The provision of adjustment of the excess amount at the option of the tenant clearly visualise its adjustment towards the rent due from the tenant since the jural relationship envisages payment only of rent by the tenant to the landlord towards which it can be adjusted.
In view of the law declared by the Honourable Supreme Court, it has to be held that landlady has no cause of action to file application for eviction on the ground that tenant has committed default in paying rent. As stated earlier, landlady has taken advance of 60 months rent, though law permits to take advance of only one month rent. Excess advance is liable to be adjusted in the rent payable by tenant as and when becomes due even without any demand from tenant. If that be so, landlord cannot expect payment of rent for the alleged period of default. If landlord cannot demand any rent for that period, notice issued by her intimating default also will be invalid and of no legal consequence. On the date when notice was issued, no rent was due nor payable by tenant. If notice issued is invalid merely because tenant did not pay rent within a period of two months, he also cannot be deemed as defaulter."
Further the learned counsel for the revision petitioner would contend that the learned Rent Control Appellate Authority while disposing of RCA.No.829 of 2007, and RCA.No.117 of 2008 in its judgment has referred 2008(2)CTC 375 (K.Selvaraj Vs. J.Narayanan and another) (a judgment rendered by Me) and would contend that this Court has erroneously held that it is not open to the tenant to ask the landlord to adjust the arrears of rent from out of the advance paid until he vacates the premises and hand over the possession to the landlord, forgetting a moment the facts and circumstances of the said case. In the said case the landlord had filed RCOP under
Section 10(2)(i) of the Act claiming that the tenant had committed wilful default in paying of rent for a period of 19 months ie., from May 2001 to November 2002 and after admitting the said arrears, had demanded that it is to be adjusted from out of the advance amount of Rs.20,000/- paid by him. At paragraph 8 of the said judgment I have discussed and held as follows:-
"But in the case on hand, it is the definite case of the landlord/respondent herein that appellant/tenant is in default of payment of rent from May, 2001 to November,2002 that is for 19 months. It was contended on behalf of the revision petitioner/tenant herein, before the Court below on the basis of Ex.R.1 notice dated 22.02.2003 that the tenant was in arrears only from December 2002. But a reading of Ex.R.1 notice would go to show that the tenant had demanded that the arrears of rent is to be adjusted towards the advance amount of Rs.20,000/- already paid by the tenant to the landlord at the time of entering into the agreement of tenancy. Only after adjusting the arrears of rent towards the advance amount of Rs.20,000/-, according to the tenant, the arrears of rent will commence from December, 2002. So, inference which can be drawn from Ex.R.1 is that there was arrears of rent for a period of 19 months to the tune of Rs.19,000/- and according to the tenant it is to be adjusted towards advance amount of Rs.20,000/- paid by the tenant to the landlord. As correctly observed by the Court below that there is absolutely no evidence or material placed on the side of the tenant to show that he had already paid rent for 19 months i.e, from May, 2001 to November 2002.
............
After admitting the arrears of rent for 19 months, it is not open to the tenant to ask the landlord to adjust the same with the advance amount he had paid, until he vacates and hand over vacant possession of the building to the landlord. Even in Ex.R.1 notice, the stand taken by the tenant is that he is willing to vacate and hand over possession to the landlord.
Learned counsel for the respondent/landlord in both the Revisions would state that even during the pendency of the Appeal, the tenant had paid Rs.8,000/- towards eight months arrears of rent upto 22.09.2003, on 22.10.2005. For the subsequent period, that is from November, 2003 to September, 2005 for 23 months, the tenant had paid Rs.23,000/-. But the tenant had not paid the arrears of rent for 19 months from May, 2001 to November, 2002."
So it is clear from the above facts that even 8 months arrears ie., for the period from 22.9.2003 amounting to Rs.8,000/- was paid by the tenant only on 22.10.2005, and subsequently for nearly 23 months ie., for the period from November 2003 to September 2005 the tenant has paid the rent, but has failed to pay the rent for an earlier period ie., the period relating to May 2001 to November 2002. Only under such circumstances, this Court held in the said case that after committing continuous default in payment of rent, even after filing of the RCOP, the petitioner / tenant cannot ask the landlord to adjust the arrears of rent amounting to Rs.19,000/- towards the advance of Rs.20,000/- without taking into consideration the subsequent default in payment of rent by him ie., 8 months rent arrears of Rs.8,000/- from 22.9.2003 which was admittedly paid only on 22.10.2005.
15.There cannot be two opinion with regard to the well settled proposition of law that the tenant is competent to ask the landlord to adjust the arrears of rent with that of the advance amount in the hands of the landlord if it is over and above a month's rent. Now we have to see on the date of filing of
Section 11(4) application by the landlord under M.P.No.556 of 2007 what was the rent due. The rent due was Rs.1,11,500/-.
Arrears of rent from February 2007 to October 2007 = Rs.99,000/-
Even if the contention of the learned counsel for the revision petitioners is taken into consideration, after excluding 1 month's rent from the advance of Rs.75,000/-, the balance advance amount of Rs.64,000/- if adjusted towards arrears of rent of Rs.99,000/-, even then there is balance of Rs.35,000/- to be paid by the tenants on the date of filing of the petition under
Section 11(4) of the Act filed under M.P.No.556 of 2007 in RCOP.N.1267 of 2007. On behalf of the respondents a calculation memo was also filed before this Court page 16 of the type set of papers produced by M/s.Dev Sai, counsel for the respondents at page 17 the rent due from the tenant as on 19.01.2009 is shown as Rs.1,06,000/-. So it is clear that even after the filing of the RCOP and also during the pendancy of the RCA, the tenants have committed default in payment of rent.
16.The learned counsel for the respondent relying on 2002 (5) SCC 51 (Abdul Kader Vs. G.D.Govindaraj (dead) by LRs), would contend that "rent" means all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances. The exact observation in the above said ratio on which reliance was placed by the learned counsel for the respondents runs as follows:-
"The term 'rent" has not been defined in the Act and therefore, we shall have to go by the ordinary dictionary meaning of the term "rent". As held in Karnani Properties Ltd., Vs. Augustine (Miss) AIR 1957 SC 309 the term "rent" is comprehensive enough to include, all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord. It was very fairly conceded by learned counsel for the appellant that ever since the decision of this Court in the case of Karnani Properties Ltd., (1968 -2 MLJ 50) the view being taken consistently by the High Court of Madras is that in the event of taxes having been agreed to be paid by the tenant, the same forms part of the rent."
The learned counsel for the respondent would contend that when the arrears of rent itself exceeds the advance amount, then it is not open to the tenant to contend that he is not committed wilful default since more than a month's rent is with the landlord towards advance. In support of this contention the learned counsel for the respondents relied on a decision of this Court in 2005(5) CTC 473 (R.Murugan Vs. M.O.M.Abubucker) wherein the exact observation runs as follows:-
"Advance amount: It is not in dispute that the respondent/tenant has paid an advance of Rs.5,000/- to the landlord. The main contention of the tenant is that when the excess amount is available when the landlord, that could be adjusted towards the rent and there will not be any wilful default. It is further contended that even assuming that the tenant was in arrears of rent of nine months at the time of filing the Eviction petition, it would amount only to Rs.2,475/- and that could have been adjusted with the advance amount and there would not be any wilful default on of the tenant. In support of his contention, the learned counsel for the tenant has relied upon K.Narasimhaao Vs. T.M.Nasimuddin Ahmed, 1996(2) CTC 78. In the said decision, the High Court has observed that when the tenant has paid Rs.3,000/- to the landlord as advance, the landlord is not entitled to claim eviction of tenant on the ground of wilful default when he was having the excess amount of advance of Rs.2,850/- and held that the landlord is bound to adjust the excess amount of advance towards the rent due from the tenant and that the tenant cannot be held to be wilful defaulter in payment of rent. In the above case, the tenant has made repairs and claimed adjustment of the amount of Rs.1,000/- spent on repairs. The arrears of rent from July to November 1990, were only Rs.750/. Under that factual circumstances of the case that the tenant has made repairs and claimed adjustment of the advance of Rs.1,000/-, the Supreme Court has held that the landlord was bound to adjust the advance amount towards the alleged due from the tenant. The case in hand stands on different footing, since the parties are governed by the Lease Agreement."
As per the terms of the lease agreement as I have referred to above the security deposit of Rs.75,000/- the parties have agreed not to adjust the same towards arrears of rent. Further, I am of the considered view that even on the date of filing of petition under
Section 11(4) of the Act itself the arrears of rent exceeds the advance amount in the hands of the landlords. Under such circumstances, it is not open to the tenants to ask the landlords to adjust the advance amount towards arrears of rent, which cannot be done.
17.The learned counsel for the revision petitioners relying on 2004(1) MLJ 76 (M.Salem Vs. Josephine Mary) would contend that under Ex.R.1-notice it was issued even before the filing of RCOP the tenants had asked the landlords to adjust the rental arrears of Rs.44,000/- due for the months from February 2007 to May 2007 with the advance amount of Rs.75,000/- and hence, the default committed by the tenants will not be construed as a wilful default. The relevant observation in the above said ratio relied on by the learned counsel for the revision petitioners runs as follows:-
"In Mahalingam Vs. Pichaiammal (2000) 2 MLJ 202, it was held that the landlady is entitled to retain only one month's rent as advance and when eviction petition is filed alleging wilful default, where the excess amount is not adjusted, the landlady will have no cause of action to file the petition. This squarely applies to this case. Further, the petitioner had sent Ex.A.-9 wherein it is clearly stated that the rent is Rs.1,500/- and that the respondent had refused to receive the payment of rent and therefore, the respondent was called upon to name the bank. Immediately, the respondent had filed the RCOP without naming the bank. The petitioner had deposited the arrears. So, there is no wilful default. Eviction on the ground of wilful default is set aside."
The facts of the above said case will not be applicable to the present facts of the case. Even after Ex.R.1-notice alleging that the landlords had refused to receive the rent, the tenants had not chosen to file any application under
Section 8(5) of the Act to deposit the future rent in a bank account of the landlords or to take steps to deposit the arrears of rent in the Court to the credit of RCOP.No.1267 of 2007.
18.The other decision relied on by the learned counsel for the revision petitioners is 2004(2) MLJ 107 (Sharbudin and others Vs. K.Subramani), wherein, the Court relying on the decision in K.Narasimharao Vs. T.M.Nasimuddin Ahmed ( 196)2 MLJ 49, the learned Judge of this Court has held that "the landlord is not entitled to claim eviction of tenant on ground of wilful default when he was having excess to adjust towards the rent due from the tenant be a wilful defaulter in payment of rent." As far as the arrears of rent comes within the advance amount in the hands of the landlord it is open to the tenant to claim that the landlord has to adjust the advance towards the arrears of rent. But once the arrears of rent exceeds the advance amount in the hands of the landlord, then it is not open to the tenant to claim that the advance amount is to be adjusted towards arrears of rent and that he had not committed wilful default. It is pertinent to note at this juncture that in the application M.P.No.131 of 2008 in RCA.No.117 of 2008, the learned Rent Control Appellate Authority had passed an order directing the tenant to deposit a sum of Rs.97,500/- being the arrears of rent. The learned Rent Control Appellate Authority after adjusting the advance amount come to the conclusion that a sum of Rs.97,500/- was due even on the date of filing of M.P.No.131 of 2008 in RCA.No.117 of 2008. So far the order of the learned Rent Control Appellate Authority in M.P.No.131 of 2008 in RCA.No.117 of 2008 was not challenged by the tenant. Even it is seen from the order in M.P.No.131 of 2008 that the tenants are not regular in paying the rent month after month even after the filing of RCOP.No.1267 of 2007. Under such circumstances, I do not find any reason to interfere with the findings of the learned Rent Controller in M.P.No.556 of 2007 in RCOP.No.1267 of 2007 and also the findings of the learned Rent Control Appellate Authority in RCA.No.829 of 2007, RCA.No.117 & 171 of 2008.
19.In fine, the CRP.NPD.Nos.110, 111 & 185 of 2009 are dismissed confirming the orders of the learned Rent Control Appellate Authority in RCA.No.829 of 2007 and in RCA.Nos.117 & 171 of 2008 respectively, on the file of the VII Judge, Court of Small Causes, Chennai. Connected Miscellaneous petitions are closed. Time for vacating the premises is two months from this date. No costs. Affidavit of undertaking to be filed by the tenants in two weeks.
ssv To,
1.The VII Judge, Court of Small Causes Chennai.
2.The XIV Judge, Court of Small Causes Chennai