RAGHBIR SINGH Vs. SHEELA WANTI

JUDGEMENT

(1.) THE petitioner is aggrieved by an order dated 15th September 1998 passed by learned Rent Control Tribunal (RCT) whereby an appeal filed by the respondent against the order of learned Additional Rent Controller (ARC) dated 17th January 1998 was allowed and the eviction order passed by learned ARC was set aside.

(2.) BRIEF facts relevant for the purpose of deciding this petition are that that the tenant/respondent had suffered an order under Section 14 (1) (a) of delhi Rent Control Act (DRC Act), however, the eviction order was not passed against the tenant giving him benefit of Section 14 (2) of the Act vide judgment dated 22nd January 1981 of the Court of RCT. This judgment became final as far as tenant was concerned, although the landlord was aggrieved by other part of the judgment and had preferred an appeal against that judgment. After this judgment, tenant again committed a default in payment of the rent and he failed to pay the rent from 1st January 1992 onwards. The landlord issued a demand notice dated 7th October 1992 calling upon the tenant that he was in arrears with effect from 1st January 1992 and he should pay and tender arrears @ Rs. 80 per month with effect from 1st January 1992 up to 30th September 1992 within a week of receipt of notice and pay rent @ Rs. 88 per month (being 10% statutory increase) thereafter. The landlord also called upon the tenant to pay above arrears of rent along with 15% simple interest per annum as permissible under section 26 of DRC Act. After receipt of this notice, the tenant sent a bank draft of Rs. 720/- dated 1st November 1992, i. e. rent of 9 months to Mr. Vijay tandon, advocate of the landlord along with a letter dated 7th November 1992 specifying that the rent was being sent for a period from 1st January 1992 to 30th September 1992. The tenant subsequently sent another draft of Rs. 528/- on 11th May 1993 stating that it was rent from 1st October 1992 to 31st March 1993 at the enhanced rate of Rs. 88/- per month. However, Mr. Vijay Tandon, Advocate of the landlord to whom the draft was sent, returned the draft saying that he was not authorized to accept the rent and the same should be paid directly to the landlord (petitioner herein ). On the drafts being returned, the tenant got the drafts revalidated and deposited the same in the bank account of the landlord (account number was already with tenant) with Indian Overseas Bank, punjabi Bagh, Delhi on 21st June 1993. Another bank draft for subsequent period amounting to Rs. 1056/- was also deposited in the bank account of the landlord towards rent from 1st April 1993 to 31st March 1994. The landlord had filed this eviction petition against the tenant (respondent herein) on the ground that the tenant was a habitual defaulter and after passing of the first order under section 14 (1) (a) and gaining advantage of Section 14 (2), he had committed three consecutive defaults and hence landlord was entitled to a decree of eviction. Learned ARC came to conclusion that the tendering of rent to Mr. Vijay Tandon, advocate for the landlord, was in order and no default could be found with the tendering of rent. However, learned ARC observed that irrespective of the tendering of rent, the tendering made by the tenant was not a complete tendering in accordance with law and the tenant had failed to clear the arrears of the rent and had only partially tendered the rent despite notice of the landlord.

(3.) THERE is no dispute that the tenant was in arrears of rent from 1st january 1992. In the notice of demand served by the landlord, the landlord had not only demanded the arrears of rent from 1st January 1992 till 30th September 1992 @ Rs. 80/- per month and thereafter @ Rs. 88/-, but had also demanded simple interest payable @ 15% per annum as per Section 26 of DRC Act over the unpaid rent. The learned ARC found that there was no compliance of the notice of demand of the landlord and the tenant had failed to pay the rent due within two months of the receipt of the notice of demand to the landlord. The tenant had tendered rent only up to September 1992 while sending a cover letter dated 7th November 1992. The rent for the month of October 1992 had also become due and payable to the landlord. Learned ARC observed that it was not sufficient to send the rent after notice of demand only up to September 1992 but the tenant was obliged to send all arrears of rent up to date and non sending of tendering of rent up-to-date amounted to second default. Since it was the second default of the tenant and he had not tendered the entire arrears of rent, learned ARC allowed the eviction petition.