Judgment

HEGDE, J.: These are two connected appeals. They arise from a suit which originated in the Court of Small Causes, Bombay. Civil Appeal No. 1872 of 1968 is filed by some of the defendants in that suit and Civil Appeal No. 1873 of 1968 is brought by the plaintiff in that suit. The suit was filed to recover possession of the suit premises, rent thereof with interest, municipal taxes, insurance premia and damages. It was resisted on various grounds. In these appeals we are not concerned with the various controversies that engaged the attention of the High Court and the lower Court. The only point arising for decision in civil appeal No. 1872 of 1968, the appeal brought by the defendants is as to the scope of Section 20 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act). The solitary contention advanced in Civil Appeal No. 1873 of 1968 is that the appellate Court as well as the High Court erred in determining the standard rent.

2. The trial Court upheld the plaintiff s claim that the rent fixed under the two eases on the basis of which the suit was brought was the standard rent. A decree on that basis was granted in favour of the plaintiff. The appellate Court differed from the trial Court on that question. It came to the conclusion that the standard rent of the suit premises must be fixed by apportioning the rent of Rs. 1700 per month paid by the National Studios to the suit premises and the other premises on 1st September, 1940. To that it added an increase of 121/2 per cent and thus determined the standard rent for the entire suit premises at Rs. 1162 per month. After so determining the standard rent it came to the conclusion that the excess rent paid by the tenants could be appropriated under Section 20 of the Bombay Rent Act towards the rents due. In the result it gave a decree for the plaintiff for a sum of Rs. 4864.94 P.

3. On the question of standard rent, the High Court agreed with the trial Court but as regards the appropriation it came to the conclusion that the defendant s right to appropriate the excess payments towards the arrears was barred under the second part of section 20 of the Act. In the result it substantially altered the decree of the appellate Court. Aggrieved by this decision, the plaintiff and some of the defendants have come up in appeal after obtaining certificates under Article 133 (1) (a) of the Constitution.

4. So far as the question of fixing the standard rent is concerned, the finding is essentially a finding of fact. Both the appellate Court as well as the High Court have agreed on that question. It is true that the appellate Court thought that the a standard rent could be fixed by apportioning the rent fixed for the suit premises and other premises in 1940, on the basis of the plinth area. It failed to give due regard to Section 11 of the Rent Act. The High Court noticed this error. It went into the question of standard rent afresh having regard to the provisions of Section 11 of the Rent Act. In arriving at the standard rent, the High Court took into consideration the nature of the premises, their location, the amount of rent that it could have fetched in 1940 and other relevant circumstances. Under these circumstances we see no reason to interfere with the findings of the High Court.

5. Now coming to the scope of Section 20 of the Rent Act, the matter is concluded by the decision of this Court in Maganlal Chhotabhai Desai v. Chandrakant Motilal, AIR 1969 SC 37. In that decision it was held that Section 20 gives the tenant a general right of recovery of the over-paid rent within six months of the date of payment. Without prejudice to any other mode of recovery, the tenant may deduct the over-payment from any rent payable by him to the landlord. The deduction provided is one mode of recovery. If the amount is incapable of recovery, because of the bar of limitation, it cannot be recovered by deduction. In other words the right