1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4330 OF 1993 Kachinath Rangnath Sonar (since deceased through his heir) Gotiram Rangnath Sonar ...Petitioner vs. Lakshman Ranoji Khapre (since deceased through his heir & L.R.) 1 Shantabai Laxman Khapre 2 Arun Laxman Khapre 3 Somnath Laxman Khapre 4 Shobha Dnyaneshwar Gaikar 5 Anita Ashok Aaher 6 Sunita Balasaheb Kale ...Respondents Mr.K.K.Malpathak for the petitioner Mr.P.N.Joshi for respondent nos.1 to 3 CORAM :A.S.OKA,J. DATE : JANUARY 15, 2010 JUDGMENT : 1 By this Writ Petition under Article 227 of the Constitution of India , the petitioner who is the original plaintiff has taken an exception to the Judgment and Decree dated 31st July 1992 passed by the learned Joint District Judge. 2 With a view to appreciate the submissions made by the learned counsel for the petitioner it will be necessary to briefly refer to the facts of the case. The petitioner is the original plaintiff-landlord and the original respondent was a tenant. The dispute relates to the suit premises more particularly 2 described in the plaint. According to the case of the petitioner, agreed monthly rent was Rs.20/-. According to the case of the petitioner, the month of tenancy of the respondent commences from the 3rd day of English month and ends on 2nd day of the following month. The petitioner issued a notice of demand dated 22nd December 1982 demanding arrears of rent with effect from 3rd November 1981. According to the case of the petitioner, the respondent did not comply with the notice and issued a false reply on 4th January 1982. 3 The suit was contested by the respondent by filing written statement. The respondent contended that the predecessor of the petitioner was the owner and landlord and initially the rent was fixed at Rs.4/- per month. It must be stated here that after receipt of the notice, the respondent filed an application for fixing the standard rent in respect of the suit premises. The respondent denied that he was in arrears of rent. The suit and the application for fixation of standard rent were tried together. The trial Court decreed the suit. The trial Court held that on the date on which the notice was issued, the respondent was not in arrears of rent of more than six months. The trial Court held that the dispute raised by the respondent regarding standard rent was not bonafide and therefore, the standard rent was fixed at Rs.20/- per 3 month which according to the petitioner was the contractual rent. The trial Court held that though section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) will not apply , section 12 (3) (b) will apply. The trial Court found that the respondent had not complied with the requirements of clause (b) of section 12(3) of the said Act by regularly depositing the rent. The trial Court therefore held that the respondent is not entitled to benefit of relief against forfeiture and the trial Court proceeded to pass a decree for possession only under section 12 (3) (b) of the said Act. An appeal was preferred by the respondent. The Appellate Court came to the conclusion that notice of demand was not valid. The Appellate Court held that the petitioner purchased the suit property under a sale deed dated 22nd October 1981. It was found that notice of attornment of tenancy was issued by the original landlord to the respondent on 7th December 1982. It was noticed that a suit earlier filed by the predecessor in title of the petitioner against the respondent was pending and the respondent had deposited rent in the Court till end of June 1982. The Appellate Court further found that after the suit was withdrawn by the original owner, money order at Exh.24 was sent by the respondent to the original owner and the said money order was refused by the original owner. The Appellate 4 Court , therefore , held that when notice dated 22nd December 1982 was served to the respondent, he was not in arrears of rent from 3rd November 1981, but he was in arrears with effect from July 1982 and thus the arrears were for a period of less than six months. The Appellate Court held that the petitioner deliberately claimed arrears of more than six months in the demand notice only with a view to bring the case within the purview of section 12 (3) (a) of the said Act. Though the Appellate Court found that there was no compliance as required under section 12 (3) (b) of the said Act, the Appellate Court declined to pass decree as the notice was found to be invalid. 4 The learned counsel for the petitioner submitted that the petitioner had purchased the property in October 1981 and therefore, the respondent was liable to pay rent with effect from 3rd November 1981. He submitted that deposit of the amount by the respondent in a suit filed by the petitioner’s predecessor cannot be considered to be a valid tender of rent or valid payment. He submitted that even assuming that any excess payment was demanded by the petitioner, notice is not rendered invalid and it was the duty of the petitioner to tender the amount due and payable. He submitted that even the said amount was not paid or tendered by the respondent. His 5 submission is that the notice cannot be said to be invalid. He placed reliance on an unreported decision of this Court dated 20th January 1983 in the case of Pune Art Industries Vs. Narayan Kashinath Date (Writ Petition No.468 of 1982). He submitted that this Court has held that notice of demand cannot be held to be invalid only on the ground that excessive demand has been made. He submitted that this Court has held that if the arrears are for a period of less than six months, the case can be considered under section 12 (3) (b) of the said Act. He, therefore, submitted that the finding on the issue of validity the notice is patently illegal and therefore a decree under section 12(3)(b) of the said Act must follow. The learned counsel for the respondents submitted that the readiness and willingness shown by the original respondent is apparent from the fact that in the suit filed by the petitioner’s predecessor, he deposited the rent upto June 1982. He pointed out that without there being any notice of attornment issued by the predecessor of the petitioner , the arrears could not have been demanded by the petitioner. He pointed out that the amount deposited by the respondent in the Court has been withdrawn by the petitioner. He pointed out that after the suit filed by the predecessor of the petitioner was withdrawn, by a money order, rent was forwarded by the respondent to the predecessor in title of the 6 petitioner. He submitted that there is no error in the finding of fact recorded by the Appellate Court. 5 I have carefully considered the submissions. Perusal of the notice of attornment dated 7th December 1982 shows that the petitioner purchased the property on 22nd October 1981. Notice of demand was issued by the petitioner on 22nd December 1982. Notice itself records that the petitioner had purchased the property on 22nd October 1981. As stated earlier, the arrears of rent were demanded from 3rd November 1981. In the reply to the notice the respondent pointed out that he was informed by the predecessor of the petitioner by a letter dated 7th December 1982 about the sale of suit premises to the present petitioner. It is stated that rent has been deposited with the trial Court and the same has been withdrawn by the petitioner. The respondent offered to pay at the rate of Rs.4/- per month. 6 Perusal of the plaint shows that the respondent was in arrears of rent from July 1982 to 2nd December 1982. The rent was deposited by the respondent in the suit filed by the predecessor of the petitioner. It is pertinent to note that an application for amendment of the plaint was made by the petitioner which is at Exh.32. In the amendment it was sought 7 to be contended that in the plaint it was inadvertently stated that the arrears were from 3rd July 1982 and in fact the arrears were from 3rd November 1981. The said application was rejected by the trial Court by order dated 23rd March 1987. The said order has not been subjected to challenge by the petitioner even in this Writ Petition. 7 Perusal of the evidence of the respondent shows that he was paying rent to the predecessor of the petitioner. It was suggested by the Advocate for the petitioner to the respondent in the cross examination that he was in arrears of rent from 3rd July 1982 onwards. That is also the case made out in the plaint. The Appellate Court after considering the evidence has recorded a finding that only for bringing the case within the purview of section 12 (3) (a), the arrears were claimed from 3rd November 1981. 8 It is true that mere excess demand will not make a notice of demand invalid. In the present case, it cannot be ignored that the respondent was not made aware of the acquisition of the property by the petitioner and therefore, till June 1982 the respondent kept on depositing the amount of rent with the trial Court in the suit filed by the predecessor of the petitioner and the said amount has been withdrawn by the 8 predecessor of the petitioner. The suit was withdrawn in July 1981. The respondent has produced money order coupons at Exh.24 and 23 to show that rent of July 1981 was sent to the predecessor of the petitioner. The documents show that the money order was refused by the predecessor of the petitioner without disclosing that he had already sold the suit premises. It is shown that the respondent was ready and willing to pay rent at least upto and inclusive of July 1981. It is also shown that the respondent was not made aware of the purchase or acquisition of the suit premises by the petitioner from the predecessor of the petitioner till intimation dated 7th December 1982 of the transfer was served to the respondent. In this context, the contents of the notice of demand dated 12th December 1982 become very significant. 9 Perusal of the decision of this Court in the case of Pune Art Industries (supra) shows that it has been rendered in the facts of this case before this Court. This Court has observed that merely because a demand for excessive payment was made , the notice does not become invalid. Whether the notice is invalid or not depends upon the facts each case. In the present case, after considering the totality of the evidence, the Appellate Court came to the conclusion that the petitioner-landlord deliberately demanded arrears for the period from 3rd November 1981. There is a finding of fact 9 recorded by the Appellate Court that notice is not valid. Under sub- section 2 of section 12 of the said Act, service of notice of demand in the manner provided under section 106 of the Transfer of Property Act,1882 is mandatory. For passing a decree under sub- section 3 (a) of section 12 of the said Act, it is necessary that arrears are for a period of more than six months. Even if arrears are not for a period of six months, clause (b) of sub-section 3 is attracted. Notice under section 12(2) is a condition precedent for passing a decree on the ground of arrears of rent. Once the said notice is found to be invalid, it is obvious that the decree could not be passed under clause (b) of section 12(2)of the said Act. The notice in the present case was found to be invalid as deliberately a demand of excess amount was made with a view to bring the case under section 12(3)(a). In the circumstances, it is difficult to find fault with the impugned Judgment and Order in writ jurisdiction. Therefore, the petition must fail. Accordingly, petition is rejected. Rule is discharged. No order as to costs. 10 In view of disposal of the Writ Petition, Civil Application No.1965 of 2006 does not survive and the same is rejected. JUDGE