O.P.(RC) No. 153 of 2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 ``` ## **`O.P.(RC)NO.153 OF 2022`** ``` IN R.C.P.NO.83 OF 2021 ON THE FILE OF THE RENT CONTROL COURT (1[ST] ADDITIONAL MUNSIFF COURT), THRISSUR PETITIONERS: ``` - **`1 GIRINDRA GLOBAL HOSPITALITY, DOOR NO.36/518. SHORNUR ROAD P.O., THIRUVAMBADY, THRISSUR-680022 REPRESENTED BY ITS MANAGING PARTNER DHEERAJ THROUGH BY HIS POWER OF ATTORNEY HOLDER FRANCO THOMAS, ASST.GENERAL MANAGER FINANCE, AGED 43, S/O LATE K.T. THOMAS, PONMANI HOUSE, PULLAZHI P.O., THRISSUR-., PIN - 680012`** ``` 2 DHEERAJ, AGED 29 YEARS, S/O GIRIJA VALLABHAN, NARAYANANKATTIL HOUSE, VENGINISSERRY P.O., PARALAM, THRISSUR-680575 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER FRANCO THOMAS, AGED 43, S/O LATE K.T. THOMAS, PONMANI HOUSE, PULLAZHI P.O., THRISSUR, PIN - 680012 ``` ``` BY ADVS. SABU GEORGE P.B.KRISHNAN P.B.SUBRAMANYAN JOSEPH FREEMAN MANU VYASAN PETER ``` O.P.(RC)NO.153 OF 2022 2 ## **`RESPONDENTS:`** - **`1 MANAPPURAM HOTELS (P) LTD., REPRESENTED BY ITS DIRECTOR AND AUTHORISED SIGNATORY, MARGHASAHAYAM V. SRINIVASAN HAVING THEIR OFFICE AT KURUPPAM ROAD, VELIYANNUR DESOM, THRISSUR., PIN - 680001`** - **`2 GIRIJA VALLABHAN AGED 58 YEARS S/O KUNJU NAIR, NARAYANANKATTIL HOUSE, VENGINISSERRY P.O., PARALAM, THRISSUR, PIN - 680575`** - **`3 MRS.LATHA KALLENGATTU, AGED 52 YEARS, W/O GIRIJA VALLABHAN, NARAYANANKATTIL HOUSE, VENGINISSERRY P.O., PARALAM, THRISSUR, PIN - 680575`** ``` BY ADVS. SREEKALA KRISHNADAS C.VIVEK(K/000304/1999) APARNA NAIR(K/871/2021) ASHLY JAMES(K/001573/2018) RENJINI RAMESHAN(K/001278/2022) ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING; ``` O.P.(RC)NO.153 OF 2022 3 ## **“CR”** ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners are the respondents-tenants in R.C.P.No.83 of 2021 on the file of the Rent Control Court (I[st] Additional Munsiff), Thrissur, a petition filed by the respondents herein-landlords under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenants from the petition schedule building, on the ground of arrears of rent. The petitioners have filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order directing the Rent Control Court to dispose of Exts.P6 and P8 interlocutory applications, i.e., I.A.No.8 of 2022 and I.A.No.9 of 2022 in R.C.P.No.83 of 2021, within a time frame to be fixed by this Court, and to direct the Rent Control Court to keep in abeyance the consideration of Ext.P2 interlocutory application, i.e., I.A.No.3 of 2022 in R.C.P.No.83 of 2021 filed by the respondents-landlords under Section 12 of the Act seeking an order directing the tenants to remit the arrears of rent amounting to Rs.1,17,60,000/- with 6% interest from their respective dates of default, within a period of four weeks from the date of order and in case of default, to stop further proceedings in R.C.P.No.83 of 2021 under Section 12(3) of the Act. O.P.(RC)NO.153 OF 2022 4 I.A.No.8 of 2022 is one filed by the tenants seeking an order to refer the parties to resolve the dispute by way of arbitration, in view of Article XXII of the registered lease deed dated 26.09.2018 (Ext.P9), which is serial No.1 in the list of documents in R.C.P.No.83 of 2021. I.A.No.8 of 2022 is filed invoking the provisions under Section 8 of the Arbitration and Conciliation Act, 1996. In I.A.No.9 of 2022, the tenants are seeking an order for appointing an Advocate Commissioner along with an expert in Civil Engineering for submitting a report after measuring the area occupied by the tenant and for ascertaining the facilities provided by the tenant in the tenanted premises. According to the tenants, the monthly rent, other charges and statutory dues have been arrived at in Ext.P9 registered lease deed, as stated in paragraph 4 of the Rent Control Petition (Ext.P1), on an assumption that the tenanted premises is having a plinth area of 32,000 sq.mtr. 2. Heard the learned counsel for the petitioners-tenants and also the learned counsel for the respondents-landlords. 3. The learned counsel for the petitioners-tenants would contend that the consideration of I.A.No.3 of 2022 in R.C.P.No.83 of 2021 has to be deferred till orders are passed by the Rent Control Court in I.A.No.8 of 2022 seeking an order to refer the parties to arbitration, which is one filed invoking the provisions under Section 8 of the O.P.(RC)NO.153 OF 2022 5 Arbitration and Conciliation Act, and also I.A.No.9 of 2022 filed by the tenants seeking an order to depute an Advocate Commissioner along with an expert Civil Engineer for submitting a report after measuring the area occupied by the tenant and also the facilities provided by the tenant, in the tenanted premises. Before passing any orders on the aforesaid interlocutory application, the tenant cannot be directed to pay the monthly rent agreed in Ext.P9 registered lease deed, by an order of the Rent Control Court under Section 12(1) and (2) of the Act. 4. Per contra, the learned counsel for the respondentslandlords would contend that the attempt of the tenants in filing I.A.Nos.8 and 9 of 2022 is only to drag the eviction proceedings in R.C.P.No.83 of 2021 and also consideration of I.A.No.3 of 2022 filed by the landlords under Section 12 of the Act seeking an order directing the tenants to deposit the arrears of rent amounting to more than Rs.1,00,00,000/-. The dispute raised in a Rent Control Petition filed under the provisions of Section 11 of the Act is not an arbitrable dispute within the purview of the provisions under the Arbitration and Conciliation Act and as such, the provisions under Section 8 of the said Act have no application. 5. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per Section 12(1), O.P.(RC)NO.153 OF 2022 6 no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. As per Section 12(2), the deposit under sub-section (1) shall be made within such time as the court may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to Section 12(2), the time fixed by the court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. As per Section 12(3) of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the O.P.(RC)NO.153 OF 2022 7 Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per Section 12(4), when any deposit is made under subsection (1), the Rent Control Court or the Appellate Authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf. 6. The liability of a tenant under Section 12(1) of the Act, against whom an application for eviction has been made by a landlord under Section 11, or who prefer an appeal under Section 18 of the Act, against any order made by the Rent Control Court on an application made by a landlord under Section 11, is limited to all arrears of rent admitted by the tenant to be due in respect of the building, up to the date of payment or deposit, and he shall continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. 7. The object of the provisions of Section 12(1) of the Act is O.P.(RC)NO.153 OF 2022 8 to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, unless he pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by him to be due in respect of the building, up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. ## 8. In **J. Ramkumar v. Ashok Jacob [2022 (1) KHC 495 :** **ILR 2021 (4) Kerala 876]** this Court held that, Section 12(2) of the Act enjoins a tenant to deposit the admitted rent under sub-section (1), within such time as the court may fix and in such manner as may be prescribed. The time fixed by the court for the deposit of the arrears of rent and the time fixed for the deposit of rent which subsequently accrues due shall not be less than that specified in the proviso to Section 12(2). As per the statutory mandate of Section 12(1), on an application filed by the landlord under Section 12, the Rent Control Court or the Appellate Authority, as the case may be, has to order O.P.(RC)NO.153 OF 2022 9 payment or deposit of arrears of rent admitted by the tenant to be due in respect of the petition schedule building, up to the date of payment or deposit and the tenant shall also be directed to continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, regardless of the relief sought for in that application. As per Section 12(3) of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. 9. In **J. Ramkumar [2022 (1) KHC 495]** , this Court held that, Section 12 of the Act imposes certain obligations on the tenant to pay or deposit admitted rent, during the pendency of the proceedings for eviction under Section 11, before the Rent Control Court, and also the proceedings in an appeal filed under Section 18, before the Appellate Authority, against such an order of eviction. Section 12(3) of the Act also provides for the consequences, which were to follow, for committing default in fulfilling those obligations. Section 12(3) of the Act deals with the consequences flowing as a result of the failure of the O.P.(RC)NO.153 OF 2022 10 part of the tenant to pay or deposit admitted rent. Before the consequences under Section 12(3) can ensue, the conditions specified in Section 12(1) and (2) have to be satisfied. Section 12(3) mandates that if any tenant fails to pay or deposit the admitted rent as provided under Section 12(1) and (2), the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. Therefore, if the Rent Control Court or the Appellate Authority, as the case may be, is satisfied about the cause shown by the tenant, it will not make any order under Section 12(3) of the Act, stopping further proceedings and directing the tenant to put the landlord in possession of the building. 10. In the instant case, the respondents-landlords filed I.A.No.3 of 2022 in R.C.P.No.83 of 2021, invoking the provisions under Section 12 of the Act, seeking an order directing the tenants to deposit arrears of rent amounting to Rs.1,17,60,000/- with 6% interest from the respective dates of default, within the time limit specified in that application, and in case of default, to stop further proceedings in R.C.P.No.83 of 2021 under Section 12(3) of the Act. The monthly rent, other charges and statutory dues have been arrived at in Ext.P9 O.P.(RC)NO.153 OF 2022 11 registered lease deed, as stated in paragraph 4 of Ext.P1 Rent Control Petition, for the entire petition schedule building. The tenant has no case that the monthly rent of the tenanted premises has been calculated at square feet rate. The fact that the tenant has defaulted payment of monthly rent of the tenanted premises is not in serious dispute. The tenant has been occupying the said premises in terms of Ext.P9 registered lease deed acted upon by the tenant and the landlord. Prior to the filing of the Rent Control Petition, no dispute was raised by the tenant with regard to the plinth area of the tenanted premises. The tenant, who had paid the agreed rent for a substantial period, is estopped from disputing the plinth of the tenanted premises, against the terms of the lease deed. The said dispute now raised by the tenant is only an attempt to drag payment of huge arrears of rent. In such circumstances, we find no force in the contention of the petitionerstenants that the consideration of I.A.No.3 of 2022 in R.C.P.No.83 of 2021, the application filed under Section 12 of the Act, has to be deferred till a decision is taken in I.A.No.9 of 2022 filed by the tenants seeking an order for appointing an Advocate Commissioner for submitting a report after measuring the area occupied by the tenant. 11. I.A.No.8 of 2022 is one filed by the petitioners-tenants, invoking the provisions under Section 8 of the Arbitration and O.P.(RC)NO.153 OF 2022 12 Conciliation Act, seeking an order to refer the parties to resolve the disputes by way of arbitration, in view of Article XXII of the lease deed dated 26.09.2018. 12. In **Vidya Drolia v. Durga Trading Corporation [(2021)** **2 SCC 1]** a Three-Judge Bench of the apex Court overruled the ratio laid down in **Himangni Enterprises v. Kamaljet Singh Ahluwalia** **[(2017) 10 SCC 706]** and held that the landlord tenant disputes are arbitrable as the Transfer of Properties Act, 1882 does not forbid or foreclose arbitration. However, landlord tenant disputes covered and governed by Rent Control Legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum and not through arbitration. In the said decision, the Apex Court affirmed the law laid down by a Two-Judge Bench in **Booz Allen Hamilton Inc v. SBI Home Finance Ltd. [(2011) 5 SCC 532]** that in eviction or tenancy matters governed by special Statutes and where the tenant enjoys statutory protection, only the specified Court has been conferred jurisdiction. 13. In view of the law laid down by the Apex Court in **Vidya Drolia [(2021) 2 SCC 1]** we find no merit in the contention of the O.P.(RC)NO.153 OF 2022 13 tenant that the consideration of I.A.No.3 of 2022 in R.C.P.No.83 of 2021 filed by the landlords under Section 12 of the Act seeking an order directing the tenants to remit the arrears of rent amounting to Rs.1,17,60,000/- with 6% interest from the respective dates of default has to be deferred till a decision is taken in I.A.No.8 of 2022 filed by the tenants seeking an order to refer the parties to resolve the disputes by way of arbitration, invoking the provisions under Section 8 of the Arbitration and Conciliation Act. 14. In **Abdul Razak P.M. v. K.C. Thomas and others [2022 (4) KHC 260]** , considering the object of the provisions of Section 12 of the Act, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, this Court directed all Rent Control Appellate Authorities in the State to ensure time bound disposal of the appeals filed under S.18(1)(b) of the Act, against an order passed by the Rent Control Court under Section 12(3) of the Act. Similarly, this Court directed all Rent Control Courts/Appellate Authorities in the State to ensure time bound disposal of the applications filed under Section 12 of the Act, in pending Rent Control Petitions/Rent Control Appeals. Registrar (District Judiciary) was directed to communicate a soft copy of the judgment to all Rent Control Courts/Appellate Authorities in the State, without any delay. O.P.(RC)NO.153 OF 2022 14 15. In the above circumstances, the petitioners-tenants are not entitled for an order directing the Rent Control Court to keep in abeyance the consideration of Ext.P2 interlocutory application, i.e., I.A.No.3 of 2022 in R.C.P.No.83 of 2021 filed by the respondentslandlords under Section 12 of the Act pending consideration of I.A.No.8 of 2022 filed invoking the provisions under Section 8 of the Arbitration and Conciliation Act or I.A.No.9 of 2022 seeking an order for appointing an Advocate Commissioner along with an expert in Civil Engineering for submitting a report after measuring the area occupied by the tenant. The original petition fails and the same is accordingly dismissed. The Rent Control Court is directed to pass appropriate orders in I.A.No.3 of 2022 in R.C.P.No.83 of 2022, taking note of the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **A. BADHARUDEEN, JUDGE** MIN O.P.(RC)NO.153 OF 2022 15 ``` APPENDIX OF OP (RC) 153/2022 ``` |**`PETITIONER EXHIBITS`**|| |---|---| |**`Exhibit-P1`**|**`A TRUE COPY OF RCP NO.83 OF 2021 ON THE FILE OF`**| ||**`THE RENT CONTROL COURT, (1ST ADDL.MUNSIFF'S`**| ||**`COURT), THRISSUR, DATED 28-10-2021 (WITHOUT`**| ||**`DOCUMENTS)`**| |**`Exhibit-P2`**|**`A TRUE COPY OF I.A NO.3 OF 2022 IN RCP NO.83 OF`**| ||**`2021 ON THE FILE OF THE RENT CONTROL COURT,`**| ||**`(1ST ADDL.MUNSIFF'S COURT), THRISSUR, DATED 05-`**| ||**`04-2022`**| |**`Exhibit-P3`**|**`A TRUE COPY OF THE OBJECTION FILED BY THE`**| ||**`TENANTS IN RCP NO.83 OF 2021 ON THE FILE OF THE`**| ||**`RENT CONTROL COURT, (1ST ADDL.MUNSIFF'S COURT),`**| ||**`THRISSUR, DATED 12-07-2022 ALONG WITH THE LIST`**| ||**`OF DOCUMENTS (WITHOUT DOCUMENTS)`**| |**`Exhibit-P4`**|**`A TRUE COPY OF THE AREA CALCULATION STATEMENT`**| ||**`SUBMITTED BY THE TENANTS ALONG WITH THE ABOVE`**| ||**`EXT-P3 OBJECTION`**| |**`Exhibit-P5`**|**`A TRUE COPY OF THE OBJECTION FILED BY THE`**| ||**`TENANTS IN I.A NO.3 OF 2022 RCP NO.83 OF 2021`**| ||**`ON THE FILE OF THE RENT CONTROL COURT, (1ST`**| ||**`ADDL.MUNSIFF'S COURT), THRISSUR, DATED 12-07-`**| ||**`2022`**| |**`Exhibit-P6`**|**`A TRUE COPY OF I.A NO.8 OF 2022 IN RCP NO.83 OF`**| ||**`2021 ON THE FILE OF THE RENT CONTROL COURT,`**| ||**`(1ST ADDL.MUNSIFF'S COURT), THRISSUR, DATED 12-`**| ||**`07-2022`**| |**`Exhibit-P7`**|**`A TRUE COPY OF THE OBJECTION FILED BY THE`**| ||**`LANDLORD IN I.A NO.8 OF 2022 RCP NO.83 OF 2021`**| ||**`ON THE FILE OF THE RENT CONTROL COURT, (1ST`**| ||**`ADDL.MUNSIFF'S COURT), THRISSUR, DATED 05-08-`**| ||**`2022`**| |**`Exhibit-P8`**|**`A TRUE COPY OF I.A NO.9 OF 2022 IN RCP NO.83 OF`**| ||**`2021 ON THE FILE OF THE RENT CONTROL COURT,`**| ||**`(1ST ADDL.MUNSIFF'S COURT), THRISSUR, DATED 10-`**| ||**`08-2022 ALONG WITH A PANEL OF EXPERT CIVIL`**| ||**`ENGINEERS`**|