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Surendra Nath Vs. Indra Devi Dhawan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 95 of 1984
Judge
Reported in1985(8)DRJ197; 1985RLR117
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantSurendra Nath
Respondentindra Devi Dhawan
Advocates: L.R. Gupta,; Rajiv Gupta,; S.L. Bhatia and;
Cases ReferredRam Murti v. Bhola Nath and
Excerpt:
.....the tenant instructed his bankers on 26-12-1973 to delict his account and remit the same to the bank account of the decree holder. some how, the transfer advice was lost and the money was actually credited on 9-3-1974. ; there was no default on the part of the tenant and in any case there was sufficient cause explaining the delay. - - (2) the appellant, according to the respondent failed to comply with the order and consequently the respondent filed an execution application on or about 5/'6th february, 1974 which came up before the learned rent controller on 6th february, 1984, alleging inter alias that the appellant did not deposit the amount contemplated within one month from the date of the order. (5) the respondent being dis-satisfied with the findings of the executing court..........1973 which contemplated the appellant to deposit rent from 1st september, 1973 up to date in the bank account of the respondent with state bank of india, hauz qazi, delhi within one month from the date of that order, failing which it will result in eviction of the appellant. (2) the appellant, according to the respondent failed to comply with the order and consequently the respondent filed an execution application on or about 5/'6th february, 1974 which came up before the learned rent controller on 6th february, 1984, alleging inter alias that the appellant did not deposit the amount contemplated within one month from the date of the order. (3) the appellant on receipt of the notice of the execution application filed objections to the execution application and it was pleaded that the.....
Judgment:

Yogeshwar Dayal, J.

(1) A compromise order was passed by learned Additional Controller, Delhi on 21st December, 1973 which contemplated the appellant to deposit rent from 1st September, 1973 up to date in the bank account of the respondent with State Bank of India, Hauz Qazi, Delhi within one month from the date of that order, failing which it will result in eviction of the appellant.

(2) The appellant, according to the respondent failed to comply with the order and consequently the respondent filed an execution application on or about 5/'6th February, 1974 which came up before the learned Rent Controller on 6th February, 1984, alleging inter alias that the appellant did not deposit the amount contemplated within one month from the date of the order.

(3) The appellant on receipt of the notice of the execution application filed objections to the execution application and it was pleaded that the amount was deposited. It was also pleaded that the order of eviction was nullity in the circumstances of the case.

(4) The Executing court without going to the question, whether the order dated 21st December, 1973 had been complied with or not, gave a finding that the eviction order was nullity.

(5) The respondent being dis-satisfied with the findings of the Executing court that the order was a nullity went up in appeal before the Tribunal. The learned Tribunal came to the conclusion that the order dated 21st December 1973 was valid and not nullity and directed the trial court to decide the objections on its own merits, namely, whether the tenant committed the default or not.

(6) Against this order present appeal has been filed on behalf of the tenant. It may be mentioned that the parties have led evidence on the merits of the default or otherwise in complying with the order dated 21st December, 1973.

(7) It will be a moot point, whether the order was executable or nullity but with the consent of the learned counsel for the parties and in the peculiar facts of the case, I am deciding the question whether the appellant had complied with the order dated 21st December 1973.

(8) It will be noticed that the appellant had examined in court OW-1, Shi Sunil Kumar Vadera of his banker Punjab & Sind Bank, Kailash Colony. New Delhi. He also examined OW-2 Sh. T.L. Kapur, Clerk in the Post Office, Kailash Colony, OW-3 Shri R.C. Srivastava, Clerk State Bank of India, Hauz Khas, OW-4 Shri Hardit Singh, Manager, Punjab & Sind Bank, Kailash Colony Market, New Delhi besides also examined himself as OW-5.

(9) The landlord-respondent examined Sh. S.L. Jethi DHW-1 and Sh. Ishwar Chandra Dhawan DHW-2.

(10) As per the statement of OW-4, Shri Hardit Singh, the appellant had on 26th December, 1973 instructed Punjab & Sind Bank vide Ex. R-2 that his account with Punjab & Sind Bank may be debited with a sum of Rs. 1300.00 and the sum may be remitted to the account of the decree holder, Shri I.C. Khanna in Saving nk Account No. 26 in State Bank of India, Hauz Qazi and also to debit a sum of Rs. 325.00 on 1st of every month and credited to the aforesaid account of Shri I.C. Khanna and the bank had on the same day dispatched a Pay Order to the Stats Bank of India vide Pay Order No 247002/93/73 dated 26th December, 1973 and also debited the account of the appellant by Rs. 1 .00 towards the expenses for sending the pay order. It is, thus, clear from the letter dated 9th March, 1974 sent by Punjab & Sind Bank to the Agent, State Bank of India, Hauz Qazi, Delhi (Ext R-4) that regarding the disputed pay order, it was stated in that letter that it has been lost in the office of the S:ate Bank of India, and as requested by the State Bank of India, the duplicate pay order will be sent on indemnity Bond being sent by the State Bank of India. It is again clear from the statement of account of the appellant (Ex. R-1) dated 9th March 1974 that asumofRs.l300.00 was debited in the account of the appellant on 26th December, 1973 but against the date of encashment, it is noted, 'Entry still outstanding', which means that no advice was received from the State Bank of India of having credited this amount in the account of the decree holder. It is also clear from the complete statement of account (Ext. R-8) of the judgment debtor that the amount of Rs. 1301.00 was debited to his account on 26th December, 1973. It transpires that after the letter dated 9th March, 1974, there was some correspondence between the State Bank of India, Hauz Qazi and the banker of the judgment debtor denying the fact of conversation about loss of pay order. What transpires from the aforesaid material evidence is that judgment debtor had done everything possible in law by requesting his banker to remit the amount to the aforesaid account of the decree holder so much so that account of judgment debtor was also debited on the same day and pay order in favor of decree holder was also sent to his bankers. It is, thus clear that the judgment debtor had fully complied with the compromise order dated 21st December, 1973.

(11) There is another angle also for looking at this problem. It will be noticed that the order dated 21st December, 1973 was a composite order under Section 15(1) of the Delhi Rent Control Act and an order turn eviction. The Supreme Court had recently held in the case of Ram Murti v. Bhola Nath and other 1984 (7) Drj 296, that if there is a delay in complying with the order passed under Section 15(1) of the Delhi Rent Control Act and in case the tenant shows sufficient cause explaining the delay, the court of Rent Controller had power to condone the delay. To see from that angle also, it will be noticed that the tenant had given a fully proved Explanationn for the delay, if any, in the crediting of the amount in the account of the Deere holder. It appears to me that the fault was at the hands of the banker of the decree holder. Punjab & Sind Bank had even shown the dispatch of the pay order to the State Bank of India but the State Bank of India appears to be complete silent. There was no occasion for the Punjab & Sind Bank to prepare false the cord of receiving instructions, debiting account, preparing pay order and then dispatching it. It appears to me that the latter correspondence between the Punjab & Sind Bank and the State Bank of India was nothing but a bureaucratic way of trying to save their skin in dealing with the customers. There was no reason for State Bank of India to go back on telephonic conversation noticed in the letter dated 9th March, 1974 and it appears that both the bank authorities thereafter agreed to go back on telephonic conversation as noticed in the letter dated 9th March 1974. Bureau-crates of both the banks tried to save each other. One tried to help other.

(12) In the circumstances, I find that there was no default on the part of the appellant and even if there is any delay in deposit of the amount in the account of the decree holder, the Controller has the power to condone such delay and extend time under Section 15(1) of the Act. I would accordingly condone delay, if any.

(13) For all these reasons, the execution application itself filed by the respondent on 5/6th February, 1974 against the appellant is dismissed on merits. The appeal is decided accordingly.


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