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2006 DIGILAW 585 (KER)

K. P. Kuruvila v. Sainabha Saleh

2006-09-01

A.K.BASHEER, M.RAMACHANDRAN

body2006
Judgment :- Basheer, J. Can the tenant of a building claim set off or adjustment of certain payments allegedly due from the landlord towards the rent payable by him, while making deposit of the admitted arrears as envisaged under section 12 of the Kerala Buildings (Lease & Rent Control) Act, 1965? The Rent Control Authorities answered the question in the negative. Hence, this revision petition under Section 20 of the Act. 2. Essential facts may be briefly noticed. 3. The respondent/landlord initiated eviction proceedings against the petitioners under Section 11(2)(b) and 11 (4)(ii) of the Act. The landlord alleged that petitioners/tenants had kept the rent of the building in arrears from July 2000 onwards. 4. During the pendency of the eviction proceedings, the landlord filed an application under section 12 of the Act praying for a direction to the tenants to deposit the arrears of rent and on their failure to do so, to stop all further proceedings and direct them to put the landlord in possession of the building as contemplated under the statutory provision. 5. In response to the above application, it was contended by the tenants that the rent fell in arrears since the landlord was not available in station to receive the same. It was further contended that they had spend a total sum of Rs.30,664/- towards repairs of the building. They had also paid a sum of Rs.7,680/- towards building tax and electricity charges, According to the tenants, the above sum of money spend by them were liable to be adjusted from the arrears of rent payable to the landlord. Thus, it was contended that the amount of Rs.40,000/- paid by them during the pendency of the application, would not only wipe off the arrears of rent, but in fact it was in excess of the amount due from them. 6. After considering the calculation statements submitted by the parties, the Rent Control Court held that the petitioners/tenants were not entitled to adjust the amounts allegedly spent by them for repairs of the building or for payment of building tax and electricity charges. Accordingly, a direction was issued to the tenants to deposit the balance amount of Rs.23,822/- before the court within two weeks. The above order was confirmed in appeal by the Rent Control Appellate Authority. Section 12 of the Act reads thus: “12. Accordingly, a direction was issued to the tenants to deposit the balance amount of Rs.23,822/- before the court within two weeks. The above order was confirmed in appeal by the Rent Control Appellate Authority. Section 12 of the Act reads thus: “12. Payment or deposit of rent during the pendency of proceedings for eviction: - (1) No tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the appellate authority, as the case may, be all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the appellate authority as the case may be. (emphasis supplied) 2. The deposit under sub-section (1) shall be made within such time as the court may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4): Provided that the time fixed by the court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. 3. If any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. 4. 3. If any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. 4. When any deposit is made under sub-section (1), the Rent Control Court or the appellate authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the appellate authority in that behalf.” Sub-section (1) of Section 12 postulates that no tenant shall be entitled to contest the application for eviction unless he has paid or pays to the landlord or deposits with the Rent Control Court “all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due..” 7. Learned counsel for the petitioners lays heavy emphasis on the expression “admitted by the tenant” in the above clause and submits that the Rent Control Court or the appellate authority as the case may be, is not vested with any jurisdictional authority to conduct an enquiry to ascertain or fix the quantum of “arrears of rent” envisaged under Section 12 of the Act. It is contended that no adjudication is warranted if the tenant pays or deposits a particular sum which according to him, represents “all arrears of rent admitted” by him. It is further contended by the learned counsel that the dispute, if any, with regard to the correctness of the amount due, has to be adjudicated in the eviction petition at the final stage. Section 12 only enables the Rent control Court or the appellate authority, as the case may be, to stop the eviction proceedings and direct the tenant to put the landlord in possession if he fails to pay or deposit the admitted arrears of rent or to show sufficient cause to the contrary. Section 12 only enables the Rent control Court or the appellate authority, as the case may be, to stop the eviction proceedings and direct the tenant to put the landlord in possession if he fails to pay or deposit the admitted arrears of rent or to show sufficient cause to the contrary. In short, the contention of the tenant appears to be that the Rent Control Court or the appellate authority, as the case may be, is not empowered to put any questions regarding the correctness of the amount which the tenant may deposit “as the admitted arrears.” 8. It is further contended by the learned counsel that the petitioners/tenants are not liable to deposit interest on the arrears of rent. According to the learned counsel, Section 12 does not mandate that the tenant is bound to deposit the arrears of rent with interest. On the contrary, what is contemplated under Section 12 is only payment or deposit of all arrears of rent admitted by the tenant. The liability to pay interest, cost, etc. has to be finally decided in the main proceedings, it is contended. Are these contentions legally tenable? 9. Rent has not been defined under the Act. But in this context, it will be profitable to refer to section 11(2)(b) of the Act, which provides that the Rent Control Court shall make an order directing the tenant to put the landlord in possession of the building if it is satisfied that the tenant has not paid or tendered the rent due from him within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable. A landlord is entitled to move the Rent control Court only if he has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of receipt of the notice or of the refusal thereof. 10. 10. It is unambiguously clear from the above statutory provision that the tenant who commits default in payment of the rent within the stipulated time as indicated above, will be liable to pay or tender the rent with interest at 6% per annum and postal charges incurred in sending the notice. Failure to pay the monthly rent results in a recurring default or liability. Further, the liability to pay interest on such default is statutorily mandated. Thus, so long as the tenant keeps the rent in arrears, his liability to pay interest till its payment or tender becomes a statutory obligation. Therefore, the failure to pay deposit the rent in arrears, will entail the liability to pay interest thereon. Thus, the terminology “all arrears of rent” used in Section 12 will undoubtedly include interest on such arrears. In that view of the matter, we have no hesitation to hold that the petitioners will be liable to pay or deposit the arrears of rent with interest to avoid an order under Section 12 of the Act. 11. It is pertinent to note that the rate of rent of the building is not in dispute at all. It is admitted by the petitioner/tenant that he is liable to pay monthly rent at the rate of Rs.1,200/-. It is also beyond any pale of dispute that the rent of the building had been kept in arrears by the tenant from July 2000 onwards. Therefore, the rate of rent and the period of default not being in dispute, the arrears of rent under normal circumstances, could have been calculated without any difficulty at all. 12. But the bone of contention in this case is regarding adjustability of the amount allegedly spent by the tenants for repairs and also remittances made by them towards the electricity charges and building tax. The tenants do not have a case that they were permitted by the landlord to effect repairs to the building or to adjust the repair charges from the rent payable by them. On the contrary, the landlord had specifically contended that the alleged repairs were never carried out by the tenants as contended by them. It is also pertinent to note that the tenants had not admittedly approached the statutory authority, the Accommodation Controller, as provided under section 17(2) of the Act. On the contrary, the landlord had specifically contended that the alleged repairs were never carried out by the tenants as contended by them. It is also pertinent to note that the tenants had not admittedly approached the statutory authority, the Accommodation Controller, as provided under section 17(2) of the Act. The tenants would be entitled to deduct the charges for maintenance or repair to the building from the rent, only if the Accommodation Controller permits them to do so through an order passed under sub-section (2) of Section 17 of the Act, and that too only if the landlord fails to attend to such maintenance or repairs despite notice issued by the tenants to him, demanding to carry out such maintenance or repairs. So long as the petitioners have not obtained an order from the Accommodation Controller under Section 17(2) of the Act or permission or consent from the landlord to effect repairs and adjust the repair charges from the rent, they will not be entitled to deduct the so called repair charges from the arrears payable by them. The terminology “arrears of rent” has to be construed or understood in strict conformity or consonance with the statutorily recognised rights and liabilities. 13. There is yet another aspect of the matter. The petitioners had not produced the rent deed executed between them and the landlord. In the absence of any material on record to show that the tenants were entitled to adjust any amounts from the rent payable to the landlord, they are not entitled to make such a claim. Of course, it will be open to the petitioners to raise their claim for adjustment at the time when the prayer for eviction under Section 11(2)(b) is being finally adjudicated by the Rent Control Court. In our view, the arrears of rent admitted by the tenants as envisaged in Section 12 will be the rent with interest for the entire period of default, provided there is no dispute with regard to the rate of rent and the period of default. Similarly, the tenants will not be entitled to make any deductions or adjustments from the arrears of rent at the stage when Section 12 is brought into play, particularly in the absence of any specific covenant in the lease agreement or if the landlord has not given written consent for such adjustment. Similarly, the tenants will not be entitled to make any deductions or adjustments from the arrears of rent at the stage when Section 12 is brought into play, particularly in the absence of any specific covenant in the lease agreement or if the landlord has not given written consent for such adjustment. This is because no enquiry is contemplated at this stage. Any claim for set off or adjustment will invariably involve disputed questions of fact. Such issues can be decided only when evidence is adduced by the parties. 14. Therefore, it necessarily follows that the tenants are bound to deposit the entire arrears of rent at the rate admitted by them from the date of default. Undoubtedly a full-fledged or roving enquiry is not warranted under Section 12. But the contention that the Rent Control Court or the appellate authority, as the case may be, shall not be entitled to make any query with regard to the arrears, cannot be countenanced especially in a case where the rate of rent and the period of default are not in dispute at all. As held by us already, at the stage of Section 12 the tenant will not be entitled to make deductions or adjustments from the arrears of rent any amount, which not statutorily recognised or expressly agreed to be adjusted by the landlord. 15. The expression “arrears of rent” mentioned in Section 12 has to be read and understood in tune with the provisions contained in Section 11(2)(b) of the Act. In that view of the matter, we have no hesitation to hold that the authorities below were justified in directing the petitioners to remit the entire arrears of rent at the rate of Rs.1,200/- per month from July 2000 till the date of deposit. In the above view of the matter, the contentions raised by the petitioners are repelled. 16. But the authorities below have committed a serious illegality or irregularity while passing the impugned orders in as much as the tenant has not been granted the statutory period which is entitled to get for making the deposit. The proviso to sub-section 12 enables the tenant to make deposit of the arrears of rent within four weeks from the date of the order. But the petitioners were granted only two weeks time. The proviso to sub-section 12 enables the tenant to make deposit of the arrears of rent within four weeks from the date of the order. But the petitioners were granted only two weeks time. Therefore, the order passed by the Rent Control Court is modified to the extent that the petitioners/tenants shall be entitled to get four weeks from today to deposit the entire arrears or rent as directed by the said court. The revision petition is disposed of in the above terms.