KARTAR SINGH Vs. P C MUKHERJEE

JUDGEMENT

(1.) This appeal under Section 39 of the Delhi Rent Control Act, 1958 (for Short 'the Act') is directed against the judgment and order dated 18th November, 1977 of the Rent Control Tribunal confirming the order dated 3rd August, 1977 of the Rent Controller dismissing the appellant's application for eviction of the respondent on ground of nonpayment of rent under Section 14(l)(a) of the Act.

(2.) . The appellant served a notice of demand dated 10th November, 1976 requiring the respondent to pay the arrears of rent at Rs. 240.00 per month from 1st March, 1976 onwards. This notice was duly served. No amount was either paid or tendered. The appellant filed the petition alleging that the respondent had already availed the benefit under Section 14(2) of the Act in earlier proceedings : the respondent neither paid nor tendered any rent in spite of service of notice of demend dated 10th November, 1976 for second time and claimed eviction on ground of non-payment of rent. The respondent- tenant in reply admitted that he had availed the benefit under Section 14(2) of the Act in earlier case. He however submitted that rent for March, April, and May, 1976 was deposited in court on 25th May, 1976, that rent for June. July and August, 19/6 was deposited on 28th October, 1976. rent for September, October November and December 1976 was sent by money order which was received by the appellant; rent for January and February, 1977 was sent by cheque which was duly encashed by the appellant. The respondent- tenant further alleged that the petitioner was not living in the back portion of the shop and he was not aware of any other address of the appellant until he gave it in the notice and on account of non-availability of the appellant the rent was deposited by him with the Rent Controller. The Additional Rent Controller and the Rent Control Tribunal have held that the rent for the period from March to August, 1977 was deposited with the Rent Controller on 25th May, 1976 and 28th October, 1976 ; rent for September and October, 1976 was paid to the appellant on 29th November, 1976 and further held that rents were paid to the appellant within two months of the notice of demand dated 10th November, 1976.

(3.) . Learned counsel for the appellant submits that rent for September and October, 1976 was sent on 29th November, 1976 and rent for subsequent period has also been received by the appellant. He however submits that deposits made on 25th May, 1976 and 28th October, 1976 are invalid as the same were not within time in accordance with Sections 26 and 28 of the Delhi Rent Control Act, 1958 He submits that the rent for March, 1976 ought to have been deposited upto 6th May, 1976 and similarly he says that rent for June, July, August, 1976 was not deposited within time and therefore the two deposits are invalid. Reading of Sections 26 and 27 of the Act shows that the tenant was supposed to tender every month within 15 days of the expiry of the month. It provides that if the rent tendered by the tenant is not accepted by the landlord he is to deposit the same within 21 days thereafter. Learned counsel submits that Section 28(1) of the Act uses the word 'shall' and therefore if the deposit is not made within 21 days, the same would be invalid. Learned counsel for the respondent on the other hand submits that the limitation of 21 days as mentioned in Section 28 of the Act is only directory and that the deposit of rent by the tenant with the Controller for payment to the landlord was a tender to the landlord although it had been made more than 21 days of its becoming due. ln S.L Kapur v. Dr. Mrs. P.D. Lal. 1975 RCJ 322 and M/s. Jag Ram Nathu Ram v. Shri Surinder Kumar. 1978 (2) RCR 439 it has been held that the limitation of 21 days for deposit of rent mentioned in Section 28(1) of the Act is directory and that if the amount has been deposited with the Controller it would amount to a tender to the landlord. Admittedly rent from March, 1976 to August, 1976 stands deposited with the Rent Controller and as such it amounts to payment or tender to the appellant-landlord. Rent for September and October, 1976 was admittedly received by the appellant on 29th November, 1976. Thus rent for the period from March, 1976 demanded in the notice dated 10th November 1976 stood paid or tendered on or before 29th November, 1976 i.e. within two months from the date of servise of notice of demand. The respondent is therefore not liable to eviction on ground of non-payment of rent.