JUDGMENT
D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Respondent waive service. By consent taken up for hearing and final disposal.
2. In a suit for eviction instituted on the ground of a default in the payment of rent, the Additional District Judge, Kalyan by the impugned order dated 21st June 2003 allowed an appeal against the judgment of the Trial Court, decreeing the suit. The Additional District Judge has come to the conclusion that the judgment and decree of the Trial Court has to be set aside and that the suit must accordingly stand dismissed. The landlord is in appeal against the judgment of the appellate Court.
3. The suit for eviction in the present case was instituted in respect of commercial property bearing House No. 54, also known as “Yashwant Building” situated at Lane No. 36 at Kalyan. The Respondent is a tenant occupying one shop in the suit premises wherein he carries on the business of dealing in automobile spare parts. The agreement of tenancy was entered into between the parties on 20th September 1975. According to the landlord, the Respondent-tenant stopped paying the monthly rent of Rs. 82.70 upon which a notice of termination came to be issued on 10th December 1982 claiming that the Respondent was in arrears of rent for the period from May to November 1982. The suit was decreed by the Joint Civil Judge, Junior Division, Kalyan on 25th August 1986. Against the order of the Trial Judge, an appeal came to be preferred before the Additional District Judge which was also dismissed on 15th June 1989. A writ Petition was then filed before this Court by the tenant in which on 20th November 2002 an order of remand was passed by S.A. Bobde, J. In pursuance of that order, the Additional District Judge heard the parties afresh upon which the appeal was allowed by the impugned order dated 21st June 2003.
4. The Petition lies in a narrow compass. Hence, when notice was issued on 29th September 2003, parties were specifically informed that the petition would be heard and finally disposed of at the stage of admission. Parties have been heard on that basis and arguments have been addressed by both Learned Counsel for final disposal of the petition.
5. There is no dispute about the fact that upon receipt of the notice dated 10th December 1982, terminating the tenancy and demanding the arrears of rent, the tenant neither deposited the arrears within a period of one month, nor for that matter, did he prefer an application for fixation of standard rent as required by the provisions of Sections 12(3)(a) and 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 as they then stood prior to the amendment of 1987. The defence of the tenant was that the rent has been paid, but that no receipts had been passes. On this defence, Learned Counsel of the tenant states that the concurrent finding is against his. Hence, Learned Counsel has fairly not pressed that issue. The only defence which has found acceptance in the impugned order of the Additional District Judge and which has been urged in these proceedings, is that there was an agreement that was entered into between the parties on 20th September 1975, which was exhibited and marked as Exh.28. The agreement recites that the landlord has started construction of a building and that he has agreed to give a shop, but records that the tenant had agreed to pay Rs. 10,000/- as a loan for construction of the building. Clause 7 of the agreement recited that the tenant shall begin paying rent after one year of receiving possession. The mode of payment of rent was that the tenant would pay 50% of the rent while the balance would be adjusted towards repayment of the loan.
6. On these facts, the question which arose before the Courts below was as to whether this would furnish a valid defence to the termination of the tenancy and to the suit for eviction on the ground of arrears. The question which has been raised in these proceedings is not res integra. Section 20(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 makes the following provision:
“20(1) Any amount paid on account of rent after the date of coming into operation of this Act shall, except in so far as payment thereof is in accordance with the provisions of this Act, be recoverable by the tenant from landlord to whom it was paid or on whose behalf it was received or from his legal representative at any time within a period of six months from the date of payment and may, without prejudice to any other remedy for recovery, be deducted by such tenant from any rent payable by him to such landlord.”
7. These provisions were interpreted in a judgment of three Learned Judges of the Supreme Court in Maganlal Chhotabhai Desai v. Chandrakant Motilal, . The Supreme Court held that Section 20 confers a general right of recovery of overpaid rent within six months from the date of payment. Under Section 20, the tenant is entitled to deduct the over payment from any rent payable by him to the landlord without prejudice to any other mode of recover. The Supreme Court held that if the amount could not be recovered in the first place because of the bard of limitation, it cannot be recovered by deduction, either:
“The section gives the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery. If the amount is incapable of recovery because of the bar of limitation, it cannot be recovered by deduction. In other words, the right of recovered by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.”
8. The same view was reiterated in a subsequent judgment of the Supreme Court in Jamnadas Harakchand v. Narayanlal Bansilal . Mr. Justice K.S. Hegde speaking for a Bench of two Learned Judge held that “if the tenant seeks recovery of overpaid amount, he must bring the suit or make a deduction within six months”. The Supreme Court turned down the request for reconsideration of the earlier decision by a larger bench. Both these judgments are sufficient for this Court to hold that the defence which was set up by the Respondent to the suit for eviction was clearly without any basis and must fail. The agreement which was entered into between the parties on 20th September 1975, recorded that an amount of Rs. 10,000/- had been furnished by the tenant to the landlord. Under the plain terms of Section 20 as interpreted by the Supreme Court, the tenant had either to institute a suit for recovery of the amount within a period of six months or to make a deduction from the amount of rent. Once the suit for recover was barred by the expiry of a period of six months, so also would the right to deduct stand time barred. The Additional District Judge, has, however, sought to place reliance upon the judgment of two learned Judges of the Supreme Court in Modern Hotel Gudur v. K. Radhakrishniah, . In that case, what was in issue was the provisions of Section 7 of the A.P. Building (Lease, Rent and Eviction) Control Act, 1960 which provided as follows:
“7(2) Where the fair rent of a building has not been so fixed-
(a) the landlord shall not after the commencement of this Act claim, receive on stipulate for the payment of any premium or other like sum in addition to the agreed rent:
Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one month’s rent by way of advance;
(b) save as provided in Clause (a), any sum paid in excess of the agreed rent whether before or after the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after such commencement, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted by the landlord.
(3) Any stipulation in contravention of Sub-section (1) or Sub-section (2) shall be null and void.”
9. In the aforesaid case, before the Supreme Court there was a 30 years lease for the premises of a hotel, under which an advance of Rs. 6,500/- had been paid by the tenant of which a certain amount upto Rs. 1500/- was to be deducted from the rent and the balance of Rs. 5000/- was to be paid back upon the expiry of the lease. The Supreme Court had that under Section 7(3) of the Act, the stipulation that the amount of the advance was refundable at the end of the tenancy was null and void. Hence, the amount became payable to the tenant immediately and the landlord with Rs. 5000/- of the tenant with him could not contend that the tenant was in default for a smaller amount by not paying the rent for some months. The provisions of Section 7(2) of the Rent act of Andhra Pradesh have been extracted hereinabove. Unlike the Bombay Rent Act, 1947, there was no specific provision therein requiring the tenant to either institute a suit within a period of six months or to effect the deduction from the rent payable within the said period. The two judgments of the Supreme Court in Maganlal’s case and Jamandas’s case (supra) are directly in relation to the provisions of the Bombay Rent Act and must, therefore, necessarily be applied in dealing with the dispute at hand. In the present case, in view of the provisions of Section 20 as construed by the Supreme court, the tenant was not entitled to contend that he was not in arrears of rent in view of the monies which were advanced in 1975. The period for the institution of a suit by the tenant for recovery and for effecting the deduction had already expired. The Additional Distinct Judge has in the circumstances, clearly erred in coming to the conclusion that the judgment and decree of the Trial Court had to be set aside. The tenant had neither disputed the rent in pursuance of the notice of the termination, nor had he filed an application for fixation of standard rent which, therefore, disentitled him to the protection against eviction. In these circumstances, the petition must succeed. The order passed by the Additional District Judge, Kalyan on 21st June 2003 shall stand quashed and set aside. There shall be a decree for eviction in the terms specified in the judgment and order of the Learned Trial Judge dated 25th August 1988. The rule is made absolute in terms of prayer Clause (a).
10. On the request of Learned Counsel appearing on behalf of the Respondent, there shall be a stay of the execution of the decree for eviction for a period of three months from today, subject to the filing of the usual undertaking in this Court within a period of four weeks.
11. Parties by given copies of this order duly authenticated by the Sheristedar/Personal Secretary of this Court.