The Accommodation Controller and The Secretary, Housing and Accommodation vs Smt. Saraswathi

V. Kanagaraj, J.—The above Civil Revision Petition has been filed against the fair and decretal order dated 28.11.2002 made in E.P. No.

1980 of 1997 in O.S. No. 613 of 1993 by the Court of X Assistant City Civil Judge, Chennai.

On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the first petitioner is the

tenant of a premises belonging to the mother of the respondent herein viz. Tmt. Vittobai Ammal and for recovery of a sum of Rs. 62,544/- with

interest at 12% p.a. being the rental arrears from 27.1.1986 to 18.1.1993, the said Vittobai Ammal has filed the suit in O.S. No. 613 of 1993 on

the file of the Court of X Assistant City Civil Judge, Chennai as against the petitioners and the said suit was decreed, consequent to which, the

decree-holder has filed the E.P. No. 1980 of 1997. The decree amount is Rs. 1,03,071/=. It further comes to be known that the first petitioner

has paid a sum of Rs. 79,533/= on 25.10.1996 to the decree-holder.

On the death of the decree-holder, her daughter, the respondent herein, was impleaded as the legal representative of the decree-holder.

The case of the first petitioner is that on 14.2.1997, they have addressed a letter to the decree-holder that an amount of Rs.79,533/- had been

paid out of a total due of Rs. 1,03,071/= consisting the decreed amount of Rs. 62,544/= being the rental arrears due from 27.1.1986 to

18.1.1993 and subsequent rental arrears for the period from 19.1.1993 to 31.1.1997 amounting to Rs. 40,527/= and the balance amount would

be paid as and when the same is collected from the allottee, but the respondent has adjusted only a sum of Rs. 39,006/= towards the decree

amount and has adjusted Rs. 40,527/= towards the rental arrears for the period from 19.1.1993 to 31.1.1997 in full. The learned Government

Pleader appearing on behalf of the petitioners would submit that the Court below, without properly appreciating the facts and circumstances of the

case and the memo. of calculation, has allowed the E.P. and passed an order directing the petitioner to pay a sum of Rs. 18,413.11 to the

respondent and aggrieved, the petitioners have come forward to file the above civil revision petition.

The learned Government Pleader would further submit that in view of Section 59 of the Indian Contract Act, the respondent ought to have

deducted the payment towards the rental due in terms of the decree and thereafter, adjusting it for the rental arrears that accrued after decreeing

the suit; that the petitioner has clearly and categorically stated that the amount paid shall be adjusted towards the due accrued in terms of the

decree and the balance should be adjusted towards the rental arrears that arose from 19.1.1993 to 31.1.1997 and if the respondent has adjusted

the payment in terms of the petitioner''s letter, the petitioner would not be liable to pay a sum of Rs.18,413.11 and would pray to set aside the

order passed by the Court below.

On the contrary, on the part of the learned counsel for the respondent, he would submit that it is incorrect to state that the sum of Rs. 79,533/=

was paid towards the decree debt itself; that in fact, a sum of Rs. 23,538/= was agreed to be paid; that even when details regarding apportionment

was asked, the petitioner did not furnish the same and hence giving effect to Section 60 of the Indian Contract Act, the respondent has

appropriated a sum of Rs. 40,527/= for the admitted arrears of rent from 19.1.1993 till 31.1.1997 and the balance of Rs. 39,006/= towards the

amount due under the decree and hence the Court below has rightly allowed the execution petition and would pray to dismiss the above civil

revision petition.

Since on behalf of the contesting parties, Sections 59 and 60 of the Indian Contract Act have been respectively pressed into service, they are

extracted hereunder for easy reference:

Section 59: Application of payment where debt to be discharged is indicated:

Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances

implying, that the payment is to be applied to the discharge of some particular debt, the payment if accepted, must be applied accordingly.

Section 60: Application of payment where debt to be discharged is not indicated:

Where the debtor has omitted to intimate, and there are no other circumstances indicating to which debt the payment is to be applied, the creditor

may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law

in force for the time being as to the limitation of suits.

In consideration of all the facts and circumstances of the case, it is an admitted fact that the petitioners are the judgment debtors and the

respondent is the decree-holder. It is also not in dispute that even after the decree having been passed, the petitioners have not paid the subsequent

rent and towards the amount due and that the first petitioner has paid a sum of Rs. 79,533/=. But, since no mention has been made by the

petitioners about the apportionment of the amount, the respondent has appropriated a sum of Rs. 40,527/= for the admitted arrears of rent from

19.1.1993 till 31.1.1997 and the balance towards the amount due under the decree, thus giving effect to Section 60 of the Indian Contract Act.

Though the learned Government Pleader has argued with reference to Section 59 of the Indian Contract Act, since, as could be seen from

Ex.B.1 letter, the petitioners have omitted to intimate the respondent indicating the apportionment; that the respondent, by exercising her power u/s

60 of the Indian Contract Act, has apportioned the amounts. Therefore, in the above facts and circumstances of the case, it is only Section 60 of

the Indian Contract Act but not Section 59 of the Indian Contract Act, which would come into operation and applying the said norms, the Court

below has rightly arrived at the conclusion to order the execution petition.

A perusal of the order of the Court below would show that the Court below has not only traced the facts and circumstances of the case in the

manner required under law but has also applied the correct provision of law to the case in hand and on valid reasons assigned, has ultimately

arrived at the conclusion to allow the execution petition. This Court of revision is not able to find any inconsistency or lack of opportunity or

infirmity so as to interfere with the well considered and merited order passed by the Court below.

In result,

(i) the above civil revision petition is dismissed.

(ii) The fair and decretal order dated 28.11.2002 made in E.P. No. 1980 of 1997 in O.S. No. 613 of 1993 by the Court of X Assistant City Civil

Judge, Chennai is hereby confirmed.

However, in the circumstances of the case, there shall be no order as to costs.

Consequently, C.M.P. No. 15260 of 2003 is closed.