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PETITIONER: MAHENDRA RAGHUNATHDAS GUPTA

       Vs.

RESPONDENT: VISHVANATH BHIKAJI MOGUL & ORS.

DATE OF JUDGMENT:       10/04/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises form the judgment of the  Bombay High  Court, made  on July  17, 1996  in writ petition No. 1814 of 1996.      The admitted  facts are   that  one Jagmohandas was the original lenant  and the  appellant is  his  brother.    The landlords were  Jayabai G.  Ashar, Bachubhai alias Brijkuvar Bhagwandas, Krishnakuamar  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, to  the sale deed came to be executed and  registered   on  July  10  ,  1984  in  favour  of  the respondents but no attornment was made.      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 he  paid the rent within 30 days form the dated 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

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    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  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  demands  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, 10882.      (3) (a)  Where the  rent is payment      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  or more  and      the tenant neglects to make payment      thereof until the expiration of the      period of  one Month  after  notice      referred  to   in  sub-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 demised premises  as lo g 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 there standard rent or  permitted increases,  If such rent or increases are in arrears  for a  period of  six months  or  more  and  the tenants neglects to make payment thereof until the expiry of the period of one month after the notice referred to in sub- section  (2)   postulates  that  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 expiry 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.      Thus,    it  could  be  seen  two  conditions  must  be satisfied for  eviction a tenant on the ground of default in the payment  of rent or permitted increases.  Firstly, there must be  a default  in the payment of rent.  The default may continue for six months or more.  Secondly,  before filing a petition for eviction, a notice in writing under section 106 of the Transfer of Property Act shall be given to the tenant giving one month’s time.  Then, It shows that tenant was not ready and  willing to  pay rent,  if he  neglects to pay the

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rent within  30 days  from the  date of  the receipt  of the notice,  on expiry of one month next after notice in writing an d  the payment  of the  standard rent  or  the  permitted increases has  been served upon the tenant,  the landlord is entitled to file the suit for ejectment. In  such event, the court is empowered to order eviction.      The question  is: whether  the appellant was in arrears in the  payment of the rent? After the receipt of the notice when he  tendered the  rent to  the advocate  whether he has committed default.  Here is  the  case  where  the  previous landlords, admittedly,  had not  given  any  notice  to  the appellant informing  him of  the sale of the property to the respondents at  any time before the notice issued except for the first  time  through  the  advocate  intimating  to  the appellant of  the purchase  so made  on July  6, 1984; nor a copy of the sale deed was given to him. When at the instance of  the   original  landlords   the  tenant   sent  rent  to Shivajibhai Patel and Ratilal Patel, it was refused by them. Under these  circumstances, the appellant was in the dark as to whether  the respondents  were really  landlords   of the appellant. When  the notice, under these circumstances, came to be  given by  the advocate,  on behalf  of the appellant, necessarily as  a prudent  man ,  the appellant,  instead of taking a  risk, had  sent the  amount in  the  name  of  the advocate refused  to receive  it. When the advocate had sent the notice  on behalf  of the respondent, obviously he acted as an  agent on  behalf of  the respondent,   We may in this connection refer  to section 106 of the Transfer of property Act.   Requirement of  the notice under this section is that it must  be in writing signed by the lawyer on behalf of his client landlord would meet the requirement of section 106 of the Act.   Then  under clause  (1) of  section  106  of  the Transfer of  property Act  a  lessee  is  bound  to  pay  or tender, at  the or  his agent in this behalf. In the present case,  the lawyer has acted as agent in this behalf.  In the present case,    the  lawyer  has  acted  as  agent  of  the landlords.   It is  corrected That  the lawyer  Gaikwad  did indicate in  his notice  that the rent be sent to one of the landlords who had purchased the premises and when the tenant sent the  rent by  means of cheque in the name of the lawyer he returned  the same  setting that  he  was  not  the  rent collector for  his clients.   The  tenant thereupon  sent  a fresh cheque of the entire amount of the rent in the name of the landlord  indicated in  the  notice.    Respondent  No.1 refused to  accept the  cheque and  when the  amount of rent again tendered  by money order, it was once again refused by the respondent.  It is well settled that a transferee 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. Validity  of the  transfer of  the  landlord’s  rights. Since 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.      Two things  arise for  consideration (1)  if the tenant was justified in sending the rent to the  lawyer in spite of his notice  to send  the rent  to his  client and (2) if the tender of  rent by  cheque is  a valid  tender.   Taking the second point  first  merely  because  the  tenant  has  made payment of  rent by  cheque, it  cannot be  assumed that the tenant was  not ready  or willing to pay arrears of rent. As

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expression "ready and wiling to pay arrears of rent" in sub- section (1) of section 12 of the Act does not mean that when rent is  paid only  by cash  then it  can only  be said  the tenant is  ready and  willing to  pay the rent. Tendering of rent by  cheque is  legal. In K. Saraswathy vs. Somasundaram [(1989) 4  SCC 527  = AIR 1989 SC 1553], The court held that the payment by cheque is an ordinary incident of present-day life, whether  commercial or  private, and  unless    it  is specifically mentioned  that payment must be in cash payment by cheque  shall be taken to be due payment if the cheque is subsequently encashed in the ordinary course..      On the  first point,  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  man by  issuing a  notice at the earliest to  the appellant  calling upon him to pay the rent to him.   Instead,  he waited  for two  years  obviously  to created a  condition of  default and  then  got  the  notice issued.  His conduct is not worth reckoning.      Considering the whole aspect of  the matter,  it cannot be said that tenant was not ready and willing to pay arrears of rent  or that  he neglected  to make  payment thereof  in terms of the notice.      The appeal  is accordingly allowed. The judgment of the High court as well as the courts below stand set aside.