C. Siju v. Bindu Kuyyalil (OP (RC) No. 14 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 OP (RC) NO. 14 OF 2022** **AGAINST THE ORDER/JUDGMENT IN IA 2/2021 IN RCP 61/2019 OF MUNSIFF COURT, VADAKARA** ## **PETITIONER:** C.SIJU, AGED 40 YEARS, S/O KUNHAN GURUKKAL, ADVOCATE CLERK, CHEEROKKARA HOUSE, CHORODE, ERAPURAM P O, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 104. BY ADVS. ZUBAIR PULIKKOOL SIVASANKARAN T. ## **RESPONDENT:** BINDU KUYYALIL, AGED 33 YEARS, ADVOCATE, D/O LATE VISWANANTHAN, KUYYALIL HOUSE, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 104. BY ADVS. U.K.DEVIDAS K.K.ANILRAJ THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP (RC) NO. 14 OF 2022** **==> picture [37 x 9] intentionally omitted <==** ## **C.R** ## **J U D G M E N T** ## **A. Muhamed Mustaque, J** The tenant is before us. The tenant who is an Advocate clerk by profession is pitting against a lawyer of the same bar. The lawyer is the landlord. The interesting questions that have arisen for consideration by us are, i) whether the rent arrears can be claimed together with interest; ii) If interest can be claimed by the landlord, can the landlord claim interest for the revised rent based on the fair rent fixation by this Court with a retrospective date. These are the two questions to be decided in this original petition. 2. The questions are discernible from the operative portion of the order of the Rent Controller, which reads thus: _**“The respondent is directed to deposit Rs.71,729/- (Rupees Seventy One Thousand**_ **OP (RC) NO. 14 OF 2022** **..3..** _**Seven Hundred and Twenty Nine only) which is the admitted arrears of rent for the period from 18.08.2012 to 18.01.2019 @ Rs.3077/- per month, along with interest @ 6% per annum from 18.08.2012 till the date of deposit, within a four weeks from today. The respondent shall also continue to pay or deposit the rent accrues in future.”**_ 3. We shall advert to the first question in regard to the interest. The present proceedings arise from an order under Section 12(1)of the Kerala Buildings (Lease and Rent Control) Act, 1965. The landlord filed eviction under Section 11(2)(a) and (b), alleging default of payment of rent. The mandatory notice preceded the petition. The claim of the landlord is that the tenant defaulted on the enhanced rate based on the fair fixation order from 1.08.2012 onwards. The fair rent was finally fixed by the order of this Court in revision on 13.11.2018. The tenant is not disputing his liability to pay the fair rent from 2012 onwards. The tenant's case is that he is not liable to pay the interest on the revised rent from 2012 onwards. According to ## **OP (RC) NO. 14 OF 2022** **==> picture [37 x 8] intentionally omitted <==** the tenant, he is liable to pay interest for the defaulted amount only after the disposal of the revision by this Court on 13.11.2018. 4. As seen from Section 11(2)(a) and 11(2) (b) proviso, the landlord is entitled to claim interest at the rate of 6% per annum, if the tenant has failed to pay the rent. It is appropriate to refer Section 11(2)(b) and the proviso therein. ## _**“xxxxxxx**_ _**(b)If the rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him:**_ _**Provided that an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per**_ ## **OP (RC) NO. 14 OF 2022** **==> picture [37 x 8] intentionally omitted <==** _**cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or the refusal thereof.”**_ 5. The proviso clearly indicates that the landlord is entitled to claim interest at the rate of 6% per annum for the defaulted rent. This view also has been supported by the judgment of this Court in _**Gopala Panicker Baiju and**_ _**Another v. Mallika [2018 (5) KHC 95]**_ and in _**Kuruvila v. Sainabha Saleh [2006 (4) KLT 138].**_ We have no hesitation to hold that the tenant is liable to pay interest for the defaulted rent at the rate of 6% per annum. 6. The next question in this case is as to whether the tenant is liable to pay interest at the rate of 6% from 1.08.2012 onwards. The revised fair rent admittedly is liable to be paid by the tenant from the due date onwards. The revision was disposed only on 13.11.2018. The fair rent fixation finally culminated in the proceedings of this Court as per the order in the ## **OP (RC) NO. 14 OF 2022** **==> picture [37 x 9] intentionally omitted <==** revision. To claim interest under Section 11(2) (a) and 11(2)(b), there must be a default. The default arises either in the context of breach of obligation under contract or failure to pay the rent as per the order of the Court after fixation of the fair rent. Here, the case attributed by the landlord is that based on the order of the Rent Controller and the Appellant Authority, the tenant is liable to pay the rent from 1.08.2012 and therefore, the tenant is also liable to pay interest from that date onwards. The default signifies the commission or omission on the part of the person who is obliged under law to perform certain act. The landlord has no case that the tenant has defaulted as per the contract. The default in this case is only based on the fair rent fixation. That default only runs from the date of finality of the proceedings relating to fixation of the fair rent, i.e., the date on which order in the revision was passed by this **OP (RC) NO. 14 OF 2022** **==> picture [37 x 8] intentionally omitted <==** Court. If that be so, the 6% interest that can be claimed by the landlord would start only from the month following date of the final order of this Court in the revision. We, in such circumstances, set aside the order to the extent of ordering the tenant to pay 6% interest from 1.08.2012 onwards and modify the order to the effect that the tenant is liable to pay interest from 14.12.2018 onwards. This original petition is allowed, to the extent as above. No order as to costs. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN JUDGE** **PR** ## **OP (RC) NO. 14 OF 2022** **..8..** ## **APPENDIX OF OP (RC) 14/2022** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PETITION IN RCP 61/2019 DATED 19.08.2019 BEFORE RENT CONTROL (MUNSIFF) COURT VATAKARA. Exhibit P2 THE TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF 12(3) PETITION DATED 18.03.2021 FILED BY THE LAND LORD BEFORE RENT CONTROL (MUNSIFF) COURT VATAKARA. Exhibit P3 THE TRUE COPY OF THE COUNTER STATEMENT DATED 07.07.2021 FILED BY THE TENANT BEFORE RENT CONTROL (MUNSIFF) COURT VATAKARA. Exhibit P4 THE TRUE COPY OF THE ORDER IN RC REV,350/2016 DATED 13.11.2018 BY THIS HON'BLE COURT. Exhibit P5 THE TRUE COPY OF THE ORDER IN IA 2/2021 IN R C P NO.61/2019 DATED 03.11.2021 OF RENT CONTROL (MUNSIFF) COURT VATAKARA.