Very Important Point
Filing of an eviction petition on ground of non-payment of rent cannot be regarded as filing of a suit for recovery of money within meaning of Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985.

Order

The respondent had filed a suit against the petitioner herein for eviction of the premises which had been let by the respondents to the petitioner. During the pendency of the suit, an application under Section 11(4) of the Bombay Rent Act was filed. In this application, it was stated that the petitioner herein had not been paying the rent and, therefore, appropriate orders as contemplated by the said sub-section should be passed.

2. In the reply which was filed to the said application, it was, inter alia, contended that the petitioner company had become sick and a reference had been made to the B.I.F.R. under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short “the Act”). The contention of the petitioner herein was that in view of the provisions of Section 22 of the Act no suit for recovery of money could be filed or proceeding taken against the present petition­er.

3. The trial Court vide its order dated 25th January, 1999 rejected the said application under Section 11(4) which was filed by the re­spondent. Thereupon a revision was filed and the Appellate Bench of the Small Causes Chief Court, Ahmedabad by its order dated 12th July, 1999 came to the conclusion that the provisions of Section 22 of the Act were not applicable in such a case. It placed reliance on a deci­sion of this Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association1 . The petitioner thereafter filed a civil revision before the High Court but with no success.

4. It is submitted by Shri Ranjit Kumar, learned counsel for the petitioner that in view of the plain language of Section 22 of the Act, the application under Section 11(4) of the Bombay Rent Act was not maintainable. He also contended that no notice as contemplated under Section 12(2) of the Bombay Rent Act had been issued and, there­fore, the question of an application under Section 11(4) being filed could not arise.

5. It is no doubt true that Section 12(2) requires a notice to be issued in the manner provided by Section 106 of the Transfar of Property Act before a suit of recovery of possession on ground of non-payment of rent can be filed. This is an objection to the maintain­ability of the suit which will have to be decided when the court takes up for consideration the question as to whether order for eviction should be passed or not. Notwithstanding this objection having been taken, an application under Section 11(4) can be filed. The said sub-section reads as follows :

11. Court may fix standard rent and permitted increase in cer­tain cases. ....................

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(4) Whether at any stage of a suit for recovery of rent, whether with or without a claim for possession of the premises, the Court is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed, the Court shall, in any other case if it appears to the Court that it is just and proper to make such an order the Court may make an order directing the tenant to deposit the Court forthwith such amount of the rent as the Court considers to be reasonably due to the landlord, or at the option of the tenant an order directing him to pay to the landlord such amount thereof as the Court may specify. The Court may further make an order directing the tenant to deposit in Court periodically, such amount as it considers proper as interim standard rent or at the option of the tenant an order to pay to the landlord such amount thereof as the Court may specify, during the pendency of the suit. The Court may also direct that if the tenant fails to comply with any order as aforesaid, within such time as may be allowed to it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and condi­tions as the Court may specify.

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6. While dealing with an application under Section 11(4), the Court will have to a