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Periasami thevar Vs. Namasivayam Pillai - Court Judgment

LegalCrystal Citation
SubjectTenacy;Contract
CourtChennai High Court
Decided On
Reported in(1979)1MLJ467
AppellantPeriasami thevar
RespondentNamasivayam Pillai
Cases ReferredBihar and Orissa v. Patney and Co.
Excerpt:
- .....not been adopted in the present case. the deeming provision does not directly come into play. the mode adopted is one of payment. the question is, where the parties are not residing in the same city or village and when there is no possibility of immediate and direct contact with each other, what should be the mode that could be conveniently adopted by the cultivating tenant in making the payment. in this case, the mode adopted is by sending the amounts by money order. admittedly payments were received by the landlord more than once by money order. there was no protest by the landlord with reference to the mode of payment adopted. this mode of payment adopted by the cultivating tenant was acquiesced in and accepted by the landlord. there was no objection put forth by the landlord in the.....
Judgment:
ORDER

S. Nainar Sundaram, J.

1. The petitioner herein is a cultivating tenant under the Tamil Nadu Act XXI of 1972 (hereinafter referred to as ('the Act)'. The respondent herein is the landlord The cultivating tenant sought reliefs under the Act by filing a petition E.A. No. 380 of 1973 in O.S. No. 836 of 1971. on the file of the District Munsif of Sirkali. The said petition has been dismissed by the Court below and this revision is directed against the orders of the Court below.

2. In this case there is no dispute about the relationship between the parties. The current rent was paid by four money orders as follows. Money order relating to Exhibit A-2 was received by the landlord on 24th August, 1972 : money order relating to Exhibit A-5 was received on 24th August, 1972 : the money order relating to Exhibit A-4 was received on 8th February, 1973, and lastly the money order relating to Exhibit A3 was received on 12th February, 1973. There is no disDute that this last money order was sent on 10th February, 1973. This covers a sum of Rs. 7. There is also no dispute before me that the amounts covered by all the money orders as well as commissions deducted will go to make up the 'current rent'. A contention was raised in the court below that the money order commissions deducted are excessive It must be pointed out that no such objection seems to have been raised in the counter so as to afford an opportunity to the cultivating tenant to substantiate his case by production of the relevant money-order receipts. It will not be fair to consider this objection when no specific plea has been taken in the counter. Admittedly the landlord was a resident of Salem at the relevant point of time and the cultivating tenant was a resident of Sirkali. So there was no occasion for immediate and direct contact between the parties. The provisions of Section 3 of the Act contemplate three modes of discharge, namely, by payment, by deposit or by being deemed to have paid or deposited. The mode of deposit had not been adopted in the present case. The deeming provision does not directly come into play. The mode adopted is one of payment. The question is, where the parties are not residing in the same city or village and when there is no possibility of immediate and direct contact with each other, what should be the mode that could be conveniently adopted by the cultivating tenant in making the payment. In this case, the mode adopted is by sending the amounts by money order. Admittedly payments were received by the landlord more than once by money order. There was no protest by the landlord with reference to the mode of payment adopted. This mode of payment adopted by the cultivating tenant was acquiesced in and accepted by the landlord. There was no objection put forth by the landlord in the counter to the present application with reference to the mode adopted. When such is the case, I think it will be legitimate to draw an inference that the landlord accepted the mode of payment adopted by the tenant and an implied agreement with reference to such mode of payment can be spelt out from the facts and circumstances of the case.

3. The Court below did not countenance the case of the cultivating tenant on the main ground that the last payment under Exhibit A-3 was received by the landlord only on 12th February, 1973, that is, beyond the period of six months stipulated under the provisions of the Act.

4. Mr. V. Sridevan, learned Counsel for the petitioner, submits that once an implied agreement can be spelt out and when once it is found that the money order relating to Exhibit A-3 was in fact registered with the postal authorities on 10th February, 1973, it must be held that there was a proper payment within time and the post office must be held to be an age at of the landlord, and payment of money to the post office for the purpose of being sent to the landlord by money order will constitute payment within time, to the landlord.

5. Mr. R. Subramanian, learned Counsel for the respondent, submits that in the absence of any express agreement the mode of payment adopted by the tenant cannot be countenanced and it cannot be held that there was due payment within time and the money order with reference to Exhibit A-5 having been received by the landlord only on 12th February, 1973, the payment was out of time and there was no due compliance with the provisions of the Act and the cultivating tenant is not entitled to the reliefs under the Act.

6. In view of the above controversy that has been raised in this case, it would be relevant to consider some of the judicial precedents with reference to the implications of despatch through post, if adopter by parties. In Kirloskat Brothers v. Commissioner of Income-tax, Bombay : AIR1952Bom306 the Bombay High Court was concerned with a case where there was a lack of nomination by the parties of the post office as an agent. In that context, the Barabay High Court observed that 'it is only in those cases where the receiver nominates the post office as his agent that the posting of letter constitutes the receipt of it by the receiver at the time and at the place where the letter is posted'.

7. In Rajaram v. Bisram : AIR1960All747 Tandon, J. was concerned with a case where there was no agreement, express or implied to pay into Court money payable under a compromise decree by money order and in the context of the case where the amounts were sent by money order and received by the Court beyond the stipulated time the learned Judge held that the post office cannot be held to be an agent of the Court, especially in view of Section 44 of the Post Office Act.

8. In Narbhagham Ramlal v. Punjab and Pepsu Financiers Ambala Cantt Brandit, J. was concerned with a case where there was no stipulation to constitute the post office as an agent and the learned Judge held that where there was neither a stipulation in the compromise decree that the amount could be sent by money order nor the decree-holder specifically instructed the judgment debtor to remit it through a money order, it could not be said that the post office was the agent of the decree-holder. From the discussion of the above cases, it is clear that the Courts are prepared to constitute the post office as an agent of the receiver, if there could be a stipulation between the parties to that effect.

9. In Commissioner of Income-tax, Bombay South v. Ogale Glass Works Ltd., Ogale Wadi : [1954]25ITR259(SC) the Supreme Court has observed that 'there can be no doubt that as between the sender and the addressee it is the request of the addressee that the cheque be sent by post that makes the post office the agent of the addressee. Hence from the above observation of the Supreme Court, it is clear that there could be a request by the payee and such a request could be acceded to and implemented between the parties.

10. In Commissioner of Income-tax, Bihar and Orissa v. Patney and Co. : [1959]36ITR488(SC) , the Supreme Court laid down the position as follows:

If it is shown that the creditor authorised the debtor either expressly or impliedly to send a cheque by post, the property in the cheque passes to the creditor as soon as if is posted. Therefore, the Post Office is an agent of the person to whom the cheque is posted if there be an express or implied authority to send it by post.

In Radheshyam v. Puttoola : [1959]36ITR488(SC) S.S. Dhavan, J., was concerned with a case where the benefits of a conditional order passed for restoring the suit was sought to be negatived on the ground that though the money order was registered in the post office within time, really, the amount was received by the other side out of time. On the facts of the case, the learned Judge observed 'it is true that payment had not been made actually to the defendants on 27th July, 1953, but the amount was delivered to the post office on 24th July, for remittance to the defendants. A letter was sent to the Court that the money had been sent. It is not necessary for me to decide whether the payment to the post office under a money order amounts to payment to the addressee. But in this case, the plaintiffs, by writing to the Court that they had remitted the amount virtually put it beyond their power to recall the money. If after informing the Court he had revoked the money order, he would have been guilty of misconduct for which appropriate action might have been taken against him. For all practical purposes this was virtual payment.' The learned Judge declined to take a technical view of the word 'payment'.

11. Even with reference to Section 38 of the Indian Contract Act, the position is that a creditor is not bound to accept a cheque but if a cheque is tendered and received and the creditor or his agent objects only to the amount, or makes no immediate objection at all, he cannot afterwards object to the nature of the tender.

12. From the above discussion, it is clear chat the parties can agree to treat the pot office as an agent of the payee. If the money is delivered to the post office within time, payment to the post office will constitute valid payment to the payee. The date on which the money was paid into the post office will be the date of payment to the payee. An agreement to treat the post office as an agent of the payee need not necessarily be express, but can also be implied. The authorisation can be express, or implied, is the view expressed by the Supreme Court in the decision above referred to. Commissioner oj Income tax, Bihar and Orissa v. Patney and Co. : [1959]36ITR488(SC) . If a particular mode of payment has been adopted by the payer and it has not been objected to or protested against immediately by the payee it can be stated that such a mode of payment was acquiesced in and accepted by the payee. If once the mode adpoted has been acquiesced in and accepted by the payee, it is not open to him to put forth an objection with reference to the said mode at a later stage.

13. On the facts of the present ease, it is clear that not only once but on four occasions, the cultivating tenant adopted the mode if payment by money order which had not been objected to or pr tested against by the landlord. No objection was also taken with regard to the mode of payment adopted, in the counter filed to the present application Hence, in such circumstances, it would be reasonable to hold that an implied agreement o receive payments by money order can be pelt out and hence the last money order with reference to Exbihit A-3 having been made and registered with the post office within line though received out of time will constitute valid payment within time.

14. In this view, I am inclined to interfere in revision, and accordingly this revision petition is allowed and the orders of the Court below are set aside and the reliefs prayed for in the application B.A. No. 380 of 197 will stand granted. There will be no order as to costs.


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