116-NLR-NLR-V-58-M.-RAZIK-Appellant-and-H.-ESUFALLY-Respondent.pdf
1957Present :Basnayake, C.J., and PuIIe, J.
AT. BAZIK, Appellant-, and H. ESUFAULY, RespondentS. G. 351—D. G, Colombo, 303S0/M
Rent Restriction Act—Section 13—Arrears oj rent—Vender of rent—Elements necessaryto constitute tender—Overhauling lessee—Liability to pay rent.
Tender of money does not mean mere expression of readiness to pay themoney. To constitute tender tho readiness to pay must be accompanied
by production of tho money that is offered, in satisfaction of the debt. There-fore, mere willingness by a tenant to pay the rent due to his landlord does-not discharge his obligation to pay the rent.
Under tho Rent Restriction Act an overholding tenant under a notariallease is liable to be ejected if ho fails to pay rent for one month after it has.become duo.
-AlPPEAL from a judgment of the District Court, Colombo.
H. Tr. Perera, Q.C., with M. RafecJ:, for Defendant-Appellant*.
Waller Jciyawardena, with F. X. J. Jia-sanayayam, for Plaintiff-Respondent.
Cur. atlv. full.
March 29, 1057. Baskayake, C.J.—
The plaintiff seeks to have the defendant ejected from premisesKo. 44 (4-9) situate in Wolfendhal Street, Colombo, and also to recoverdamages amounting to Rs. 7,000 with further damages at Rs. 291/67 permensem from 1st October 1953 till the plaintiff is placed in possession.
The material facts are as follows :—
Abdul Kaiyam was the tenant of the premises in question. On hisdeath in 1949 t-hc plaintiff asked his widow to vacate the premises ;but the defendant, her brother, appealed to him to permit the businessto be carried on at least until the termination of the testamentaryproceedings in respect of Abdul Ivaiyam’s estate. Thereupon theplaintiff leased the premises to the defendant by indenture dated 5tliApril 1950 for a period of IS months. The lease was to terminate on30th September 1951 and the annual rent of Rs. 3,500 was payable inquarterly instalments of Rs. S75 on the loth day of tho months ofMay, August-, and November 1950, and February 1951. One of theconditions of the lease was that the lessee should yield up and deliverto the lessor or his agent vacant possession of the premises at the expi-ration of the period of eighteen months. On 29th June 1951 theplaintiff through his lawyers notified the defendant in writing that atthe end of the term of the lease he should quit and deliver vacantpossession of the premises. The defendant did not either send a replyto this notice or vacate the premises on 30th September 1951. There-after a second notice was sent to him on Sth October 1951. On thatday the defendant saw the plaintiff and asked that he be allowed tocontinue as tenant. The plaintiff did not consent as the matter hadbeen placed in the hands of his lawyers. On 6th November 1953this action was instituted and the defendant’s answer was filed on 2SthJune 1954. No rent had been paid between 30th September 1951 andthe date of filing answer. It is on the ground that the defendant hasbeen arrears for one month'after the rent has become due that the
plaintiff seeks to get over the bar to an action in ejectment created bysection 13 of the Kent Restriction Act. The defendant claims that lieoffered the rent to the plaintiff and that the plaintiff said that he wasnot worried about the money.
The learned District Judge lias rejected the defendant's evidence thatho offered to pay the rent and that the plaintiff declined to fake it. Heaccepts the plaintiff’s evidence that at no stage did the defendant tenderto him the rent due or even make an offer of payment. We see no reasonto disturb those findings of fact. The plaintiff’s evidence is quite clearon the point. He says :—_
“ On Sth October defendant approached me with a suggestion thathe should be allowed to continue as tenant. I said the matter was inthe hands of the lawyers and that he should make arrangements withthe lawyers. Since then he has not seen me. My lawyers are Messrs.
J. & G. de Saram. To my knowledge defendant did not approachmy lawyers. Defendant did not at any time give me rent. UntilI came to court no monej' was paid to me.”
The defendant’s position is summed up in the following question andanswer in his examination in chief:—
” Q. Your case was that you were willing to pay but plaintiff wantedthe premises back 1
A. Yes. ”
Mere willingness to pay the rent docs not discharge the obligation topay the vent. At no time did the defendant on his own showing pay therent. The farthest ho went was to take his cheque book with him andsay lie was “ prepared to pay ”.
It was argued that the defendant’s action amounted to tender of therent- Tender does not mean mere expression of readiness to pay. Toconstitute tender the readiness to pay must be accompanied by productionof the money that is offered in satisfaction of the debt (Harris on Daw ofTender, p. 11). In this sense the rent was never tendered by thedefendant.
As the plaintiff notified the defendant three months before the expiryof the lease that he should hand over the premises at the end of September1951 it cannot be said that there lias been a tacit renewal of the lease.The contractual tenancy having expired at the end of September 1951,the defendant was able to remain in the premises merely because section 13barred an action in ejectment except on one of the grounds providedtherein. The defendant is then a tenant remaining in possession of theleased premises without the lessor’s consent. Under the common lawsuch a person is deemed to hold the premises on the same terms as underthe lease except that he is not entitled to go on for the term of the originallease or any shorter period and is bound to pay a proportionate rent forthe period of his unauthorised occupation (Van Leeuwen Censura Forensis,
Ft. Ij Bk IV, Cli. XXII, Sec. 15—Barber). But the Rent Kestriction Act
bars an action for the ejectment of such a person except in circumstancesprescribed by the Act. Such a person can be ejected if he fails to pay therent for one month after it has become due. The defendant not havingpaid any rent for two years cannot escape the consequences of suchnon-payment. The lessee’s obligations under our law in regard to rentis to pay the rent at the proper place and time (Van Beeuwen’s CensuraPorensis, Part I, Book IV, Ch. XXII, s. 13). It is not sufficient to expressa willingness to pay the rent. The rent must be actually paid. *
If he does not pay the rent and falls into arrears it is no defence to anaction in ejectment to say that because of the landlord’s attitude hedid not pay the rent.
The appeal is dismissed with costs.
Puni/E, J.—I agree.
Appeal dismissed.