B SAROJINI Vs. RAJESWARI SUBRAMANIAM

JUDGEMENT

(1.) C.R.P.No.1563 of 2000 has been preferred by the revision petitioner/tenant against the fair and decretal order in R.C.A.No.86 of 1991 on the file of the II Additional Subordinate Judge-cum-Appellate Authority, Coimbatore, confirming the order and decree, dated 29.7.1991 in R.C.O.P.No.108 of 1987 on the file of the I Additional District Munsif-cum-Rent Controller, Coimbatore.

(2.) C.R.P.No.1564 of 2000 has also been preferred by the revision petitioner/tenant against the fair and decretal order, dated 17.12.1999 in R.C.A.No.28 of 1992 on the file of the II Additional Subordinate Judge-Cum-Appellate Authority, Coimbatore confirming the decretal order, dated 29.7.1991 in R.C.O.P.No.43 of 1987 on the file of the I Additional District Munsif-cum-Rent Controller, Coimbatore.

(3.) THE learned counsel for the revision petitioner/tenant submitted before me that the agreed rent for the premises is only Rs.210, whereas the landlord was having a sum of Rs.2500 as advance. Under the provisions of Sec.7 of the Act, the landlord is entitled to collect only a month's rent as advance. Basing reliance on the ruling of the Supreme Court of India reported in K.Narasimha Rao v. T.M.Nasimuddin Ahmed K.Narasimha Rao v. T.M.Nasimuddin Ahmed K.Narasimha Rao v. T.M.Nasimuddin Ahmed, (1996)2 L.W. 159 it was contended that the landlord should have adjusted the rent which was lying in his hands as advance against the arrears of rent and if such a calculation is made, the tenant was in arrears for a period of one month only, which cannot be said to be wilful. In the last portion of paragraph 7 of the said decision, it has been held: ?7. ?Cl.(a) of Sub-sec.(2) enacts that a landlord is entitled to claim and receive only the agreed rent, which was Rs.150 per month in this case. THE proviso to clause (a) permits the landlord to receive by way of advance an amount not exceeding one month's rent only i.e., Rs.150 in the present case. Cl.(b) provides for the situation where any sum is paid by the tenant to the landlord in excess of the agreed rent save as provided in Cl.(a) i.e., any sum paid in excess of the agreed rent and an amount not exceeding one month's rent by way of advance. Cl.(b) enacts that the amount in excess of the sum which the landlord is permitted to take under Cl.(a) shall be refunded by the landlord to the person by whom it was paid, i.e., the tenant, or at the option of the tenant, shall be otherwise adjusted by the landlord. In other words, Cl.(b) requires that the excess amount paid to the landlord has to be refunded by the landlord to the tenant unless the tenant exercises the option of requiring the landlord to otherwise adjust the excess amount. It is clear that this excess amount available with the landlord is only for the benefit of the tenant, the liability to refund the amount to the tenant being immediate unless the tenant exercises the option to get it adjusted otherwise. THE character of the excess amount undoubtedly is that it is the tenant's money in the hands of the landlord for return to the tenant or for adjustment towards the dues of the tenant, at the tenant's option. Any other stipulation in contravention to it has no legal effect being null and void. ?In Modern Hotel, Gudur, represented by M.N.Narayanaiah v. K.Radhakrishnaiah and others Modern Hotel, Gudur, represented by M.N.Narayanaiah v. K.Radhakrishnaiah and others Modern Hotel, Gudur, represented by M.N.Narayanaiah v. K.Radhakrishnaiah and others, (1999)1 L.W. 560 it has been held by the Supreme Court that in view of the provision under Sec.7(3) of the Act, the stipulation that the advance amount collected in excess of one month's rent will be refundable at the end of the tenancy is null and void, then the amount so collected from the premises became payable to the tenant immediately. THE learned counsel for the revision petitioner further contended that both the courts below have failed to take notice of the rulings of the Supreme Court cited above and committed an error in holding that the tenant has committed wilful default in the payment of rent. However, he had submitted that the petition under Sec.9 of the Act by the tenant to deposit the rent in court had not been done as per the provision laid down under the Act, as no notice had been issued to the landlord requiring him to furnish the bank in which the amount has to be deposited and that he had refused to accept the rent and the petition filed by the tenant is not in conformity with the provisions of Sec.9 of the Act.