S N BHARUCHA Vs. PROVA RANI GHOSH

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 20.6.1984 passed by the Division Bench of the Small Causes Court, Bombay in Appeal No.31/84. That Appeal was filed by the present petitioner challenging the judgment and decree dated 30.11.1983 passed by the Small Causes Court, Bombay in R.A.E.& R. suit No.858/4931 of 1971. That suit was filed by the respondent, claiming that she is owner of the building known as 'Leela Building', situated at 5th Road, Santacruz (E), Bombay - 055, and in that building the petitioner is a tenant of block No.2 on the ground floor. She claimed a decree of eviction against the tenant on the ground that the tenant is not ready and willing to pay the rent. The Trial Court recorded findings in favour of the landlord and decreed the suit, directing the tenant to vacate the suit premises. In the Appeal filed by the tenant the Appellate court confirmed the findings recorded by the Trial Court in favour of the landlady and dismissed the Appeal. It is these findings recorded by the subordinate Courts, which are challenged in the present petition.

(2.) THE admitted fact is that a notice dated 26.8.1971 was issued by the landlady to the petitioner-tenant under section 12(2) of the Bombay Rent Act, demanding arrears of rent for the period from 1.2.1970 to 31.7.1971. It is also undisputed before me that within one month from the receipt of this demand notice, the tenant sent a cheque of the amount of arrears of rent to the landlady, but the landlady refused to accept the cheque. The cheque was sent by the tenant along with his reply dated 11.9.1971. Both the courts below have relied on the judgment of the Supreme Court that a tender of the amount of arrears of cheque is not valid tender. The only question that arose for consideration is whether the tenant had complied with the demand notice by sending the amount of arrears of rent by cheque. The judgment of the Supreme Court, which has been relied on by the Appellate Court was in the case of Damadilal and others v/s. Parashram and others (A.I.R. 1976 Supreme Court 2229). In that case the Supreme Court was considering the judgment of the High Court, where the High Court had observed that :

(3.) SHRI Walavalkar, the learned counsel for the respondent urged that previously the tenant had sent some cheques which were un-dated and not signed and the tenant had also stopped payment of one of the cheques. Therefore, in the submission of Shri Walavalkar, the landlady was justified in refusing to accept the arrears of rent by cheque. However, in my opinion, a question that falls for consideration in this case is whether the tenant has by sending the amount of arrears of rent by cheque, complied with the demand notice or not. Nothing prevented the landlady from stating in the demand notice that she will accept the payment of arrears only in cash and not by cheque. But having not stated so in the notice it was opened to the tenant to tender the amount of arrears by cheque. Therefore, in my opinion, the tenant has complied with the demand notice by tendering the amount within one month from the receipt of the demand notice. The Supreme Court in its judgment in Mahendra Raghunath-das Gupta v/s. Vishvanath Bhikaji Mogul & Ors. (JT 1997 (5) S.C. 363) in paragraph 8 has observed thus :-