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Madras High Court · body

2008 DIGILAW 2292 (MAD)

M. A. Mohamed Thameem v. F. M. Bilal

2008-07-08

K.MOHAN RAM

body2008
Judgment :- 1. The above Criminal Original Petitions have been filed by the accused in C.C.Nos.68 and 69 of 2005 on the file of the Judicial Magistrate, Thiruvarur. 2. The accused is a tenant in respect of a building owned by the complainant / respondent herein on a monthly rent of Rs.30,000/-. As per the averments contained in the complaints the advance agreed to be paid was Rs.5,00,000/- and out of that a sum of Rs.3,02,000/- had already been paid by way of six cheques and out of the six cheques two cheques bearing Nos.139451 dated 09.01.2005 for Rs.70,000/- and 139453 dated 16.01.2005 for Rs.62,000/- both drawn on the Punjab National Bank, Thiruvarur, have been returned / dishonoured on presentation. As per the averments contained in the complaints inspite of receipt of the legal notice the amounts covered by the two cheques were not paid and hence the aforesaid two cases came to be filed for an offence under Section 138 of the Negotiable Instruments Act. 3. It is pertinent to point out that the allegations in both the complaints are identical and in fact the allegations contained in paragraph 2 of both the complaints, which contain the material allegations and which are necessary to be taken note of for deciding the issue that arises for consideration in both the above Criminal Original Petitions are verbatim same. 4. Learned counsel for the petitioner by placing reliance on the provisions contained in Section 7 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (hereinafter referred to as “the Act”), as amended, submitted that the Landlord may receive or stipulate for the payment of an amount not exceeding one month rent by way of advance and any stipulation in contravention of sub-section (1) or sub-section (2) shall be null and void. In this case the monthly rent was Rs.30,000/- per month and the advance that can be stipulated to be paid could not exceed one month rent i.e., Rs.30,000/- whereas even as per the allegations contained in the complaint the advance amount fixed was Rs.5,00,000/- and admittedly as per the allegations contained in the complaint the two dishonoured cheques were issued towards the balance of the advance amount. Therefore legally when the Landlord is not entitled to claim more than Rs.30,000/- towards the advance, any amount stipulated to be paid as advance over and above Rs.30,000/- cannot be legally demanded by the Landlord since such a stipulation as per Section 7 (3) of the Act is null and void. 5. In fine the submissions made by the learned counsel for the petitioner is that there is no legally enforceable debt and as such the two cheques in question cannot be considered to have been issued towards the discharge of any legally enforceable debt. When there is no legally enforceable debt the failure on the part of the tenant / the petitioner herein to comply with the demand contained in the legal notice will not give rise to a cause of action to file a complaint under Section 138 of the Negotiable Instruments Act. The further contention of the learned counsel for the petitioner is that while the legal notice is issued it has been stated that the cheques in question were issued towards the arrears of rent, but in the complaint it has been stated that the cheques were issued towards compliance of advance payable and it is further stated in the complaint that only due to over sight such a mistake has crept in the legal notice. According to the learned counsel, on this ground also the complaints are liable to be quashed. 6. Countering the said submissions the learned counsel for the respondent submitted that when the tenant / petitioner herein had voluntarily agreed to pay the advance amount of Rs.5,00,000/- and had issued six cheques and four cheques have been honoured, the petitioner was liable to honour the remaining two cheques and when admittedly the two cheques were returned / dishonoured and when the petitioner had not complied with the legal demand inspite of receipt of the legal notice, the cause of action has arisen for filing the said complaints. He further submitted that only due to oversight, in the legal notice, it was mistakenly stated that the cheques were issued towards the arrears of rent instead of towards the balance advance amount and the same has been clarified in paragraph 2 of the complaints and the said defect in the legal notice is only a curable defect which will not affect the case of the respondent. 7. 7. I have carefully considered the said submissions made by the learned counsel on either side. For appreciating the contentions put forth by the learned counsel for the petitioner it will be useful to refer to the provisions contained in section 7 of the Act which reads as follows:- “7. Landlord not to claim or receive any in excess of fair rent or agreed rent. (1)where the Controller has fixed, or refixed the fair rent of a building - (a) the landlord shall not claim, receive or stipulate for the paymentof (i) any premium or other like sum in addition to such fair rent, or (ii) save as provided in section 5 or section 6, anything in excess of such fair rent: Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one months rent by way of advance; b) Save as provided in clause (a) any premium or other like sum or any rent paid in addition to, or in excess of, such fair rent, whether before or after the date of the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after the date of such commencement, shall be refunded by the landlord to the person by whom it was paid or at the option of such person, shall be otherwise adjusted by the landlord: Provided that where before the fixation or refixation of the fair rent, the refund or adjustment shall be limited to the amount paid in excess for the period commencing on the date of the application by the tenant or landlord under sub-section (1) of section 4 or sub-section (3) of section 5, as the case may be, and ending with the date of such fixation or refixation. (2)Where the fair rent of a building has not been so fixed - (a) the landlord shall not claim, receive or stipulate for the payment of, any premium or other like sum in addition to the agreed rent: Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one months rent, by way of advance; .(b) Save as provided in clause (a), any sum paid in excess of the agreed rent, whether before or after the date of the commencement of this Act in consideration of the grant, continuance or renewal of the tenancy of the building after the date of such commencement, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted by the landlord. (3)Any stipulation in contravention of sub-section (1) or sub-section (2) shall be null and void. 8. A careful reading of the provisions contained in the aforesaid section makes it clear that the landlord shall not demand more than a months rent as advance and the same cannot be enforced legally in view of the provisions contained in Section 7 (3) of the Act since any stipulation in contravention of sub-section (1) or sub-section (2) shall be null and void. In this case, admittedly, as is seen from the averments contained in paragraph 2 of both the complaints the two cheques in question came to be issued only towards the balance of the advance amount and such amount was not legally payable by the tenant / petitioner herein as per Section 7 (2) of the Act. Therefore it has to be held that the cheques have been issued by the petitioner in respect of a legally unenforceable liability. When that being so, there was no legal duty cast on the tenant / petitioner to comply with the demand made by the landlord in his legal notice which was sent pursuant to the dishonour of the said cheques. Therefore in my considered view no cause of action whatsoever has arisen for filing the above said two cases. For the aforesaid reasons, it has to be held that the contentions put forth by the learned counsel for the petitioner based on the provisions contained in section 7 of the Act has to be upheld and accordingly upheld. 9. Therefore in my considered view no cause of action whatsoever has arisen for filing the above said two cases. For the aforesaid reasons, it has to be held that the contentions put forth by the learned counsel for the petitioner based on the provisions contained in section 7 of the Act has to be upheld and accordingly upheld. 9. Since on this ground alone the petitioner is bound to succeed, this Court is not going into the other contentions put forth by the learned counsel for the petitioner. 10. For the aforesaid reasons, all further proceedings in C.C.Nos.69 and 68 of 2005, respectively, on the file of the Judicial Magistrate, Thiruvarur, are liable to be quashed and accordingly quashed. The above Criminal Original Petitions are allowed. Consequently the connected Crl.M.Ps are closed.