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Sarla Goel & ors. Versus Kishan Chand

2009 (7) TMI 1315 - SUPREME COURT OF INDIA

Civil Appeal No. 4162/2009 (Arising out of SLP) No. 10005 of 2008) - Dated:- 8-7-2009 - Tarun Chatterjee And H. L. Dattu, JJ. JUDGMENT Tarun Chatterjee, J. 1. Leave granted. 2. This appeal is directed against an order dated 12th of December, 2007 passed by a learned Judge of the High Court of Delhi at New Delhi in Civil Misc. (Main) No. 1103 of 2007, reversing the order dated 11th of July, 2007 passed by the Additional Rent Control Tribunal, Delhi in RCA No. 33 of 2007 direction eviction of the .....

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held to be a second default. 4. The facts are not in dispute. The respondent is a tenant in respect of the suit premises. As noted herein earlier, it is not disputed that the respondent has already availed of the benefit ofSection 14(2) read with Section 15 of the Act pursuant to an order dated 3rd of December, 2001 passed by the Additional Rent Controller, Delhi in Eviction Case No. E-105 of 1999. At the present juncture, it may be mentioned that the appellants is now facing the charge of commi .....

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January, 2003 to 31st of March, 2003 by a money order dated 22nd of April, 2003. It is also not in dispute that the appellants had refused to accept the money order and consequently, the money was refunded to the respondent. The case made out by the respondent was that he had duly complied with the provisions of the Act which was required to be done by him and therefore, it cannot be held that it was a case of second default whereas the case of the appellants either before the Rent Controller o .....

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ion of this Court in Atmaram Vs. Shakuntala Rani [2005 (7) SCC 211]. The High Court, by the impugned order, however, held that in view of the admitted fact that as the rents were tendered by the respondent to the appellants and the appellants having refused to accept the same, the respondent had duly complied with the provisions of the Act and, therefore, there was no second default on the part of the respondent and accordingly, no order for eviction could be passed on the aforesaid ground. So f .....

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order that in the aforesaid decision, this Court held that the deposit made under the Punjab Act could be of no avail to the tenant and since the deposit was not made under Section 27 of the Act, the tenant could not claim the benefit sought by him. The decision was also distinguished by the High Court in the impugned order that in that decision, the Supreme Court was only considering as to whether the deposits of arrears of rent under the Punjab Act could be treated as payment of rent to the l .....

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on if he either pays or tenders the arrears of rent within two months of the service of demand. That is to say, the tenant was required to either tender or pay the rent to earn protection. While interpreting the word "Neither" and "Nor", the High Court observed that these words leave no manner of doubt that if there was a valid tender of rent within two months of the notice of demand, the tenant would be protected. 5. In this way, the High Court had observed that it was not t .....

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question that has arisen before us to decide in this appeal is whether the tenant/respondent had defaulted in payment of rent inasmuch as he had not deposited the rent with the Rent Controller for the aforesaid period after the refusal by the landlord/appellants in the manner required by law. In order to decide this question, we, therefore, feel it appropriate at this stage to reproduce Section 14(1) read with Section 14(2) of the Act, Section 15 of the Act as well as Section 27 of the Act, whic .....

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of possession of the premises on one or more of the following grounds only, namely: - (a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in section 106of the Transfer of Property Act, 1882 (4 of 1882); (b) ............... (c) ............... (d) .............. (e) ............... (f) ..... .....

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enefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months. Section 15 of the Act runs as under :- Section 15 - When a tenant can get the benefit of protection against eviction (1) In every proceeding of the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub- section (1) of section 14, the Controller shall, after giving the parties an opportunity of being heard, make an ord .....

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uivalent to the rent at that rate. (2) If, in any proceeding for the recovery of possession of any premises on any ground other than that referred to in sub-section (1), the tenant contests the claim for eviction, the landlord may, at any stage of the proceeding, make an application to the Controller for an order on the tenant to pay to the landlord the amount of rent legally recoverable from the tenant and the Controller may, after giving the parties an opportunity of being heard, make an order .....

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thereto is fixed having regard to the provisions of this Act, and the amount of arrears if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf. (4) If, in any proceeding referred to in sub-section (1) or sub- section (2), (here is any dispute as to the person or persons to whom the rent is payable, me Controller may direct the ten .....

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against eviction to be struck out and proceed with the hearing of the application. (6) If a tenant makes payment or deposit as required by sub-section (1) or subsection (3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow such costs as he may deem fit to the landlord. (7) If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction .....

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ceipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner: [Provided that in cases where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.] (2) The deposit shall be accompanied by an application by the tenant containing the following particulars, namely: .....

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a copy or copies of the application to the landlord or persons claiming to be entitled to the rent with an endorsement of the date of the deposit. (4) If an application is made for the withdrawal of any deposit of rent, the Controller shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of the rent to be paid to him in the manner prescribed: Provided that no order for payment of any deposit of rent shall be made by the Controller under thi .....

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or persons claiming to be entitled to the rent complains or complain to the Controller that the statements in the tenant's application of the reasons and circumstances which led him to deposit the rent are untrue, the Controller, after giving the tenant an opportunity of being heard, may levy on the tenant a fine which may extend to an amount equal to two months' rent, if the Controller is satisfied that the said statements were materially untrue and may order that a sum out of the fine .....

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tenant as compensation." 9. Relying on the aforesaid decision, which has been explained by the High Court in the impugned order namely Atmaram's Case (Supra), learned counsel Mr. Arvind Kumar Gupta contended that in view of the mandatory provisions under Section 27 of the Act, which clearly says that if the rent is refused to be accepted by the landlord and as the procedure to be adopted by the tenant for payment of rent has been specifically provided in Section 27 of the Act and that p .....

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e appellants on the decision in Atmaram's case (Supra). 10. Mr.Gandhi, learned counsel appearing on behalf of the respondent, however, refuted the submission made by the learned counsel for the appellants. He has drawn our attention to Section 27 of the Act and submits that Section 27 cannot be said to be mandatory in nature and only an obligation has been created on the tenant either to pay the rent or tender or to deposit the same with the Rent Controller. In the present case, admittedly, .....

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nt/tenant that in view of the word "may" used in Section 27 of the Act and the Act being a beneficial legislation for the tenant, it can never be said that the intention of the Legislature to use the word "may" was to mean that "may" must be construed as "shall". 11. We are unable to accept this submission of the learned counsel for the tenant/respondent for the following reasons :- It is true that in Section 27 of the Act, it has been provided that the te .....

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n of any premises shall be made on the grounds specified in Class A of the proviso to sub-section (1) if the tenant makes payment or deposit the rent as required by Section 15. 13. An overall reading of Chapter III of the Act would clearly show that an additional protection has been given by the Legislature to the tenant who has committed default in payment of rent for which he is liable to be evicted under Section 14(1)(a) of the Act. Section14(1)(a) of the Act clearly provides that when the te .....

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en a tenant can get the benefit of protection against eviction. 14. Accordingly, Section 14(1)(a) is a ground for eviction of a tenant for default in payment of rent. In spite of that, protection has been given under Section 15 of the Act to the tenant to avail of the protection given by the Legislature by depositing rent in the manner indicated in Section 15 of the Act. However, proviso to Section 14(2) of the Act takes away the right of a tenant of the benefit of Sub-Section (2) of Section 14 .....

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ault of payment of rent within the time specified therein, the tenant is also liable to pay simple interest at the rate of 15% per annum from the date on which such payment of rent is due to the date on which it is paid. The proviso to Section 26(2) of the Act makes it clear that it shall be open to the tenant to remit the rent to his landlord by postal money order. Sub-section (3) of Section 26 also makes the provision that if the landlord or his authorized agent refuses or neglects to deliver .....

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paid. From a reading of sub-section (3) of Section 26 of the Act, it is clear that the tenant has been given further protection to get the rent receipt from the landlord and in the event the landlord refuses to grant such receipt, the procedure has been clearly made by the Legislature for the purpose of getting the receipt under the Act and at the same time the landlord can be imposed to pay damages not exceeding double the amount paid by the tenant and the costs of the application and to obtai .....

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neglects to deliver a receipt referred to therein or where there is a bona fide doubt as the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner. When the words " bona fide doubt" has been added to Section 27, the tenant may remit such rent to the Controller by postal money order. From a conjoint reading of this provision referred to herein above and particularly Section 27 of the Act, in our view, it cannot be do .....

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t;, would depend upon the intention of the Legislature. It is not to be taken that once the word "may" is used by the Legislature in Section 27 of the Act, would not mean that the intention of the Legislature was only to show that the provisions under Section 27 of the Act was directory but not mandatory. 16. In other words, taking into consideration the object of the Act and the intention of the Legislature and in view of the discussions made herein earlier, we are of the view that th .....

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whom also, the beneficial provisions have been made for recovery of possession from the tenants on certain grounds, will stand deprived of them. 17. In Mohan Singh and Ors. Vs. International Airport Authority of India and Ors. 1997 (9) SCC 132, this Court while dealing with the intention of the Legislature to use the word "may" or "shall" observed in paragraph 17 as follows :- "The distinction of mandatory compliance or directory effect of the language depends upon the .....

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statute creates a duty, the special remedy is prescribed for non- performance of the duty. In "Raise on Statute Law" (7th Edn.) it is stated that the Court will, as a general rule presume that the appropriate remedy by common law or mandamus for action was intended to apply. General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the statute and consideration of .....

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termining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of Court to try to get at the real intention of the Legislature by carefully analysing the whole scope of the statute or section or a phrase under Consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the intent of the L .....

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exercise of authority in accordance with their charter of existence the statute. If the directions of the statute are mandatory, then strict compliance with the statutory terms is essential to the validity of administrative action. But if the language of the statute is directory only, the variation from its direction does not invalidate the administrative action. Conversely, if the statutory direction is discretionary only, it may not provide an adequate standard for legislative action and the d .....

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ruing it the one way or the other...." 18. It is not in dispute that in this case, according to the landlord, this was a case of second default whereas the case of the tenant was that since he has already tendered the rent to the landlord, who refused to receive the same, he had complied with the provisions of the Act. The tenant/respondent had already taken protection under the beneficial legislations of the Rent Control Act once and, therefore, he ought to have strictly followed the proce .....

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ails to do so he cannot take advantage of the benefit conferred by such a provision" (Emphasis supplied). 20. Again in paragraph 20 of the same decision, this Court observed as follows :- "Section 26 of the Delhi Rent Control Act, 1958 provides that every tenant shall pay rent within the time fixed by contract, and in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Every tenant who makes a payment of rent to his landlord .....

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to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner : Provided that in cases where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order." 21. This Court in the aforesaid decision, after examining Section 27 of the Act observed at par .....

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o a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act. and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default." 22. In E. Palanisamy vs. Palanisamy (2003) 1 SCC, 123, this Court while considering the provisions of the Tamil Nadu Buildings (Lease and Rent Control) .....

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e rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of landlord. However, if the landlord does not specify the name of a Bank inspite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before t .....

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the learned counsel, the Court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the Court for permission to deposit the arrears of rent. Since there is a substantial compliance of Section 8 in as much as the arrears of rent stand deposited in Court, a strict or technical view ought not to have been taken by the High Court. We are unable to accep .....

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take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a pre-condition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Co .....

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cannot justify the action of the tenant in straightaway invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. Sub-sections (2), (3) and (4) of Section8. Therefore, we are of the considered view that the eviction order passed against appellants with respect of the suit premises on the ground of default in payment of arrears of rent need no interference." 23. Applying the principles laid down in Atmaram's case (Supra), as noted herein .....

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Additional Rent Controller, Delhi. Since we have already come to the conclusion that since the tenant/respondent has failed to deposit rent in compliance with Section 27 of the Act because in the present case, admittedly, landlord/appellants had not accepted any rent tendered by the tenant/respondent within the time referred to in Section 26, it was the duty of the tenant to deposit such rent before the Rent Controller as prescribed in Section 27 of the Act. Admittedly, this step was not taken .....

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