Mahendra Raghunathdas Gupta vs Vishvanath Bhikaji Mogul

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(SC) 692

1997(5) Supreme 62
SUPREME COURT OF INDIA
K. Ramaswamy and D.P. Wadhwa, JJ.
Mahendra Raghunathdas Gupta -Appellant
versus
Vishvanath Bhikaji Mogul & Ors.-Respondents
Civil Appeal No. 14993 of 1996
Decided on 10-4-1997
Counsel for the Parties :
For the Appellant : R.F. Nariman, Sr. Advocate, G. Banerjee, Mrs. M. Karanjawala, M. Karanjawala, Mrs. Nandini Gore, Advocates.
For the Respondents : V.N. Ganpule, Sr. Advocate and A.M. Khanwilkar, Advocate.

Headnote:Bombay Rents, Hotel and Lodging House Rates Control Act, 1947-Section 12(3)(a)-Default in payment of rent-Respondent became owner of suit property by regd. sale deed in July 1984-No attornment was made -Notice by respondent s advocate to appellant to pay arrears of rent-Appellant sent the rent by cheque in the name of advocate which was refused by him-Appellant then sent fresh cheque of entire amount of rent in the name of landlord indicated in notice-Respondent refused to accept it-Amount then tendered by money-order was also refused-Whether appellant could be said defaulter in payment of rent. (No).
       Held : though it was mentioned in the notice that rent be sent to the landlord meaning thereby that the lawyer was not authorised to receive the payment of rent but in the light of the above facts, necessarily, as a prudent man, the appellant, instead of taking a risk to send the rent to third party, chose to send the arrears of the rent in the name of the advocate, who issued notice. Under these circumstances, tendering the amount within 30 days to the agent on behalf of the principal, is a legal tender of the amount of arrears of rent. Thereby, by operation of sub-section (3)(a) of Section 12, the appellant has tendered the amount. Thereby, he has not committed any default in the payment of rent on account of which he is not liable to be ejected from the demised premises. The respondent having purchased the property had not acted as a prudent man by issuing a notice at the earliest to the appellant calling upon him to pay the rents to him. Instead, he waited for two years obviously to create a condition of default and then got the notice issued. His conduct is not worth reckoning. (Para 9)
       (ii) Tender of Rent by cheque-Valid tender. (Para 8)
       (iii) Attornment-Attornment by tenant is not necessary to confer validity of the transfer of landlord s rights.
       Held : It is well settled that a transferee of the landlord s rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require the transfer of the right of the landlord can take effect only if the tenant s attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord s rights. Since attornment by the tenant is not required a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment. Attornment would, however, be desirable as it means the acknowledgement of relation of a tenant to a new landlord. It also implies continuity of tenancy.
        (Paras 5 & 6)

ORDER

This appeal by special leave arises from the judgment of the Bombay High Court, made on July 17, 1996 in Writ Petition No. 1814 of 1996.

2. The admitted facts are that one Jagmohandas was the original tenant and the appellant is his brother. The landlords were Jayabai G. Ashar, Bachubhai alias Brijkuvar Bhagwandas, Krishnakumar alias Krishnadas Bhagwandas and Harikrishna C. Shantabai alias Malabai. After the demise of his brother, the appellant became the tenant and paid the rent to the landlords. On March 10, 1981, the landlords wrote a letter directing the appellant to pay rent jointly to one Shivajibhai Patel and one Ratilal Patel w.e.f. November 1, 1980. The appellant acted upon the letter and sent to the aforesaid two persons on May 6, 1981 the rents payable from November 1, 1980 to April 30, 1980. The said cheque was returned to the appellant as being not acceptable. Subsequently, he was in the dark as to whom the rent was to be paid. It would appear that the landlords earlier to their letter dated March 10, 1981, had entered into an agreement with the respondent on September 27, 1980 and pursuant thereto, the sale deed came to be executed and registered on July 10, 1984 in favour of the respondents but no attornment was made.

3. For the first time, Shri N.G. Gaikwad, Advocate, Nasik on instructions of respondent No. 1 sent a notice dated September 29, 1986 to the appellant to pay the arrears of rents from November 1, 1982 to the respondents. The appellant on receipt thereof has sent on October 15, 1986, the rent in the form of a cheque for Rs. 2,952/- in the name of Shri Gaikwad, which was rejected by him and thereafter the suit for ejectment came to be filed. The defence taken by the appellant is that the paid the rent within 30 days from the date of the receipt of the notice demanding the payment of rent and, therefore, he was not in default. The question, therefore, is : whether the appellant has committed any default in the payment of the rent? Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 envisages thus :

"12.(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenants pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.

(2) No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.

(3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months of more and the tenant neglects to make payment thereof until the expiration of the period of one Month after notice referred to in sub-section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession."

A reading thereof would indicate that the landlord shall not be entitled to the recovery of possession of the demised premises as long as the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases, if any, and observes and performs the other conditions of tenancy in so far as they are consistent with the Act. Where the rent is payable by every month and if there is no dispute regarding the amount of the standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiry of the period of one month after the notice referred to in sub-section (2), the Court shall pass a decre

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1997 Supreme(SC) 692

Cases Referred (1)