Case: HARBANS KAUR  Vs. IQBAL SINGH AND ANR

ground under this clause shall he filed unless the landlord has given it notice to the tenant by registered post, acknowledgment due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the (late of service of notice.Explanation.­ For the purposes of this clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same;or having been deposited with the Rent Authority;or”22. Section 9(a) provides that eviction can be ordered only when the tenant has neither paid nor tendered the rent due from him for four months. He submits that admittedly after the receipt of the notice dated 27.03.2004 demanding arrears of rent of Rs.1,15,945/­, the tenant has paid an amount of Rs.95,200/­ which covered the payment of rent upto December, 2003 and part of rent of January, 2004. He submits that notice was issued demanding arrears of rent from August, 2003 to 29.02.2004 and the rent upto December, 2003 having been deposited there was no default for four month entitling the landlord to claim eviction.23. Section 9 second proviso of Act, 2001 contemplates a notice by landlord demanding arrears of rent and the tenant has not made payment of rent within 30 days from the service of the notice. The words“arrears of rent” mean the arrears as demanded by notice and the ground for eviction as contemplated under Section 9(a) is“the tenant has neither paid nor tendered the amount of rent due from him for four months” . The payment and tendering of rent thus relates to rent for four months. The tenant cannot be heard saying that since although his payment was done complying the arrears of rent as demanded but since he has made the payment upto December, 2003 and the part of January, 2004, he should be relieved from eviction. What Section 9 contemplates is payment or tendering the amount of rent due from him for four months, thus, tendering of payment of rent is rent due from him for four months. In the event rent due from him for four months is not paid the ground as contemplated under Section 9(a) is made out. We in this context notice a judgment of this Court inPrakash Mehra vs. K.L.Malhotra, (1989) 3 SCC 74. In the above case this Court has occasion to consider the provision of Section 14(1)(a) of Delhi Rent Control Act. The arrears demanded by the notice were the arrears which were required to be paid by the tenant. The High Court has held that Section 14(1)(a) of the Act made out a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent was served on him by the landlord. In the above case the contention of the landlord was that the rent which was due after the notice should also be treated to be as defaulted rent which argument was not accepted. In paragraph 7 of the judgment following was laid down:“7. It is urged before us by learned Counsel for the appellant that Section 14(1)(a) of the Act contemplates the payment or tender of the whole of the arrears of rent legally recoverable from the tenant on the date when the demand notice is sent including the rent which has accrued after service of the demand notice. When the notice was sent on 7 May 1976, rent for the months of April and May 1976 lad become due, and as two months was given for payment of the arrears, it would include also the rent which had accrued during the said period of two months. We are not satisfied that there issubstance in the contention. The arrears of rent envisaged by Section 14(1)(a) of the Act are the arrears demanded by the notice for payment of arrears of rent. The arrears due cannot be extended to rent which has fallen due after service of the notice of demand. In this case, the two bank drafts representing the arrears of rent covered by the notice of demand had been tendered within two months of the date of service of the notice of demand. The High Court is right in the view taken by it. We are not satisfied that the construction placed by B. C. Misra, J. in Jag Ram Nathu Ram v. Surinder Kumar [S.A.O. No. 52 of 1975 decided on 28 April, 1976 (Del)] and in S.L Kapur v. Dr. Mrs. P. D. Lal, [1975 Ren C.J. 322 (Del)] lays down the correct law on the point. ”24. This Court in the above case has held that arrears of rent as envisaged in provision of Section 14(1)(a) of the Delhi Rent Control Act are the arrears demanded by the notice for payment of arrears of rent. In the present case arrears demanded by the notice i.e. Rs.16,564/­ per month starting from December, 2003 to February, 2004 totalling Rs.1,15,945/­ were required to be paid by the tenant, the tenant having paid only Rs.95,200/­ as per his calculation of the rent at the rate of Rs.13,600/­ per month has committed default. According to the learned counsel for the tenant, the rent paid by the tenant was sufficient to cover the rent upto December, 2003 and part of January, 2004, admittedly, the arrears as demanded having not been paid and we having found that the landlord has demanded arrears of rent for seven months according to rate of rent Rs.16,564/­ per month which was being paid by the tenant even before the enforcement of the Act, 2001 and after the enforcement of the Act, 2001. The landlord having not added 10% increase in the rent demanded, there was no breach of Section 6 and the High Court has committed error in allowing the writ petition of the tenant.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]15. A comparison of scheme of Section 6 as it existed in Act, 1950 and Section 6 as it brought under Act, 2001 makes it clear that although the tenant under the old Act was entitled to apply for fixation of standard rent if the rent was excessive whereas under Section 6 of the Act, 2001 tenant has not been given any right to pray for reduction of the rent. It is true that Section 6(1) begins with theanything contained in anyuse (b) providesthe premises have been let out on or afterthe provision contemplates that the rent payable at the time of commencement of the tenancy shall be liable to be increased at the rate of 7.5% per annum.Section 14 of the Act contains procedure for revision of rent which provides that landlord may seek revision of rent under Section 6 and 7 by submitting a petition before the Rent Tribunal accompanied by affidavits and documents, if any. Section 14section (1) uses the wordsIt is not obligatory for every landlord to seek revision of rent in accordance with Section 6. Section 6 contains provision entitling landlord to seek revision of rent notwithstandinganything contained in anyagreement between landlord and tenant. Section 6 empowers the landlord to obtain revision of rent and to calculate the rent from date of initiation of tenancy. But in the event landlord does not choose to invoke the machinery of revision of the rent as provided in Section 6 and Section 14, the agreed rent between the parties shall not automatically be changed nor the tenant can unilaterally revise the rent. Section 6 is also beneficial to the tenant to the extent that any contrary agreement between the parties to increase the rent annually more than as provided under Section 6 cannot be enforced by a landlord after the enforcement of the Act. In the event landlord applies for revision of the rent, the revision of rent has to be in accordance with the formula as provided under Section 6(1) and 6(2) of the Act. The statutory scheme does not indicate that the tenant can unilaterally compute the rent as per formula under Section 6(1) from the inception of the tenancy and reduce the amount of rent which he was paying immediately before the enforcement of the Act. In the present case, the tenant has come up with the case in his written statement that he has recomputed the rent from inception of tenancy and has arrived at calculation that the rent payable with effect from the enforcement of Act, 2001 wasonly and relying on the said computation he deposited an amount ofinresponse to the notice. The High Court in its judgment has held that after the enforcement of the Act, 2001 no agreement can provide for higher revision of rent.The observation of the High Court that landlord was entitled to the rent as was payable on the date of commencement of the Act, 2001 without its revision is perfectly correct. The landlord cannot claim revision of rent as per agreement at the rate of 10% per annum after the enforcement of the Act. The present is not a case that the landlord is claiming rent after the enforcement of the Act by adding 10% increase in the rent. The landlords case throughout is that the rent at the rate ofper month was being paid by the tenant since before the commencement of the Act and even after the commencement of the Act, till the month of July, 2003 the tenant paid rent at the rate ofper month.20. Section 4 of the Act which deals with the agreed rent provides that rent payable for any premises shall subject to the provisions of this Act, be such as may be agreed between the landlord and the tenant. When the tenant was paying the rent ofper month before the enforcement of the Act as per the rent agreement, the said amount was agreed amount which was being paid before the enforcement of the Act. It is true that in the agreed amount which was being paid immediately before the commencement of the Act, the landlord cannot increase @ 10% of the rent as per agreement. The increase after the enforcement of the Act shall be in accordance with Section 6 and in the event the tenant does not agree for the said increase, the landlord is free to file application under Section 6 read with Section 14. In view of the foregoing discussion, we are of the view that the High Court has not appreciated the true import of Sections 6 and 7 of the Act, 2001 in observing that the tenant is not in default.Section 9 second proviso of Act, 2001 contemplates a notice by landlord demanding arrears of rent and the tenant has not made payment of rent within 30 days from the service of the notice. Themean the arrears as demanded by notice and the ground for eviction as contemplated under Section 9(a)tenant has neither paid nor tendered the amount of rent due from him for four. The payment and tendering of rent thus relates to rent for four months. The tenant cannot be heard saying that since although his payment was done complying the arrears of rent as demanded but since he has made the payment upto December, 2003 and the part of January, 2004, he should be relieved from eviction. What Section 9 contemplates is payment or tendering the amount of rent due from him for four months, thus, tendering of payment of rent is rent due from him for four months. In the event rent due from him for four months is not paid the ground as contemplated under Section 9(a) is made out. We in this context notice a judgment of this Court inPrakash Mehra vs. K.L.Malhotra, (1989) 3 SCC 74.   In the above case this Court has occasion to consider the provision of Section 14(1)(a) of Delhi Rent Control Act. The arrears demanded by the notice were the arrears which were required to be paid by the tenant. The High Court has held that Section 14(1)(a) of the Act made out a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent was served on him by the landlord. In the above case the contention of the landlord was that the rent which was due after the notice should also be treated to be as defaulted rent which argument was not accepted.This Court in the above case has held that arrears of rent as envisaged in provision of Section 14(1)(a) of the Delhi Rent Control Act are the arrears demanded by the notice for payment of arrears of rent. In the present case arrears demanded by the notice i.e.per month starting from December, 2003 to February, 2004 totallingwere required to be paid by the tenant, the tenant having paid onlyas per his calculation of the rent at the rate ofper month has committed default. According to the learned counsel for the tenant, the rent paid by the tenant was sufficient to cover the rent upto December, 2003 and part of January, 2004, admittedly, the arrears as demanded having not been paid and we having found that the landlord has demanded arrears of rent for seven months according to rate of rentper month which was being paid by the tenant even before the enforcement of the Act, 2001 and after the enforcement of the Act, 2001. The landlord having not added 10% increase in the rent demanded, there was no breach of Section 6 and the High Court has committed error in allowing the writ petition of the tenant.