of the said properties as per the order of this Court made in Ex.P4 dated 13.12.1999 is certainly bound to repay

the payment of advance made to the erstwhile landlord Seetha Nirmaldoss. Such a fact need not be placed in the counter nor replied in the notice

sent by the landlord to the tenant because it is a fact which has been proved through the documentary evidence before the learned Rent Controller

in a summary proceedings. Therefore, it cannot be simply ignored for want of registration of the said document. On the foot of the payment of

advance available to the credit of the tenant, no doubt the arrears said to have accrued from 1.10.1996 to 30.04.1999 shall be adjusted in view of

the judgment of the Honourable Apex Court reported in K. Narasimha Rao Vs. T.M. Nasimuddin Ahmed, . It has been categorically laid down

by the Honourable Apex Court as follows.

For the purpose of this case, it is sufficient for us to say that there are provisions in the Bihar Act, which clearly make it illegal to claim or

receive any payment in excess of the amount in addition to the rent or any sum exceeding one month''s rent in advance and there is a clear

declaration that any excess amount received would not be lawful. There is no provision in the Bihar Act corresponding to that in Sub-section (1)

and (2) of Section 7 in the Tamil Nadu and Andhra Pradesh Acts, which creates a legal obligation in the landlady to refund the excess amount to

the tenant creating a corresponding right in the tenant to recover that amount from the landlady. The absence of such a provision in the Bihar Act

making the excess amount refundable and imposing an obligation on the landlady to make that refund immediately or to adjust it, is the

distinguishing feature in the Bihar Act. However, on the clear provision of the Tamil Nadu Act which applies in the present case, there is no

ambiguity. Further reference to the decisions under the Bihar Act is therefore, not necessary.

In the present case, excluding from consideration the tenant''s claim for adjustment of the amount of Rs. 1000/- spent on repairs and the

amount of Rs. 750/- sent by demand draft on receipt of the notice, the amount of Rs. 2850/- with the landlady as the excess amount of advance

paid by the tenant to the landlady, was alone sufficient to negative the landlady''s claim of ejectment. The arrears of rent from July to November

1990 was only Rs. 750/- , while the excess amount of advance was Rs. 2850/-, far in excess of the arrears. The landlady was bound to

immediately refund that excess amount even before the arrears accrued, and he not having made the refund was bound to adjust it towards the rent

due from the tenant. On these facts, the tenant could certainly not be held to be a willful defaulter in the payment of rent. The High Court is,

therefore, right in deciding against the landlady.

The said judgment has been followed by this Court in 1996 T.L.N.J 407 (Selvaraj v. Meenakshi Bai and Anr.). If the rent payable for the said

period has been adjusted with the advance amount there would not be any arrears of rent payable prior to the filing of RCOP.

As far as the commission of default during to period of proceedings concerned, it is made out through records that the tenant did not comply

with the orders passed by the learned Rent Control Appellate Authority in R.C.A. No. 876 and 877 of 2000 directing the tenant to deposit a sum

of Rs. 1,42,000/- into court. The reasons put forth by the Appellant/tenant would be that the tenant had paid a sum of nearly Rs. 2,00,000/-

towards arrears of tax from the bank account in which he was periodically depositing monthly rents in a separate bank account as he did not know

about the identity of landlord of the premises. The Rent Control Appeal in R.C.A. No. 876 of 2000 was disposed of on 17.10.2006 directing the

Appellant/tenant to deposit the arrears of amount of Rs. 1,42,000/- for the period commencing from November 2000 to September 2006 at Rs.

2000/- per month and to continue to deposit the future rent at Rs. 2000/- per month was not paid by the tenant. It has been categorically admitted

by the tenant in hi evidence that he did not pay the said amount since there are four brothers including the landlord and he did not know who was

the owner of the property and therefore, he did not deposit the amount into court. Now, it has been argued before me that the tenant could not

make the payment since he had already paid Rs. 2,00,000/- towards taxes payable for the demised premises. Therefore, the version of the tenant

cannot be accepted and the default in payment of rent during the pendency of the proceedings can also be said as willful so as to attract the

definition of willful default. The judgment of the Court reported in Poorman''s Depot Vs. P.R.M.A. Krishnan, would put forth the following

principle:

...The tenant is bound to pay the rent regularly as agreed. The subsequent conduct of the tenant can be taken into account to come to a

conclusion whether there was any supine indifference on the part of the tenant in payment of rent during the relevant period. The evidence available

on record would prove that the tenant was in the habit of paying the rent irregularly. There is no wrong in taking into consideration of the

cumulative effect of the conduct of the tenant in payment of the rent to assess the nature of default. The appellate authority has applied his mind

with respect to the documents and evidence to come to the conclusion that the tenant has committed default in payment of rent wilfully. In the

circumstances of the case and on the basis of the evidence of record, I am not in a position to take a different view.

The various judgments of this Court reported in 2000 (3) MLJ 460 (B. Sarojini v. Rajeswari Subramaniam and Ors.), S. Venkatesulu Vs. V.

Chandra and Others, and Vijayakumar Vs. Ravindran Jesudasan and Others, would squarely apply to the facts of this case.

Therefore, even though the tenant did not commit any default in payment of arrears prior to the filing of the petition and such arrears have been

adjustable with the advance amount, he had committed willful default towards the payment of rent to the demised premises during the pendency of

the proceedings. In view of the judgments referred to above. I am also of the view that the tenant has committed willful default. In the said

circumstances, the finding reached by the Forums below even though not correct in respect of the admissibility of the document Ex.R7 regarding

the payment of advance amount, in other respects, they cannot be interfered to see that the tenant did not commit willful default. Therefore, I am

also concurrent with the findings of the Rent Control Authority that the tenant has committed willful default in respect of payment of rents payable

during the proceedings and on that ground alone eviction of the tenant ordered by R.C.A.A has to be confirmed.

For the foregoing discussions except the points stated above, the decision reached by the Rent Control Appellate Authority that the tenant had

committed willful default cannot be interfered. Therefore, the eviction order passed by the learned Rent Controller confirmed by the Rent Control

Appellate Authority are not liable to be interfered or set aside.

In the result, the civil revision petition is dismissed. In the peculiar circumstances of the case, there is no order as to costs. Consequently, M.P.

Nos. 1 and 2 of 2009 are closed. Time for vacating the premises is six months.