Ramalakshmi and Another vs K. Kalidose

K. Govindarajan, J.—The petitioners filed an application for eviction in R.C.O.P. No. 45 of 1990 on the file of the learned Rent Controller,

Thanjavur under Sections 10(2)(ii), 10(3)(a)(iii) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960). According

to the petitioners, the respondent/ tenant committed default for the period from August, 1986 to December, 1990. So, according to them, the

tenant, has committed wilful default in payment of rent. The petition was resisted by the tenant by filing a detailed counter. The Rent Controller in

his order dated 30.8.1991 rejected the same. Aggrieved against the same, the petitioners filed an appeal in R.C.A. No. 24 of 1991 on the file of

the learned Appellate Authority, Thanjavur. The Appellate Authority also concurred with the findings of the Rent Controller and dismissed the

Appeal. Aggrieved against the same, the petitioners have filed the above revision.

It is not in dispute that the tenant has to pay the rent from August, 1986 to December, 1990. The tenant sent Money Order Ex.B-4 dated

6.11.1986 for a sum of Rs. 20 which was refused by the petitioners. Thereafter, he-sent another Money Order under Ex.B-3 dated 8.12.1986 for

a sum of Rs.57 towards three months rent ending with December, 1986, That was also refused by the petitioners. Thereafter the tenant filed a suit

in O.S. No. 753 of 1986 on the file of the District Munsif Court, Thanjavur seeking a decree for injunction restraining the petitioners from evicting

him forcibly. In the said suit in the month of September, 1990, the tenant deposited the arrears towards 46 months rent of a sum of Rs.920 to the

credit of O.S. No. 753 of 1986. Such a deposit is not disputed.

We have to now find out whether there is any supine indifference on the part of the tenant in not paying the rent regularly.

The learned Counsel appearing for the petitioners has submitted that the petition was filed on 16.8.1990. The date of the first hearing was

28.8.1990. The learned Counsel has further submitted that merely because the landlords refused to receive the Money Order, the tenant cannot

keep quiet without payment the rent regularly. If the Money Order is refused, it is for him to resort to the procedure u/s 8 of the said Act. In the

absence of taking any steps under the said provision, the same amounts to wilful default.

On the other hand, the learned Counsel appearing for the respondent-tenant has submitted that the tenant sent Money Order under Exs.B-3 and

B-4. They were refused to be received by the landlords and so the amount was deposited in the bank. Thereafter the said amount was deposited

to the credit of O.S. No. 753 of 1986. On the basis of the abovesaid fact, the learned Counsel has submitted that there is no deliberate intention

on the part of the tenant in paying the rent.

The learned Counsel appearing for the tenant has further cited a number of decisions in support of his submission, he has relied on the decision

of AR.Lakshmanan, J. in Rajalinga Chettiar and Others Vs. Nataraja Mudaliar, , wherein the learned Judge has held that non-adoption of

procedure prescribed u/s 8(2) does not throw any light on want of bona fides on the part of the tenant. In the said case, the tenant called upon the

landlord to specify a bank so that the rent could be deposited. But the landlord did not do so and so the tenant was regularly depositing the/money

in the Post Office Savings Bank Account. On the basis of those facts, the learned Judge has come to the conclusion that merely because the tenant

therein did not take proceedings u/s 8 of the Act, it cannot be construed as wilful. Even in the decision in K. Mohideen Sahib v. Tehodore Samuel

1985 T.L.N.J. 178, the facts are similar to the above said decision.

The learned Counsel appearing for the tenant has also relied on the decision in Minor Rajakumar, etc. v. N.V. Natarajan (1994)1 L. W. 340, in

support of his submission that depositing the rent in a separate account after refusal of the Money Order by the landlord, cannot be construed as

wilful default in payment of rent. Even in the abovesaid decision the tenant had been depositing the amount regularly in the bank and the amount

was made available to the landlord wherever required. In that circumstance the learned Judge has held that though the tenant was not resorting to

the provisions of the Act with reference to the payment of rent, there cannot be any wilful default, in payment of rent. The courts have decided the

cases on the basis of the conduct of the tenant in paying the amount or depositing the amount. In this case, the Money Order sent under Exs.B-3

and B-4 were refused by the landlords. That was in December, 1986. Thereafter the respondent though alleged that he has been depositing the

rent in the bank, in the cross-examination as R. W. 1 he has admitted that he deposited only for six months and even that amount he had

withdrawn, and so it cannot be said that the amount deposited by the tenant was available to the petitioners for withdrawal. So, the fact remains

that the tenant has deposited the amount only in September, 1990 to the credit of O.S. No. 753 of 1986. 8. The learned Counsel appearing for

the petitioners has also brought to my notice that a letter was written to the tenant to vacate the premises in question under Ex.B-1 dated

15.10.1986. The learned Counsel has relied on the said document to contend that in spite of such letter and in spite of the suit filed in 1986, the

tenant has not taken any steps u/s 8 of the Act or to pay the amount to the petitioners. In similar circumstances, S.S. Subramani. J., in Raffudin,

S.K. and Ors. v. N. Yeswantha Rao and Ors. (1997)2 L W. 66, has held as follows:

If the landlord refused to accept the rent or evades issue of receipt, tenant can issue a notice, asking him to inform the Bank in which the amount

has to be deposited. If, in spite of such a notice, the landlord did not answer, then only the tenant gets a cause of action to move a petition u/s 8(5)

of the Act. Even before moving the court, one more attempt has to be made by the tenant i.e., he has to make an attempt by sending the amount

through money order after deducting the money order commission. These are the statutory requirements that are to be complied with, and the

tenant deposits the rent in court, by virtue of the legal fiction u/s 8(5) of the Act, the deposit is treated as payment directly to the landlord. If the

legal requirements are not complied with, the legal fiction is also not available. In that case, he will be treated as a defaulter. In this connection, the

decision reported in Kuldeep Singh Vs. Ganpat Lal and another, , may usefully be referred to. It is a case under the Rajasthan Premises Control

Act, wherein there is a similar provision. Section 19 of that Act enables the tenant to deposit the rent in court on satisfying certain conditions as

provided in a similar section, namely, Section 8 of our Act. In that case also, without satisfying the requirements, tenant continued to deposit the

rent in Court. In spite of the deposit, their Lordships said that deposit will not amount to payment to the landlord and, therefore, he is a defaulter

and consequently the legal fiction is not available to him.

Even in his petition R.C.O.P. No. 193 of 1990, the tenant has not averred that he has issued notice to the landlords to name the bank, nor has he a

case that he sent the amount by money order. When the draff sent by the tenant was refused and when he received the notice, informing about the

default, tenant rushed to court, seeking permission to deposit the rent in court. If the statutory requirements are not complied with, even though

there was deposit in court, the same cannot be considered as tender to the landlords, so as to have full discharge. When he has not satisfied the

statutory requirements and rushed to court, mala fide is also clear i.e., he wanted to forestall the cause of the landlords on false allegations. When

the case put forward by the tenant is not true and the deposits are also not real payments, he must be deemed to be a wilful defaulter. I therefore,

confirm the findings of the Authorities below, for added reason. I hold that the tenant is liable to be/evicted on that ground.

The Apex Court in the decision in M. Bhaskar v. J. Venkatarama Naidu represented by his Power of Attorney Holder A. Narayanaswamy

Naidu (1997)1. M.L.J. 109, has held as follows:

Though parties are related, nonetheless when the appellant is staying in the premises as tenant, he has got an obligation to pay the rent regularly. If

he does not do so, he commits wilful default. If he finds that the landlord is evading the payment of rent, procedure has been prescribed u/s 8 of the

Act to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file an application before the Rent

Controller for permission to deposit the rent. The omission to avail of the procedure u/s 8 does not disentitle the lord to seek eviction for wilful

default.

The authorities below rejected the case of the landlords only on the basis that the tenant has deposited the rent in the said suit. The authorities

below have failed to appreciate that the tenant deposited the amount only in September, 1990. There is no explanation by the tenant for not paying

the rent from 1986. The only reason given by the tenant is that he was depositing the rent in the bank. But in the cross-examination he has admitted

that he has deposited so only for six months and even the deposited amount was withdrawn by him. So, the tenant cannot take advantage of the

fact that he has opened the account and deposited the rent in the bank. The Authorities below have given much importance to the fact that the

amount was deposited in the bank, but failed to appreciate the fact that the tenant has not deposited the amount regularly and the same was not

made available to the landlords.

The learned Counsel appearing for the respondent/tenant relying on Ex.B-1 has submitted that the intention of the landlords is only to get rid of

the tenant. On a reading of the said document it is clear that he wants to evict the tenant. Only on that basis, the petition filed by the landlords

cannot be rejected, if the landlords prove that the tenant has not paid the rent regularly and his default is only due to supine indifference. In this

case, as stated earlier, in spite of such letter and the said suit, the tenant has not paid the rent regularly or resorted to the proceedings u/s 8 of the

Act. Such an attitude is nothing but supine indifference on the part of the tenant in payment of rent. The learned Counsel appearing for the

petitioners is not able to persuade me to take a different view other than that of the authorities below, with respect to the other grounds. Further,

the findings given by the Authorities below on those other grounds are based on evidence. Hence the same cannot be assailed.

In view of the above discussions, the orders of the Authorities below are set aside and R.C.O.P.No. 45 of 1990 is ordered. Consequently,

this revision is allowed. No costs.