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2012 DIGILAW 451 (MAD)

Karur Vysya Bank Ltd. v. Shanthilal M. Takkar

2012-01-30

R.S.RAMANATHAN

body2012
Judgment :- 1. The respondent/landlord filed R.C.O.P.No.384 of 2009 for eviction of the revision petitioner on the ground of additional accommodation and on the ground of wilful default in payment of rent. 2. The Rent Controller allowed the petition and ordered eviction. Aggrieved by the same, the Revision Petitioner filed an appeal in RCA No.178 of 2011 on the file of the VIII Judge of Small Causes, Chennai and in that appeal, the respondent/landlord filed M.P.No.307 of 2011 under Section 11(4) of Tamil Nadu Buildings (Lease and Rent Control)Act, 1960, stating that the revision petitioner/tenant has not paid the arrears towards water charges from April 2000 to till date, and the amount comes to Rs.3,50,000/- and without paying the said amount, the revision petitioner /tenant is not entitled to prosecute the appeal filed by him. That application was allowed and the revision petitioner/tenant was directed to pay or deposit the water charge arrears of Rs.3,50,000/- upto March 2011 and subsequent months' water charges upto date on or before 11.10.2011, failing which further proceedings in the RCA will be stopped. Aggrieved by the same, this revision is filed. 3. It is submitted by the learned counsel for the revision petitioner/tenant that as per the Lease and Amenity Agreement, the rent was fixed at Rs.60,000/- (Rupees Sixty thousand only) per month to be increased at 15% every three years and there is no agreement to pay the water charges and electrical charges as part of the rent. As per the Lease and Amenity Agreement between the parties, water and electrical charges are to be borne by the tenant and therefore, even assuming that the revision petitioner is liable to pay water charges, it will not come under the definition of rent under the Act and therefore, the order of the Appellate Authority directing the revision petitioner to pay the water charges as arrears of rent of Rs.3,50,000/-is erroneous and liable to be set aside. 4. On the other hand, learned counsel for the respondent/landlord submitted that the tenant has agreed to pay water charges as provided by the respondent/landlord and therefore, it will form part of rent. The Hon'ble Supreme Court in the decisions reported in (2002) 5 SCC 51 [ABDUL KADER VS. G.D.GOVINDARAJ (DEAD) BY LRS. and in 2011 (7) SCC 755 [MOHAMMAD AHMAD AND ANOTHER VS. The Hon'ble Supreme Court in the decisions reported in (2002) 5 SCC 51 [ABDUL KADER VS. G.D.GOVINDARAJ (DEAD) BY LRS. and in 2011 (7) SCC 755 [MOHAMMAD AHMAD AND ANOTHER VS. ATMA RAM CHAUHAN AND OTHERS], has held that rent includes water charges payable by the tenant, and therefore for non payment of water charges, the landlord is entitled to invoke the provisions of Section 11(3) of the Act and that was rightly appreciated by the Court below and there is no need for interference in the order of the Court below. 5. In the petition filed by the respondent/landlord for eviction, it has been stated in paragraph-4, that as per the Lease and Amenity Agreement, the rent for first three years is Rs.60,000/- per month and it shall be liable to be increased at the rate of 15% every three years and now the current rent is Rs.79,350/-. In Para-5, it has been stated that the tenant has failed and neglected to pay rent for the month of November, 2008. It is further stated in para-6, that as per Clause 2 (b) of the Lease and Amenity Agreement, the petitioner/tenant has to pay the water charges consumed by them; but, the petitioner/tenant failed to pay the amount for the last nine years, even though the respondent/landlord has demanded the said amount regularly from the beginning. 6. The learned Rent Controller held that a perusal of Ex.P2 disclosed that the water charges has to be borne by the tenant and therefore, the tenant is in arrears of water charges. The learned Rent Controller further held that the term "rent" is comprehensive enough to include all payments agreed by the tenant payable to his landlord for the use and occupation of not only the building and its appurtenance, but also furnishings, electric installations and other amenities agreed between the parties to be provided at the cost of the landlord and therefore, water charges are included in the rent and the tenant has committed default in payment of the same. This finding is also challenged in the appeal filed by the revision petitioner in RCA No.178 of 2011. 7. Now it is contended by the tenant that the water charges cannot be included in the rent as it is not payable by the tenant, to the landlord. This finding is also challenged in the appeal filed by the revision petitioner in RCA No.178 of 2011. 7. Now it is contended by the tenant that the water charges cannot be included in the rent as it is not payable by the tenant, to the landlord. Even as per Ex.P2, it has been agreed to be borne by the tenant and therefore it cannot be construed as part of the rent and therefore, the Court below erred in directing the tenant to pay the amount. 8. As referred above, the learned counsel for the respondent has also relied upon the judgment reported in 1972(2)MLJ 454 in that regard. 9. Admittedly, the Lease and Amenity Agreement entered into between the parties was not marked. The respondent/landlord marked the letter sent by the respondent to the petitioner dated 02.02.2000, as Ex.P2, wherein the rent has been fixed at Rs.60,000/-per month i.e., at the rate of 10.90 per sq. ft. for 5500 sq. ft. which includes rent 60% and amenities 40%. It is further provided that water and electricity charges are to be borne by the tenant/revision petitioner herein. In the absence of the Lease and Amenity Agreement, we do not know whether the tenant has agreed to pay the water charges along with other charges to the landlord. But as per Ex.P2, water charges and electricity charges are to be borne by the tenant/revision petitioner. Therefore, we will have to go by the terms of Ex.P2. As stated supra, the water and electricity charges are to be borne by the tenant namely the revision petitioner and the rent has to be paid for first three years at Rs.60,000/- per month and it shall liable to be increased at 15% every three years. 10. The Hon'ble Supreme Court in a Judgment reported in (2002) 5 SCC 51 [ABDUL KADER VS. G.D.GOVINDARAJ (DEAD) BY LRS. Has held as follows: "5.) The term "rent" has not been defined in the Act and therefore, we shall have to go by the ordinary dictionary meaning of the term "rent". 10. The Hon'ble Supreme Court in a Judgment reported in (2002) 5 SCC 51 [ABDUL KADER VS. G.D.GOVINDARAJ (DEAD) BY LRS. Has held as follows: "5.) The term "rent" has not been defined in the Act and therefore, we shall have to go by the ordinary dictionary meaning of the term "rent". As held in KarnaniProperties Ltd. v. Augustine (Miss) the term "rent" is comprehensive enough to include, all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenance but also furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord. It was very fairly conceded by learned counsel for the appellant that ever since the decision of this Court in the case ofKarnani Properties Ltd. the view being taken consistently by the High Court of Madras is that in the event of taxes having been agreed to be paid by the tenant, the same forms part of the rent. (To wit, see Ravaland Co. v. K.G.Ramachandran (minor)]. Thus, there is no doubt that the amount of taxes which was agreed to by the tenant to be paid to the landlord was a part of the rent and the word "rent" in Section 10(2)(i) of the act has to be construed accordingly" Therefore, as per the judgment of the Hon'ble Supreme Court, all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances, but also of furnishings, electric installations and other amenities agreed between the parties, to be provided by and at the cost of the landlord shall be considered as rent. Admittedly, as per Ex.P2, the water charges are to be borne by the revision petitioner/tenant and it is not the amount payable by the landlord. Further, the Lease and Amenities Agreement was not marked and therefore, we do not know whether the tenant has agreed to pay the water charges as one of the amenities provided by the landlord. Admittedly, as per Ex.P2, the water charges are to be borne by the revision petitioner/tenant and it is not the amount payable by the landlord. Further, the Lease and Amenities Agreement was not marked and therefore, we do not know whether the tenant has agreed to pay the water charges as one of the amenities provided by the landlord. This provision is further clarified in the judgment reported in 2011 (7) SCC 755 wherein the Hon'ble Supreme Court while laying the guidelines for fixation of fair rent, has held as follows: "Para:21(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only" From the above Clause, it is made clear that water tax, maintenance charges and electricity charges shall be paid by the tenant separately so that the landlord will get the rent without any deduction. Only in case of enhancement of property tax, water tax, the same shall be borne by the tenant. Therefore, considering Ex.P2, wherein it has been stated that the water charges are to be borne by the tenant and not payable to the landlord, in my considered opinion, the Court below erred in holding that the water charges will also be included in the rent and the tenant is liable to pay the water charges as part of rent. 11. According to me, when the tenant has agreed to pay the water charges to the landlord, the landlord is entitled to claim the same as arrears of rent, otherwise the water charges will not form part of the rent. Hence, the order of the trial Court is set aside and the revision is allowed. However, it is open to the respondent to prove before the Appellate Authority that water charges was also agreed to be paid by the tenant to the landlord and the lower Appellate Court is entitled to take a different view. 12. Hence, the order of the trial Court is set aside and the revision is allowed. However, it is open to the respondent to prove before the Appellate Authority that water charges was also agreed to be paid by the tenant to the landlord and the lower Appellate Court is entitled to take a different view. 12. With the above observations, this revision is allowed and the Rent Control Appellate Authority is directed to dispose of the RCA No.178 of 2011 within a period of eight weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No costs.