1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR LPA NO. 437 OF 2009 IN W.P. NO. 538 OF 2004 (Prakash Madanlal Bule vs. Additional Collector, Akola & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI & F.M. REIS, JJ. OCTOBER 08, 2009. Shri Chopde, Advocate for the appellant by placing reliance upon the judgment of the Hon’ble Apex Court in the case of Kranti Swaroop Machine Tools Pvt. Ltd. vs. Kanta Bai Asawa, reported at AIR 1994 SC 1216, contends that an advance amount accepted by landlord has been ignored by the Rent Control authorities. According to him, that advance amount ought to have been adjusted against the rent demand before holding the appellant to be habitual defaulter. We find that there was no such defence either before the Rent Controller or Appellate Authority and the ground was sought to be raised for the first time before the learned Single Judge. It is further argued by the learned counsel that as per agreement between the appellant and his landlord, rent was being increased 10% after every three years from 1991 onwards. He states that the arrangement resulted in payment of excess amount which cannot be treated as rent legally. 2 The appellant, therefore, issued a notice to landlord calling upon him to deposit the excess recovered by him on account of said 10% increase and thereafter the proceedings were started. Again we find that no application for fixation of standard rate was moved by the present appellant. Habitual default is a mental condition and to demonstrate its absence, factual data was not placed by present appellant either before Rent Controller or before the Appellate Authority. We are, therefore, not inclined to interfere in the matter in Letters Patent Appeal. Letters Patent Appeal is, therefore, dismissed. However, there shall be no order as to costs. JUDGE JUDGE *GS.