Case: Khadi Gram Udyog Trust Vs. Shri Ram Chandraji Virajman Mandir Sarsaiya Ghat

on him. Another opportunity for payment of rent is provided to the tenant under section 20(4) which provides that "In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of 9 per cent per annum and the landlord- costs of the suit in respect thereof, after deducting any amount already deposited by the tenant under sub-section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on the ground. Under this sub- section, therefore, though the, tenant has not complied with the requirement of sub-section (2) of section 20, if he pays it the first hearing of the suit unconditionally the entire amount of rent the court may pass an order relieving the tenant against this liability for eviction. In this case the appellant deposited on 13-2-1975 a sum of Rs. 5972.43 being the amount of rent and damages for the period 1.5.1973 to 28.2.1975 together with interest etc. The contention of that is recoverable and would not include the rent, the recovery for which is barred by time. According to the appellant the payment of entire amount of rent due would not include the rent for the period 1.1.1960 to 31.12 .1970 as the claim is barred by time. The District Judge who tried the suit was of the view that the tenant ought to have deposited the time-barred arrears of rent also in order to claim benefit under section 20(4). The trial Court proceeded with the trial of the suit and found that the landlord had proved that tenant was in arrears of rent for not less than 4 months and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand and as such satisfied the requirement of sub-section (2) of section 20 and is entitled for order of eviction. In the revision the High Court affirmed the view taken by the trial Court and dismissed the appeal. It will be seen that under section 20(2) of the Act, the landlord gets a cause of action for evicting the tenant when the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. If the tenant pays the entire arrears of rent due at the first hearing of the suit the court may relieve the tenant against eviction even though he had not complied with section 20(2). The tenant can take advantage of the benefit conferred by section 20(4) only when he pays the entire amount of rent due as required under section 20(4). The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though not recoverable, the relief being barred by limitation.In Halsburys Laws of England (3rd Ed.) Vol. 24 at p. 205, Article 369, it is stated :"except in the cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by action or by set off; it leaves the right otherwise untouched and if a credit or whose debt is statute-barred has any means of enforcing his claim other than by-action or set-off, the Act does not prevent him from recovering by those means. The Court of Appeal in Curwen v. Milburn (1889) 42 Ch. D. 424 Cotton, L. J. said:"Statute-barred debts are dues, though payment of them cannot be, enforced by action."3. The same view was expressed by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay &Others([1958] S.C.R. 1122.) where it he ld that the statute of limitation only bars the remedy but does not extinguish the debt, except in cases provided for by section 28 of the Limitation Act, which does not apply to a debt. Under section 25(3) of the Contract Act a barred debt is good consideration for a fresh promise to pay the amount. Section 60 of the Contract Act provides that when a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. In a full Bench decision of the Patna High Court Ram Nandan Sharma and Anr. v. Mi. Maya Devi and Others (A.T.P. 1975 Pat. 283 .), Untwalia, C. J. as he then was, has stated "There is a catena of decisions in support of what has been said by (Tek Chan d, p.330 paragraph 12) that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right." The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the sche me of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of section 20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of section 20(4). As he has not deposited the entire amount due the protection is no more available.4.

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

Explanation:
0[ds]It is not disputed that several notices were served on the appellant and that he failed to pay the rent within one month from the date of the service of the notice of demand on him. Another opportunity for payment of rent is provided to the tenant under section 20(4) which provides that "In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of 9 per cent per annum and the landlord- costs of the suit in respect thereof, after deducting any amount already deposited by the tenant under sub-section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on the ground. Under this sub- section, therefore, though the, tenant has not complied with the requirement of sub-section (2) of section 20, if he pays it the first hearing of the suit unconditionally the entire amount of rent the court may pass an order relieving the tenant against this liability for eviction. In this case the appellant deposited on 13-2-1975 a sum of Rs. 5972.43 being the amount of rent and damages for the period 1.5.1973 to 28.2.1975 together with interest etc. The contention of that is recoverable and would not include the rent, the recovery for which is barred by time. According to the appellant the payment of entire amount of rent due would not include the rent for the period 1.1.1960 to 31.12 .1970 as the claim is barred by time. The District Judge who tried the suit was of the view that the tenant ought to have deposited the time-barred arrears of rent also in order to claim benefit under section 20(4). The trial Court proceeded with the trial of the suit and found that the landlord had proved that tenant was in arrears of rent for not less than 4 months and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand and as such satisfied the requirement of sub-section (2) of section 20 and is entitled for order of eviction. In the revision the High Court affirmed the view taken by the trial Court and dismissed the appeal. It will be seen that under section 20(2) of the Act, the landlord gets a cause of action for evicting the tenant when the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. If the tenant pays the entire arrears of rent due at the first hearing of the suit the court may relieve the tenant against eviction even though he had not complied with section 20(2). The tenant can take advantage of the benefit conferred by section 20(4) only when he pays the entire amount of rent due as required under section 20(4). The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though not recoverable, the relief being barred bysame view was expressed by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay &Others([1958] S.C.R. 1122.) where it he ld that the statute of limitation only bars the remedy but does not extinguish the debt, except in cases provided for by section 28 of the Limitation Act, which does not apply to a debt. Under section 25(3) of the Contract Act a barred debt is good consideration for a fresh promise to pay the amount. Section 60 of the Contract Act provides that when a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. In a full Bench decision of the Patna High Court Ram Nandan Sharma and Anr. v. Mi. Maya Devi and Others (A.T.P. 1975 Pat. 283  .), Untwalia, C. J. as he then was, has stated "There is a catena of decisions in support of what has been said by (Tek Chan d, p.330 paragraph 12) that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right." The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the sche me of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of section 20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of section 20(4). As he has not deposited the entire amount due the protection is no more available.