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Section 14 in The Transfer of Property Act, 1882
Section 109 in The Transfer of Property Act, 1882
Section 14 in The Delhi Rent Act, 1995
Section 45 in The Delhi Rent Act, 1995

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Delhi District Court
Capt. R.K. Pasricha vs Sh. Raj Kumar Grover on 1 May, 2007
Author: Sh. Sanjeev Aggarwal
                                      1

             IN THE COURT OF SHRI SANJEEV AGGARWAL:
                     RENT CONTROLLER : DELHI

Petition No. E-1206/03

1.   Capt. R.K. Pasricha
     S/o late Sh. K.K. Pasricha
     E-39, Saket, New Delhi.

2.   Mr. Shiv Kumar
     S/o late Sh. D.C. Aggarwal
     101, Uday Park, New Delhi-49.                      ... Petitioners

Versus

Sh. Raj Kumar Grover
S/o late Sh. B.R. Grover
265-B, Hauz Rani, New Delhi.                            ... Respondent

Date of institution: 5.9.03
Date of Decision: 1.5.07


JUDGMENT

Vide this judgment, I will dispose off an eviction petition under Section 14(1)(a) of Delhi Rent Control Act (hereinafter to be referred as the Act).

2. Brief facts which are relevant for deciding the controversy in issue are; it is stated that the petitioners are the landlords of the premises bearing No. 265-B, Hauz Rani, New Delhi, in which respondent is a tenant in respect of one shop as shown in red colour at a monthly rent of Rs.440/- excluding other charges. The tenancy is stated to be old one.

3. Now, the grievance of the petitioners regarding the ground under Section 14(1)(a) of the DRC Act is that the petitioners have purchased the premises in question on 1.8.01 from the previous owner and 2 the respondent was duly informed about the said sale and had duly attorned, and it is stated that despite that the respondent is a habitual defaulter and he has neither paid nor tendered the arrears of rent w.e.f. 1.8.01 inspite of service of the legal demand notice dated 13.5.03. It is also averred that the respondent had filed a petition under Section 45 of the Act, which was dismissed by the court of Shri V.K. Sharma, the then ld. ARC, vide order dated 3.5.03. It is also stated that the respondent is liable to pay the arrears of electricity charges also as mentioned in the eviction petition. Hence, it is prayed that an eviction order may be passed in favour of the petitioners and against the respondent.

4. Written statement has been filed on behalf of the respondent in which the relationship of landlord and tenant between the parties is disputed, as it is the case of the respondent that one Vijay Bhardwaj is the landlord of the respondent, and he is also necessary party to the present eviction petition. The site plan filed by the petitioner is disputed. However, the extent of tenancy premises is not disputed. The rate of rent is also not disputed.

5. Regarding the arrears of rent, it is the case of the respondent that the previous landlord Shri Vijay Bhardwaj after July, 2001 had left his address without informing the respondent and when the respondent came to know about his correct address, the respondent immediately tendered the rent for the month of September to November, 2001 by cheque, but the said Sh. Vijay Bhardwaj did not encash the same and the respondent got 3 issued a legal notice to him on 7.5.02 in this respect. It is further averred that when the said Vijay Bhardwaj did not issue the rent receipt, the respondent had tendered the rent for the month of December, 2001 to August, 2002 through money order dated 18.9.02, but the said money order was received back with the report addressee not found and thereafter the respondent had deposited the rent for the month of December, 2001 to August, 2002 in the court of Shri V.K. Bansal, the then ld. ARC, Delhi which was decided on 9.5.03 vide DR petition No.390/02 and the said Vijay Bhardwaj was allowed to withdraw the rent without prejudice to his rights.

6. It is further averred that thereafter the rent for the month of September, 2002 to December, 2002 was tendered by the respondent to Sh. Vijay Bhardwaj through money order of Rs.1760/- on 14.1.02 and rent for the month of January to March, 2003 was also tendered through money order of Rs.1320/- on 28.2.03. It is further averred that in the month of February, 2003, his electricity supply had been disconnected by the petitioners, then the respondent had filed a petition under Section 45 of DRC Act, wherein the petitioner no.1 herein had disclosed, that he had purchased the property in question from Vijay Bhardwaj and the respondent got the said petition dismissed as withdrawn due to such technical reasons in the court of Shri V.K. Sharma, the then ld. ARC, Delhi on 12.5.03.

7. It is also averred that in reply to the notice dated 13.5.03, he 4 had sent reply cum notice dated 15.5.03 through his counsel and tendered the arrears of rent with interest to the petitioners through money order dated 17.5.03 alongwith electricity charges, which the petitioners refused to accept and thereafter the respondent finding no alternative deposited the said rent under Section 31 of Punjab Relief of Indebtedness Act, 1931. It is further stated that the rent was tendered in equal shares of 50% to both the petitioners as they claimed themselves to be purchaser of the property from Vijay Bhardwaj, the previous landlord. Hence, it is stated that all the arrears of rent have been paid and tendered within two months of the service of the legal demand notice, and the petition is liable to be dismissed.

8. It seems that two replications have been filed on the record, one on 17.1.04 and another on 6.4.04, and it seems that the second replication dt.6.4.04 has been inadvertently filed on the record and the same is accordingly struck off from the record. In the replication the facts mentioned in the petition have been reiterated and those made in the written statement have been vehemently denied.

9. Arguments under Section 15(1) of the DRC Act were heard and an order under Section 15(1) of the DRC Act was passed by the ld. Predecessor on 6.4.04 directing the respondent to pay or deposit the entire arrears of rent w.e.f. June, 2003 at the rate of Rs.440/- per month till date within one month from the date of the said order and also future rent by the 15th day of each succeeding month during the trial.

5

10. The petitioners in support of their case have examined one of the petitioners Capt. R.K. Pasricha as PW1. In rebuttal, the respondent has examined himself as RW1. No other witness has been examined by the either parties.

11. I have heard the counsel for the petitioner, counsel for the respondent and have perused the evidence and document on the record.

12. To make out a case under Section 14(1)(a) of the Act, the petitioner has to prove the following ingredients :

(i) That there is a relationship of landlord and tenant between the parties

(ii) That a valid legal demand notice was duly served upon the respondent/tenant

(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.

My findings on the above ingredients are as under :

(i) That there is a relationship of landlord and tenant between the parties The relationship of landlord and tenant between the parties is disputed. The case of the respondent is that one Sh. Vijay Bhardwaj was the landlord of the suit premises and not the present petitioners. In this regard, the petitioners have proved the agreement to sell dt. 28.7.01, executed between the previous landlord Sh. Vijay Bhardwaj and both the petitioners in respect of the suit property. Nothing has come out in the cross examination of PW1 which impinges the authenticity of the said document, and the respondent himself has admitted in his written 6 statement that he had tendered the rent to both the petitioners by money orders and lateron he has deposited the same in the court, under Section 31 of the Punjab Relief of Indebtedness Act. It is not the case of the respondent that the previous landlord Shri Vijay Bhardwaj is also claiming rent from him. Once the petitioners have purchased the property from the previous owner, then they got transposed with all the rights in the property in question, which the previous landlord Sh. Vijay Bhardwaj was enjoying in respect of the premises by virtue of Section 109 of the Transfer of Property Act and no attornment in this regard is necessary from the point of tenant. The previous landlord Shri Vijay Bhardwaj had filed a written statement in the petition no. 341/03, which was a petition under Section 31 of Punjab Relief of Indebtedness Act, in which he had surprisingly stated that he never authorised the present petitioners, who were respondents no.2 & 3 there to issue the legal demand notice and he had also never authorised the present petitioners to receive the rent from the tenant, but despite taking aforesaid stand the said Vijay Bhardwaj has never issued any notice to the present respondent telling him not to give any rent to the present petitioners nor he chose to file any application in the present petition under Order 1 Rule 10 CPC, as it is inconceivable that he would not have been aware about the pendency of the present eviction petition. Once the respondent had filed a petition under Section 31 of the Punjab Relief of Indebtedness Act, then the previous landlord had come to know that some other persons are also claiming title to his property belonging to him, in 7 those circumstances, in the normal course of human conduct, he would have definitely issued some legal demand notice to the respondent telling him not to pay rent to anybody else except him. This is not the case here, as it is nowhere the case of the respondent that such a notice has been received on behalf of the previous landlord Sh. Vijay Bhardwaj. Accordingly, in view of the aforesaid discussion, it appears that the petitioners are the landlords of the premises in question and they are entitled to receive the rent from the respondent by virtue of Section 2(e) of the DRC Act.

(ii) That a valid legal demand notice was duly served upon the respondent/tenant The notice of demand dated 13.5.03 is admitted. The petitioners have even otherwise proved the same as Ex.P4 and the reply thereto was sent by the respondent dated 15.5.03 as Ex.P5. Accordingly, the petitioners have proved the service of the legal demand notice Ex.P4 dated 13.5.03.

(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.

The defence of the respondent is that the rent for the month of September, 2001 to November, 2001 was tendered to the previous landlord Sh. Vijay Bhardwaj through cheques, which he had refused to encash nor he had returned the said cheques. Regarding the rent from December, 2001 to August, 2002, it is stated that the same was sent through money orders, but it was received back with the report addressee 8 not found. Therefore, the respondent was constrained to deposit the rent for the period December, 2001 to August, 2002 in a petition under Section 27 of DRC Act in DR No.390/02, which was decided on 9.5.03 with liberty to Sh. Vijay Bhardwaj to withdraw the rent without prejudice to his rights.

13. Regarding the first period i.e. the rent for the month September, 2001 to November, 2001, the respondent has not filed any copy of the cheques as mentioned in his affidavit as Ex.RW1/2 and Ex.RW1/3 and the said documents were de-exhibited, when the affidavit of the respondent was being tendered and were marked as mark X & Y. Accordingly, the said contention has not been proved by the respondent that he has sent or tendered the rent for the month of September,2001 to November, 2001 to the previous landlord Sh. Vijay Bhardwaj.

14. Now, coming to the second averment of the respondent that he has tendered the rent for the month of December, 2001 to August, 2002 vide money orders vide Ex.RW1/4 and Ex.RW1/5 as stated in his affidavit. The reader of this court had made an endorsement on 20.7.06 itself when the affidavit of the respondent was being tendered in evidence that Ex.RW1/4 and Ex.RW1/5 were not marked as photo copy were on record which endorsement was also countersigned by the court on the same day. Accordingly, it seems that originals of Ex.RW1/4 and Ex.RW1/5 have not been filed on the record. The counsel for the respondent has proved the deposit of rent petition as Ex.RW1/6. However, the said deposit of rent petition bearing no.390/02 seems to be for the period August, 2001 to April, 9 2002 and not for the period December, 2001 to August, 2002. As the period for deposit has been clearly mentioned in column 2 of the said DR petition which is Ex.RW1/6, and which is the document of the respondent himself and the same is also reiterated in Ex.RW1/8 which is the order dated 9.5.03 by virtue of which the previous landlord Vijay Bhardwaj was allowed to withdraw the rent without prejudice to his rights, though on the deposit of rent challan the period mentioned is for the month of December, 2001 to August, 2002, which is Ex.RW1/7, but in view of the date mentioned in column 2 of the original DR petition, the certified copy of which has also been filed on the record by the respondent himself, the period of rent for which the deposit was made by the respondent under Section 27 of the DRC Act in favour of the previous landlord Sh. Vijay Bhardwaj was for the period from August, 2001 to April, 2002 and not December, 2001 to August, 2002, and even a suggestion was given to PW1 in his cross examination to which PW1 has replied "I do not know whether the respondent had deposited the rent from August, 01 to April, 02 under Section 27 of DRC Act and the same has been withdrawn by Vijay Bhardwaj, vide order dated 9.5.03 from the court of Sh. Vijay Bansal, ld. ARC, Delhi." In view of the aforesaid suggestion given by the respondent himself in the cross examination of PW1, it appears that rent was only deposited for the period August, 2001 to April, 2002 and not for the period December, 2001 to August, 2002 under Section 27 of the DRC Act, and as discussed above the respondent has not produced any money order 10 coupon tendering the rent to the previous landlord by way of money orders for the period December, 2001 to August, 2002 as the same were not filed on the record when the affidavit of the respondent was being tendered on 20.7.06 and the endorsement to this effect was also made by the reader on the said date itself that Ex.RW1/4 and Ex.RW1/5 were not marked and the photo copies of the same are on the record and the same was also countersigned by the undersigned on the said date itself. Accordingly, the respondent has failed to prove that the rent for the period December, 2001 to August, 2002 was tendered to the previous landlord by way of money orders.

15. PW1 has admitted in his cross examination that "it is correct that the respondent has tendered the rent for the month of August, 01 to November, 01 and September, 02 to May, 03 to me and Sh. Shiv Kumar through money order on 17.5.03 for Rs.3250/- each but we have refused to accept the same as the same was not complete arrears of rent." In view of the aforesaid admission made by PW1, it is clear that the respondent had tendered the rent for the month August, 2001 to November, 2001 and for the period September, 2002 to May, 2003 to the present petitioners. The respondent has also produced in this regard the postal receipt of the money order as Ex.RW1/14 and the money order coupon as Ex.RW1/17 sent to one of the petitioners R.K. Pasricha, and similarly he has proved the money order receipt Ex.RW1/15 and money order coupon as Ex.RW1/18 by virtue of which the rent was sent to the other petitioner Sh. 11 Shiv Kumar for the period August, 2001 to November, 2001 and for the month of September, 2002 to May, 2003.

16. Earlier landlord Sh. Vijay Bhardwaj had filed a written statement to the petition under Section 31 of Punjab Relief of Indebtedness Act, where he did not deny specifically in the said written statement that rent for the month of December, 2001 to August, 2002 was sent through money order as stated by the petitioner in para 4 of the said petition as in the corresponding para 4 of the reply, he had stated that the same was matter of record. However, admittedly the respondent did not deposit the rent under Section 27 of the DRC Act, for the period from May, 2002 to August, 2002 neither the said rent was deposited under Section 31 of Punjab Relief of Indebtedness Act. Though the said deposit made under the Punjab Relief of Indebtedness Act is not a legal and valid tender in view of the judgment of Atma Ram Vs. Shakuntala Rani 2005 (7) Scale page 35 and the respondent was under an obligation to pay or tender the entire arrears of legally recoverable rent to the present landlords within two months of the service of the legal demand notice, and admittedly he did not tender the rent for the period from May to August, 2002 in response to the legal demand notice Ex.P4 dated 13.5.03 nor he has deposited the said rent under Section 27 of the DRC Act, nor even the rent for the said period was deposited under Section 31 of the Punjab Relief of Indebtedness Act, despite the fact that the same was not a valid tender in view of the afore judgment 2005 (7) Scale page 35. The question which has to be asked is 12 whether the respondent is under an obligation to pay rent again to the present petitioners which he had deposited under Section 27 of DRC Act or not.

17. By virtue of Section 109 of Transfer of Property Act, if a lessee not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee and it is settled law "although the title of the assignee of the lease is complete upon execution and registration of the deed of assignment and is not postponed till notice has been given to the tenant. Still the tenant is not bound to pay rent to him until he gets notice of the assignment Peary Lal Vs. Madhoj 17 CLJ 372, 19 IC 865, if tenant pays rent to the assignor after he receives notice of the transfer, the payment is of no avail Peary Lal Vs. Madhoj 17 CLJ 372 19 IC 865, Raisuddin Vs. Khodu 12 CPLR 479." Accordingly, the rent which has been deposited by the present respondent under Section 27 of the DRC Act in favour of the previous landlord Shri Vijay Bhardwaj in DR No.390/02, for the period August, 2001 to April, 2002 is a valid deposit and the petitioners cannot ask for the said payment again from the present respondent especially when the petitioner has himself stated in his cross examination that "when he has purchased the suit premises, they had informed the respondent about the same vide notice dated 4.4.03, before 4.4.03 they have not served any notice upon the respondent, but he verbally informed." The petitioners themselves have informed the 13 respondent for the first time on 4.4.03 and there is no evidence on record that the respondent was informed about the said purchase any time prior to that. Accordingly, the said deposit for the period August, 2001 to April, 2002 is valid deposit.

18. The respondent has accordingly been able to prove that he had paid or made valid tender of rent for the period August, 2001 to April, 2002 to the previous landlord Vijay Bhardwaj. However, the respondent has failed to prove that he had paid or tendered the entire arrears of rent for the period from May, 2002 to August, 2002 to the present landlords within two months of the service of the legal demand notice, which is sine qua non for getting a valid discharge from the legal demand notice Ex.P4. As the respondent has failed to pay or tender the entire arrears of rent within two months of the service of the legal demand notice Ex.P4, the respondent is held to be in default.

19. The net result of the aforesaid discussion is that the eviction petition under Section 14(1)(a) of the DRC Act is held successful. However, in order to ascertain the entitlement of the respondent viz-a-viz benefit of Section 14(2) of the Act, report of the Naib Nazir be called regarding the compliance of the order U/S 15(1) of DRC Act, for which a separate misc. file be prepared by the Ahlmad for 31.5.07. This file be consigned to record room.

Announced in open court                      (SANJEEV AGGARWAL)
on 1.5.07                                    Rent Controller : Delhi
                                     14

                                                       E-1206/03

1.5.07

Present : None.

No arguments in rebuttal addressed. Vide separate detailed judgment of even date, the eviction petition under Section 14(1)(a) of the Act is held successful. In order to ascertain the entitlement of the respondent viz-a-viz benefit of Section 14(2) of the Act, report of the Naib Nazir be called regarding the compliance of the order U/S 15(1) of DRC Act, for which a separate misc. file be prepared by the Ahlmad for 31.5.07. This file be consigned to record room.

(SANJEEV AGGARWAL) Rent Controller : Delhi 1.5.07