Explanation (I) to section 12 of the Bombay Rent Act does not exonerate the tenants to pay the arrears of rent at the standard rent or the interim standard rent fixed by the court. The reading of section 12(3)(b) of the Bombay Rent Act shows that the tenant has to pay the rent then due and also continue to pay the future rent at the rate of standard rent or interim standard rent fixed by the Court. The petitioners could not ask the respondents to adjust the whole of the arrears of rent then due from the construction loan. The construction loan was repayable by appropriating half the rent toward the construction loan. Therefore, the petitioners were not right in asking by their purshis Ex. 15 that the arrears of rent should be satisfied from the construction loan due from the respondents. In fact the petitioners should have paid the arrears of rent form October 1971 to January 1975 at the rate of the interim standard rent of Rs. 80/- per month ad should have continued to pay future rent at the same rate till decision of the suit. Allowing even half the rent of be appropriate towards the construction loan, the petitioners should have paid that the rate of Rs. 40/- per month towards the arrears of rent, which they failed to do.
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Bombay High Court
Anuradha Krishna Gujarati And ... vs Waman Govind Modak By His Heirs And ... on 26 August, 1987
Equivalent citations: 1987 (3) BomCR 481
A.D. Tated, J.
1. This writ petition under Article 227 of the Constitution of India is directed against the judgment and decree dated 23rd April, 1982 passed by the learned II Extra Assistant Judge, Pune, in Civil Appeal No. 279 of 1980 whereby he confirmed the decree for eviction passed by the learned Additional Small Cause Judge, Pune in Regular Civil Suit No. 2353 of 1975 decided on 18th January, 1980
2. The only point for consideration in this petition is whether the courts below erred in finding that the petitioners-defendants failed to comply with the provisions of section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as "the Bombay Rent Act").
3. The relevant facts for the decision of the above point are that the suit premises are owned by the respondents-plaintiff and they are the landlords of the petitioner No. 1-defendant No. 1. The petitioner No. 2 defendant No. 2 is the husband of the petitioner No. 1. The respondents let out the suit premises to the defendant No. 1 in September 1969. The rent was fixed at Rs. 125/- per month. The respondents obtained a construction loan of Rs. 6,000/- from the petitioners and it was agreed between the parties that half the rent should be appropriated towards repayment of the loan. As per this agreement, the petitioner No. 1 paid rent at the rate of Rs. 62.50 P. per month and the amount of Rs. 62.50 P. was appropriated towards the repayment of the construction loan. The petitioners paid rent upto September 1971 and thereafter they discontinued paying rent. They were in arrears of rent from October 1971 till January 1975. The total amount of arrears of rent worked out to Rs. 5,125/-. On 7th February, 1975 the petitioners filed an application under section 11(1) of the Bombay Rent Act for fixation of standard rent. On the same day the respondents issued a notice to the petitioner claiming arrears of rent and also terminating the tenancy for non-payment of rent or more than six months and on other grounds. The respondents instituted a suit on 14th August, 1975 for recovery of arrears of rent and for eviction of the petitioners. The interim standard rent in the proceedings, C.M.A. No. 65 of 1975, was fixed at Rs. 80/- per month on 17th June, 1976. Thereafter the petitioners started depositing rent with the trial Court at the rate of Rs. 80/- per month from 6th August, 1976. The petitioners did not pay the arrears of rent demanded by the respondents for the period from October 1971 to January, 1975. The petitioners, instead of paying the arrears of rent, filed the purshis Ex. 15 and thereby they claimed deduction on account of construction loan and interest. As the petitioners did not deposit the arrears of rent even at the rate of interim standard rent at Rs.80/- per month, the learned trial Judge held that the petitioners were in arrears of rent for more than six months and they did not comply with the provisions of section 12(3)(b) of the Bombay Rent Act and such the learned trial Judge decreed the respondents' claim fore eviction on this ground amongst other grounds. In the appeal preferred by the petitioners did not comply with the provisions of section 12(3)(b) of the Bombay Rent Act. According to the learned trial Judge the petitioners should have deposited the arrears of rent at least to the rate of Rs. 40/- per month after appropriating half the interim standard rent of Rs. 40/- per month towards the repayment of the construction loan, and as the petitioners did not deposit in the trial Court the arrears of rent even at the rate of Rs. 40/- per month, the petitioners failed to comply with the provisions of section 12(3)(b) of the Act and as such the decree for eviction on the ground of default in making payment of rent for six months was correct.
4. The learned Counsel for the petitioners-defendants contends that the petitioners had paid a sum of Rs. 1,375/- to the respondents-plaintiffs towards rent from December 1969 to September 1971. According to him, after deducting Rs. 1,375/-, which was appropriated towards the construction loan of Rs. 6,000/-, the amount of Rs. 4,625/- on account of construction loan was due to the petitioners from the respondents and the rent for the period from October 1971 to June 1976, that is, for 57 months, at the rate of Rs. 80/- per month worked out to Rs. 4, 560/-. Thus, according to the learned Counsel, as the respondents had already with them the sum of Rs. 4,625/- out of the construction loan, the rent for the period from October 1971 to June 1976 at the rate of Rs. 80/- per month, being the interim standard rent, could have been very well satisfied and, therefore, it could not be held that the petitioners did not comply with the provisions of section 12(3)(b) of the Bombay Rent Act. According to the learned Counsel, as the petitioners had filed on application for fixation of standard rent as per Explanation (I) to section 12 of the Bombay Rent Act it must be held that the petitioners were ready and willing to pay the rent and, therefore, they could not be held to be wilful defaulter. I am unable to agree with the learned Counsel for the petitioners. It is true that the petitioners had filed an application under section 11(1) of the Bombay Rent Act for fixation of standard rent. Pending the said application the respondents had served a notice to quit on the petitioners and claimed arrears of rent and recovery of possession of the suit premises. After the institution of the suit on 14th August, 1975 the interim standard rent was fixed at Rs. 80/- per month on 17th June, 1976. After the interim standard rent was fixed by the trial Court, it was incumbent on the petitioners to pay the arrears of rent claimed by the respondent by their notice dated 7th February, 1975 at the rate of Rs. 80/- per month and also to go on paying the interim standard rent for the period from 17th June, 1976 onwards. Explanation (I) to section 12 of the Bombay Rent Act does not exonerate the tenants to pay the arrears of rent at the standard rent or the interim standard rent fixed by the court. The reading of section 12(3)(b) of the Bombay Rent Act shows that the tenant has to pay the rent then due and also continue to pay the future rent at the rate of standard rent or interim standard rent fixed by the Court. The petitioners could not ask the respondents to adjust the whole of the arrears of rent then due from the construction loan. The construction loan was repayable by appropriating half the rent toward the construction loan. Therefore, the petitioners were not right in asking by their purshis Ex. 15 that the arrears of rent should be satisfied from the construction loan due from the respondents. In fact the petitioners should have paid the arrears of rent form October 1971 to January 1975 at the rate of the interim standard rent of Rs. 80/- per month ad should have continued to pay future rent at the same rate till decision of the suit. Allowing even half the rent of be appropriate towards the construction loan, the petitioners should have paid that the rate of Rs. 40/- per month towards the arrears of rent, which they failed to do.
5. Consequently, I find that the learned trial Judge was perfectly right in finding that the petitioners-defendants failed to comply with the provisions of section 12(3)(b) of the Bombay Rent Act.
6. There is no substance in the petition and it is dismissed with costs.
7. At this stage, the learned Counsel for the petitioners-defendants prays that six month's time may be granted to the petitioners to vacate the suit premises. The learned Counsel for the respondents-plaintiff have no objection provided the petitioners give an undertaking in writing to this Court that they shall not induct any third person on the suit premises, that they shall not in any way damage the suit premises and that they are in physical possession of the suit premises and shall hand over vacant possession thereof to the respondents on or before 1988. On such undertaking being given by the petitioners within 15 days from today they shall be granted time to vacate the suit premises by 25th February, 1988.
The rule is accordingly discharged.
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