Shantilal M. Bhayani vs Shanti Bai

S.M. Abdul Wahab, J.—The tenant has filed this revision against the order dated 24.10.1996 in R.C.A. No. 851 of 1996 on the file of the

VII Judge, Small Cause Court, Madras, confirming the order of the VI Judge, Small Cause Court, Madras in H.R.C. No. 2977 of 1975, dated

30.11.1978.

The respondent filed H.R.C. No. 2977 of 1975 for eviction of the petitioner from the building bearing door No. 10, Kasi Chetty Street, G.T.,

Madras, on the ground of wilful default in payment of rent for the period from 1.10.1971 to 31.7.1972 and from 1.6.1974 to 30.4.1975.

The Rent Controller after considering the evidence in the case passed an order of eviction on 30.11.1978. M/s. Bhupendra Plastic Industries

represented by Shantilal M.Bhayani, filed H.R.C. No. 214 of 1976 for deposit of rent u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent

Control) Act, alleging the respondent herein refused to receive the rents sent by money order and cheques. This H.R.C. No. 214 of 1976 was also

disposed along with the main H.R.C. No. 2977 of 1975 on 30.11.1978 by a common order.

As against the order of eviction in H.R.C. No. 2977 of 1975, the petitioner filed R.C.A. No. 851 of 1996. As there was delay in filing the

appeal, the petitioner filed M.P. No. 206 of 1976 u/s 5 of the Limitation Act, but the said petition was dismissed by the appellate authority as net

maintainable. Thereupon, a civil revision petition was also filed in the High Court and the same also met with the same result. Thereupon, the

petitioner filed an appeal before the Supreme Court in C.A. No. 3421 of 1979. On 7.2.1992 the appeal was allowed by the Supreme Court and

the Supreme Court has declared that Section 5 of the Limitation Act would be applicable to an appeal to be preferred before the appellate

authority under the Tamil Nadu Buildings (Lease and Rent Control) Act. That inspite of the said fact, the execution petition came to be filed in the

year 1995 and possession had also been taken by the landlord on 4.1.1996. Whether the possession has been properly taken or not is not the

question that has to be considered in this case.

Thereupon appeal was numbered by the appellate authority as R.C.A. No. 851 of 1996. It appears that even though the Supreme Court has

allowed the appeal as early as on 7.2.1992, there was some delay in communication from the High Court to the rent Control Appellate Authority

and on that account an inordinate delay has been caused in taking the appeal proceedings for disposal by the appellate authority. However, we are

not concerned with the delay at present.

After considering the evidence on record, the appellate authority also has held that the default of the petitioner to pay rent for the period

mentioned in the rent control petition was wilful and hence he confirmed the order of eviction passed by the Rent Controller.

The learned Counsel for the petitioner contended that strictly speaking there was no default much less wilful default in payment of rent. What has

happened in this case is that after sending the rent by the petitioner in his individual name Shantilal M. Bhayani, he chose to send the rents on behalf

of a partnership firm, namely, M/s.Bhupendra Plastic Industries. His sending rents are evidenced by the documents Exs.R-15 to R-42. He had sent

rent under Ex. R-14. Subsequently, the previous landlord writes a letter under Ex. P-5 dated 17.11.1975 informing Mr. Shantilal M.Bhayani that

he sold the property to Shanti Bai and the rent from 1.11.1975 should be paid to the said Shanti Bai directly. Ex. P-6 is the postal

acknowledgment received by Shantilal. Shantilal M. Bhayani also sent a reply under Ex. P-7. Even though the said letter head bears the name of

M/s. Bhupendra Plastic Industries, Shantilal M. Bhayani, has alone sent it. Ex. P-7 shows that he has written the letter in his individual capacity.

After having sent the rent upto a certain period, as is evidenced by Ex. R-14, the tenant Shantilal M. Bhayani has started sending rents on behalf of

the firm. From the evidence arid Ex. R-15, etc. which were refused. The landlord has not chosen to accept the rent sent on behalf of the firm. Only

when the rents have been sent on behalf of the firm the refusal has taken place. The petitioner could have taken note of the refusal and continued to

the rent in his individual capacity, but he has not done so. On the other hand, he has been persistently sending the rents in the name of the firm.

It is not his case that even though there was no written agreement, there was an agreement that after taking the building on lease in his individual

capacity, he was entitled to continue the business in the name of the partnership firm and pay the rents in the name of the firm. He has also not

explained as to why he has suddenly chose to send the rents on behalf of the firm without the concurrence or acceptance from the landlord. It is

true that after refusing to receive the rent sent by money order, the landlord has not sent any intimation that the rent should be paid only in the name

of the individual i.e., Shantilal M. Bhayani. But at the same time there is also no attempt on the part of the respondent to get an intimation as to why

the rents sent by him were not accepted. But as stated above, since suddenly the rent has been sent on behalf of a firm, they have been refused.

The refusal itself would indicate that the landlord was not willing to receive the rent. Of course, from this alone we cannot conclude that the default

committed by him is wilful. But there are other circumstances also, which we have to take note of. After the landlord refused to receive the rent,

the petitioner has filed a petition u/s 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, for deposit of rent, i.e., H.R.C. No. 214 of

1976. The said petition has been filed by M/s. Bhupendra Plastic Industries represented by Shantilal M. Bhayani. We can understand that if the

said petition has been filed on behalf of the individual, i.e., by Shantilal M. Bhayani, some excuse can be found; but not only, that, he has also

asserted in his counter in paragraph No. 2 that the rent control petition is not maintainable, since M/s. Bhupcndra Plastic Industries were the real

tenants. Further, he has also stated that in the earlier proceedings in H.R.C. No. 1768 of 1972, his case that he was not the tenant, but the firm

was the tenant was accepted. But he has not produced any evidence to establish this fact. His repeated assertion that the rents were paid only by

the firm goes to show his mental attitude. From his stand, it is clear that according to him, the tenant is M/s. Bhupendra Plastic Industries.

Therefore, he ought to have proved the said fact before the Rent Controller as well as the appellate authority. But he has not done so. As stated

earlier, he has filed H.R.C. No. 214 of 1976, wherein he has asserted that the tenant was the Bhupendra Plastic Industries. The said petition was

dismissed by the Rent Controller. The Rent Controller has given a categorical finding in paragraph 7 that Shantilal M. Bhayani alone in his

individual capacity is the tenant and his persistency in having sent the money order on behalf of the Bhupendra Plastic Industries was not proper.

After giving a finding as aforesaid, he states that H.R.C. No. 214 of 1976 was not well founded in fact. As against the said order passed in H.R.C.

No. 214 of 1976, the petitioner has not filed any appeal. The failure on the part of the petitioner to file an appeal indicates to some extent that his

case that he is not a tenant, but the firm is not bona fide.

The learned Counsel for the petitioner cited a judgment reported in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, . In the

said case, the Apex Court has laid down certain criteria to find out whether a default can be treated as wilful default or not. Four ingredients have

been mentioned to constitute wilful default. The learned Judges have stated that the default must be intentional, deliberate, calculated and

conscious. In the case on hand, the failure on the part of the petitioner to tender the rent in his name is intentional because, he wants to have the

firm recognised as tenant. His continued sending of the rent by money order in the name of the firm even after refusal on the part of the respondent

to accept the same tantamount to his deliberate act calculated to achieve an object. When the rent sent by him on behalf of the firm has been

refused, he ought to have known that the reason for refusal was the change of the name of the tenderer. He has been sending the rent in the name

of the firm with the obvious motive of getting the tenancy right transferred in the name of the firm indirectly. When he converted his business into a

partnership firm, he could have approached the landlord and made a request for recognising the firm as the tenant. That should be the attitude of

the tenant. On the other hand, in this case, he goes to the extent of asserting that the firm was the tenant. Therefore, in my view all the four

ingredients stated in the said decision arc found in the present case. Therefore, the said case is not helpful to the petitioner.

Learned Counsel for the petitioner cited a decision reported in N. Sivanandam Vs. Tribuvendas Vendraven Bros., by power of Attorney

Agent K. Govindarajulu and Others, and contended that mere permitting of a partnership firm will not tantamount lo subletting. In the said case, the

original tenant constituted a partnership and converted into a partnership business and in the said partnership business, he was the wholetime

partner. The landlord filed a petition for eviction on the ground of subletting. The Rent Controller and; the appellate authority found that there was

no transfer of legal possession, but the District Judge held that there was a totality of transfer of lease and ordered eviction. Justice T.

Ramaprasada Rao (as he then was), held that whether the admission of another to the possession of the premises would amount to subletting or

not would depend upon the intention of the parties and has to be decided on the facts and circumstances of the case. In this case, as we have

stated above, it is very clear that the intention of the petitioner was to have the tenancy transferred in the name of the firm from his individual name.

That intention is clearly made out from his conduct of sending the rent in the name of the firm and asserting that the firm was the tenant. That apart,

this is not a case for eviction on the ground of subletting. But it is a case of wilful default and that has to be considered in this case. Whether the

default in not tendering the rent by the tenant namely, Shantilal M. Bhayani was wilful or not. We have found that his action definitely tantamount to

a conscious, calculated and wilful attempt to have the tenancy transferred in the name of the firm and with that oblique motive, he has been sending

the rent in the name of the firm. Therefore, there is a conscious default to tender the rent in the name of the tenant and that will satisfy the

requirements of Section 10(2)(i) of the Act.

Section 10(2)(i) is as follows:

that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the

agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent

is payable.

The tenant in this case is Shantilal M. Bhayani and not M/s. Bhupendra Plastic Industries. Since the rents have been sent by M/s. Bhupendra

Plastic Industries, as is evidenced by Exs. R-15 to R-42, there is no lender by Shantilal M. Bhayani. Apart from sending the rents in the name of

the firm, the petitioner has also assccrted that M/s. Bhupendra Plastic Industries is the tenant. Therefore, in the circumstances, even according to

the petitioner the rents which he has sent were not for himself but for the firm M/s. Bhupendra Plastic Industries. In substance this goes even to the

extent of admitting that the rents were not tendered by the tenant Shantilal M. Bhayani. Therefore, there is a default to pay or tender the rent.

The next question that has to be decided is whether the default tantamount to wilful or not. We have already found that there was a conscious

and calculated intention on the part of the petitioner not to pay rent in his name. In the circumstances, the requirements of Section 10(2)(i) read

with the Explanation to the said section has been satisfied with.

The learned Counsel for the petitioner further contended that as regards the default in payment of rent from 1.10.1971 to 31.7.1972, there is a

clear assertion in the counter in paragraph 4 that all the rents for the said period were paid and accepted. He also brought to the notice of the court

the submission in the petition itself in paragraph 8 wherein there is a statement to the effect that the respondent was in arrears of rent for the period

from June, 1975 to 30.9.1975. According to the learned Counsel for the petitioner, the rents have been paid for the earlier period and the default

alleged for the said period should not be countenanced at all by the court. Assuming for the sake of argument that the rents have been paid for the

said period, from 1.6.1974 to 30.9.1975, there is no tender by the tenant, namely, Shantilal M. Bhayani for the firm and we have found that the

tender was only in the name of the firm. We have also found as mentioned above, that there was non-compliance of Section 10(2)(i) of the Act

and the said non-compliance is wilful. The Rent Controller as well as the appellate authority have found that the tenant has not tendered the rent for

the said period. As already stated in my view also there is a default and the default is wilful. In such circumstances, it cannot be said that the courts

below have not taken note of the aforesaid facts and wrongly found that he committee wilful default and therefore rendered himself liable for

eviction.

The learned Counsel for the respondent contended that the courts below have concurrently found that the default committed by the petitioner is

wilful and therefore exercising the jurisdiction u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, this Court should not interfere with

such a finding. He cited a number of authorities also on this point. Even though mere default in payment of rent can be construed as only a pure

question of fact, when a default to pay rent by tenant has to be understood in the light of Section 10(2)(i) read with the proviso to that section, the

default has to be interpreted and understood legally. Therefore, it cannot be said that a wilful default can be construed to be only a simple question

of fact. Therefore, I do not find anything wrong in going into the question as to whether the default committed by the petitioner is wilful default or

not. After considering all the facts and circumstances of the case, I am of the view that there is no justification for interfering with the orders passed

by the courts below. In the circumstances, the civil revision petition is dismissed. However, there will be no order as to costs.