IN THE HIGH COURT OF BOMBAY
Writ Petition No. 1142 of 1981
Decided On: 01.04.1991
Ramchandra Govind Palekar and Ors.
Ramesh Nana Jangam and Ors.
V.V. Kamat, J.
Citation: 1992 Bom. C. R. 310.
1. In this petition, under Article 227 of the Constitution of India by the petitioners-landlords, the only question is as to whether in accordance with Section 12(1) of the Bombay Rents Act, the tenants could be said to be ready and willing to pay the amount of rent. The ground for eviction is for arrears of rent based on the notice of demand dated February 9, 1975. The admitted position is that on receipt of the notice of demand, the tenant, on March 11, 1975 (within one month), remitted all the arrears, amounting to Rs. 2,421.14 as per the claim by the landlord in his notice of demand by a Bank Demand Draft under a registered envelop (Exh. 35). Further it is an admitted position that the plaintiff No. 1 Ramchandra admitted in his evidence on oath that his address on the said envelope had been correctly written. Despite this position, the envelope did not reach the plaintiff and was returned to the tenant with an endorsement “not found at delivery time during the period from March 12, 1975 to March 27, 1975.” The trial Court held this as non-complinace with the requirement of readiness and willingness, and in appeal, the appellate Court held that this amounts to tender showing readiness and willingness on the part of the tenant to pay the rent and all the arrears. Holding that the tenant was ready and willing to pay the rent, there being the compliance of the provisions of Section 12(1) of the Bombay Rents Act, the appellate Court held that the landlords were not entitled for the recovery of possession.
2. The appellate Court came to this conclusion on the basis of two decisions of this Court in Marutrao v. Akbarali, 1974 Mah. LJ 239 and Suka Ishram v. Ranchhoddas, 74 Bom. LR 220. The case of Marutrao (supra) is as regards the refusal of payment by cheque sent by the tenant under registered post, wherein by this Court held that payment by cheque was a legal tender of arrears and the refusal thereof is compliance with readiness and willingness on the part of the tenant to tender the rent and arrears. Similarly, in Suka Ishram’s case (supra), the tender was by money order to the landlord which was refused by him and it was held that this was a legal tender to show compliance of readiness and willingness.
3. The admitted and proved facts in the petition before me clearly show that within one month, the tenant on March 11, 1975 remitted the entire arrears of Rs. 2,421.14 by a Demand Draft. A look at the envelope shows the necessary postal endorsements that the landlord not having been found at the delivery time. The facts clearly show that the landlord, plaintiff No. 1 has admitted that the envelope bears his correct address. It is common that the postal authorities in the matter of address not being found at delivery time consecutively send intimation and then keep the registered envelope for a period of a week to enable the addressee to collect the envelope personally by attending the post office. The envelope (Exh. 35) in the instant petition bears all the necessary endorsements and the learned counsel appearing for the petitioners has not raised any dispute in regard thereto. In law, failure on the part of the addressee in collecting the envelope on intimation inspite of the fact that the postal authorities retained the envelope for a period of one week, as has been placed on evidence in this matter, cannot but would amount to a refusal on the part of the landlord. This Court in P.A. Kowali v. Narayan Jagannath Mahale, 1981 Mah. LJ 355 has already taken such a view in regard to the fact not found at delivery time in regard to the notice of demand amounting to refusal.
4. In this view of the position the appellate Court was clearly right in coming to the conclusion that there is evidence of readiness and willingness on the part of the tenant as required under Section 12(1) of the Bombay Rents Act. In this view of the position, it is not necessary to resort to the other provisions as the entire cause of action enabling the landlord to recover the possession of the suit premises is the condition that the tenant not being ready and willing to pay the amount of standard rent and permitted increases. For the reasons stated above, there is no error in the impugned judgment dated November 29, 1980 of the 4th Extra Assistant Judge, Pune, allowing the appeal being Civil Appeal No. 286 of 1979 and, therefore, accordingly this petition stands dismissed and the rule is discharged with costs.