Case: Maganlal Chhotalal Desai Vs. Chandrakant Motilal

is regulated by Section 20. That section reads:"Any amount paid on account of rent after the date o the coming into operation of this Act shall, except in so far as payment thereof is in accordance with the provisions of this Act, be recoverable by the tenant from the landlord to whom it was paid or on whose behalf it was received orfrom his legal representative at any time within a period of six months from the date of payment and may without prejudice to any other remedy for recovery, be deducted by such tenant from any rent payable by him to such landlord."7. The section gives the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery.If the amount is incapable of recovery because of the bar of limitation, it cannot be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.8. In Karamesy Kanji v. Velji Virji (1954) 56 Bom LR 619 the learned Chief Justice of the Bombay High Court repelled the tenants contention that for deduction of rent no period of limitation was provided by Section 20. He observed:"It seems to me clear on a plain and natural construction of the section itself that if a tenant could not recover any excess amount paid by him beyond six months from the date of payment and if such amounts became irrecoverable, it is difficult to understand how a tenant could deduct what he could not recover and what was irrecoverable in law. The same view of the law has been taken in a parallel piece of legislation in England in Bayley v. Walker, (1925) 1 KB 447. I see no reason to take a view different from that taken by the appellate court that the interpretation put by the English Court on a similar provision of law is the correct interpretation."In (1925) 1 KB 447 (supra) the tenant on discovering that he had overpaid considerable sums in excess of the standard rent stopped payment of rent retaining the amounts as they fell due by way of deduction under the provisions of S. 14, sub-section (1) of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920. He continued to deduct his rent after expiry of the period of limitation prescribed by Section 8, sub-section (2) of the Rent and Mortgage Interest Restrictions Act 1923. The landlord contended that the tenant had no right to so continue to deduct and that consequently his rent was in arrear and on that ground brought an action for possession. The question was whether the rent was in arrear or not. The matter turned on life constriction of Section 14 of the Act of 1920, and Section 8 of the Act of 1923. Section 14, sub-section (1) gave the tenant a general right of recovery of overpaid rent and the amount recoverable might without prejudice to any other mode of recovery be deducted by the tenant from any rent payable by him Section 8, sub-section (2), provided that"any sum which under sub-s. (1) of Section 14 of the principal Act (of 1920) is recoverable by the tenant. . ..... shall be recoverable at any time within six months from the date of payment but not afterwards or in the case of a payment made before the passing of this Act, at any time within six months from the passing of this Act but not afterwards."Salter, J., held that the period of limitation prescribed by Section 8 of the Act of 1923 applied to recovery by deduction as well as recovery by action. As the amount was incapable of recovery by action it could not be recovered by deduction. The rent was therefore in arrear and the landlord was entitled to recover possession on that ground. In Soharab Tavaria v. Jafferali (1956) 58 Bom LR 680 at pp. 687-88 a Division Bench of the Bombay High Court approved of these decisions.9. Now the right of recovery of the excess rent paid before August 4, 1954 became barred on and after February 4, 1955. Within that period the defendant took no steps for recovery of the amount by filing a suit or making a deduction. As the claim for recovery of the amount became barred after February 4, 1955, he could not thereafter deduct it from the rent falling due. As a matter of fact, he did not deduct it from rent at any time. Instead of making any deduction he filed a suit for its recovery. The overpayments cannot now be deducted from or adjusted against the rent falling due since August 4, 1954. It follows that the rent was in arrear.10. In these circumstances, the defendant could not claim protection of Section 12 (1) of the Rent Act.During the pendency of the suit he did not pay the standard rent due from him from August 4, 1954 nor was he ready or willing to pay it. Instead of showing his readiness and willingness to pay the rent due he claimed that he was not liable to pay any amount at all.11. Likewise he could not claim the protection under Section 12 (3) (b). Before the first hearing of the suit on December 26, 1957 or any other date fixed by the trial court he did not pay or tender in court the standard rent then due from him. Nor did he thereafter continue to pay or deposit in court such rent till the suit was finally decided.It follows that the defendant cannot claim protection from eviction under the Rent Act. The High Court therefore rightly decreed the suit for eviction.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]According to the defendant he was compelled to pay Rs. 15,224/2 between March 14, 1950 and August 4, 1954. The courts below found that between those two dates he paid Rupees 14,169/2/- on account of rent from October 1, 1948 at Rs. 300 per month. From the plaint in Suit No. 34 of 1957 it appears that until March 14, 1957 the defendant did not make any other payment. As the High Court pointed out, no further payment was made by the defendant till the disposal of suit No. 5092 of 1955.6. Thus up to August 4, 1954 the defendant paid Rs. 14,169/2/- on account of rent due up to that date at Rs. 300 per month. The payments were in excess of the standard rent. He did not pay the rent falling due after August 4, 1954.The section gives the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery.If the amount is incapable of recovery because of the bar of limitation, it cannot be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.Now the right of recovery of the excess rent paid before August 4, 1954 became barred on and after February 4, 1955. Within that period the defendant took no steps for recovery of the amount by filing a suit or making a deduction. As the claim for recovery of the amount became barred after February 4, 1955, he could not thereafter deduct it from the rent falling due. As a matter of fact, he did not deduct it from rent at any time. Instead of making any deduction he filed a suit for its recovery. The overpayments cannot now be deducted from or adjusted against the rent falling due since August 4, 1954. It follows that the rent was inthese circumstances, the defendant could not claim protection of Section 12 (1) of the Rent Act.During the pendency of the suit he did not pay the standard rent due from him from August 4, 1954 nor was he ready or willing to pay it. Instead of showing his readiness and willingness to pay the rent due he claimed that he was not liable to pay any amount at all.11. Likewise he could not claim the protection under Section 12 (3) (b). Before the first hearing of the suit on December 26, 1957 or any other date fixed by the trial court he did not pay or tender in court the standard rent then due from him. Nor did he thereafter continue to pay or deposit in court such rent till the suit was finally decided.It follows that the defendant cannot claim protection from eviction under the Rent Act. The High Court therefore rightly decreed the suit for eviction.