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Madras High Court
M.S.Venkatesh Kumar vs M/S.Prasath Associates on 7 August, 2009
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :    7.8.2009

CORAM:

THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH 

C.R.P. (NPD) No.2795 of 2008 
and
M.P.No.1 of 2008


1.M.S.Venkatesh Kumar
2.M.G.Balakumar				   	.. Revision Petitioners

					         Vs.

M/s.Prasath Associates
  Partnership Firm by its partner
  V.Prasath, S/o.M.Seetharamaiah,
Divya Towers, Kottai Main Road,
Salem-1.			     		      	 .. Respondent

Prayer:-This Civil Revision Petition has been filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act XXIII of 1973 and Act  1 of 1980 against the fair and decreetal order passed by the Rent Control Appellate Authority (Principal Subordinate Judge, Salem) dated 10.12.2007 in RCA.No.30 of 2005, confirming the fair and decreetal oder of the Rent Controller (I Additional District Munsif, Salem) dated 6.8.2004 in RCOP.No.67 of 2003. 
	For Petitioners	 : Mr.S.Mukundan
	For Respondent   : Mr.D.Shivakumaran

ORDER

This revision has been directed against the judgment and decree passed in RCA.No.30 of 2005 in confirming the order passed in RCOP.No.67 of 2003 filed by the petitioners. The petition filed by the petitioners before the Rent Controller in RCOP.No.67 of 2003 seeking for the permission to deposit the rent payable to the demised premises belonging to the respondent was dismissed by the Rent Controller and against which, an appeal in RCA.No.30 of 2005 was preferred before the Rent Control Appellate Authority at Salem and the said appeal filed by the petitioners was also dismissed by the Appellate Authority confirming the order passed by the Rent Controller. Against the said orders of the Courts below, this revision has been preferred by the petitioners.

2.The brief facts of the case of the petitioners before the Rent Controller would be as follows:-

The petitioners' father Mr.L.Govindan, S/o.N.Lakshmaiah Naidu took the Shop No.1 situated in the Ground Floor of 'Divya Towers' building on lease from the respondent on 6.4.1992 on a monthly rent of Rs.1,500/- to carry on his business under the name and style of 'MONA SHARES'. The petitioners' father paid an advance amount of Rs.1,50,000/- to the respondent returnable without interest at the time of vacating the shop. The respondent issued a receipt dated 9.4.1992 for the receipt of Rs.1,50,000/- styling it as 'Security Deposit'. The word 'Security Deposit' has been used by the respondent to circumvent the law which prohibits receiving advance more than one month's rent. Nothing was secured by any registered document for which 'Security Deposit' was paid by the tenant. When the rent is fixed for using the leased shop, there is no necessity to pay the amount of Rs.1,50,000/- repayable without interest. The payment is only for advance and not otherwise. The petitioners took over the business from their father and became the tenants from 1.6.1995 by executing a fresh registered lease deed fixing the rent at Rs.1,725/- and the advance paid already on 9.4.1992 was taken as the advance paid by the petitioners making an endorsement in the said receipt to that effect. There is no dispute with reference to the rent or the sum of Rs.1,50,000/- paid as advance for which the respondent issued a receipt as aforesaid. The lease deed dated 1.6.1995 was not renewed after three years and the petitioners continued the tenancy by paying monthly rent of Rs.1,725/-. In the meantime, on 18.09.1995 an advocate notice on behalf of Indian Bank, Salem Main Branch, was issued to the petitioners stating that by an irrevocable Power of Attorney dated 18.11.1992 executed by the respondent and its partners, appointing Indian Bank, Salem Main Branch, as their Power Agent to collect rents from all the tenants from the building belonging to the respondent and adjust the same to their loan account and calling upon the petitioners to deposit the monthly rent with Indian Bank, Salem Main Branch, and a copy was also marked to the respondent. The respondent at the time of leasing the Shop No.1 to the petitioners on 1.6.1995 suppressed the execution of the irrevocable Power of Attorney dated 18.11.1992 executed by him in favour of Indian Bank and collected the rent from the petitioners. The petitioners paid the rent to the respondent upto May-1996. A suit was filed by Indian Bank, Salem Main Branch, against the respondents in O.S.No.851 of 1995 on the file of the Principal Sub-Court, Salem, for recovery of Rs.1,71,59,448.80 with subsequent interest and costs. Notices were sent to all the tenants from Court. Hence, the petitioners were advised to seek the relief under Section 78(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act by adjusting the monthly rent from the advance amount paid ie., Rs.1,50,000/- since the respondent was heavily indebted for more than Rupees one and half crore to Indian Bank and the suit is pending. The petitioners filed RCOP.No.84/96 on the file of the Rent Controller, Salem, under Section 7 of the B.L.R.C. Act for adjustment of Rent from Rs.1,50,000/-. The RCOP was dismissed and RCA.No.20 of 1999 was filed before the Appellate Authority, Salem. The RCA.20 of 1999 was also dismissed and CRP.No.36 of 2002 is pending before this Court for decision with reference to the nomenclature 'Security Deposit' whether it is advance of 'Security Deposit'. The petitioners along with their letter dated 15.09.2003 sent a Demand Draft for Rs.1,800/- drawn on Karnataka Bank, bearing No.554634 to the respondent towards the rent upto 30th September 2003. The respondent sent a reply dated 25.09.2003 admitting the rent and the term contained in the lease deed dated 1.6.1995 and returned the Demand Draft drawn for Rs.1,000/- to the petitioners. In fact the said lease deed dated 1.6.1995 was not renewed after three years and the conditions are not in force from 1.6.1998 and the respondent, now, has no right to rely on the terms except the rent fixed therein. The petitioners are holding over the tenancy on a monthly rent of Rs.1,725/-. The petitioners by their letter dated 27.9.2003 called upon the respondent to specify the name of the Bank, in which he has his account, with number to enable the petitioner to deposit the rent every month failing which the monthly rent will be sent by Money Order after deducting the Money Order commission. The letter was received by the respondent specifying the name of the Bank and Account Number. Hence, the petitioners sent the rent Rs.3,385/- for the months of September and October 2003 by Money Order after deducting the Money Order commission of Rs.170/- and complied with the mandatory provisions of Section 8 of the Tamil Nadu Building (Lease and Rent Control) Act before even filing the petition for depositing the rent every moth into Court. The petitioners have sent a letter on 03.11.2003 and the Money Order, but they were refused by the respondent. The petitioners are filing lodgement schedule to deposit the refused rent of Rs.3,585/- sent by Money Order for the months of September and October 2003 and Rs.1,725/- for the current month ie., November 2003 totally Rs.5,310/-. The petitioners submit that the respondent's refusal to receive the rent for September 2003 by returning the Demand Draft and by not furnishing the name of the Bank Account Number for depositing the rent and by returning the Money Order for Rs.3,585/- being the rent for September and October 2003, show the malafide intention of the respondent. Hence, the petitioners may be permitted to deposit the rent every month before the Court.

3.The case of the respondent is as follows:- The petition is not maintainable in law and on facts. The original rent was Rs.1,500/- and the charges for the amenities to the shops rented was Rs.1000/-. Hence, the amount of rent payable from 6.4.1992 for the first three years was Rs.1,500/- per month. The rent deed also provides that there will be an enhancement of rent by 15% of the existing rent once in three years, if the tenancy continued. It was agreed to by the petitioners and actually it was renewed once and the revised rent was also paid for few months. The petitioners stopped paying rent subsequently. They filed proceedings before the Rent Controller, Salem, in RCOP.No.84 of 1996 claiming the security deposit to be advance amount and should be adjusted. After full enquiry the rent controller dismissed the petition on 30.06.1999. The petitioners filed an appeal in RCA.No.20 of 1999 before the Rent Control Appellate Authority, Salem, which was also dismissed on 12.12.2000. A Civil Revision Petition against this order is pending. The petitioners took law into their own hands and proclaim that they had adjusted the security deposit towards rent. Now this petition is also filed to receive not the real rent and charges for amenities as mentioned in the agreement of lease but only to deposit the original rent no more current. Section 8 and other similar provisions of the Tamil Nadu Building (Lease and Rent Control) Act are intended only to protect the interest of the tenants who are law abiding persons. The petitioners have been violating the provisions of law. Hence, the petition is liable to be dismissed.

4.Heard Mr.S.Mukundan learned counsel for the petitioners and Mr.D.Shivakumaran. the learned counsel for the respondents.

5.The learned counsel for the petitioners would submit in his argument that the petitioners are admittedly the tenants of the demised premises and the rent payable to the demised premises was fixed at Rs.1,500/- per month and the petitioners' father was carrying on business under the name and style of "MONA SHARES" and the petitioners' father had paid an advance amount of Rs.1,50,000/- refundable without interest at the time of vacating the premises. The petitioners took over the business from their father and became the tenants from 1.6.1995 and the rent was fixed at Rs.1,725/- per month and the advance amount of Rs.1,50,000/- available with the respondent in the form of security deposit was continued and there was no dispute in between the landlord and tenants and however, the respondent had suppressed the fact that he had borrowed huge amount from Indian Bank, Salem Main Branch, and for that he had executed a irrevocable power of attorney for the said bank for collection of rent payable by the petitioners to the respondent, which was suppressed by the respondent and Indian Bank had also initiated action by filing suit for recovery of the arrears of rent in O.S.No.851 of 1995 on the file of the Principal Subordinate Judge, Salem and therefore, it had become necessary for the petitioners to seek remedy under Section 7(2)(6) of the Tamil Nadu Buildings (Lease and Rent Control) Act for adjusting the rent from the advance amount and also sending a notice to the respondents seeking option to deposit the future rent in any one of the banks in the respondents account as desired by the respondent, but the respondent did not reply and therefore, the petitioners sent Money Order and on the refusal by the respondent, they have sought for the relief of depositing the rent after depositing the Money Order Chellan into the Court. He would further submit that the claim of the petitioners is genuine and the petition for depositing the rent ought to have been allowed by the Rent Controller as well as the Rent Control Appellate Authority. He would further submit that the Rent Controller as well as the Appellate Authority are not correct to say that under Section 8 of the Tamil Nadu Building (Lease and Rent Control) Act the amenities along with rent have to be deposited and therefore, the offer made by the petitioners to deposit the rent alone was not allowable. He would also submit that the petitioners have not enjoyed any amenities from the premises of the respondent and therefore, the amenities need not be paid along with the rent as directed by the Courts below. He would further submit that the Courts below should not have decided the issues, since the revision preferred by the petitioners in respect of the adjustment of rent from the advance amount is pending in CRP.NPD.No.36 of 2002, but they had decided on their own. He would also submit that the agreement to pay amenities was not in force much less it was not in force after 1.6.1998 since it was not renewed in between the petitioners and the respondent. He would also submit that the respondent/landlord did not speak to the fact that the agreement regarding the amenities is still subsisting and the petitioners are liable to pay the rent including amenities. He would bring to the notice of this Court that the petitioners were not given with any amenities as enumerated in schedule I of the Tamil Nadu Building (Lease and Rent Control) Act, 1960 numbering about 17 and therefore, the amount if any fixed for the amenities cannot be collected from the petitioners by the respondent and therefore, the orders passed by the Rent Controller and the Appellate Authority in dismissing the claim of the petitioners to deposit the rent before the Rent Controller may be interfered with and the petition filed by the petitioners for that purpose before the Rent Controller may be allowed and thus the revision made also be allowed.

6.Mr.D.Shivakumaran learned counsel for the respondents would submit in his argument that the claim of the petitioners that they are not entitled to pay the amenities along with the rent is not sustainable. He would also submit that the petitioners did not raise any plea that they were not provided with amenities and therefore, they are not liable to pay the said amenities to the respondent in both the Court. The Rent Control Appellate Authority have gone into the question of payment of rent including the amenities also and the petitioners cannot raise the issue in the revision. He would also submit that it is a settled law of this Court that the rent as defined in Rent Control Act would include all the payments accrued to be paid by the tenant to his landlord for the use and occupation not only of building and infrastructure, but also for rates, electricity, water and other amenities including services. He would further submit that the said dictum was laid down firstly by this Court in a case reported in 1972(1) MLJ 454 in between Sakuntala Rajappa Vs. K.Kamala. He would also cite a judgment of our Honourable Apex Court reported in 1990(2) SCC 651 in between Pushpa Sen Gupta Vs. Susma Ghose in support of his case on the same point. He would also bring it to the notice of this Court the judgmnet made in N.Janakiraman Vs. C.B.Radhakrishnan reported in 2001(4) CTC 371 for the same proposition of law. Therefore, he would submit in his argument that the amenities as mentioned in Schedule I of the Act should be provided and then only it would warrant the payment of amenities cannot be sustained and the agreement by the petitioners to pay amenities and rent towards the occupation of the premises shall form part of the rent and they are liable to be paid by the petitioners towards rent. He would therefore submit that the decisions of the lower Courts rejecting the offer of a sum of Rs.1,725/- being the rent without including the amenities for being deposited into the Court cannot be assailed and therefore, the revision petition may be dismissed.

7.I have given anxious thoughts to the arguments advanced on either side. The petitioners herein, who were the petitioners before the Rent Controller and the Appellants before the Rent Control Appellate Authority, have sought for permission to deposit the rent of Rs.1,725/- per month before the Rent Controller as the respondent is not willing to receive the same and the respondent had already authorised Indian Bank to collect the rent payable towards his debt. While seeking permission to deposit the rent before the Rent Controller, the petitioners insisted that the rent was only Rs.1,725/- payable to the respondent. Per contra, the respondent's case would be that the Rent payable for the demised premises would be Rs.1,500/- towards rent and Rs.1,000/- towards amenities and a total sum of Rs.2,500/- has to be deposited by the petitioners for the tenancy. Further case of the respondent was that when adding the amenities the tender or deposit of the rent alone at Rs.1,725/- is not valid as lawful payment of rent as agreed in between the parties. The Rent Controller and the Rent Control Appellate Authority had concurred with the view of the respondent and had directed the petitioners to deposit both the rent and amenities as agreed by the petitioners with the respondent and since the petitioners have not tendered in such a way the petition filed by the petitioners was dismissed.

8.Now the crucial point before me would be whether the rent as offered by the petitioners would alone constitute the rent payable by the petitioners to the respondent? Or the payment for amenities as agreed by the petitioners with the respondent would also be deemed or added to rent as rent for the purpose of making the deposit under Section 8 of the Tamil Nadu Building (Lease and Rent Control) Act.

9.According to the judgment of this Court made in 1972(1) MLJ 454 in between Sakuntala Rajappa Vs. K.Kamala, it is said thus;

"In other words, the judgment implies that the term "rent" used in the Madras Rent Control Act, 1960, would include all payments agreed to be paid by the tenant to his landlord for the use and occupation not only of the building and furniture but also for rates, electricity, water and other amenities including services. In other words, any sum of money which the tenant agrees to pay as consideration for the tenancy would be rent."

According to the dictum of the Honourable Apex Court rendered in a judgment on the same point as reported in 1990(2) SCC 651 in between Pushpa Sen Gupta Vs. Susma Ghose. The relevant passage would run as follows:-

"Although the express 'rent' has not been defined, there are indications in the present Act to suggest that the word 'rent' includes not only what is strictly understood as rent, but also payment in respect of amenities or services provided by the landlord under the terms of the tenancy."

Once again this Court held in a case reported in 2001(4) CTC 371 in between N.Janakiraman Vs. C.B.Radhakrishnan as follows:-

"Before proceeding to decide the crucial issue involved in this proceeding, it becomes necessary to give a finding on the question, whether the finding of the Rent Controller that the total rent payable by the tenant is Rs.450/- is based on evidence. It cannot be disputed that the amount paid towards amenities would also be the rent. In Sakuntala Rajappa Vs. Makala, [1972(2) MLJ 454], this Court has held that the term "Rent" would include all payments agreed to be paid by the tenant to his landlord for the use and occupation, not only of the building and furniture, but also for electricity, water and other amenities and that in other words, any sum of money which the tenant agrees to pay as consideration for the tenancy would be rent."

So, in the aforesaid judgments rendered by this Court and the Honourable Apex Court it has been categorically mentioned that the rent means any sum of money as agreed as rent and other amenities payable for the occupation of the tenant in the demised premises. Therefore, the argument advanced by the learned counsel for the petitioners that the amenities enumerated in Schedule I of the Act were not provided in the shop taken on lease and therefore, he would not be liable to pay the amenities as agreed by him cannot hold water. Whatever the rent and the amenities agreed in the lease agreement shall be paid by the tenant as rent for the demised premises in favour of the landlord. Therefore, the offer made by the petitioners at Rs.1,725/- towards rent is not at all a proper and correct tender. The rejection order passed by the Rent Controller from permitting him to deposit the offered rent and the order of confirmation of the same by the Rent Control Appellate Authority are well within the legal ambit and therefore, they are not liable to be interfered and set aside. Consequently, the revision is also not liable to be allowed.

10.In the result, the orders passed by the Rent Controller and the Rent Control Appellate Authority in disallowing the request of the petitioners to deposit the rent are sound and not liable to be set aside and therefore, the revision petition is dismissed. Connected Miscellaneous Petition is also dismissed. No costs.

ssv To

1.The Principal Subordinate Judge, Salem, (Rent Control Appellate Authority)

2.The I Additional District Munsif, (Rent Controller) Salem