OOMMEN Vs. JACOB

JUDGEMENT

(1.) Clause.7, Clause.8, Clause.9 -- Until and unless the tenant proves that the amount was actually taken to the landlord and offered to him for payment there cannot be said to have been any lawful tender -- Before the peon took the money order to the landlord it could not even be ascertained whether the remittance would be revoked or not by the remitter

(2.) This Second Appeal arises in a case under the Travancore Cochin Buildings (Lease and Rent Control) Order of 1950. On 10.3.1952 the Rent Controller, Kottayam, passed an order directing the tenant in this case to pay to the landlord within two weeks from the date of the order all arrears of rent due till the date of payment with interest thereon at 6 per cent per year and allowing the landlord to evict the tenant after one month from the date of the order if he defaulted to pay the arrears as directed within the specified time. On 22.3.1952 the tenant sent the amount to the landlord by a postal money order. The landlord refused the money order, according to the tenant without any lawful excuse, and according to the landlord because the money order was taken to him only long after the time limit fixed by the Rent Controller. On 7.5.1952 the tenant deposited in the Taluk Office, under Cl. 8 of the Buildings Lease and Rent Control Order and the Government Notification R. Dis. 6549/50/P.W.C. dated 6.12.1951, all arrears of rent due till then. His case is that the money order refused by the landlord was received back by him only on 8.4.1952, that it was only on that date that he came to know of the landlord's refusal of the money order, and that the thirty days' time from the date of refusal allowed by the Notification of 6.12.1951 to make the deposit begins, therefore, only from 8.4.1952. On 16.5.1952 the landlord filed a petition in the Kottayam Munsiff's Court praying for execution of the Rent Controller's order dated 10.3.1952 and eviction of the tenant from the building on the ground that the latter had defaulted to pay the arrears of rent within the time allowed by that order. The tenant opposed the application contending that he had sent the arrears to the landlord by a money order within the time allowed by the Rent Controller, that on the refusal of the money order by the landlord which came to his knowledge only on 8.4.1952 he had deposited the amount under the notification mentioned above on 7.5.1952, that the said deposit was sufficient compliance of the Rent Controller's order, and that the landlord was not therefore entitled to evict him from the building. He also filed an affidavit in support of his objection petition. But in the affidavit there is no mention of the date on which the money order was taken to the landlord for payment and refused by him. The landlord filed a counter affidavit on 9.6.1952 controverting the tenant's objections. In the counter affidavit it was stated that the landlord refused the money order because it was brought to him for payment long after the time allowed by the Rent Controller and that the tenant had therefore failed to comply with the Rent Controller's order and the landlord was competent to execute that order and evict him from the building. The District Munsiff rejected the landlord's execution application by a short order which reads as follows:-

(3.) The view of the courts below that a mere remittance of the money order within the time limit fixed by the Controller would be a proper tender of the amount is clearly untenable. According to the Rent Controller's order, the arrears had to be paid to the landlord on or before 24.3.1952. Until and unless the tenant proves that the amount was actually taken to the landlord and offered to him for payment there cannot be said to have been any lawful tender. The mere remittance of the amount by a money order would not constitute a lawful tender at all. Until the Post peon pays the money order to the payee it is open to the remitter to recall the money order under S.44 of the Post Office Act. Till the money is actually paid to the payee the property in the amount remitted by the money order remains with the remitter and not with the payee, and until the peon takes the money order to the payee to make the payment the latter does not even know that the amount is being offered to him. There can be no tender without the person to whom the amount is tendered being made aware of the offer. The date of tender is therefore the date on which the peon took the money order to the landlord for payment and not the date on which the tenant handed in the money order to the Postal authorities. Before the peon took the money order to the landlord it could not even be ascertained whether the remittance would be revoked or not by the remitter. In support of his contention that mere remittance by money order within the time fixed by the Rent Controller, without the Post peon taking the money order to the payee for payment, would be a sufficient tender the respondent's counsel relied upon the case Neelakantan v. Kerala Gilt Edged Security Life Assurance Co. Ltd., Quilon, 1951 KLT 789 = 7 D.L.R. Travancore Cochin 112 in which it has been held: