JUDGMENT : S. B. Sanyal, J. - This second appeal is at the instance of the tenant, assailing that part of the JUDGMENT : by which he has been held to be a defaulter necessitating his eviction. 2. The substantial question of law framed at the stage of admission is whether the JUDGMENT : of the appellate court is vitiated by refusal to adjust the excess amount paid by the tenant to the landlord prior to the institution of the suit. 3. The lower appellate court has found that the appellant was inducted as a tenant at the rate of Rs. 20/- per month, but thereafter the rent has been illegally enhanced to Rs. 25/- against the provision of section 4 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as 'the Act'), and for the period from 1st October, 1970 till before the institution of the suit, the rent was recovered at the higher rate. The appellate court held that there has been an excess realisation by the landlord to the tune of Rs. 405/- since the landlord was entitled to realise rent only at the rate of Rs. 20/- per month and not Rs. 25/- per month. The cause of action for the institution of the suit is default in the payment of rent at the rate of Rs. 25/- from July, 1979 to May, 1980 amounting to Rs. 275/- only. Question is whether the tenant, can be held to be defaultar even though the landlord had a, considerable sum illegally realised from the tenant to which he is not entitled which, if allowed to be adjusted, completely wipes out the default alleged still leaving balance for, adjustment for subsequent months. 4. Learned counsel for both the parties referred to the decision of Gulab Chand Prasad v. Budhwanti and another (A. I. R. 1985 Patna 327-FB : 1985 PLJR 622 ) in support of their respective stand. Mr. K. N. Keshava learned counsel for the tenant-appellant contends that the tenant is en titled to adjustment since principles of pari delicto adverted to in Gulabchand's case (supra) is wholly inapplicable as there has been no agreement between the tenant and landlord to pay the enhanced rent. On the contrary, the enhanced rent was illegally realised under coercion. Learned counsel for the appellant further, submitted that the tenant gave notice to the landlord vide Ext. On the contrary, the enhanced rent was illegally realised under coercion. Learned counsel for the appellant further, submitted that the tenant gave notice to the landlord vide Ext. E, to adjust the excess amount realised prior to the institution of the suit; Therefore, in view of Gulabchand's case (surpa) he is entitled to adjustment of the excess rent realised by the landlord treating the same to be rent paid in advance by the tenant. Mr. Rameshwar Prasad, learned, counsel for the respondent on the other hand, contended that even assuming that the landlord had excess amount in his hand which is liable to be adjusted, on the finding recorded by the court below, the tenant never exercised his option of adjustment in view of the finding of the lower appellate court. In that view of the matter, the case of the tenant cannot be accepted in view of the principle laid down in Gulabchand's case (supra). 5. So far as the question of parties being in pari delicto in relation to payment of higher rent in view of section 4 of the Act is concerned, it has to be affirmatively proved and established that the parties entered into an illegal contract and seeks enforcement thereof in a court of law. Both parties will be deemed to be as participes crimnis. This principle is founded upon public policy and the court will not assist an illegal transaction. In Gulabchand's case (supra), the enhanced rent was paid under an agreement. A reference to paragraph 12 of the JUDGMENT : will indicate that the tenant volunteered to pay higher rent when asked for by the landlord. It was, therefore, held that where excess rent has been voluntarily paid under mutual agreement for enhancement of rent in violation of the Act and such an agreement has been carried into effect, the money so paid cannot be recovered back by the tenant nor can any c1ajm or demand resting on such illegal agreement be raised by the landlord against the tenant under general law a8 both the parties would be in pari delicto. In the instant case, the tenant in paragraph 6 of the written statement has averred that the landlord was forcibly realising Rs. 25/- and the tenand was coerced to comply with the illegal demand of the landlord. In the instant case, the tenant in paragraph 6 of the written statement has averred that the landlord was forcibly realising Rs. 25/- and the tenand was coerced to comply with the illegal demand of the landlord. I am, therefore, of the view that this is not a case where the principle of pari delicto will at all apply and the tenant, therefore, shall be entitled to enforce his right against the landlord and recover the sum illegally realised and/or claim adjustment of the excess amount towards liability of future rent. 6. This takes me to the question whether the tenant is entitled to an automatic adjustment of the excess amount realised from him by the landlord. The Full Bench has categorically laid down, that under the scheme of the Act which is exhaustive itself the theory of automatic adjustment of excess rent is not permissible. It has further been held that even if adjustment is at all permissible it should be under a demand by the tenant. According to the said decision, sections 59 to 61 of the Contract Act entitles the creditor to appropriate the money to whichever account it chooses in absence of debtors indicating its manner of appropriation. This concept, the learned counsel contends, however, is inapplicable to a case of a Jingle debt. But Gulabchand's case (supra) has firmly laid down, even if there is single debt appropriation towards that debt is not permissible unless so indicated by the tenant, but the tenant, however, may be entitled to refund of the said sum. I am bound by the decision of the Full Bench. I am, therefore, required to find out whether the tenant made a demand for adjustment of excess rent in the hand of the landlord towards the rent due. If not, there could be no question of any adjustment even though the tenant may be entitled to its refund. Mr. Rameshwar Prasad, learned counsel for the respondent, has drawn my attention to the last four lines of paragraph 16 of Gulabchand's case (supra) and wants me to hold that excess amount realised by virtue of section 4 of the Act cannot be subject matter either for express or automatic adjustment. I do not think it to be so. Mr. Rameshwar Prasad, learned counsel for the respondent, has drawn my attention to the last four lines of paragraph 16 of Gulabchand's case (supra) and wants me to hold that excess amount realised by virtue of section 4 of the Act cannot be subject matter either for express or automatic adjustment. I do not think it to be so. The real decision of the Full Bench is- "It deserves recalling that apportionment requires a positive act and exercise of volition and it is not always easy to envisage it as either automatic or mechanical." 7. In the instant case, the tenant relied upon Ext. E showing issuance of a notice demanding adjustment. Oral evidence has also been laid in support thereof. The lower appellate court in paragraph 24 has discussed the evidence and for very good reasons concluded that there has been no demand for adjustment. It reversed the finding of the Munsif as to the service of adjustment notice (Ext. E) on the original plaintiff and observed that the trial court grossly erred in so holding. The lower appellate court further held that the learned Munsif wrongly allowed the adjustment of the alleged excess amount of rent paid by him for three years which, according to it, had not become time barred. 8. In view of this finding that there has been no exercise of volition for adjustment, I find myself unable to take a view different from the law laid down in Gulabcband's case (supra). The submission of the appellant that the tenant can never be held to be a defaulter if the landlord has wrongly and illegally realised higher amount than the actual rent, to which the tenant is entitled to by way of an automatic adjustment, the amount in the hands of landlord being sufficient enough to wipe out the arrears of rent alleged and the tenant further showing that in between them there is no other account excepting relationship of landlord and tenant, cannot be accepted in view of Gulabchand's case (supra). I am bound by that decision. 9. It may be stated here that there was another appeal filed by the tenant bearing second Appeal No. 305 of 1984 where the cause of action was personal necessity. I am bound by that decision. 9. It may be stated here that there was another appeal filed by the tenant bearing second Appeal No. 305 of 1984 where the cause of action was personal necessity. In that case I have allowed the appeal of the tenant and remanded the case back to the court below to record a finding in accordance with law on the said cause of action with further right to the tenant to plead that the personal necessity of the landlord became non-existent on their acquiring another premises which they let out during the pendency of the appeal. As I am dismissing tenant's this appeal, holding the tenant to be defaulter, the landlord is entitled to evict the appellant from the premises in question. I, however, allow the tenant six months' time to restore possession of the building to the landlord. 10. The appeal is, accordingly, dismissed. There will be no ORDER :as to costs.