On consent, the writ petition is taken up for final hearing at the admission stage.
2. The writ petition is filed against the order of the 3rd respondent in his proceedings dated 07.05.2004 to quash the same and to consequentially direct the respondents 1 to 3 to pay the arrears of rent for the period from February 2004 to July 2007 at the rate of Rs.25,000/- per month and also reimbursement of Rs.28,118/- towards electricity charges paid by the petitioner totally amounting to Rs.12,04,733/- for the property bearing Door.No.8, Velacherry Road, Little Mount, Chennai-15.
3. The fact that the petitioner is the owner of the property in question and the same was taken on lease from December 2003 onwards for running Wine Shop No.723 with Bar attached for monthly rent of Rs.25,000/- as per the terms of the agreement dated 06.01.2004. The respondent/TASMAC authority paid rent at Rs.25,000/- per month and the electricity consumption charges for two months for December 2003 and January 2004.
4. While so, the petitioner received the notice dated 8.02.2004 from the 3rd respondent on 25.03.2004 in and under which the 3rd respondent sought the consent of the petitioner/owner to reduce the rent from Rs.25,000/- and the petitioner herein has by her reply dated 08.04.2004 expressed her unwillingness to receive lower rent and has further insisted the authority to pay rent either at Rs.25,000/- as agreed between the parties or to vacate and hand over the vacant portion of the premises to the petitioner. But, the 3rd respondent has unilaterally and arbitrarily reduced 14 months rent to Rs,12,500/- from February 2004 and the 3rd respondent has also not paid any rent either at the rate agreed between the parties or at the reduced rate from February 2004 onwards and the 3rd respondent has also not paid electricity consumption charges for the period in question in spite of the repeated demands made by the petitioner herein and the same compelled the petitioner to issue repeated individual and lawyer notice demanding payment of rental arrears and electricity charges and for handing over vacant possession of the property in question.
5. The TASMAC authority handed over the possession only on 13.07.2007, but failed to pay the rental arrears and electricity consumption charges to the tune of Rs.12,04,733/- which compelled the petitioner to approach this court for the relief as cited supra.
6. While according to the learned counsel for the petitioner the respondent is bound to pay the rent at the agreed rate and the agreed rent cannot be unilaterally reduced without the consent of the petitioner, the learned counsel for the respondent would attempt to justify the validity and enforceability of the impugned order on the ground that the rent already fixed is highly exorbitant.
7. I have considered the rival submissions made on both sides.
8. As already referred to, the lease of the petition mentioned premises in favour of the respondent is evident from the rental agreement executed on 06.01.2004 between the petitioner and the TASMAC represented by Senior Regional Manager enclosed at pages 1 to 5 of the typed set of papers. The lease is subject to terms and conditions contained therein, as per which the monthly rent agreed is Rs.25,000/- including electricity charges and the same was payable on or before 10th of every succeeding month. Whereas, the exchange of notices between the owner and the tenant enclosed at pages 7 to 9 of the typed set of papers reveals that the quantum of the agreed rent is unilaterally reduced to Rs.12,500/- without the consent of the petitioner.
9. As rightly argued by the learned counsel for the petitioner the respondent cannot unilaterally reduce the rent that too in the absence of the specific clause in the rental agreement and contrary to the intention expressed by the owner of the property to retain the agreed rent at Rs.25,000/- per month and the 3rd respondent has by the impugned action not only violated the terms of the contract but further defaulted in paying the rent as well as the electricity charges from February 2004 onwards. Such action of the 3rd respondent in unilaterally reducing the quantum of the agreed rent and in defaulting in payment of the rental arrears as well as electricity charges is wholly unjustified, unfair, improper, illegal and the same has now compelled the petitioner to approach this court for appropriate relief.
10. However, the learned counsel for the respondent has without denying the default committed in payment of rental arrears and electricity charges sought to question the maintainability of the writ petition by relying upon the order dated 13.3.2010 in WP.No.34455 of 2007 in P.Cholaraja Vs. The Managing Director, TASMAC, Chennai and two others. The reading of the judgment reveals that the facts in the case are materially distinguishable with the facts involved in the instant case. In the case referred above the respondent defaulted in making payment of rental arrears and electricity consumption charges the civil proceedings against TASMAC is barred u/s.65 of the TASMAC Act the writ petition filed for the recovery of the amount was dismissed, by directing the petitioner therein to institute appropriate civil proceedings to collect the arrears of rent. The High Court held so not on the ground that the writ jurisdiction is not maintainable but only in view of the dispute raised over the liability of the TASMAC to pay the same i.e, as to whether one Gunasekaran in whose favour the shop was rented out is liable to pay the consumption charges and only in the light of such factual controversy the writ petition was dismissed.
11. Whereas the learned counsel for the petitioner has cited the judgment of the Supreme Court reported in 2004 (3) SCC 553 in ABL International Ltd., and another Vs. Export Credit Guarantee Corporation of India Ltd., and others; AIR 2002 P&H 68 in The State of Punjab and others Vs. Surjit Kaur and others for the legal preposition, that in appropriate cases writ court has jurisdiction to entertain the writ petition involving dispute of questions of fact, in spite of suitable efficacious alternative remedy available by way of suit involving consequential relief of monetary claim particularly when the impugned action of instrumentality of the state is arbitrary and unreasonable and invalid on valid legal grounds. That being the legal position, there is no difficulty in entertaining the present writ petition for the relief sought for in this writ petition, which is not relating to mere money claim but is mainly against the unilateral and arbitrary action of the respondent in reducing the rent and the relief sought for recovery of money is only consequential in nature. As this court, in the forgoing paragraph has held that the action of the respondent is without any authority and the respondent is consequently bound to pay rental arrears as agreed between the parties as well as electricity consumption charges for the electricity consumed by the respondent tenant, the impugned order negativing the legitimate claim made by the petitioner cannot be factually and legally sustained. The writ petitioner has also in paragraphs 10 and 11 at Page 4 of her petition furnished the particulars as to how the rental arrears is arrived at as per which the total amount payable, after adjusting the advance amount of Rs.2,50,000/- is Rs.8,14,013/-. In addition to the same, the petitioner is also entitled to get the electricity consumption charges for the electricity consumed by the respondent.
12. The learned counsel for the petitioner, in support of the claim for interest at 18% per annum produced the latest judgment of our High Court reported in 2010 CIJ 272 ALJ in Bank of India Vs. G.Naradan and another. Wherein the High Court has by following the law laid down by the Apex Court in (i) AIR 1990 SC 185 in Life Insurance Corporation of India and another V. Gangadhar Vishwanath Ranade (Dead) by LRs; (ii) AIR 2000 SC 2003 in Ghaziabad Development Authority V. Union of India and another and (iii) AIR 2003 SC 3411 in Aditya Mass Communications (P) Ltd., Vs. APSRTC held that the defendants Bank who has improperly retained the amount is liable to pay the same with reasonable interest at 18% per annum. The reading of the judgment of Apex Court would support the claim for interest as made by the petitioner herein. The Apex Court in the judgment above referred is pleased to hold that when a party has been wrongly denied use of its own money it is the duty of the court to see that the said party is appropriately compensated.... and the rate of interest awarded in equity should neither be too high nor too low and the same is governed by the facts of the case not by precedent in law, unless of course limited by statue. Following the same our High Court has directed the respondent Bank to pay the amount with 18% simple interest.
13. Applying the same ratio, the claim of the petitioner for the recovery of the amount due to her with simple interest at 18% per annum having regard to the fact that the building was used for commercial purposes has to be necessarily up held.
14. In the result, writ petition is allowed as prayed for. No costs. Consequently, connected miscellaneous petitions are closed.
tsh To
1.The Managing Director.
Tamil Nadu State Marketing Corporation Ltd., (TASMAC) 4th Floor, CMDA Towers, Gandhi Irwin Road, Egmore, Chennai 600 008.
2.The Senior Regional Manager (south), Tamil Nadu State Marketing Corporation Ltd., (TASMAC) LLA Building, Mount Road, Chennai-6.
3.The District Manager (South), Tamil Nadu State Marketing Corporation Ltd., (TASMAC) Egmore, Chennai 8