1 Cra-308,309n310.09 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 308 OF 2009 WITH CIVIL REVISION APPLICATION NO. 309 OF 2009 WITH CIVIL REVISION APPLICATION NO. 310 OF 2009 CRA No.308 OF 2009 Mr. Ganpatraj Indermal Mehta. .. Applicant Vs Mr. Popatlal Lachand Navlakha. .. Respondent -- CRA No. 309 OF 2009 Mr. Bhogilal Indermal Mehta. .. Applicant Vs Mr. Popatlal Lachand Navlakha. .. Respondent -- CRA NO. 310 OF 2009 Mr. Mangilal Indermal Mehta. .. Applicant Vs Mr. Popatlal Lachand Navlakha. .. Respondent -- Shri R.N. Sanghavi for the Applicant in all the above Revision Applications. Shri Girish S.Godbole with Shri Nitin Mulye for the Respondent in all the above Revision Applications. -- 2 Cra-308,309n310.09 CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS WERE HEARD : 1ST DECEMBER, 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED : 20TH DECEMBER, 2010. JUDGMENT : . These Three Revision Applications taking exception to the Decrees passed for eviction in suits filed by the Respondent can be disposed of by a common judgment and order inasmuch as the facts of the Revision Application are admittedly more or less identical. 2. For the sake of convenience, a reference has been made to the facts of the case in Revision Application No. 308 of 2009. The parties have been hereinafter referred to with reference to their status before the Trial Court. 3. The suit premises subject matter of the Revision Application No.308 of 2009 is a shop premises on the ground floor of the property bearing House No.189-B, Ganesh Peth, Pune. The Plaintiff claims to be the owner of the said house property. He claims that he purchased the house property in a Court auction. It appears that one Manohar Shankar Bhagat, 3 Cra-308,309n310.09 the original owner of the property had allegedly executed a long lease in favour of one Raghunath Laxman Gorade ( hereinafter referred to as the said Gorade ). It is contended that the said Gorade had constructed the said house. A Creditor of the original owner filed a money suit in which a money decree was passed. The Plaintiff claims to have purchased the property in execution of the said decree. It appears that the said Gorade thereafter filed a civil suit against the Plaintiff. The said suit was dismissed and first appeal was preferred in this Court against the decree of dismissal. By an interim order passed in the said appeal, the Plaintiff was appointed as the Court Receiver in respect of the larger property. It is claimed by the Plaintiff in the present suit that he was the owner of the property as a purchaser and was managing the same as a Receiver under the orders of this Court. 4. According to the Plaintiff, the Defendant ( Revision Applicant ) was liable to pay rent of Rs.100/- per month and considering permitted increases and education cess, the Defendant was liable to pay the sum of Rs.183.75 per month towards rent. It was contended that the Defendant was in arrears of rent from 1st May, 1978. The Plaintiff relied upon a notice of demand dated 10th July, 2000 issued by him through his Advocate. It was contended that the amount was not paid as demanded and therefore, the Defendant was a defaulter. Therefore, the possession was sought on the ground that the Defendant was defaulter. Another ground pleaded in the suit was that the Plaintiff was desirous of 4 Cra-308,309n310.09 demolishing the existing house which had become old and was also desirous of constructing a new building. Apart from the decree for possession, the decree for arrears of rent and permitted increases for a period of three years was sought. The suit was contested by the Defendant by filing Written Statement. It was contended that there is no landlord-tenant relationship between the Plaintiff and the Defendant and in fact the suit premises has been let out to the Defendant by the said Gorade. Reliance is placed on the reply to the notice of demand. It was contended that there is no default on the part of the Defendant. Another contention raised in the Written Statement is that in his capacity as a Court Receiver, the Plaintiff is not entitled to file a suit. The Defendant contended that the said Gorade was necessary and proper party to the suit. 5. The parties adduced evidence. The Trial Court came to the conclusion that the Plaintiff has not proved that he was the owner of the suit premises. The Trial Court, therefore, held that it is not established that the Defendant was in arrears of rent. The Trial Court dismissed the suit. An Appeal was preferred by the Plaintiff. The said Appeal has been allowed and a decree for possession has been passed against the Defendant on the ground of arrears of rent. The Appellate Court held that the Plaintiff was the Receiver of the suit premises and in that capacity, he was entitled to file a suit without permission of the High Court. The Appellate Court held that the said Gorade was not a necessary party to the suit. The Appellate Court held that the Defendant was a defaulter and hence proceeded to pass 5 Cra-308,309n310.09 a decree for possession on the ground of arrears of rent. However, decree on the other ground was not passed. 6. Learned counsel appearing for the Defendant submitted that even going by the order of this Court appointing the Plaintiff as the Receiver, at highest the plaintiff is a Rent Collector and he has no right to file a suit for possession either as the Receiver or as the owner. He submitted that the Plaintiff has not obtained permission of this Court for filing the suit inasmuch as under the order by which he was appointed as the Receiver, he was entitled to prosecute only the pending suits. 7. Learned counsel appearing for the Defendant submitted that the amount demanded by the Plaintiff under the suit notice was excessive. He invited attention of the Court to the demand notice and correspondence made between the parties. He pointed out that in the letter dated 15th September, 1999, the Plaintiff had stated that the rent was Rs.100/- per month. He submitted that there is no basis for demand made in the notice dated 10th July, 2000 for the rent at the rate of Rs.100/- per month, property tax at Rs.75/- per month and a sum of Rs.8.75 per month towards the increase in the property tax. He submitted that the Applicant had paid rent at the rate of Rs.109/- per month to the said Gorade till July, 1985. He invited attention of the Court to the fact that the amount of rent was demanded by the Plaintiff from 1st May, 1978 though the amount was already paid by the Applicant to the said Gorade. He pointed out that by 6 Cra-308,309n310.09 letter dated 29th October, 1999, the Advocate for the Defendant had replied to the earlier notice of demand dated 14th October, 1999 by pointing out that the rent was already paid to Gorade upto July, 1985. It was contended that the municipal taxes were paid to the Municipal Corporation by the Defendant and the other tenants. Learned counsel pointed out that in case of three suit premises, as of that date, the arrears of rent were Rs.33,448.50 and after deducting a sum of Rs.23,049.50 paid by the Defendant to the Municipal Corporation on account of taxes, only a sum of Rs.10,581/- was payable by way of arrears of rent by the three tenants and the entire amount was paid by a cheque. He placed reliance on a decision of this Court in the case of Ramchandra Appaji Manjage, since deceased by L.Rs. v. Mahavir Gajanan Mug ( 1992 Mh.L.j. 436 ). He submitted that this Court has held that if the demand made for the amount of arrears of rent by sending a notice of demand under Section 12(2) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 ( hereinafter referred to as the “said Act of 1947” ) is excessive, the notice itself is illegal on the basis of which a suit for possession cannot be filed. He also relied upon another decision of this Court in the case of Vinayak Narayan Deshpande & Others v. Deelip Prahlad Shisode [ 2010(3) Mh.LJ. 807 ] which, according to him, has taken the same view. He also placed reliance on a decision of this Court in the case of Kamruddin Masjit Trust by its Mutawali Trustee Shaikh Bashir Ismail v. Abdul Rahiman Fakiruddin ( 1986(2) Bom.C.R. 121) and submitted that the suit filed by a Rent Collector was not maintainable. He also placed reliance on a decision of the Allahabad High Court in the case 7 Cra-308,309n310.09 of Sri S.A. Jawwad and Others v. Smt. Maqsood Jahan Begum and Others ( AIR 1978 Allahabad 73 ). He submitted that now the Plaintiff cannot claim to be the owner in view of the fact that he is acting as the Receiver of the property. 8. Learned counsel appearing for the Plaintiff pointed out the findings recorded by the Appellate Court and submitted that the Defendant did not dispute the rent demanded by filing an application for fixation of standard rent. He submitted that the Applicant did not pay any amount after receipt of the demand notice within the statutory period. He submitted that the decision of this Court in the case of Ramchandra Appaji Manjage (supra) is no longer a good law in view of the decision of the Division Bench of this Court dated 13th December, 1995 in Writ Petition No. 3658 of 1981 and other connected matters. He submitted that even assuming that there was an excessive demand, the notice of demand does not become invalid and it will become invalid provided the Court records a positive finding that the same was malafide or dishonest. He submitted that mere excess demand will not render the notice invalid. He submitted that as a Receiver, the Plaintiff was entitled to file a suit for possession and in any event as the Receiver, he has filed the suit which is decreed on the ground of arrears of rent. He, therefore, urged that no interference be called for. 9. The first question to be decided is whether the Plaintiff was 8 Cra-308,309n310.09 entitled to file a suit for possession without express permission of this Court. For that purpose, it will be necessary to make a reference to the order under which the Plaintiff has been appointed as the Receiver. As stated earlier, the Plaintiff was appointed as the Receiver in a pending appeal by this Court. The order dated 10th March, 1999 passed by this Court reads thus:- “Rule. Respondents waive service. Respondent No.1 is appointed as Receiver in respect of the suit property for the purposes of recovery of rent and payment of taxes etc. Respondent No.1 as Receiver may also prosecute suits against tenants but no third party shall be inducted without prior permission of this Court.” The Division Bench expressly permitted the Plaintiff to prosecute suits against the tenants. On plain reading of the said order, the observation made therein is not restricted to the suits which were pending as on that date. The permission to “prosecute” suits is nothing but a permission to institute suits. The direction of this Court means that the Plaintiff can file a suit against the tenants but after recovering the possession, he cannot create third party rights in respect of the suit premises without prior permission of the Court. Therefore, on plain reading of the order of the Division Bench, it was not necessary for the Plaintiff to obtain a leave of this Court before instituting the suit. Perusal of the averments made in the Plaint and in particular Paragraph 2 shows 9 Cra-308,309n310.09 that the Plaintiff is claiming in the capacity of both, the owner and the Receiver appointed by the Court. In fact, the Plaintiff was cross examined by asking a question whether he had obtained permission of the Court which had appointed him as Receiver to institute the suit. The answer of the Plaintiff was that the Court has already granted permission. 10. Apart from the clear permission granted to the Plaintiff to file and prosecute a suit against tenants, in the case of Shantaram Hirachand Danez v. Narayan Bapusa Fulpagar ( since deceased by his heirs ) ( AIR 1999 Bombay 16), this Court held that filing of a suit by a Court Receiver without obtaining leave of the Court is merely an irregularity which is curable in law. The Appellate Court has made a reference to the aforesaid order of this Court and has rightly held that the order of this Court was “self speaking” and the Plaintiff was permitted to file suits against the tenants. It is obvious that even after the Plaintiff secures possession of the premises occupied by the tenants, he will not be entitled to create any third party rights in respect of the premises without permission of this Court. 11. Now, turning to the ground of arrears of rent, it is not in dispute that the suit will be governed by Section 15 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the said Act of 1999”). As stated earlier, the suit is founded on notice of demand dated 10th July, 2000 sent by the Advocate for the Plaintiff. It must be noted here that by a letter dated 15th September, 1999, the Plaintiff had called upon the 10 Cra-308,309n310.09 Defendant to pay arrears of rent and taxes from 1st May, 1978 to 31st October, 1999 amounting to Rs.25,800/-. Taxes and the interest at the rate of 9% per annum on the basis of the amended Section 12(3) of the said Act of 1947 were also demanded by the Plaintiff . There was a reply dated 29th October 1999 sent to the said letter by the Advocate for the Defendant. It was a composite reply in respect of the three premises subject matter of this group of Revision Applications. The contention raised in the reply was that as of that date, the total rent payable in respect of the suit premises subject matter of Revision Application No. 308 of 2009 was Rs.18,857/- at the rate of Rs.109/- per month. This amount, according to the Advocate for the Defendant, represented arrears of rent for 173 months from July 1985. The case made out in the said reply was that the total amount of arrears of rent in respect of all the three suit premises subject matter of the three revision application was Rs.33,648/-. The Defendant claimed that a sum of Rs.23,049.50 was paid by the tenants towards municipal taxes directly to the Municipal Corporation. So, after deducting the said amount, a cheque in the sum of Rs.10,581.40 was forwarded to the Plaintiff along with the reply. It is pertinent to note that in the said reply, it was contended that the rent up to July, 1985 was paid to Gorade Brothers. Thus, the rent for the period of 173 months which, according to the Defendant, was payable from July 1985 was tendered along with the said reply. It is pertinent to note that by the letter dated 15th September, 1999, the arrears of rent and taxes were demanded from 1st May, 1978 amounting to Rs.25,800/- which amount represented only the rent calculated at the rate of Rs.100/- per 11 Cra-308,309n310.09 month. Apart from the rent at the rate of Rs.100/-, a demand was made of permitted increases. 12. In the suit notice dated 10th July, 2000, the Plaintiff stated that apart from the rent of Rs.100/- per month, the Defendant was liable to pay a sum of Rs.75/- per month towards taxes and a sum of Rs.8.75 towards increase in taxes. The total amount of Rs.183.75 was demanded for the period from 1st November, 1999. Thus, the demand was made of arrears from 1st November, 1999 till the end of June, 2000. A reply was sent to the said notice by the learned Advocate for the Defendant on 2nd November, 2000. Reliance was placed in the reply on the money order in the sum of Rs.654/- which even according to the Defendant constituted the rent for a period of only six months calculated at the rate of Rs.109/- per month. As stated earlier, the demand of rent in the suit notice was at the rate of Rs.183.75 from 1st November, 1999 for a period of eight months. The money order coupon in the sum of Rs.654/- placed on record shows that in July, 2000, the rent at rate of Rs.109/- per month was purportedly sent for the period from 1st July, 2000 to 31st November, 2000. The said money order was received by the Plaintiff on 3rd July 2000 as set out in the suit notice dated 10th July 2000. A true photo copy of the money order is on page 143 of the Revision Application No. 308 of 2009. As stated earlier, the arrears demanded by the suit notice were from 1st November, 1999 till 30th June, 2000. Even assuming that along with reply dated 29th October 1999, rent at the rate of Rs.109/- per month was paid even till the end of 12 Cra-308,309n310.09 November 1999, after receipt of suit notice , no amount was tendered. Even if the money order sent in July 2000 is taken into consideration though it purported to tender rent for the period from 1st July 2000 to 31st November 2000 at the lesser rate of Rs.109/-per month, the said amount covered arrears of only for the period of six months though the arrears demanded were for a period of eight months. 13. As far as the legal position is concerned, Sub-section (3) of Section 15 of the Maharashtra Rent Control Act, 1999 ( hereinafter referred to as “the said Act of 1999” ) is crystal clear, which reads thus:- “15(3) No decree for eviction shall be passed by the court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in court the standard rent and permitted increases then due together with simple interest on the amount of arrears at fifteen per cent per annum; and thereafter continues to pay or tenders in court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the court.” 14. The suit summons was served to the Defendant on 27th February, 2003. There was no deposit made within 90 days of the said date. On 1st April, 2004, a sum of Rs.5,550/- was deposited towards rent for the period from 1st November, 1999 to 31st December, 2003. The finding of the Appellate Court which is not seriously challenged is that the interest at the rate of 15% per annum was also not deposited. In Paragraph 26 of the 13 Cra-308,309n310.09 judgment of the Appellate Court, there is a finding that there after the deposit of the amounts was not regular. Thus, the finding of fact is that there was non-compliance with Section 15(3) of the said Act of 1999. 15. Learned counsel appearing for the Defendant submitted that the demand of rent including taxes at the rate of Rs.183.75 was excessive and in fact the rent was Rs.109/- per month inclusive of taxes. It must be noted here that the amount at the said rate was demanded by the Plaintiff from 1st November, 1999. Learned counsel relied upon the decision of this Court in the case of Ramchandra Appaji Manjage ( Supra ) and contended that as the demand was of an excessive amount which was not payable by the tenant, the notice of demand was itself illegal. However, the said decision in the case of Ramchandra Appaji Manjage (supra) was considered by a Division Bench of this Court in its decision dated 13th December, 1995 in Writ Petition No. 3658 of 1981. In Paragraph 17, the Division Bench observed thus : - “The mere fact that the amount demanded by the landlord in the notice under Section 12(2) of the Rent Act is excessive, that is the amount which is not legally due and payable by the tenant on the date of the notice of demand and that the error in computation of arrears is not marginal or insubstantial, in our opinion, would not render the notice under Section 12(2) of the Rent Act invalid.” In the same Paragraph, the Division Bench proceeded to observe thus:- 14 Cra-308,309n310.09 “..... He would be justified in demanding the arrears on the basis of the agreed or the contractual rent and even though the demand might subsequently turn out to be excessive, that by itself would not render the notice under Section 12(2) of the Rent Act invalid.” In Paragraph 18, the Division Bench observed thus : - “..... Everything would depend on this aspect of the matter which would be a factual aspect of the matter. The court shall have to make an attempt to find out whether the inaccuracy in the demand of arrears of rent and permitted increases in the notice under Section 12(2) of the Rent Act is traceable to any malafide of dishonesty on the part of the landlord. If a positive finding of malafides or dishonesty is recorded, then, in our opinion, the notice could be faulted as bad on that ground alone. Otherwise on the mere inaccuracy, the notice could not be faulted. Even if the inaccuracy is of large measure, that also would be no ground to fault the notice unless of course the magnitude of inaccuracy coupled with other facts and circumstances appearing on record is capable of leading to a finding of malafides or dishonesty on the part of the landlord.” (emphasis added) 16. In the present case, though the Trial Court dismissed the suit, there is no finding recorded that the demand made was dishonest or malafide. In the Written Statement of the Defendant, there is no pleading that the demand was dishonest or malafide. A specific case was made out by the Defendant that along with the reply to the earlier notice, the rent up to 31st October, 1999 was paid. As stated earlier, the money order in the sum of Rs.654/- placed on record shows that the rent amount of Rs.654/- 15 Cra-308,309n310.09 paid was for the period commencing from 1st July, 2000 at the rate of Rs. 109/- per month. Thus, there was no tender of the rent for the suit notice period even according to the calculation of the Defendant. Perusal of the cross-examination of the Plaintiff shows that there is no suggestion given that the demand was dishonest or malafide. 17. Therefore, even assuming that the demand was excessive, the notice of demand cannot be said to be invalid. The law laid down by the Division Bench will apply which holds that the view taken in the case of Ramchadra Appaji Manjage (supra) is not correct. There was non compliance by the Defendant with the requirements of sub-section (3) of Section 15 of the said Act of 1999. Hence, the Defendant is not entitled to the relief against forfeiture and the decree must follow. 18. Hence, no case is made out for interference in the Revision Applications. The Revision Applications are rejected. No order as to costs. The decree for possession shall not be executed for a period of three months from today subject to condition that the Revision Applicants will not create any third party rights and will not part with possession of the suit premises in favour of any third party. (A.S.OKA, J)