RAMCHANDRA DATTATRAYA Vs. VAIDHYACHAND MANIKCHAND

JUDGEMENT

(1.) THIS is a revisional application by the receiver in Insolvency and it has been preferred against the decree passed by the learned District Judge substantially reducing his claim against the Opponents. The Receiver in Insolvency claimed Rs. 3,400/- and odd by way of rent for the premises let out to the Opponents. This claim was resisted by the Opponents on several grounds. The learned trial Judge rejected all the grounds raised by the Opponents and passed a decree for the full amount claimed by the receiver. When the matter went in appeal, the lower appellate Court has accepted some of the arguments urged before him by the Opponents and has reduced the decretal claim to Rs. 847-6-9. It is this order which has given rise to the present revisional application.

(2.) THE whole of the dispute centres round two points. It is common ground that three premises were let out by the insolvent to the Opponents on 31-3-1948. They were a showroom, an open space and two rooms in the rear; and their monthly rents respectively were Rs. 160/-, Rs. 70a and Rs. 40/ -. On 8-4-1948 the tenant deposited Rs. 2,100/- with the insolvent landlord. The deposit receipt provided, amongst other things, that if the tenants did not pay the rent regularly, the landlord would be entitled to appropriate the requisite amount from the deposit, and, if the tenants vacated the premises, the balance would be returned to him. The first point which has been raised before me by Mr. Joshi is in respect of this appropriation. The lower appellate Court has held that the tenants were entitled to insist upon the appropriation of the whole of the amount due in respect of all the three premises and this plea has substantially been upheld by the lower Appellate Court. One of the reasons given by the learned Judge In accepting this plea was based on the provisions of Section 18, Sub-section (2) of the Rent Act. Mr. Chandra- chud for the tenants has fairly conceded that this part of the judgment cannot be supported. It is now held by this Court that more than six months' rent cannot be appropriated under the provisions of Section 18 (2 ).

(3.) THE lower Appellate Court has then relied upon the deposit receipt itself and he has found that by virtue of this specific contract between the parties the tenants were entitled to call upon the landlord to make adequate appropriations from the amount of the deposit and this plea has also been accepted by the lower appellate Court. Mr. Joshi quarrels with the finding of the lower appellate Court on this point on two grounds. He contends that the claim made by the tenants in effect is a claim for set-off, and, according to Mr. Joshi, such a claim cannot be made and entertained by the insolvency Court without the proof of the debt. In support of this argument, Mr. Joshi relies upon the provisions of Section 28, Sub-section (2) of the Provincial Insolvency Act. Mr. Chandrachud resists this plea and contends that Section 28, Sub-section (2) cannot apply to the claim for set-off be- , cause, according to him, a claim for set-off made by the tenants in present suit cannot be regarded as a commencement of legal proceedings to recover a debt. I do not propose to decide this point in the present revisional application because I am disposed to think that the petitioner is not entitled to raise this point for the first time in a revisional application. It is, true, as Mr. Joshi points out, that both the parties were at issue on the question as to whether a claim for set-oil can be made. But the contest centred round Section 18 (2) of the Rent Act and the construction of the document. The additional argument on which Mr. Joshi seeks to challenge the order passed by the lower appellate Court was never put in issue and the Courts below have not been called upon to consider whether the tenants have in fact proved their "debt or not. There is considerable force in the argument urged before me by Mr. Chandrachud that if this specific point had been taken by the receiver in the trial Court the tenants would have asked for leave to claim a set off on the assumption that Section 28 (2) applied to such a claim. Therefore, I do not propose to entertain this new point taken by Mr. Joshi before me.