L PREM Vs. RAJAN C RAMCHANDANI

JUDGEMENT

(1.) THIS revision has been filed by the revision petitioner who was the appellant before the Rent Control Appellate Authority and respondent before the Rent Controller, aggrieved against the order passed in R.C.A.No.150 of 2007 dated 31.3.2009 confirming the eviction order passed by the learned Rent Controller in R.C.O.P.No.1083 of 1999 dated 31.01.2007.

(2.) FOR convenience sake, the status of the parties as to the tenancy agreement is maintained in this judgment.

(3.) LEARNED counsel for the revision petitioner/tenant would submit in her arguments that the learned Rent Control Appellate Authority was not right in confirming the order of eviction passed by the learned Rent Controller. She would further submit that there was no relationship of landlord and tenant in between the parties and therefore, the Rent Control Original Petition itself is not maintainable. She would further submit that the tenant originally became the tenant of the premises under Seetha Nirmaldoss and for that purpose only, the lease deed was sought to be produced as Ex.R7 into Court. She would further submit that the said document, even though not registered under the provisions of Registration Act, can be used in evidence for collateral purpose as envisaged under Section 49 of the Registration Act. She would further submit that the said document Ex.R7 was admitted in evidence after paying the stamp duty and penalty to an extent of Rs.87,450/ - and therefore, the said document can be treated as unregistered document attracted under Section 49 of the Registration Act. She would further submit that the quantum of rent was decided at Rs.2,000/ - per month. Even though, it has been mentioned in the unregistered lease deed, the lower Courts have not accepted that a sum of Rs.1,75,000/ - was paid as advance to the erstwhile landlord Seetha Nirmaldoss. She would further submit in her arguments that the tenant deposited a sum of Rs.2,000/ - per month in a separate Bank account since he did not know who was the landlord after the death of Seetha Nirmaldoss and the said fact ought to have been taken into account and ought to have been found that the tenant did not commit any willful default. She would also submit that the tenant had also paid nearly a sum of Rs.2,00,000/ - towards arrears of tax for the premises and therefore, he could not mobilise a sum of Rs.1,42,000/ - to deposit as per the orders passed in RCA No.876 of 2000. She would also submit that the said tax was paid by the tenant since the authorities had threatened the tenant to cut the service connection if the tax is not paid and therefore, the amount paid by the tenant ought to have been given credit to payment of rent. She would also submit that the said default committed by the tenant was not willful since he had deposited monthly rent into a separate Bank account. She would also submit in her arguments that the advance paid to the former landlord has to be taken into account for the continuance of lease in respect of the property with the present landlord. She would further submit that the advance amount paid was to the tune of Rs.1,75,000/ - and even without payment of advance, the lease can be created in between the parties and the payment of advance amount more than the amount of rent per month can at any time be refunded to the tenant or adjusted with the rent payable by the tenant for the demised premises. Therefore, she would submit in her argument that the payment of advance is not a separate one but collateral transaction which does not require registration and therefore, it would attract under section 49 -C and the proviso of the Registration Act. The payment of advance paid under Ex.R7 ought to have been taken as collateral transaction and ought to have been adjusted towards the arrears of rent, if any. She would further submit that if the said advance is adjusted towards the alleged arrears of rent on the date of filing of the petition, there will not be any arrears of rent to be paid on the date of petition. She would further submit that there could not be any arrears to be paid from October 1996 to April 1999 for 31 months to the tune of Rs.64,000/ - She would also submit that the said point of adjustment of rent from and out of the advance amount has been stated in the judgment of the Apex Court reported in 1996(3) SCC 45 ( Narasimha Rao vs. T.M.Nasumuddin Ahamed). In the said case, it has been categorically laid down by the Honourable Apex Court that whenever an advance amount was obtained by the landlord for exceeding one month rent from the tenant, obligation is imposed by the Rent Act on the landlord to refund the excess amount to the tenant immediately or to adjust the same towards the rent due. She would also submit that this Court has also come to a similar conclusion following the said decision of the Honourable Apex Court reported in 1996 TNLJ 407 (Selvaraj vs. Meenakshi Bai and another). She would further submit that if the advance amount has been adjusted towards the rent, there would not be any arrears of rent on the date of filing of RCOP. Therefore, there could not be any willful default. She would also submit that the rent payable during the pendency of the Rent Control Original Petition as well as the Rent Control Appeal were also duly paid by the tenant and he had bonafide maintained separate bank account for the deposit of monthly rent at Rs.2000/ - per month after paying the taxes from and out of it. Therefore, she would submit in her argument that there is no willful default committed by the tenant and the judgments of both the forums below are not in accordance with law, especially, in respect of the admissibility of the payment of advance amount as the collateral transaction to the main transaction of Ex.R7 lease deed. Therefore, she would request the Court to interfere with the orders of the learned Rent Control Appellate Authority and set aside the orders passed thereon and to dismiss the Rent Control Original Petition filed before the learned Rent Controller.