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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. NALAWADE, J.
Anant Tulshiramji Bajaj - Petitioner
Versus
Sunil - Respondent
Civil Revision Application No.70 of 2014
Decided On : 30.7.2015
The provision of Section 15 shows that it is not sufficient for the tenant to deposit the rent due as described above, within 90 day of the date of service of notice issued under Section 106 of the Transfer of Property Act. It is necessary for him to continue to pay or deposit the rent every time it becomes due as per agreement. Similarly, after depositing the amount within 90 days of the date of service of suit summons he needs to go on paying rent as and when it becomes due. In view of the wording of the section, he needs to continue to pay the amount even when the appeal is pending, the decision has not become final. When there is no specific order from the Court against the tenant directing him to deposit the rent within particular time, the tenant is expected to abide by the conditions of the written agreement or the practice.
In the present case there is peculiar circumstance like written agreement between the parties. Even if it is presumed that after receipt of the suit summons the tenant paid arrears of rent, he did not pay the interest on it as required by Section 15(3) of the Act. In addition to this circumstance, he committed many defaults in making payment of rent which became due in the trial Court and in the appellate Court. Right from beginning, the tenant gave excuse that he had suffered financial crisis and so he was not able to pay rent regularly. He tried to say that he had Rs. 65,000/- as Pagadi, deposit amount to the landlord and he was entitled to say that rent amount needs to be deducted from the Pagadi amount. In view of these facts and circumstances of the case, this Court holds that the tenant is not entitled to the protection of any part of provision of Section 15 of the Act.
Maharashtra Rent Control Act, 1999 - Section 15 T.P. Act, 1882, Section 106(4)Service of notice under Section 106 on tenant. - Landlord not required to examine postman to prove endorsement on envelope sent under registered post like "endorsement given". - In the cases reported as 2003 (4) Bom CR 612 : 2003 (3) All MR 511, David K.N. v. S.R. Chanbey and 2005 (4) Mh LJ 577 : 2005 (4) All MR 185, Krishna Ramchandra Jadhav v. Shankari Ajimal, the aforesaid point is discussed and the aforesaid cases are also referred. In view of the observations made by the Apex Court this Court has no hesitation to observe that it was not necessary for the landlord to examine the postman to prove the aforesaid intimation.
1. The proceeding is filed by the landlord against the judgment and decree of Rent Appeal No.10 of 2011 which was pending in the Court of the learned Principal District Judge Aurangabad. The Principal District Judge has set aside the judgment and decree of possession given on the ground of default by the Civil Judge, Junior Division, Aurangabad in Rent Suit No.20/2006. Both the sides are heard.
2. The suit was filed in respect of property bearing Municipal House No.4/3/42 (CTS No.4395) situated at Machhali Khadak, Aurangabad. It is the case of the plaintiff that on monthly rent of Rs.751/- the suit premises was given to the defendant for using it as a shop.
3. It is the case of the plaintiff that the defendant was never regular in making payment of monthly rent and he is willful defaulter. It is contended that as the defendant had not paid the monthly rent of 36 months prior to the date of the notice, statutory notice dated 29-9- 2005 was given by the landlord to the defendant, tenant and the tenancy of the defendant was terminated. It is contended that notice was sent by registered post with acknowledgment due and copy was sent under certificate of posting. It is contended that notice sent by RPAD was returned by post office with endorsement but the second notice sent under certificate of posting was not returned and it needs to be presumed that the notice was served on the defendant.
4. The suit came to be filed on 19-4-2006, after accrual of cause of action. The landlord had claimed relief of possession on the ground of default and he had claimed relief of recovery of the amount of Rs.42,719/- which included the so called arrears of rent of Rs.21,779/- for the period from 1-10-2003 to 30-9-2006 and relief of recovery of damages of Rs.21,000/- in respect of subsequent period was claimed. It was contended that though the arrears of rent was around Rs.27,036/- the landlord had restricted his claim to Rs.21,779/-.
5. The defendant filed written statement and contested the suit. He denied the aforesaid contentions of the landlord. He contended that in the past two suits bearing Nos.25/97 and 121/97 were filed by the landlord for recovery of arrears of rent but both the suits were dismissed. The defendant contended that the plaintiff had taken amount of Rs.65,000/- as deposit, Pagadi amount from him and the defendant was entitled to say that the landlord can deduct the monthly rent from this amount.
6. It is the case of the defendant that he had suffered heavy loss in the business and he had requested the landlord to adjust the deposit amount against the monthly rent. The defendant contended that he was ready and willing to pay rent. The defendant contended that he was depositing the amount claimed with interest in the Court by filing separate applications for the period from 1-4-2003 to 30-9-2006, for the period of 42 months. He denied that he is willful defaulter.
7. The defendant denied that he had received the statutory notice dated 29-9-2005 both sent by RPAD and under certificate of posting. He contended that the amount demanded in the notice was not correct and under such notice tenancy cannot be terminated. He contended that the amount of rent for 36 months can be Rs.23,736/- and not Rs.27,036/-.
8. Issues were framed by the trial Court on the points like point of willful default committed by the tenant, the point of service of statutory notice by landlord on the tenant for terminating the tenancy, point of right of the landlord to recover arrears of rent and the point of right of the landlord to recover the damages in respect of use of the suit premises after the date of termination of tenancy.
9. The trial Court had held that the landlord had proved the service of statutory notice. The trial Court had held that the tenant was willful defaulter and the decree was given. The District Court has held that service of statutory notice is not proved by landlord and even the default ground is not proved.
10. In respect of the ca
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