Life Insurance Corporation of India v. Kurian Sebastian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939 **RCRev..No. 77 of 2018** AGAINST THE JUDGMENT IN RCA 91/2016 of COURT OF ADDL. DISTRICT JUDGE- VII (RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM DATED 19-10-2017 AGAINST THE ORDER IN RCP 173/2015 of III ADDL.MUNSIFF & RENT CONTROL COURT, ERNAKULAM DATED 24-10-2016 ## **REVISION PETITIONER-** APPELLANT/RESPONDENT LIFE INSURANCE CORPORATION OF INDIA HAVING ITS DIVISIONAL OFFICE, JEEVAN PRAKASH, M.G. ROAD, ERNAKULAM, KOCHI - 682 011, REPRESENTED BY ITS SENIOR DIVISIONAL MANAGER WHO IS COMPETENT TO REPRESENT THE LIFE INSURANCE CORPORATION OF INDIA. BY ADV.SRI.S.EASWARAN, SC, LIC ## **RESPONDENT** /RESPONDENT/PETITIONER: KURIAN SEBASTIAN, AGED 24 YEARS, S/O. SEBASTIAN KURIAN, HAVING PERMANENT ADDRESS AT VELLATHOTTAM HOUSE, NO. 3, WHITE BHAVAN, VATTAKKATTU ROAD EAST, ELAMKULAM VILLAGE, KALOOR P.O., KOCHI - 682 017. BY ADV. SRI.MOHAN PULIKKAL (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 26-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## C.T. RAVIKUMAR & MARY JOSEPH, JJ. ========================= R.C.R. No.77 of 2018 ========================= Dated this the 26[th] day of February, 2018 ## O R D E R ## C. T. Ravikumar, J. This revision petition is directed against the judgment in RCA No.91/2016 passed by the Rent Control Appellate Authority, Ernakulam, confirming the order passed by the Rent Control Court, Ernakulam in RCP No.173/2015. The tenant, the Life Insurance Corporation of India is the revision petitioner. The respondent herein is the landlord in respect of the building in question. The respondent herein filed the aforesaid RCP seeking eviction of the revision petitioner on the grounds of arrears of rent under Section 11(2)(b) and bonafide need under Section 11(3), of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity 'the Act' only). Obviously, as per the order dated 24.10.2016, the RCP was allowed only under Section 11(3) of the Act and order of eviction sought for, on the ground of arrears of rent under Section 11(2)(b) was rejected. The respondent 2 R.C.R.No.77 of 2018 therein/the revision petitioner herein alone took up the matter further in appeal as RCA No.91/2016. The finding of the Rent Control Court under 11(3) in favour of the landlord was assailed therein. The Appellate Authority formulated the following points for consideration:- - (i) whether the bonafide need projected by the landlord is genuine and an order of eviction under Section 11(3) of the Act is allowable; - (ii) whether the impugned order calls for any interference. Those points were considered jointly and found against the revision petitioner/the appellant therein. Consequently, the appeal was dismissed. Hence this revision petition. 2. The revision petitioner/the tenant assails the said concurrent findings relying on the doctrine of 'pari delicto'. The learned counsel appearing for the revision petitioner contended that in the light of the doctrine of 'pari delicto' which was considered in detail by the Hon'ble Apex Court in the decision in Mohd. Salimuddin v. Misri Lal and Another [AIR 1986 SC 1019] and in view of the facts R.C.R.No.77 of 2018 3 obtained in this case, the revision petitioner is entitled to continue in possession of the tenanted premises on equity or till excess amount received by the respondent/the landlord is exhausted. In this context, it is to be noted that the fact that the receipt of excess amount from the revision petitioner is not at all disputed before us, by the respondent. So also there is no dispute that as on 11.08.2013, the amount received in excess was `27,88,453/- The rate of rent payable is also not in dispute and it is the common case that it is `54,855/-. In view of the position of law obtained from Mohd. Salimuddin's case (supra) which we will advert to a little later and in view of the aforesaid factual aspects and the nature of contentions advanced virtually, the scope of consideration is considerably reduced and therefore, in this revision petition, we are not called upon to consider the question whether the concurrent finding of the authorities below under Section 11(3) of the Act, is liable to be interfered with. Normally, in such circumstances, this Court would not make a further probe into the matter, taking into account the fact R.C.R.No.77 of 2018 4 that the revision petition is filed against concurrent finding on facts. However, according to us, the question emerging from the claim raised by the revision petitioner, as mentioned hereinbefore, cannot be said to be totally unrelated to the issues involved in the rent control petition and hence, we deem it appropriate to proceed with its consideration. 3. We have heard the learned counsel for the revision petitioner as also the learned counsel appearing for the respondent. 4. As noticed hereinbefore, the core contention of the revision petitioner is that the authorities below had failed to consider the question whether the revision petitioner could continue to possess the tenanted premises till the amount in excess is exhausted. It is the submission of the learned counsel for the revision petitioner that having arrived at a clear finding that there was excess payment and when that fact was not in dispute, the authorities below ought to have considered the said question and the failure to consider that aspect is a matter which beckons an interference. 5 R.C.R.No.77 of 2018 5. As noticed hereinbefore, the foundation for the said contention is the doctrine of 'pari delicto' which was dealt with in detail by the Apex Court in Mohd. Salimuddin 's case, (supra). The learned counsel for the revision petitioner contended that in the case on hand, `27,88,453/- was paid in excess to the respondent landlord and its receipt is not disputed, before us. But, at the same time, the learned counsel appearing for the respondent attempted to clarify the position that the said amount was not paid towards rent, but it was virtually paid for providing facilities for housing the office of the revision petitioner. Before proceeding further with the rival contentions, it is only worthy and proper to consider the question as to what exactly is the rule embodied in the said doctrine. It is discernible from para 4 of the decision in Mohd. Salimuddin 's case (supra). Evidently, the doctrine of 'pari delicto' embodies the rule that a party to a transaction prohibited by law cannot enforce his claim in a court of law and the said doctrine is not actually designed to reward the `wrongdoer' or to penalise the `wronged' by denying R.C.R.No.77 of 2018 6 access to justice. The Apex Court went on to hold that the doctrine is attracted only when none of the parties is a victim of such exploitation and both parties have voluntarily and by their free will, joined hands to flout the law for their mutual gain. This doctrine is inapplicable in cases of oppressor and oppressed. No specific provision was brought to our notice under the Act, to hold either the revision petitioner or the respondent as a wrongdoer or to treat them as parties to a transaction prohibited by law. Merely because in the hands of the landlord some amount in excess had reached from the hands of the tenanant this doctrine cannot be applied. Shortly stated, the revision petitioner had failed to bring out a case to apply the doctrine of 'pari delicto'. 6. At the same time, on perusing the order passed by the Rent Control Court as also the Appellate Authority, it is evident that an amount of `27,88,453/- reached the hands of the respondent/the landlord, in excess. Precisely, that is the reason why the courts below arrived at the finding that there was no arrears of rent and in fact, the R.C.R.No.77 of 2018 7 Rent Control Court found that the amount remaining in arrears would wipe off the amount received in excess. 7. As noticed hereinbefore, in the case on hand, certain indisputable and undisputed facts are available. An amount of `27,88,453/- is received in excess by the respondent/the landlord and the said amount was in excess as on 11.08.2013. The admitted rate of rent was `54,855/- In such circumstances, the learned counsel appearing on both sides submitted before us that the only question to be considered is whether the amount in excess is wiped off by adjusting towards the rent during the period of continued possession of the petition schedule property by the revision petitioner-tenant. It is also submitted before us, taking into account the amount received in excess, the rate of the admitted rent and also the fact that to wipe off the excess amount the tenant could continue in occupation only for a period of 50 months. But, the question is whether it had expired. During the course of argument, the learned counsel for the revision petitioner contended that the revision R.C.R.No.77 of 2018 8 petitioner is entitled to get interest for the said amount. The learned counsel appearing for the respondent countered the said contention and contended that such a contention was never been raised before the Appellate Court and hence, for the first time, the petitioner cannot be permitted to claim interest on the aforesaid amount. The further contention is that after raising contentions based on the doctrine of 'pari delicto' the revision petitioner is not entitled to claim interest. True that we have declined to accept the contention regarding the applicability of the doctrine of `pari delicto'. We are of the considered view that having failed to raise any such contention, demanding interest for the excess payment, in the earlier stages of the lis, the revision petitioner cannot invite us to decide the said issue, for the first time. 8. In view of the facts obtained in this case, despite our finding that 'pari delicto' doctrine cannot be applied in the case on hand, the matter requires a further consideration, in view of the admitted position obtained in this case that excess amount was paid R.C.R.No.77 of 2018 9 by the revision petitioner and it was received by the respondent. As noticed hereinbefore, the said fact is not in dispute, rather, indisputable in view of the findings of the Rent Control Court as also the appellate authority. At the same time, in view of the arguments advanced before us and taking into account the rival submissions on the question regarding the permissible period for continued possession to wipe off the amount received in excess by the respondent-landlord and on consent of parties, we are inclined to consider the said question. The learned counsel for the revision petitioner prays that the revision petitioner may be permitted to continue possession of the tenanted premises for a period of eight months. However, the learned counsel for the respondent submitted that such a long period of continuance shall not be permitted and some reasonable time can be granted in that regard. It is to be noted that reckoning from 11.08.2013, already five months had been elapsed by now. Hence, we are inclined to grant a further period of three months to the revision petitioner to give vacant possession of R.C.R.No.77 of 2018 10 the tenanted building to the respondent landlord. On expiry of the said period the revision petitioner shall surrender vacant possession of the tenanted building to the respondent/the landlord, forthwith. Subject to the above, this revision petition is dismissed. No order as to costs. Sd/C.T. RAVIKUMAR, JUDGE Sd/MARY JOSEPH, JUDGE Skk/ad14818.140118