WP.3875-95 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 3875 OF 1995 Shri Bhiwa Shripati Valunje, ) Age 59 years, Occupation – Nil, ) Resident of Room No.1, Shinde Chawl, ) Bhatt Wadi, Ghatkopar, Bombay – 400 084 ... Petitioner Vs. Keshav Raoji Shinde (Since deceased, ) represented through the Legal Heirs) ) 1. Smt. Gangabai Keshav Shinde; ) 2. Shri Pratap Keshav Shinde; ) 3. Shri Deepak Keshav Shinde, ) All are residing at – Shindewadi, Room ) No. 11, Bhatwadi, Ghatkopar, Mumbai-84 ... Respondents *** Mr. N. V. Bandiwadekar, for the Petitioner. Mr. D. S. Sawant, for Respondent Nos. 1 & 3. *** CORAM: V. M. KANADE J. DATE : MARCH 8, 2011 ORAL JUDGMENT 1. Heard the learned counsel appearing on behalf of the petitioner and respondent Nos. 1 & 3. The petitioner is original tenant WP.3875-95 - 2 - and the original respondent is the original landlord. For the sake of convenience, the parties are referred to as the ‘tenant’ and ‘landlord’. The respondent/landlord filed a suit for eviction of the petitioner/tenant on the ground of arrears of rent and subletting, by filing R.A.E. Suit No.7277 of 1974. In the suit it was alleged that the landlord had given statutory notice to the tenant, claiming arrears of rent for the period 1-3-1972 to 30-6-1974. It was alleged that the said amount was not paid within the period of one month from the date of service of notice and therefore, suit was filed. In the suit, landlord has initially claimed arrears of rent since the tenant has not paid the rent from 1-5-1968 to 30-6-1974 and thereafter he amended the plaint and claimed that the tenant did not pay rent from 1-7-1972 to 30-6-1974. 2. The tenant resisted the said suit and contended that after the statutory notice, though served on the tenant, his advocate told him that he would pay the said amount of arrears of rent by cheque to the advocate of the landlord. It was initially contended that the landlord was accepting the rent by cash and had promised to issue rent receipts. Lateron, on the ground that the printed rent receipts were over and new receipt books are yet to be printed and therefore, relying on his promise, he did not insist for getting rent receipts, subsequently, he gave his WP.3875-95 - 3 - advocate cheque. It was further contended that the advocate of the landlord did not accept the cheque which was offered to him and told him to make payment by cash. According to him, his advocate tried to get in touch with the advocate of the landlord on number of occasions for the purpose of making payment in cash. However, he was not in a position to contact the landlord’s advocate. 3. The trial Court held that tenant had not shown readiness and willingness to pay the rent amount and therefore, passed the eviction decree. This order was confirmed in appeal by the lower Appellate Court. The petitioner has, therefore, challenged the said decision of the lower Appellate Court, by filing this petition under Art. 227 of the Constitution. The learned counsel appearing on behalf of the petitioner has invited my attention to the chronology of events and the attempts made by the tenant to pay the rent within one month from receipt of the notice though the tenant has already paid the rent for which no receipts were given. It is submitted that since the tenant had offered a cheque to the landlord’s advocate, he has shown his readiness and willingness to pay the arrears of rent and therefore, cause of action to file a suit for eviction has not arisen. He submitted that both the Courts below did not take into consideration this aspect and therefore, the concurrent finding WP.3875-95 - 4 - of fact is liable to be set aside. In support of the said submission, the learned counsel has relied on the decision of the Apex Court in the case of – Mahendra Raghunathdas Gupta, Appellant vs. Vishvanath Bhikaji Mogul & Ors., Respondents [(1997) 5 Supreme Court Cases 329]1 and more particularly in paragraph 6, 8 and 9 thereof. 4. The learned counsel for the defendant, on the other hand, submitted that both the Courts below have considered the submission of attempts made by the tenant to make payment by cheque to the advocate of the landlord, however, not accepted the contention of the tenant. It is submitted that this Court, therefore, while exercising jurisdiction under Art. 227 of the Constitution cannot interfere with the finding of fact. In my view, submission made by the learned counsel for the petitioner, cannot be accepted. It is an admitted position that though in the written statement it was contended that the rent which was claimed by the landlord was not a standard rent, no application for fixation of standard rent was filed. Apart from that, the tenant did not make an application for depositing the amount of arrears of rent either on the first date of haring or thereafter. It is no doubt true that contention of the tenant that he has tried to offer the arrears of rent through his advocate to the advocate of 1 (1997) 5 Supreme Court Cases 329 WP.3875-95 - 5 - the landlord, has been admitted by the advocate of the landlord. This fact by itself cannot be considered in isolation. The fact remains that, even thereafter the tenant did not send the rent by money-order or made payment by cash to the landlord. Both the Courts, therefore, were justified in my view in coming to the conclusion that the tenant had not shown his readiness or willingness to pay the amount within one month from the date of service. Both the Courts, therefore, in my view have rightly held that the case of the appellant/tenant falls within the purview of Section 12(3)(a) and not under Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. 5. There cannot be any dispute regarding the ratio laid down by the Apex Court in the case of – Mahendra Raghunathdas Gupta (supra). However, in my view the facts of the said case are slightly different and therefore, ratio of the said case will not apply to the present case. In the said case one Jagmohandas was the original tenant and the landlords were Jayabai G. Ashar, Bachubhai @ Brijkuvar Bhagwandas, Krishnakumar @ Krishnadas Bhagwandas and Harikrishna C. Shantabai @ Malabai. After the death of the original tenant, his brother became tenant and he paid rent to the landlords. On 10-3-1981 the landlords wrote a letter directing the appellants to pay the rent jointly to one WP.3875-95 - 6 - Shivajibhai Patel one Ratilal Patel with effect from 1-11-1980. The appellant i.e. brother of the original tenant, accordingly, sent the rent to the said two persons by cheque. However, the cheque was returned. Thereafter he was in the dark as to whom the rent was to be paid. The tenant thereafter received a notice dated 29th September 1986 calling upon him to pay arrears of rent from 1-11-1992. On the receipt of the notice, he sent a cheque of Rs.2,952/- in the name of landlord’s advocate Mr. N. G. Gaikwad, which was rejected by him and thereafter the suit for ejectment was filed. In the facts of the said case, the Apex Court observed that expression “ready & willing to pay arrears of rent” in sub- section (1) of Section 12 of the Act does not mean that when rent is paid only by cash then only, it can be said that the tenant is ready and willing to pay the rent, and tendering of rent by cheque is legal. Reliance was placed by the Apex Court on the decision in the case of – K. Saraswathy vs. P.S.S. Somasundaram Chettiar [(1989) 4 SCC 527 : AIR 1989 SC 1553]1. 6. In the present case, there was no ambiguity as to whom the said amount is to be paid. The tenant was very well aware that the amount was to be paid to the landlord. Though initially cheque was 1 (1989) 4 SCC 527 : AIR 1989 SC 1553. WP.3875-95 - 7 - offered to the advocate of the landlord, thereafter no step appears to have been taken to pay the said amount. This being the position, in my view, since both the Courts have rightly held that the case falls under Section 12(3)(a) of the Bombay Tenancy Act, it is not possible to interfere with the concurrent finding of fact recorded by both the Courts below. Writ petition is, therefore, dismissed. 7. At this stage, the learned counsel appearing for the petitioner submits that time to vacate the premises be given to the petitioner. He submitted that petitioner is willing to give an undertaking to his Court that he will vacate the suit premises within one year. In my view, suit is filed in the year 1974, decree for possession was passed in favour of the landlord and it was confirmed by the lower Appellate Court. Taking into consideration the said fact, in my view, it would be appropriate if period of six months is given to the petitioner to vacate the suit premises, provided he gives usual undertaking to this Court in the usual form within two weeks from today; if such an undertaking is not given within two weeks, the respondent/ landlord would be at liberty to execute the decree. [ V. M. KANADE J.]