EIH LIMITED VERSUS NADIA A VIRJI

EIH LIMITED VERSUS NADIA A VIRJI


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4797-4799 OF 2022
EIH LIMITED …APPELLANT
VERSUS
NADIA A VIRJI …RESPONDENT
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 25.06.2019 passed by the Division Bench of the High
Court at Calcutta in A.P.D. No. 265/2017 with G.A. No. 1216/2016 with
G.A. No. 218/2013 in Civil Suit No. 354/2012, by which the Division
Bench of the High Court has dismissed the said appeal and has
confirmed the order dated 22.03.2016 passed by the learned Single
Judge allowing the application under Order 7 Rule 11 CPC rejecting the
plaint on the ground that the suit before the learned Single Judge
1
(original side) would not be maintainable as per the provisions of the
West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the
‘Act 1997’), the original plaintiff – landlord has preferred the present
appeals.
2. The facts leading to the present appeals in a nutshell are as under:
That by a Tenancy Agreement dated 6.5.1993, the appellant –
original plaintiff – landlord inducted the respondent/defendant as tenant
in respect of a showroom admeasuring 1700 sq. ft. on the ground floor of
a prime location of Kolkata being the arcade of the Hotel Oberoi Grand
at Premises No. 15/2, Jawaharlal Nehru Road, Kolkata. Under the
Tenancy Agreement, the rent was fixed at Rs. 10,000/- per month.
Under the Tenancy Agreement, the liability to pay the taxes including
surcharge and water tax/fees was upon the respondent – tenant.
2.1 The appellant – original plaintiff – landlord terminated the tenancy
by issuing notice under Section 106 of the Transfer of Property Act, 1882
(hereinafter referred to as the ‘TP Act’). Upon expiry of the notice period,
the appellant – original plaintiff – landlord filed a suit before the learned
Single Judge (Original Side) of the Calcutta High Court being Civil Suit
No. 354/2012, seeking eviction of the respondent – tenant from the
tenanted premises. According to the appellant – original plaintiff, as the
liability to pay the tax payable to the Calcutta Municipal Corporation was
2
upon the respondent – tenant and in view of Section 5(8) of the Act 1997
r/w Section 3(f), the total rent payable by the tenant inclusive of monthly
rent and taxes would exceed the ceiling limit of Rs.10,000/- per month
specified in Section 3(f)(i) of the Act 1997 for commercial premises,
hence the Act 1997 is not applicable and therefore the original plaintiff –
landlord terminated the tenancy by issuing notice under Section 106 of
the TP Act. The original plaintiff also prayed for the summary judgment.
2.2 The original defendant – tenant after appearing in the suit filed an
application before the learned Single Judge under Order 7 Rule 11 CPC
for rejection of the plaint, inter alia, on the ground that the suit was
barred by reasons of the provisions of the Act 1997 being applicable
because the rent of the said premises was Rs. 10,000/- per month and
the tenancy being for commercial purpose is not exempted under
Section 3(f)(i) of the Act 1997. The learned Single Judge allowed the
said application and rejected the plaint vide order dated 22.03.2016 by
holding that the rent payable by the tenant is Rs. 10,000/- per month
which is below the ceiling limit mentioned in Section 3(f)(i) of the Act
1997 and therefore the Act 1997 is applicable and therefore the suit
under Section 106 of the TP Act is impliedly barred by the provisions of
the Act 1997.
3
2.3 Feeling aggrieved and dissatisfied with the order passed by the
learned Single Judge in allowing the application under Order 7 Rule 11
CPC and holding that the Act 1997 shall be applicable and therefore the
suit under Section 106 of the TP Act is impliedly barred by the provisions
of the Act 1997, the appellant – original plaintiff – landlord filed an appeal
before the Division Bench of the High Court. By the impugned judgment
and order, the Division Bench of the High Court has dismissed the said
appeal, confirming the order passed by the learned Single Judge.
2.4 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the Division Bench of the High Court and
confirming the judgment and order passed by the learned Single Judge
that as the rent payable by the tenant is Rs. 10,000/- per month
(excluding the liability to pay the municipal taxes) and therefore the Act
1997 shall be applicable and therefore the suit under Section 106 of the
TP Act would be impliedly barred, the original plaintiff – appellant –
landlord has preferred the present appeals.
3. Shri Rana Mukherjee, learned Senior Advocate has appeared on
behalf of the original plaintiff – landlord and Shri Siddharth Dave, learned
Senior Advocate has appeared on behalf of the respondent – defendant
– tenant.
4
3.1 Relying upon Sections 3, 5(8) of the Act 1997 r/w Section 230 &
231 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred
to as the ‘Act 1980’) and relying upon the decisions of this Court in the
case of Calcutta Gujarati Education Society v. Calcutta Municipal
Corporation, (2003) 10 SCC 533 (para 45) and the subsequent
decision in the case of Popat and Kotecha Property v. Ashim Kumar
Dey, (2018) 9 SCC 149, it is vehemently submitted by Shri Rana
Mukherjee, learned Senior Advocate appearing on behalf of the original
plaintiff – landlord that both, the learned Single Judge as well as the
Division Bench of the High Court have committed a serious error in
observing and holding that the Act 1997 shall be applicable.
3.2 It is vehemently submitted that as per Section 5(8) of the Act
1997, r/w Section 230 & 231 of the Act 1980 and as observed and held
by this Court in the case of Calcutta Gujarati Education Society
(supra), the expression ‘rent’ includes municipal tax payable to the
Corporation and in the present case the liability to pay the municipal tax
under the tenancy agreement is upon the tenant and even otherwise as
per Section 230 of the Act 1980, fifty per cent of the tax liability would be
upon the tenant and the same is statutorily to be paid and the same can
be recoverable as if it is a rent. That even under Section 5(8) of the Act
1997, the arrears of tax is recoverable as if it is arrears of ‘rent’, every
5
tenant shall have to pay his share of municipal tax and the rent includes
the municipal tax element. It is submitted that therefore as the tenant is
required to pay more than ten thousand (rupees ten thousand towards
rent plus the municipal tax payable to the municipal corporation) as per
Section 3(f)(i) of the Act 1997, the Act 1997 shall not be applicable.
3.3 Taking us to Section 45 of the Act 1997, it is submitted that the Act
1997 shall be applicable even with respect to tenancy agreements
executed prior to the Act 1997 and when the tenancy agreements have
been executed at the time when the West Bengal Premises Tenancy Act,
1956 (hereinafter referred to as the ‘Act 1956’) was in force. It is
submitted that as per Section 45 of the Act 1997, all suits and other
proceedings under the Act 1956 pending at the commencement of the
Act 1997 are specifically saved, but not the tenancy agreements
executed prior to the Act 1997 and the Act 1997 shall be applicable to
the agreements executed at the time when the Act 1956 was in force. It
is submitted that as per Section 18 of the Act 1997, there shall be,
automatically, increase of rent by revision of five per cent every three
years. It is submitted that therefore the rent payable would be more than
Rs. 10,000/- per month (after considering the increase as per Section 18
of the Act 1997) and therefore also the Act 1997 shall not be applicable.
6
3.4 Shri Rana Mukherjee, learned Senior Advocate appearing on
behalf of the original plaintiff – landlord has heavily relied upon the
decision of this Court in the case of Calcutta Gujarati Education
Society (supra), more particularly para 45, in support of his submission
that the rent payable by the tenant would include the taxes payable to
the municipal corporation payable by the tenant. Relying upon the
aforesaid decision, it is submitted that even the tax is a part of the rent
and therefore if the same is included the rent payable would be more
than Rs. 10,000/- and therefore Section 3(f)(i) of the Act 1997 would be
applicable and hence the Act 1997 shall not be applicable. It is
submitted that the said decision has been subsequently followed by this
Court in the case of Popat and Kotecha Property (supra). It is
submitted that in the case of Popat and Kotecha Property (supra),
even this Court has observed and held that for non-payment of tax due
and payable by the tenant under Section 230 of the Act 1980 r/w Section
5(8) of the Act 1997 and as the tax can be said to be rent and even the
eviction decree can be passed for non-payment of tax.
3.5 Shri Rana Mukherjee, learned Senior Advocate has also relied
upon another decision of this Court in the case of Abdul Kader v. G.D.
Govindaraj (Dead) By Lrs., (2002) 5 SCC 51 and has submitted that as
observed and held by this Court, after considering the decision of this
7
Court in the case of Karnani Properties Limited v. Augustine (Miss),
AIR 1957 SC 309 that in the event of taxes having been agreed to be
paid by the tenant, the same forms part of the rent.
3.6 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to allow the present appeal and quash and set
aside the orders passed by the learned Single Judge and Division Bench
of the High Court taking the view that the Act 1997 shall be applicable.
4. While opposing the present appeal, Shri Siddharth Dave, learned
Senior Advocate appearing on behalf of the respondent – tenant has
vehemently submitted that in the present case as per the tenancy
agreement, the rent due and payable by the tenant would be Rs.10,000/-
per month. It is submitted that, may be, as per Section 230 of the Act
1980 and/or even as per Section 5(8) of the Act 1997, fifty per cent of
the tax liability would be upon the tenant and on non-payment of the
same the landlord can recover the tax liability as arrears of rent as per
Section 231 of the Act 1980, but the amount of tax due and payable
under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997
cannot be said to be rent as sought to be canvassed on behalf of the
landlord. It is submitted that even as per the judgment of this Court in
the case of Calcutta Gujarati Education Society (supra) what is
observed is the mode of recovery of the taxes due as arrears of rent. He
8
has also relied upon para 46 of the said judgment in the case of
Calcutta Gujarati Education Society (supra). It is contended that
therefore the decision of this Court in the case of Calcutta Gujarati
Education Society (supra) cannot be construed to hold that the tax
amount can be said to be a rent. It is submitted that the term “rent” is
not defined. It is submitted that both the components, namely, the rent
and the tax are different and distinct. That the tax amount due and
payable by the tenant cannot be termed as “rent”. However, the tax due
and payable by the tenant can be recovered as arrears of rent, but the
same cannot be termed as “rent”. It is submitted that therefore in the
present case as the rent due and payable is Rs. 10,000/- per month and
the premises is a commercial premises, Section 3(f)(i) of the Act 1997
shall not be applicable and the Act 1997 shall be applicable.
4.1 It is further submitted that in the present case, it is not only a
question of jurisdiction of the Court to entertain the suit under Section
106 of the TP Act, but the question is with respect to protection which
may be available to the tenant under the provisions of the Act 1997. It is
urged that under the Act 1997, the landlord can recover the possession
and evict the tenant on very limited grounds and the protection under the
Act 1997 shall not be available to the tenant in a suit for eviction under
Section 106 of the TP Act.
9
4.2 Now so far as the reliance placed upon the decision of this Court in
the case of Popat and Kotecha Property (supra), relied upon by the
learned counsel appearing on behalf of the landlord is concerned, it is
submitted that in the said decision, para 46 of the judgment in the case
of Calcutta Gujarati Education Society (supra) has not been noticed.
Learned counsel has also taken us to the objects and reasons for
amendment in Section 230 of the Act 1980 and insertion of Section 5(8)
of the Act 1997, by which, the liability to pay the municipal tax payable to
the Corporation (to the extent of 50% of the tax liability) now would be on
the tenant and therefore the same is held to be recoverable as arrears of
rent. It is submitted that being a private person, it was not possible for
the landlord to file a suit for recovery of the tax from the tenant (prior to
amending Section 230 of the Act 1980) and in many cases it was
observed that the tax liability would be more than the rent to be paid by
the tenant and therefore Section 230 of the Act 1980 came to be
amended under which now 50% of the tax liability would be upon the
tenant and as there was no machinery for recovery available to the
landlord, Section 5(8) of the Act 1997 has been inserted, under which,
the landlord is under an obligation to pay his share of municipal tax and
as observed and held by this Court in Calcutta Gujarati Education
Society (supra) the same is recoverable as arrears of rent from the
tenant. It is submitted that under Section 231 of the Act 1980 r/w
10
Section 5(8) of the Act 1997, it is only the mode of recovery of tax due
and payable by the tenant as arrears of rent and by no stretch of
imagination tax due and payable by the tenant/tax liability can be said to
be a rent and/or part of the rent unless specifically agreed to by the
parties by means of a contract.
4.3 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to dismiss the present appeals.
5. We have heard learned counsel for the landlord as well as the
tenant at great length.
5.1 The short question which is posed for the consideration of this
Court is, “whether, share of municipal tax due and payable by the tenant
under Section 230 of the Act 1980 and Section 5(8) of the Act 1997 shall
be included within the expression ‘rent’ or in other words, the share of
municipal tax due and payable by the tenant can be said to be a part of
the rent of the premises let out?”
5.2 At the outset, it is required to be noted that in the present case,
under the tenancy agreement under consideration the rent payable by
the tenant would be Rs. 10,000/- per month. Over and above the rent,
the tenant has also agreed to pay the municipal taxes payable to the
Calcutta Municipal Corporation. However, it is required to be noted that
the tenancy agreement does not provide that the parties have agreed
11
that the rent would be inclusive of municipal taxes payable and that as
and when such taxes are enhanced, rent would be proportionately
raised. Under the tenancy agreement, the rent payable would be Rs.
10,000/- per month and the liability to pay municipal taxes is separate
and distinct on the tenant. On a fair reading of Section 3(f) of the Act
1997, which provides that any premises let out for non-residential
purpose, which carries more than ten thousand rupees as monthly rent,
nothing contained in the West Bengal Premises Tenancy Act, 1997 shall
apply. The word used is “monthly rent”. As observed hereinabove, the
term “rent” is not defined.
6. It is the case on behalf of the landlord that as under Section 5(8) of
the Act 1997, every tenant is under an obligation to pay his share of
municipal tax as an occupier of the premises in accordance with the
provisions of the Kolkata Municipal Corporation Act, 1980 and as per
Section 230 of the Act 1980, 50% of the municipal tax shall have to be
paid by every tenant and as per Section 231 of the Act 1980 the same
shall be recoverable as arrears of rent and as per the decision of this
Court in the case of Calcutta Gujarati Education Society (supra) the
arrears of municipal tax can be recovered as arrears of rent and
therefore the share of municipal tax payable by the tenant will be part of
the rent. Heavy reliance is placed on para 45 in the case of Calcutta
12
Gujarati Education Society (supra) and the subsequent decision in the
case of Popat and Kotecha Property (supra).
7. While considering the issue on hand, namely, whether the share of
the municipal tax payable by the tenant in accordance with the
provisions of Sections 230 & 231 of the Act 1980 r/w Section 5(8) of the
Act 1997 can be said to be a part of the rent for the purpose of Section
3(f) of the Act 1997, Sections 230 & 231 of the Act 1980 and Section
5(8) of the Act 1997 are required to be referred to, which are as under:
“Section 230 : Apportionment of property tax by the person primarily
liable to pay.
Save as otherwise provided in this Act, the person primarily liable to
pay the property tax in respect of any land or building may recover –
(a) If there be but one occupier of the land or building, from such
occupier half of the rate so paid, and may, if there be more
than one occupier, recover from each occupier half of such
sum as bears to the entire amount of rate so paid by the owner
the same proportion as the value of the portion of the land or
building in the occupation of such occupier bears to the entire
value of such land or building:
Provided that if there be more than one occupier, such half of the
amount may be apportioned and recovered from each occupier in
such proportion as the annual value of the portion occupied by him
bears to the total annual value of such land or building;
(b) the entire amount of the surcharge on the property tax on any
land or building from the occupier of such land or building who
uses it for commercial or non-residential purposes
Provided that if there is more than one such occupier, the amount
of surcharge on the property tax may be apportioned and
recovered from each such occupier in such proportion as the
annual value of the portion occupied by him bears to the total
annual value of such land or building.
Section 231: Mode of recovery: If any person primarily liable to pay
any property tax on any land or building and is entitled to recover any
sum from an occupier of such land or building, he shall have, for
recovery thereof, the same rights and remedy as if such sum were
13
rent payable to him by the person from whom he is entitled to recover
such sum.
Section 5(8) of the West Bengal Premises Tenancy Act 1997:
(8) Every tenant shall pay his share of municipal tax as an occupier
of the premises in accordance with the provisions of the Kolkata
Municipal Corporation Act, 1980 (West Bengal Act LIX of 1980) or the
West Bengal Municipal Act, 1993 (West Bengal Act XXII of 1993).
Explanation – For the purposes of this sub-section, the term
‘occupier’ means an occupier as defined in clause (6)) of section 2 of
the Kolkata Municipal Corporation Act, 1980 or clause (43) of section
2 of the West Bengal Municipal Act, 1993.”
As per Section 230 of the Act 1980, a person primarily liable to pay
the property tax (lessor) in respect of any land or building may recover
half of the amount of the property tax from the occupier (lessee/tenant) of
the property. Section 231 of the Act 1980 provides that the person
primarily liable to pay any property tax is entitled to recover the
consolidated rate including surcharge from the occupier of the property
and for that purpose the person primarily liable shall have the same
rights and remedies as if such sum were ‘rent’ payable to him by the
person from whom he is entitled to recover such sum. Section 5(8) of
the Act 1997 casts an obligation on the tenant to pay his share of
municipal tax as an occupier of the premises in accordance with the
provisions of the Act 1980.
8. Sections 230 & 231 of the Act 1980 fell for consideration before this
Court in the case of Calcutta Gujarati Education Society (supra).
Before this Court, the validity of the aforesaid two provisions of the Act
14
1980 were under challenge. This Court had an occasion to consider the
object and purpose of Section 231 of the Act 1980 in para 45, which
reads as under:
“45. We find that the machinery provisions for assessment and
recovery of tax basically involve the owner or the lessor who is
“primarily liable” for the tax on property although in the course of
assessment and recovery of portion of tax from the tenants, subtenants or occupants, their involvement is also directed. It is with the
purpose to make the procedure of recovery of tax simpler that the
owner or the lessor is proceeded against as the “person primarily
liable”. The owner or lessor of the property is “primarily” required to
satisfy the demand towards tax with right to recover it from the
tenant, sub-tenant or the occupant. If the landlord or the owner is
obliged to make payment of whole amount of tax inclusive of his own
share and share of the tenant, sub-tenant or the occupant, the owner
or lessor has to be conferred with the power to recover the portion of
tax payable by the tenant, sub-tenant or occupant who is actually
enjoying the property and putting it to use for commercial or nonresidential purpose. The legislature has taken note of the fact that a
large number of properties in the metropolitan city of Calcutta are in
occupation of tenants, sub-tenants or occupants on a comparatively
small amount of rent or lease money. In such a situation, to impose
entire burden of tax on the owner or lessor, would be inequitable,
more so when the tenancy law does not allow increase in rent
beyond a particular limit and the right of eviction of the landlord is
restricted to the grounds under the Tenancy Act. By the impugned
provisions of the Act, therefore, the legislature has thought of
apportioning the tax burden between owner or the lessor as one
party and the tenant, sub-tenant or occupier as the other parties. The
whole amount of tax is recoverable from the lessor and may also be
recovered from the tenant or sub-tenant through attachment of the
rent. In case where the lessor or landlord has paid the whole tax
including the portion of tax payable by the tenant or sub-tenant, the
landlord has to be equipped with the power to get himself reimbursed
by recovery of the portion of tax paid by him on behalf of the tenant.
Section 231 of the Act, therefore, creates a fiction that the “tax”
apportioned on the tenant would be treated as “rent” and would be
recoverable as such. The word “rent” has not been defined in the
tenancy law and this Court has taken note of this legal position in the
case of Puspa Sen Gupta v. Susma Ghose [(1990) 2 SCC 651]
which arose out of the provisions of the Tenancy Act applicable to
West Bengal. Rent is a compendious expression which may include
lease money with service charges for water, electricity and other
taxes leviable on the tenanted premises.”
15
That thereafter, in paragraph 46, it is observed and held as under:
“46. The provisions of the Tenancy Act merely enable the landlord to
make a demand of arrears of rent and in default of the payment of
the same, sue the tenant for recovery of rent or eviction on the
ground of non-payment of rent despite demand. The tenant can get
protection against eviction on the ground of arrears of rent only if he
makes requisite deposit of the arrears in the manner laid down in the
provisions of the Tenancy Act. A provision to fictionally treat “tax” as
“rent” is necessitated because in the absence of such a fiction in
Section 231 of the Act, the landlord would be compelled to pay the
whole amount of tax which is recoverable from him under the Act and
would be left to an expensive and cumbersome remedy of filing a
civil suit for recovery of such tax paid on behalf of the tenant, subtenant or occupant. Such a fiction is required to be incorporated
under Section 231 of the Act because a private party cannot recover
tax. If a lessor is obliged to pay a portion of tax leviable on the tenant,
the landlord can recover the same not as “tax” but only as part of
“rent”. The fiction created by the legislation in Section 231 to treat
“tax” as “rent” has to be taken to its logical conclusion. The Act under
consideration and the Tenancy Act, both are State legislations. No
question arises of legislative incompetence. There does not appear
any inter se conflict between the two Acts. Both have to be read and
applied harmoniously to achieve the legislative intent in the two
enactments. The contention based on Section 231 of the Act,
therefore, also does not commend to us and is rejected.”

Thus, as observed and held by this Court in the case of Calcutta
Gujarati Education Society (supra), the amount of tax due and
payable by the tenant under Section 230 of the Act 1980 r/w Section 5(8)
of the Act 1997 can be recovered as arrears of rent (Section 231 of the
Act 1980) and for that purpose, namely, for the purpose of recovery the
tax apportioned on the tenant would be treated as ‘rent’ and would be
recoverable as such. The aforesaid judgment cannot be read holding
that the tax apportioned on the tenant be treated as ‘part of the rent’, as
contended by Shri Rana Mukherjee, learned Senior Advocate appearing
16
on behalf of the landlord. Merely because the obligation to pay half of
the property tax and surcharge would be upon the tenant as per section
230 of the Act 1980 and the tenant is obliged to pay his share of
municipal tax as an occupier of the premises under Section 5(8) of the
Act 1997 and merely because for the purpose of recovery of the tax due
from the tenant, such tax apportioned can be recovered as rent, such tax
apportioned (half of the amount of the property tax and surcharge)
cannot become part of the rent of the premises which is tenanted. For
that purpose, the terms and conditions mentioned in the tenancy
agreement/lease agreement are required to be considered. For
example, if in the tenancy agreement if it is provided that the tenant shall
pay ‘X’ amount which shall include the taxes, the tax component can be
said to be ‘part of the rent’. However, if under the agreement and/or
even under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997,
the tenant is liable to pay tax separately or half of the amount of tax now
statutorily liable to be paid, the same can be recovered as arrears of rent
because such ‘tax’ is to be treated as ‘rent’ for the purpose of recovery.
However, the same cannot be said to be ‘part of the rent’. Therefore,
reliance placed upon the decision of this Court in the case of Calcutta
Gujarati Education Society (supra) by learned counsel appearing on
behalf of the landlord is on a misreading of the said decision. As
observed hereinabove, the said decision cannot be read to mean that
17
the tax apportioned can be said to be part of the rent as sought to be
contended by Shri Rana Mukherjee, learned Senior Advocate appearing
on behalf of the landlord.
9. Now so far as reliance being placed upon the subsequent decision
of this Court in the case of Popat and Kotecha Property (supra) is
concerned, at the outset, it is required to be noted that in the said
decision, para 45 of the decision in the case of Calcutta Gujarati
Education Society (supra) has been considered and not para 46,
reproduced hereinabove. Even on facts, the said decision is not
applicable. In the said decision, under the agreement the parties agreed
that the rent would include all municipal taxes payable and that as and
when such taxes are enhanced rent should be proportionately raised. In
the present case, under the tenancy agreement, the rent payable would
be Rs. 10,000/- per month which does not include the municipal taxes
payable. The liability to pay the taxes under the agreement would be
over and above the amount of rent, i.e., Rs. 10,000/- per month.
Therefore, on facts, the decision of this Court in the case of Popat and
Kotecha Property (supra) is not applicable to the facts of the case on
hand.
10. Now so far as reliance being placed upon Section 18 of the Act
1997 and the submission that under Section 18 of the Act 1997 the rent
18
shall be automatically increased by revision of 5% every three years and
therefore by giving the increase by revision of 5% every three years, the
rent payable would be more than rupees ten thousand per month is
concerned, the aforesaid contention has no substance. Section 18 of
the Act 1997 shall be applicable in a case where the fair rent is
determined and fixed by the Controller under Section 17 of the Act 1997.
That is not the case here. Therefore, Section 18 of the Act 1997 is not
applicable at all to the facts and circumstances of the case.
11. In view of the above discussion and for the reasons stated above
and as the monthly rent due and payable would be Rs. 10,000/- per
month which cannot be said to be more than ten thousand rupees as
monthly rent, the High Court has rightly observed and held that the Act
1997 shall be applicable and therefore the civil suit filed by invoking
Section 106 of the TP Act is impliedly barred. Therefore, the High Court
has rightly rejected the plaint in exercise of powers under Order 7 Rule
11 CPC. No interference of this Court is called for. Accordingly, the
present appeals stand dismissed.
However, in the facts and circumstances of the case, there shall be
no order as to costs.
………………………………..J.
[M.R. SHAH]
NEW DELHI; …………………………………J.
AUGUST 01. 2022. [B.V. NAGARATHNA]
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