VASANT GAHINATH PANSE Vs. KALA SURYAKANT GOKHALE

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner has impugned decree dated 31st July, 1981, passed by the learned Joint Judge, Pune, in the Civil Appeal No. 642 of 1979 arising from decree of dismissal of suit passed by the trial Court on 2nd August, 1979, in Regular Civil Suit No. 1885 of 1975.

(2.) THE crucial facts required to be stated for the purpose of disposal of this petition are as under :-

(3.) IT is not disputed and it is not reasonably disputable that the petitioner-tenant had not paid rent to the respondents-landlords for the period commencing from 1st March, 1973 and the arrears of rent had accumulated for a period of one year on the date of notice dated 18th March, 1974. It is not disputed, and it is not reasonably disputable that amount claimed by the said notice was not paid. The petitioner was in arrears of rent for more than six months. The only question which arises for consideration of the Court is regarding plea to adjust balance of Rs. 10,000/- against the rent. The plea of adjustment of balance of Rs. 10,000/- can possibly be examined from two different angles. According to the respondents, case supported by the said agreement dated 2nd May, 1972, the petitioner was liable to pay amount of rent at the rate of 75/- per month during the said period, i.e. at the rate of Rs. 150/- per month, as gross rent and adjust part of such rent against the advance paid as provided under the said agreement. The petitioner paid the amount of rent to the landlord at the rate of Rs. 75/- per month for the period commencing from May, 1972 till February, 1973. Since the petitioner did not pay the amount of arrears of rent in compliance with the notice of demand the only question which arises is whether the said amount of arrears of rent was adjustable in law in full on the date of notice of demand. If one has to decide the matter in the light of the agreement dated 2nd May, 1972, the petitioner was obviously in default. It is, however, obvious that the said agreement dated 2nd May, 1972 shall have to be ignored as the said sum of Rs. 10,000/- was received by the respondents from the petitioner not in conformity with the provisions of the Bombay Rent Act, i.e. as a construction loan under a registered agreement stipulating the statutory conditions. The tenant, therefore, had a right to claim the entire sum of Rs. 10,000/- in one lump sum by filing a suit within a period of six months from the date of the payment or by deducting the said sum from rent within a period of six months from the date of payment. The remedy of the petitioner to file a suit for recovery of the said sum of Rs. 10,000/- or balance thereof or to recover the same as and by way of deduction from rent was time barred on expiry of six months from 2nd May, 1972. The judgment of the Hon'ble Supreme Court in the case of Manganlal Chhotabhai Desai v. Chandrakani Motilal, 1969 RCR 217 (SC) (supra) is quite clear on the subject. In this case, Bachawat, J., speaking for the Bench of the Hon'ble Supreme Court, observed that if the amount was incapable of recover because of bar of limitation, it could not be recovered by deduction and the right of recovery by deduction was barred at the same time as the right to recovery by suit. It was observed by the Apex Court that if the tenant sought recovery of the overpaid amount or the amount paid to the landlord not in accordance with the conformity of the provision contained in the Bombay Rent Act, he must bring the suit or make deductions within six months from the date of payment. The Hon'ble Supreme Court approved the dictum of the judgment of our High Court in the case of Karamasy Kanji v. Volji Virji, 56 Bom. LR 619. The learned Counsel for the respondents has also invited my attention to the subsequent judgment of the Hon'ble Supreme Court in the case of Jamnadas Harakchand and others v. Narayanlal Bansilal and others, 1970 RCR 244 : AIR 1970 SC 1221. The learned Counsel for the petitioner has submitted for the first time at the Bar that the period of limitation for adjustment of the amount of balance of Rs. 10,000/- against the rent of Rs. 150/- per month, payable every month, is deemed to have been extended in this case under Articles 18 and 19 of the Limitation Act, 1963. The learned Counsel for the petitioner has contended that the respondents were bound to adjust the entire amount of claim of Rs. 150/- per month against the balance of advance of Rs. 10,000/- and thus no amount was due and payable by the petitioner to the respondent on account of rent during the notice period or even thereafter. It is not possible to accept either of these submissions urged on behalf of the petitioner. The learned Counsel for the petitioner has invited attention of the Court to the averments made in the plaint in Suit No. 1885 of 1975. The learned Counsel has submitted that the respondents have given credit to the petitioner while computing the balance of the outstanding rent at the rate of Rs. 75/- per month and thus giving the cause of action for recovery of possession under Section 12(3)(a) of the Bombay Rent Act must be treated as non-existent by reason of the aforesaid credit. The petitioner did not seek adjustment of the amount of advance at the rate of Rs. 75/- per month but wanted the entire amount to be adjusted without reference to the instalments fixed under the agreement. This was the plea of the petitioner in reply to the notice and in the written statement. The remedy of the petitioner tenant to seek such adjustment was barred by limitation on expiry of six months from 2nd May, 1972. The said remedy was co extensive with the period of limitation prescribed for filing of the suit for refund. The respondents never acknowledged liability to adjust the entire amount at any time as argued on behalf of the petitioner. The petitioner cannot approbate and reprobate. Either the petitioner accepted the agreement dated 2nd May, 1972 or the petitioner does not. If the agreement is to be worked out, the petitioner was in default as the petitioner had not paid arrears of rent at the stipulated rate for one year at the time when the notice was issued. If the agreement is to be ignored and the rights of the tenant are to be worked out, the petitioner was in default, as the petitioner had not paid arrears of rent at the stipulated rate for one year at the time when the notice was issued. If the agreement is to be ignored and the rights of the tenant are to be worked out with reference to Sections 18 and 20 of the Bombay Rent Act, such rights must necessarily be exercised within a period of six months from the date of payment. The consistent conduct of the respondents in claiming rent at the rate of Rs. 75/- per month for the relevant period cannot be construed as "part-payment" by the respondents so as to extinguish the cause of action for possession accrued in favour of the respondents on expiry of notice period. The learned Counsel for the petitioner has relied upon the Explanation to Section 18 of the Limitation Act, 1963. With respect, the Explanation is totally irrelevant for our purpose. The question to be asked is what did the respondents acknowledge in the plaint or in the deposition ? The question can be answered only by posing another question as to what was the claim of the petitioner. The claim of the petitioner in reply to the notice demand as well as in the written statement was that the respondents were bound to give credit for the entire sum of Rs. 1,000/- without reference to any instalments and the petitioner was not liable to pay any rent, at any rate, till the said amount was adjusted in full i.e. for a period of about eight years. The respondents never acknowledged this claim of the petitioner at any time. The conduct of the respondents in giving credit at the rate of Rs. 75/- per month only cannot be interpreted to mean implied acknowledgment of liability in respect of the claim to adjust entire amount as put forward by the petitioner. The case of the respondents throughout was that the petitioner was liable to pay rent at the rate of Rs. 75/- per month till the amount of advance was adjusted. The respondents never agreed not to claim any rent till advance was adjusted. The petitioner did not pay the amount of rent at the rate of Rs. 75/- per month during the notice period. With respect, the argument urged appears to be rather confussing. No such plea was taken in the Courts below. There is no merit. Part payment or acknowledgement by the letter extends limitation for filing of a suit by the creditor. None of these provisions are applicable in this case. The remedy of the petitioner to deduct the entire sum of Rs. 10,000/- in one lump sum or balance thereof had already become barred by law of limitation and the said time-barred claim was not revived by reason of the respondents making claim for arrears of rent at the rate of Rs. 75/- per month during the notice period or during the pendency of the suit.