ORDER : This Civil Revision Petition has been filed against the judgment and decree dated 20.10.2011 passed in R.C.A.No.766 of 2007 by the VIII Judge, Appellate Authority, Small Causes Court, Chennai, confirming the order passed in RCOP.No.297/2007 passed by the learned Rent Controller, X Judge, Small Causes Court, Chennai, dated 25.09.2007. 2. The brief facts of the case are as follows : The respondent is the landlord and the petitioner is a tenant inducted in the year 1993 under the respondent for the petition premises. The tenancy is for non residential purpose. Petitioner was paying a monthly rent of Rs.720/- p.m., in respect of the petition premises. Petitioner is doing imported materials and fancy items sales business in the petition premises. Petitioner/tenant has paid the rent for the petition premises upto June 2006 and the respondent/landlord also issued the receipt for receipt for having received the rent paid by the petitioner/tenant himself or through his servant. The petitioner/tenant has not paid the rent from July 2006 to December 2006. Inspite of repeated demands made by the respondent/landlord, the petitioner/tenant has not paid the arrears of rent of Rs.3,960/-. The petitioner/tenant willfully and deliberately failed and neglected to pay the monthly rents for the above said period. Hence this petition was filed for eviction. 3. Petition allegations are denied by the respondent by stating that the tenancy and quantum of rent is admitted. The respondent/landlord has employed a rent collecting clerk, who has been collecting rent from all the tenants and receipts were issued and after some time in or about 2005 onwards, the rents were collected once in every three months or four months by the respondent/landlord. It is incorrect to state that the petitioner/tenant has not paid rent from July 2006 to December 2006, inspite of repeated demand by the respondent/landlord and the respondent/landlord request was unheeded by the petitioner/tenant and the petition has not disclosed the refusal of the money orders before the tender of rent in Court. 4. The petitioner/tenant has sent a Money Order on 02.02.2007 for Rs.4620/- being the rent for the period from July 2006 to January 2007 stating that the petitioner/tenant approached the respondent/landlord on two occasions to pay the rent but the respondent/landlord stated that the receipt book is not available and the said money order was refused deliberately. The respondent/landlord sent a letter dated 26.02.2007. The respondent/landlord sent a letter dated 26.02.2007. The petitioner/tenant has taken all efforts to tender the rent in person, by money order. After having avoided to receive the same in order to file eviction petition, the respondent/landlord is unwilling to receive the rents even when it was tendered on the 1st hearing date in the above matter. There is no default much loss willful default in payment of rents. Respondent/landlord has not sent any notice to any of the tenant before the eviction petition. The landlord filed RCOP.No.297/2007 on the file of the Court of Small Causes at Chennai, for eviction of the petitioner. 5. On behalf of the petitioner, he examined himself as PW1 and marked Exs.P1 to P2 which are Copy of letter sent by the respondent and Acknowledgment Card and Counterfoils. On behalf of the respondent, he examined himself as RW1 and marked Exs.R1 to R4, which are Rent receipts, Rent receipts, M.O. Coupon, postal receipt dated 28.09.1993 and Advance receipt. After, examining the pleadings and evidences and documents, the Rent Controller came to the conclusion that the respondent was in default of rent, which is willful. 6. The Rent Controller did not accept the case of the petitioner/tenant and ordered eviction vide judgment dated 25.09.2007 in RCOP.No.297/2007. Aggrieved by the said order the petitioner/tenant preferred an appeal in RCA.No.766/2007 and the Appellate Court had rendered concurrent finding and confirmed the order of the trial Court vide judgment dated 20.10.2011, Wherein, the petitioner raised all the questions of law and facts of law, and particular made reference to the judgment passed by the Supreme Court in the case of Narashimarao Vs. T.M. Nasimuddin Ahmed, reported in (1996) 2 CTC page 78, wherein it was held as follows :- “13. In the present case, excluding from consideration the tenant's claim for adjustment of the amount of Rs.1,000/- spent on repairs and the amount of Rs.750/- sent by demand draft on receipt of the notice, the amount of Rs.2,850/- with the landlord as the excess amount of advance paid by the tenant to the landlord, was alone sufficient to negative the landlord's claim of ejectment. The arrears of rent from July to November 1990 were only Rs.750/-, while the excess amount of advance was Rs.2,850, far in excess of the arrears. The arrears of rent from July to November 1990 were only Rs.750/-, while the excess amount of advance was Rs.2,850, far in excess of the arrears. The landlord was bound to immediately refund that excess amount even before the arrears accrued, and he not having made the refund was bound to adjust it towards the rent due from the tenant. On these facts, the tenant could certainly not be held to be a willful defaulter in the payment of rent. The High Court is, therefore, right in deciding against the landlord.” 7. Both the Rent Controller and the Appellate Court below did not consider law laid down by the Hon'ble Supreme Court in the above judgment and dismissed the appeal in RCA.No.766/2007 on 20.10.2011. Aggrieved by the above order, the petitioner has preferred the present Civil Revision Petition. 8. The contention of the learned counsel for the petitioner is that the petitioner is a tenant under the respondent since 1993 on a monthly rent of Rs.660/- in respect of the shop No.55 at First Floor, Wall Tax Road, Chennai 600 003. On the inception of the tenancy a sum of Rs.27,500/- was paid towards rental advance for the tenancy portion. The respondent herein filed the RCOP.No.297/2007 against the petitioner herein on the ground of willful default for non payment of rent for the period from July 2006 to December 2006. The petitioner states that there was no cause of action for the respondent herein to file the above RCOP against the petitioner/tenant when more than one month rental advance was lying with the landlord. In the instant case Rs.27,500/- was paid towards rental advance. After retaining one month rental advance of Rs.660/- the balance amount of Rs.26,840/- was available with the landlord for adjustment towards rent due amounting to Rs.3960/- for the period from July to December 2006. 9. The petitioner states that in view of the Hon'ble Supreme Court judgment (rendered by three Hon'ble Judges) reported in 1996 (11) CTC Page 78 landlord is not entitled to claim eviction of tenant on the ground of willful default when he was having excess amount of rental advance. The landlord is bound to adjust excess amount of advance towards the rent due from tenant. The tenant cannot be held to be willful defaulter in payment of rent. The landlord is bound to adjust excess amount of advance towards the rent due from tenant. The tenant cannot be held to be willful defaulter in payment of rent. The petitioner/tenant prior to the filing of the RCOP had sent the Money Order for Rs.4620/- on 02.02.2007 being the rent for July 2006 to January 2007 but it was refused by the respondent herein. The petitioner states that he made all attempts to pay the rent even by sending the Money Order but it was refused by the landlord with malafide intention stating that RCOP has been filed. The petitioner had tendered the rent on the first hearing date in the RCOP i.e., on 09.03.2007 but the same was refused by the respondent herein. The memo to this effect was also filed before the Rent Controller in RCOP No.297 of 2007 on 09.03.2007 and the said rent was received on 12.03.2007 by the respondent. The petitioner states that the conduct of the tenant as a whole, with all the circumstances attended to it should be taken into account and analyzed to find out whether any willfulness on the part of the tenant would be inferred or not. 10. The petitioner states that as stated above nearly about 41 months rent, the landlord has taken as advance though law permits to take advance of only one month rent and excess advance is liable to be adjusted in the rent payable by the tenant as and when due even without any demand from tenant. But in this case the alleged arrears of rent for the period from July 2006 to February 2007 was tendered on the first hearing date i.e., 09.03.2007 amounting to Rs.5,280/- and the same was received by the respondent herein and thereafter the petitioner is paying the rent regularly as and when due. 11. The learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court mentioned above, which was also followed by this Court in Mahalingam Vs. Pichaiammal, reported in (2000) II MLJ 202, and Ananthakrishnan and E. Gopinath Vs. S. Mohammed Zainuddin, wherein, the principals laid down in the above Hon'ble Supreme Court citations were followed. 12. 11. The learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court mentioned above, which was also followed by this Court in Mahalingam Vs. Pichaiammal, reported in (2000) II MLJ 202, and Ananthakrishnan and E. Gopinath Vs. S. Mohammed Zainuddin, wherein, the principals laid down in the above Hon'ble Supreme Court citations were followed. 12. Therefore, the petitioner certainly contended that there is no willful default on the part of the petitioner herein and invoking Section 10 (2) (1) of the Tamil Nadu Buildings (Lease and Rent Control) Act will not be applicable. Hence, the judgment passed in RCA has to be set aside and permit the petitioner to continue in the tenant premises. 13. On the other hand, the respondent fairly advanced the arguments that the respondents are the landlords of the premises bearing No.75, Waltax Road, Chennai 600 003. The petitioner is a tenant in respect of non-residential portion bearing shop No.55, 1st floor, in the shopping complex by name and style VGN Complex. 14. The respondents have filed a RCOP on the ground of willful default of rent for a period from July 2006 to December 2006. The tenancy is admitted by the respondents and the quantum of rent is also admitted viz., Rs.720/- per month. The petitioner/tenant contested the case and made a submission that there is no willful default in payment of the rent though he has admitted non payment of the rent for the period from July 2006 to February 2007, in the memo filed before the trial Court on 9th March 2007. In the said memo there is an endorsement dated 12.03.2007, signed by the counsel for the petitioner and which reads as “notice taken without prejudice to this case, the respondents ready to receive the defaulted rent.” 15. The respondent/landlord has relied upon the following judgments in the case of a) Navneethammal, In re 63 Law Weekly Page 1176, which reads as follows :- “The mere fact that the landlord had with him an advance rent does not mean that the tenant has not committed default within the meaning of Section 7(2).” (b) In K. Nanjappan Vs. The respondent/landlord has relied upon the following judgments in the case of a) Navneethammal, In re 63 Law Weekly Page 1176, which reads as follows :- “The mere fact that the landlord had with him an advance rent does not mean that the tenant has not committed default within the meaning of Section 7(2).” (b) In K. Nanjappan Vs. V.K. Janaki, reported in 1999 (2) MLJ Pg.68, the relevant portion of the judgment is extracted hereunder, it was held as follows :- “In para 31 of the said judgment this Court has observed that it cannot be said that the tenant had not committed willful default in payment of rent because the revision petitioner/tenant cannot call upon the landlord to adjust arrears of rent in the alleged advance amount.” (c) In S. Sahabudeen represented by his Power Agent: Mohammed Mansoor Vs. Muniammal, reported in 1995-2 LW page 732 or Manu/Tamil Nadu/0750/1994, the relevant portion of the judgment is extracted hereunder, it was held as follows :- “Discussed in para 14, both the judgments of the Hon'ble Apex Court and rendered the findings at para 16 the mere fact that the landlord had with him an advance does not mean that the tenant has not committed willful default within the meaning of Sec 10(2) (i) of the Act. The Courts below have rightly negative the submissions made on behalf of the tenant that in view of the advance amount there is no willful default. Broadly, looking into the matter, it is clear case of willful default is to be endorsed with.” (d) In M.K. Swaminathan Vs. V. Thangam reported in 2011 (2) Law Weekly page 341, the relevant portion of the judgment is extracted hereunder, it was held as follows :- “It is observed that the Supreme Court has not considered any of the judgments of this Court which had taken the view that a tenant cannot escape the consequences of willful default unless he had made a request for adjustment of the advance amount as against the rent. Those decisions of this Court have not been overruled by the Hon'ble Supreme Court in that case.” (e) In Raminder Singh Seth Vs. Those decisions of this Court have not been overruled by the Hon'ble Supreme Court in that case.” (e) In Raminder Singh Seth Vs. D. Vijayarangam reported in 2002 (4) SCC 675 , the relevant portion of the judgment is extracted hereunder, it was held as follows :- “The judgment of the Supreme Court relied upon by the respondent and it was observed: Every tenant obliged to pay or tender rent to the landlord within 15 days of the month to which the rent relates. The purpose of advance rent is to protect the landlord from an unscrupulous tenant who may run into arrears an vacate the premises and comfortably walk away with the arrears. The advance rent is available for adjustment or is liable to be refunded at the time of vacating premises except where the law or the contract between the parties provides to the contrary.” (f) In R. Murugan Vs. M.O.M. Abubucker, reported in 2005 (5) CTC 473 , the relevant portion of the judgment is extracted hereunder, it was held as follows :- “The citations typed above in (a), (b), © and e are referred in the judgment and observed that: The findings of the Lower Appellate Court that the landlord ought to have adjusted the amount from the advance and therefore there is willful default in the payment of rent cannot be accepted.” (g) In V. Hariharan Vs. Dr. P.G. Gopinath, the relevant portion of the judgment is extracted hereunder, it was held as follows :- “Hon'ble justice has referred the Apex Court judgment reported in 2002 (4) SCC page 765 and 2005 (5) CTC 473 and it is observed that the appellant tenant was not observed of his obligation to pay the rent due month by month inspite of an amount of advance rent being available with the landlord. Applying the same view of the excess amount with the landlord, there is no willful default.” (h) In B. Anraj Pipada Vs. V. Umayal reported in 1998 (3) Law Weekly Page 159, the relevant portion of the judgment is extracted hereunder, it was held as follows :- “Non-payment of the rent even during the pendency of the proceedings will amount to willful default.” (i) In The Nilgiris Co-operative Vs. V. Umayal reported in 1998 (3) Law Weekly Page 159, the relevant portion of the judgment is extracted hereunder, it was held as follows :- “Non-payment of the rent even during the pendency of the proceedings will amount to willful default.” (i) In The Nilgiris Co-operative Vs. C.T. Uthandi, reported in 1998 (2) MLJ 745 , the relevant portion of the judgment is extracted hereunder, it was held as follows :- “In para 4 and 5 it is observed that petition for eviction on ground of willful default in payment of rent payment of entire arrears of rent on receipt of summons on date fixed for appearance of tenant in Court, hold, does not absolve him of disqualification suffered.” (j) In Majestic Leatherwar Vs. Govinda Chetty, reported in 1999 (III) CTC 199 , the relevant portion of the judgment is extracted hereunder, it was held as follows:- “Even in this case, if the tenant deposits or pays the rent on the first effective date of hearing, can it be said, explanation to Sec 10(2) (i) of the Act cannot be applied. So, merely, because the tenant pays or deposits the arrears of rent on the first hearing date it cannot be said that the landlord cannot sustain the petition.” 16. Though, the learned counsel for the respondent fairly advanced his argument by citing number of judgments as stated above, but all the judgments will not be applicable in the present case on hand. Further, this Court bound to follow the Hon'ble Supreme Court Judgment in Narashimarao Vs. T.M. Nasimuddin Ahmed, reported in (1996) 2 CTC page 78, wherein, it was categorically held that the landlord was bound to immediately refund the excess amount even before the arrears accrued, and he not having made the refund was bound to adjust it towards the rent due from the tenant. 17. In the present case, the tenant made an attempt to pay the rent before the Court clearly shows that the tenant's intention is to make the payment, even Money Order was sent before filing the case and the same was refused by the respondent/owner. Further the tenant, when the RCOP was filed before the Court the tenant paid the amount at the time of first hearing which shows the intention of the tenant to make the payment. Further the tenant, when the RCOP was filed before the Court the tenant paid the amount at the time of first hearing which shows the intention of the tenant to make the payment. Apart from the question of willful default, as held by the Hon'ble Supreme Court, the owner is supposed to adjust the advance amount received over and above one month rent. It is an admitted fact that Rs.27,500/- paid as rental advance. The arrears amount carried a sum of Rs.3,960/- for the period from July 2006 to December 2006. Admittedly, the rental was Rs.660/- per month. In the present case, admittedly rental due was a sum of Rs.3,960/- and this amount can very well be adjusted by the owner against the advance amount. Even after adjustment of this arrears amount of Rs.3,960/-, the balance excess amount of rental advance available with the respondent/owner will be a sum of Rs.25,880. Hence, the question of willful default, on the part of the petitioner herein, within the meaning of Section 10(2)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, does not arise. 18. As this Court finds that the petitioner is not a willful defaulter and therefore, he is not liable to vacate the premises. However, this Court set aside the order passed in RC.A.No.766 of 2007 by the VIII Judge, Small Causes Court, Chennai and RCOP.No.297/2007 by the Rent Controller, X Judge, Small Causes Court, Chennai dated 25.09.2007. 19. This Court, records the appreciation to Mr. L. Rajasekar, the learned counsel for the respondent who fairly advanced his arguments and assisted this Court by producing the Judgment which are all in his favour and which are all not in his favour. 20. In the result, this Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is also closed.