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PETITIONER: KHADI GRAM UDYOG TRUST

       Vs.

RESPONDENT: SHRI   RAM   CHANDRAJI  VIRAJMAN   MANDIR   SARSAIYA   GHAT,

DATE OF JUDGMENT28/11/1977

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. UNTWALIA, N.L.

CITATION:  1978 AIR  287            1978 SCR  (2) 249  1978 SCC  (1)  44

ACT: U.P.  Urban  Buildings (Regulation of Letting,  Rent  and Eviction)   (U.P.  Act  XIII),  1972,  sec.   20(4),   scope of--Whether the words "entire amount of rent due"  occurring in s. 20(4) would include time--barred rent.

HEADNOTE: Section  20(1)  of the U.P. Urban Buildings  (Regulation  of Letting,   Rent  and  Eviction)  Act  XIII  of   1972   bars institution  of  a  suit for eviction of  a  tenant  from  a building,  notwithstanding the determination of his  tenancy by  efflux of time or on the expiration of a notice to  quit or  in  any other manner.  Sub-s. (2) of s. 20  enables  the landlord  to file a suit on any one or more of  the  grounds mentioned  in that sub-section.  Sub-cl. (a) of  sub-s.  (2) provides  that  a  suit  for eviction of  a  tenant  from  a building may be instituted on the ground that the tenant  is in arrears of rent for not less than 4 months and has failed to  pay the same to the landlord within one month  from  the date of service upon him of a notice of demand.  Section  24 provides  "In any suit for eviction on the ground  mentioned in cl. (a) of sub-s. 2, if at the first hearing of the  suit the  tenant unconditionally pays or tenders to the  landlord or deposits in court the entire  amount of rent and  damages for use and occupation of the building due   from        him together with interest thereon at the rate of 9 per cent per annum and the  landlord’s  costs  of  the  suit  in  respect thereof after deducting any amount already deposited by  the tenant  under sub-s. (1) of s. 30, the court may in lieu  of passing  a decree for eviction on that ground pass an  order relieving  the tenant against his liability for eviction  on that ground" thus, giving another opportunity for payment of rent to the tenant. The  respondent,  owner of premises No. 49/4  General  Ganj, Kanpur, served a notice on the appellant who was a tenant of a  shop in the premises on a monthly rent of Rs. 200/-  from 1958 demanding payment of arrears of rent as well as to quit the  premises.  Several notices were also served earlier  on the appellant and he failed to pay the rent within one month from the date of the service of the notice of demand on him. The   last   notice  was  served  on  9th  of   July   1973. Subsequently, the respondent filed a suit No. OS 5/73 before

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the District Judge, Kanpur relinquishing his claim for  rent for  the  period 1-1-1963 to 31-12-1970 as  the  relief  was time-barred.   On  the appellant’s paying the rent  for  the period from 1-1-1971 to 30-4-1973, the respondent restricted his claim for the period 1-5-1973 to 8-8-1973 for Rs, 3200/- as  damages  and  Rs. 322 93 as water  tax  alleging  to  be already  due  and  Rs  50/- as  water  tax  tentatively  due pendentelite and future water tax and also for ejectment  of the   appellant/defendant  from  the  suit  premises.    The appellant  filed the written statement stating that  he  had paid  the entire amount due; that he was not a defaulter  as the rent for the period 1-1-1963 to 31-12-1970 was barred by time  and was, therefore, not liable to be evicted from  the suit premises u/s. 24. The appellant also deposited a sum of Rs.  5972.43  in  the court being the  amount  of  rent  and damages  for the period 1-5-1973 to 28-2 1975 together  with interest, costs etc. as required by s. 24 of the U.P Act  of 1972.  The suit which was transferred to the court of  sixth Additional  District  Judge  was decreed in  favour  of  the respondent/plaintiff   on  11-11-1975  and  the   appellant/ defendant  was  directed to vacate the suit  premises.   The entire  amount deposited by the appellant/defendant  in  the court  u/s. 20(4) of the Act was ordered to be paid  to  the respondent/plaintiff.   The District Judge was of  the  view that  the  tenant ought to have  deposited  the  time-barred arrears of rent also in order to claim benefit u/s. 24.  The Trial  Court found that the landlord had proved that  tenant was  in arrears of rent for not less than 4 months  and  had failed to pay the same to the landlord within one month from the date of service 250 -upon him of a notice of demand and, as such, satisfied  the requirement  of sub-s. 2 of s. 20 and is entitled for  order of  eviction.  The appellant filed a revision petition  u/s. 25  of  the  Small Causes Court Act in  the  High  Court  of Allahabad which was dismissed. Dismissing the appeal by special leave the Court, HELD  : (1) Under s. 20(2) of the Act, the landlord  gets  a cause  of action for evicting the tenant when the tenant  is in  arrears of rent for not less than four months,  and  has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand.  If  the tenant  pays  the entire arrears of rent due  at  the  first hearing  of  the  suit the court  may  relieve  the,  tenant against  eviction  even though he had not complied  with  s. 20(2).   The  tenant  can  take  advantage  of  the  benefit conferred by a. 20(4) only when he pay- the entire amount of rent  due as required u/s 20(4).  Under sub-s. (4) of s  2-0 though  the tenant has not complied with the requirement  of sub-s. (2) of s. 20, if he pays at the first hearing of  the suit  unconditionally the entire amount of rent,  the  court may pass an order relieving the tenant against his liability for eviction. [252C; G] (2)The statute of limitation only bars the remedy but does not  extinguish the debt, except in cases provided by s.  28 of the Limitation Act which does not apply to a debt. [253B] Curwen  v.  milburn   (1889) 42 Ch.   D.  424,  quoted  with approval Bombay  Dyeing  and Manufacturing Co. Ltd. v. The  State  of Bombay & Others [1958], S.C.R. 1122, applied. Ram  Nandan  Sharma  and Anr. v. Mt.   Maya  Devi  and  Ors. A.I.R, 1975 Pat. 283, approved. (3)On consideration of the scheme of the Act, it is  clear that  the statute has conferred a benefit on the  tenant  to avoid   a  decree  for  eviction  by  complying   with   the

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requirement  of s. 20(4).  If he fails to avail  himself  of the opportunity and has not paid the rent for not less  than four  months and within one month from the date  of  service upon  him  a notice of demand the landlord  under  s.  20(2) would be entitled to an order of eviction.  Still the tenant can  avail himself of the protection by complying  with  the requirements of s. 20(4).  The ’words "entire amount of rent due" would include rent which has become time-barred, In  the instant case as the appellant has not deposited  the entire  amount  due, the protection u/s. 20(4)  is  no  More available. [253-D-F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1313  of 1977. Appeal  by Special Leave from the Judgment and  Order  dated 20-5-77  of the Allahabad High Court in Civil  Revision  No. 2217 of 1975. Hardayal  Hardy,  K. L. Taneja and S. K. Sabharwal  for  the Appellant. I.N.  Sinha, Badri Das Sharma and S. R. Srtvastava  for  the Respondents. The Judgment of the Court was delivered by KAILASAM,  J.-On  November 8, 1977 when the hearing  of  the appeal  was concluded we pronounced an order dismissing  the appeal  with  costs stating that a reasoned  judgment  would follow. We now proceed to give our reasons.  251 This  appeal  by special leave is preferred  by  Khadi  Gram Udyog  Trust,  the  tenant  against  the  judgment  of   the Allahabad  High Court passed in Civil Revision No.  2217  of 1975  directing  its  eviction.   The  respondent  Shri  Ram Chandraji Virajman Mandir, Sarsaiya Ghat, Kanpur, the  owner of  premises No. 49/4 General Ganj, Kanpur, served a  notice on the appellant who was a tenant of a shop in the  premises on  a monthly rent of Rs. 200/- from 1958 demanding  payment of  arrears as well as to quit the premises.     The  notice was served on 9th July, 1973.   Subsequently the  respondent filed the suit No.O.S.5  of  1,973  before  the   District Judge, Kanpur, restricting its claimfor   recovery    of arrears  of rent from 1-5-1973 to 8-8-1973 for  Rs.  3200/as damages  and Rs. 322.93 as water tax alleged to  be  already due  and Rs. 50 as water tax tentatively due  pendente  lite and  future, water tax and for ejectment of  the  petitioner from  the  suit  premises.   In  this  suit  the  respondent relinquished  his claim for rent for the period 1.1.1963  to 31.12.1970  as  the relief was time-barred.   The  appellant paid  the  rent  for the period 1.1.1971  to  30.4.1973  and thereafter  respondent restricted his claim for  the  period 1.5.1973  to  8.8.1973.  The  appellant  filed  the  written statement  stating that lie had paid the, entire  barred  by time,he  pleaded  that he was not a defaulter  and  was therefore not liableto   be  evicted  from   the   suit premises.   The appellant deposited a sum of Rs. 5972.43  in the  Court  being  the amount of rent and  damages  for  the period  1.5.1973 to 28.2.1975 together with  interest,  cost etc.  as  required by section 20(4) of the U.P.  Act  13  of 1972.   The suit was transferred to the Court of  6th  Addl. District Judge, Kanpur, who on 11. 11. 1975 decreed the suit of  the respondent and directed the appellant to vacate  the suit  premises and ordered that the entire amount  deposited by  appellant  in the Court under section 20(4) of  the  Act shall  be paid to’ the plaintiff-respondent.  The  appellant

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filed  a  revision petition under section 25  of  the  Small Causes Courts Act in the High Court of Allahabad.  The  High Court  dismissed the revision petition by its  judgment  and order  dated  19.4.1977.  The present  appeal  is  filed  by special leave granted by this Court. The  only  contention  raised in this  appeal  is  that  the appellant  having complied with the requirement  of  section 20(4)  of  the Act and deposited the entire amount  of  rent due,  the Court ought to have passed an order relieving  the tenant  against his liability for eviction on  that  ground. Chapter  IV  of  the U.P.  Urban  Buildings  (Regulation  of Letting, Rent and Eviction) Act XIII of- 1972 prescribed the procedure  for  eviction of a tenant.  While  section  20(1) bars  institution  of suit for eviction of a tenant  from  a building,  notwithstanding the determination of his  tenancy by  efflux of time or on the expiration of a notice to  quit or in any other manner, sub-section (2) enables the landlord to  file a suit on any one or more of the grounds  mentioned in sub-section (2).  We are concerned with sub-clause (a) of sub-section (2) which provides that a suit for eviction of a tenant from a building may be instituted on the ground  that the  tenant  is in arrears of rent for not  less  than  four months and has failed to pay the same to the landlord within one  month from the date of service upon him of a notice  of demand.  It is not disputed that several notices 252 were  served on the appellant and that he failed to pay  the rent  within one month from the date of the service  of  the notice of demand on him.  Another opportunity for payment of rent  is  provided to the tenant under section  20(4)  which provides  that  "In  any suit for  eviction  on  the  ground mentioned in clause (a) of sub-section (2), if at the  first hearing  of  the  suit the tenant  unconditionally  pays  or tenders  to   the landlord or deposits in Court  the  entire amount of rent and damagesfor use and occupation of  the building due from him together with interest thereon at  the rate of 9 per cent per annum and the landlord’- costs of the suit in respect thereof, after deducting any amount  already deposited by the tenant under sub-section (1) of section 30, the  court may, in lieu of passing a decree for eviction  on that ground, pass an order relieving the tenant against  his liability  for  eviction  on the ground.   Under  this  sub- section, therefore, though the, tenant has not complied with the requirement of sub-section (2) of section 20, if he pays it the first hearing of the suit unconditionally the  entire amount  of  rent the court may pass an order  relieving  the tenant  against this liability for eviction.  In  this  case the  appellant deposited on 13-2-1975 a sum of  Rs.  5972.43 being the amount of rent and damages for the period 1.5.1973 to 28.2.1975 together with interest etc.  The contention  of that  is  recoverable and would not include  the  rent,  the recoveryfor  which is barred by time.        According  to the  appellant  the payment  of entire amount  of  rent  due would  not  include  the rent for  the  period  1.1.1960  to 31.12.1970  as  the claim is barred by time.   The  District Judge  who  tried the suit was of the view that  the  tenant ought to have deposited the time-barred arrears of rent also in  order to claim benefit under section 20(4).   The  trial Court  proceeded with the trial of the suit and  found  that the  landlord had proved that tenant was in arrears of  rent for not less than 4 months and had failed to pay the same to the landlord within one month from the date of service  upon him of a notice of demand and as such satisfied the require- ment  of sub-section (2) of section 20 and is  entitled  for order of eviction.  In the revision the High Court  affirmed

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the view taken by the trial Court and dismissed the appeal. It  will  be seen that under section 20(2) of the  Act,  the landlord gets a cause of action for evicting the tenant when the  tenant  is in arrears of rent for not  less  than  four months,  and  has  failed to pay the same  to  the  landlord within  one  month from the date of service upon  him  of  a notice of demand.  If the tenant pays the entire arrears  of rent  due  at the first hearing of the suit  the  court  may relieve  the tenant against eviction even though he had  not complied with section 20(2).  The tenant can take  advantage of the benefit conferred by section 20(4) only when he  pays the  entire  amount of rent due as  required  under  section 20(4).   The question that arises for consideration in  this appeal  is  whether  the entire amount  of  rent  due  would include  even rent which cannot be recovered as having  been time-barred.   There is ample authority for the  proposition that  though  a debt is time-barred, it will be a  debt  due though   not  recoverable,  the  relief  being   barred   by limitation.  In Halsbury’s Laws of England (3rd Ed.) Vol. 24 at p. 205, Article 369, it is stated "except  253 in the cases previously mentioned, the Limitation Act,  1939 only  takes  away the remedies by action or by set  off;  it leaves the right otherwise untouched and if a creditor whose debt is statute-barred has any means of enforcing his  claim other  than by-action or set-off, the Act does  not  prevent him from recovering by those means.  The Court of Appeal  in Curwen v. Milburn (1889) 42 Ch.  D. 424 Cotton, L. J. said :               "Statute-barred debts are dues, though payment               of them cannot be, enforced by action." The  same view was expressed by the Supreme Court in  Bombay Dyeing  and Manufacturing Co. Ltd. v. The State of Bombay  & Others(1) where it ’held that the statute of limitation only bars the remedy but does not extinguish the debt, except  in cases  provided  for by section 28 of  the  Limitation  Act, which does not apply to a debt.  Under section 25(3) of  the Contract Act a barred debt is good consideration for a fresh promise  to pay the amount.  Section 60 of the Contract  Act provides  that  when a debtor makes a  payment  without  any direction  as to how it is to be appropriated, the  creditor has the right to appropriate it towards a barred debt.  In a full  Bench  decision  of the Patna High  Court  Ram  Nandan Sharma  and Anr. v. Mi.  Maya Devi and Others(2),  Untwalia, C.  J.  as  he then was, has stated "There is  a  catena  of decisions  in  support of what has been said by  Tek  Chand, p.330  paragraph 12) that the Limitation Act with regard  to personal actions, bars the remedy without extinguishing  the right."  The law is well-settled that though the  remedy  is barred  the debt is not extinguished.  On  consideration  of the  scheme  of the Act, it is clear that  the  statute  has conferred  a  benefit on the tenant to ’avoid a  decree  for eviction by complying with the requirement of section 20(4). If he fails to avail himself of the opportunity and has  not paid  the rent for not less than four months and within  one month  from  the  date of service upon him of  a  notice  of demand,  the landlord under section 20(2) would be  entitled to an order of eviction.  Still the tenant can avail himself of  the  protection by complying with  the  requirements  of section  20(4).  As he has not deposited the  entire  amount due the protection is no more available.  We agree with  the view  taken  by  the  trial court  and  the  High  Court  of Allahabad  that the words "entire amount of rent due"  would include rent which has become time-barred In  the  result the appeal is dismissed.  There will  be  no order as to costs.

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S.R. Appeal dismissed. (1)  [1958] S.C.R. 1122. (2)  A.T.P. 1975 Pat. 283. 254