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IN THE HIGH COURT OF MADRAS
(MADURAI BENCH)
S.PALANIVELU J
S.Venkateswaran & another v. V. Parthasarathy Naidu
C.R.P. (PD) (MD) No.1896 of 2008 dated 22-12-2008
For Petitioners: Mr.T.R.Subramanian
For Respts. : Mr.A.R.L.Sundaresan, Sr. Adv. for Ms.A.L. Gandhimathi
Ratio:
a. Landlord is duty bound to return the excess advance without its asking by tenant.
b. Landlord has to adjust excess advance against arrears of rent without its asking by tenant.
c. Tenant cannot ask for adjustment of advance amount(one month rent) against arrears.
Headnote:(A) T.N.Buildings Lease and Rent Control Act, 1960(T.N.Act 18 of 1960)-Sec.11(4)-Arrears of rent-Deposit-Landlord filed petition for direction to tenant to deposit rent-Rent Controller directed deposit of entire arrears claimed-Appeal by tenant-Conditional stay given-Revision by tenant-Held, Landlord may retain one month rent as advance-Balance to be adjusted against arrears-Order modified.
(B) T.N.Buildings Lease and Rent Control Act, 1960(T.N.Act 18 of 1960)-Sec.7-Landlord to return excess advance without demand by tenant—Failure to refund-Excess amount to be adjusted against arrears.
Even though there is no express option by the tenant to the landlord, he having retained the advance amount, has got a legal obligation to refund the advance amount to the tenant retaining the one month rent and in the absence of such refund, is bound to adjust the rent in the advance amount, which is being kept by him. Para 23
(C) T.N.Buildings Lease and Rent Control Act, 1960(T.N.Act 18 of 1960)-Sec.7-One month advance-Adjustment of arrears-No adjustment against one month rent.
As per the provisions contained in Section 7 of the Act, the landlord is authorised to retain one month’s rent as advance and the tenant is not at all entitled to adjust the arrears of rent in the said amount equal to one month’s rent which would represent a security in the hands of the landlord. If it is so, the adjustment of arrears as contended by the tenants, between June 2004 to February 2005 cannot be made in the advance, but one month rent would remain unpaid that could be the rent for the month of February 2005.
Para 26
2.(i)The allegations in the affidavit of the petitions are that in pursuance of a lease agreement dated 08.10.2003, both the parties agreed for the lease of the scheduled building for a monthly rent of Rs.8,250/- (Rupees Eight thousand two hundred and fifty only) payable on the fifth of next English calendar month and the advance of Rs.75,000/- was paid by the tenants to the landlord and it was also agreed that on the expiry of ten months period, the tenants shall vacate the building and hand over possession to the landlord and to get back Rs.75,000/- paid as advance without interest.
2.(ii)From January 2004 to November 2004 totalling Rs.90,750/-, the tenants have to pay the arrears of the rent and by not paying the same, they have committed wilful default. The tenants filed O.S. No.153 of 2004 before the Vacation Civil Judge at Thanjavur on 19.05.2004 and obtained an order of ad-interim injunction not to interfere with the possession and evict them except due process of law.
2(iii).In the said plaint, the tenants have averred that upto last three months the rent was paid through cheques and for other three months the rent was paid in cash by them to the landlord and according to the said allegations, the last three months is January, February and March 2004 only. It is further stated that they, according to their college accounts, upto May 2004, have paid the rent and as the suit was transferred to the District Munisf Court, Kumbakonam from the Vacation Civil Court, Thanjavur, and the same was pending, the landlord refused to receive the rent. Hence, from January 2004 to November 2004 the wilful default continues. Hence, the order has to be passed directing them to pay or deposit the arrears of rent of Rs.90,750/- within a reasonable time and in default to strike off the defence and direct them to put the landlord in possession.
3. In the counter filed by the tenants, it is mentioned that as per the Rent Control Act, a sum equal to one month rent shall be kept as advance, but the landlord is keeping Rs.75,000/- as advance, in which Rs.66,750/- towards eight months rent from June 2004 has to be adjusted and the remaining Rs.750/- shall be adjusted towards 2005 February rent and on or before 05.03.2005 the rent for February 2005 has to be paid, for which course of action, the tenants are prepared. The landlord has to pay 50% of the electricity consumption charges and from June 2004, the landlord has to pay Rs.4,000/- for eight months at the rate of Rs.500/- per month. From 15.12.2004 alone the tenants have obtained separate service connection.
4. The landlord was examined as PW1 before the learned Rent Controller and ten documents were marked on his side. The petitioners/tenants did not examine any witness and two documents were marked on their behalf.
5. After hearing both the parties, the learned Rent Controller, allowed the application directing deposit of Rs.90,750/- within two months, in default, the eviction order will be passed in R.C.O.P. No.20 of 2004.
6. The tenants carried the matter in appeal before the learne
