The tenant's right to seek and claim adjustment of rents due against the sum paid to the landlords in excess of the agreed rent is not maintainable if the overpaid amount was not in consideration of the grant, continuance, or renewal of the tenancy.

JUDGMENT

1. Heard

2. Rule. Rule made returnable forthwith with the consent of the learned counsel for the respective parties.

3. Learned Counsel for the respondent waives notice.

4. Petitioners/landlords seek tenant's eviction on the ground of default in paying the rent. Rent controller vide judgment and order dated 29.9.2016 granted eviction decree. In Rent Appeal no. 13/2016 the appellate Court vide judgment and order dated 8.7.2020 reversed the eviction decree. Thus this petition.

5. By the Deed of Sale dated 19.8.2013, landlord purchased the property more particularly described in paragraphs 2 and 3 of the eviction application, from his predecessor in title, Mr. Ramesh Agxikar and Sumitra Agxikar. The respondent is the tenant in the part of the building existing in the said property (hereafter called as suit premises). In terms of deed of sale, Mr and Mrs. Agxikar covenanted that the respondent shall attorn tenancy to the applicant with effect from the date of execution of deed and petitioners shall be entitled to recover the arrears of rent due and payable by the respondent. By letter dated 11.10.2003, petitioners formally informed the respondent(tenant) about the purchase of the said property and requested that rent due and payable, be paid to them against receipt.

Afterwhich, the petitioners vide letter dated 9.12.2013 requested the respondents to pay arrears of rent for the months of August, September, October November and December, 2003 at the rate of Rs.400/-per month, within 30 days from the receipt of the letter.

Again vide letter dated 19.1.2004, petitioners called upon the respondents, to arrange to pay arrears of rent within 30 days from the date of the receipt of the letter. Though the said letters were served upon the respondent, he chose not to comply with the requisition contained therein. As such, the petitioners through their lawyer addressed a notice dated 13.3.2004 and called upon the respondent to pay the arrears of rent due and payable for the months of August to December 2003 and for January and February 2004 at the rate of Rs.400/-per month, totalling to Rs.2800/-, within the period of 30 days from the date of receipt of the notice. Though the said notice was served on the respondents, he chose not to comply with the requisition contained in the said notice. The petitioners, therefore, sought respondents' eviction under Section 22(2) (a) of the Goa Daman and Diu Buildings ( Lease, Rent and Eviction) Control Act 1968. As such, an eviction application was filed before the Rent Controller in April 2004.

Tenants Defence

6. The suit was resisted by the respondent/tenant, by filing the Written Statement. He contended that petitioners' predecessor had executed the first lease in respect of house no.E-611 admeasuring 200 sq. mts. for residential and business use, on the monthly tenancy of Rs.125/-, for five years, expiring on 15.11.1975. During the lease period, he repaired the suit house to make it habitable. Thereupon the second lease, was executed on 18.1.1973 with respect to the same house on monthly rent of Rs.325/-for a period of 15 years commencing from 1.1.1973 to 31.12.1988. In terms of the second lease, he was permitted to execute alterations and addition. Accordingly, he carried out alterations. The actual cost of alteration incurred was up to Rs.2,00,000/-; however, in terms of clause 5 of the second lease, the cost was agreed to be Rs.16,000/-only. On 4.2.1988, the third lease was executed with respect to a said house on a monthly rent of Rs. 400/-for a period of ten years, commencing from 31.12.1998. Vide clause no.3 of the third lease parties agreed that clauses 3 to 8 of the second contract of lease shall remain intact. That on 17.8.1995, in accordance with a mutual oral agreement, he surrendered 60 mts area of the said house no.611 to the landlords. Whereupon landlords agreed to sell remaining area of the said house to him. Thus, the area retained by him was 140 sq.mts. Therefore monthly rent payable