Case: V.N.Vasudeva Vs. Seth Kirorimal Luhariwala

by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf..................(6) If a tenant makes payment or deposit as required by sub-section (1) or sub-section (3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant but the Controller may allow such costs as he may deem fit to the landlord.(7) If a tenant fails to make payment or deposit as required by this section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application."It will be noticed that sub-section (3) also contemplates payment of interim rent determined by the controller before the entire dispute is settled. sub-section (6) puts the case under sub-s. (1) and sub-s. (3) on the same footing and makes no distinction between them. It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defence be tried. It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end. The latter part of sub-section (1) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month. This also shows that the order under sub-section (1) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid. For the purpose of an interim order it was not necessary that there should have been a full trial. The Rent Controller had the affidavit of the appellant and he could judge whether in the circumstances of the case, an interim order ought or ought not to be made. He came to the conclusion that the rent was not paid and the plea that it was being withheld under an agreement was an after-thought and not true. The High Court and the Rent Control Tribunal have agreed with this view of the Rent Controller and the conclusion appears, to us to be sound. Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity to the appellant to be heard. No doubt, the appellant is entitled to lead oral evidence in regard to the agreement he alleges, but for that he will have an opportunity hereafter. At the moment, he is being asked to deposit the arrears in count which admittedly are outstanding.10. Mr. Desai next contended that the notice under S. 46 (5A) amounted to a garnishee order and the appellant could not, while the notice stood, make any payment without incurring personal liability. There was no question of a personal liability because the Rent Controller had stated in his order that the amount would not be paid to anyone till the clearance certificate was obtained from the Income-tax Department. The Rent Controller had informed the Income-tax Authorities and the appellant ran no risk in depositing the arrears of rent in the circumstances.11. It was contended that the notice under S. 46(5A) amounted to an attachment of the rent in the hands of the appellant and reference was made to the provisions of S. 46 subs. 5A para 5. The argument overlooks the next para which provides:"Where a person to whom a notice under this sub-section is sent objects to it on the ground that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then nothing contained in the section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Income-tax Officer."If there was an agreement between the parties and Kirorimal was indebted for such a large amount, the appellant could have objected on the ground that he did not hold any money for or on account of the assessee and then he would not have been required to pay any sum to the Income-tax Officer. The appellant did nothing in the matter except to deny the payment to everyone. He paid nothing to the Income-tax Officer, declined to deposit the money before the Rent Controller and refused to recognise the demands by the Receiver and his landlord. In other words, he was trying to take full advantage of the law, when he could have informed the Income-tax Officer about his own position and paid the money to the Rent Controller subject to its being paid to the Income-tax Department.12. Reference was made in this connection to a decision of the Calcutta High Court reported in Ramesh Chandra v. Sm. Subodhbala Dasi, AIR 1952 Cal 198 in which Harries, C. J. observed that before making an order for the deposit of the rent, a full enquiry should be made. That was a case in which the tenant had pleaded that there was an agreement between him and the landlord that any, amount spent on repairs would be set off against the rent. Harries, C. J. held that without ascertaining the truth of the plea that a large sum had been spent on repairs, an order to deposit the entire arrears of rent ought not to have been made. It is quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancy could not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and allegation about the special agreement has been held to be an afterthought and false. It is therefore difficult to apply the ruling to the present circumstances.

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

Explanation:
0[ds]The letter itself does not show that there was any such agreement.In fact it shows the contrary where itbalance of your fees will be paid latter at the time of finalshows that the appellant was not entitled to retain the rent in his hands, and the Tribunals below were justified in saying that the plea about theagreement was anbecause till September 14, 1959, the appellant had not mentioned such an agreement. We are also satisfied that the plea was a mere device to retain the money and to avoid paying the rent. It must be remembered that there were as many as four claimants, viz., theOfficer, the Receiver and Kirorimal in person and Kirorimal as Receiver, but the appellant avoided each of these in turn by pointing to the others, and in this way continued to occupy the premises without payment of anyIn our opinion, this reading is notwill be noticed that sub-section (3) also contemplates payment of interim rent determined by the controller before the entire dispute is settled. sub-section (6) puts the case under sub-s. (1) and sub-s. (3) on the same footing and makes no distinction between them. It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defence be tried. It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end. The latter part of sub-section (1) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month. This also shows that the order under sub-section (1) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid. For the purpose of an interim order it was not necessary that there should have been a full trial. The Rent Controller had the affidavit of the appellant and he could judge whether in the circumstances of the case, an interim order ought or ought not to be made. He came to the conclusion that the rent was not paid and the plea that it was being withheld under anagreement was anafter-thought and not true. The High Court and the Rent Control Tribunal have agreed with this view of the Rent Controller and the conclusion appears, to us to be sound. Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity to the appellant to be heard. No doubt, the appellant is entitled to lead oral evidence in regard to the agreement he alleges, but for that he will have an opportunitythere was an agreement between the parties and Kirorimal was indebted for such a large amount, the appellant could have objected on the ground that he did not hold any money for or on account of the assessee and then he would not have been required to pay any sum to the Income-tax Officer. The appellant did nothing in the matter except to deny the payment to everyone. He paid nothing to the Income-tax Officer, declined to deposit the money before the Rent Controller and refused to recognise the demands by the Receiver and his landlord. In other words, he was trying to take full advantage of the law, when he could have informed the Income-tax Officer about his own position and paid the money to the Rent Controller subject to its being paid to the Income-taxis quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancy could not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and allegation about the special agreement has been held to be an afterthought and false. It is therefore difficult to apply the ruling to the present circumstances.