9911796707
TMI Blog1927 (2) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this period between the 1st March and the 1st April was, what he-terms days of grace and his contention was that, if in any lease the landlord gave the tenant any days of grace, then the equitable right the Court has of relieving the tenant against forfeiture is taken away and that in such a case the Court has no power at all to grant any relief against forfeiture. I think it is inaccurate to call the period between the 1st March and the 1st April as days of grace. It is clearly not days of grace for purpose of the payment of the rent because, according to the deed the rent is payable on the 1st March and, though it carries interest at 12 per cent. per annum from that date, it cannot possibly be contended on the true meaning and construction of the deed that the landlord would have no right to maintain a suit for the payment of the rent, although it has fallen due and become payable. The days of grace, strictly so-called, are clearly days before the expiry of which there is no right of action for the party giving the days of grace. I am rather inclined to think that this expression days of grace has come to be somewhat loosely used in connexion with this discussion on this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amount of rent due and the costs of the suit and a claim thereon for being relieved against forfeiture. Apparently the argument in that case was that a forfeiture clause to the effect that the tenancy itself should become determined on the nonpayment of rent, was penal in its nature and intended by the party only to operate in terrorem over the other contracting party and that, therefore, it should not be treated as an ordinary covenant enforceable between the parties. It is to that argument that the learned Judges in that case were adverting when they referred to the provision in the deed that though the rent became payable on the 15th April, it was only when default should continue to be made till December the lease was to be forfeited. They also specifically referred in their judgment to the fact that the tenant in that case had not paid into Court the rent on the nonpayment of which the forfeiture was incurred. That case was undoubtedly the authority for the position that, if in a deed of lease the lease is made determinable not merely on the nonpayment of rent, but on further default being made for a period fixed or indicated therein, the provision is not liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not appear to have been any payment by the tenant into Court of the amount of rent due or of any prayer for relief against forfeiture on that ground. 8. The case of Ramakrishna v. Baburayya 24 IND.CAS. 139 was also referred to by the learned vakil for the appellant. In that case which was not under the Transfer of Property Act directly it was held by the learned Judges, Sir Arnold White, C.J., and Justice Sankaran Nair that the fact that the tenant sets up a plea of payment which he fails to prove, necessarily, in itself, disentitles him to equitable relief. 9. And further say the question whether a tenant is entitled to relief against forfeiture for non-payment of rent must depend upon the facts of the particular case. 10. I respectfully agree with that proposition and there can be no doubt whatever that whether the Court regards Section 114 as merely codifying the principle of equity applicable to such cases or not, the true principle is to regard a provision for forfeiture of the lease as really penal and to hold that it will be for the Court in each case to determine, whether, having regard to the circumstances of the case the penal clause such as it may be shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the lower Courts, the tenants should be held to have become disentitled to relief. It was said that in this case it was shown satisfactorily that every year the tenant had been making default in the payment of rent and failing to carry out the covenant in the deed and thus the Court should take that into consideration in determining the question whether it should exercise its discretion in favour of the tenant or not. So far as this case is concerned I have no doubt whatever that the materials are insufficient to enable me to decide that the conduct of the defendant has been such as to deprive him of this equitable relief. I have a very shrewd suspicion in this case, and I do not put it at any more than that, that the landlord who had granted a permanent lease to the tenant began to regret it afterwards and has been making endeavours directly and indirectly somehow to see that forfeiture was incurred by the tenant. Otherwise I am unable to appreciate why it should have become necessary during the some years past for the tenants to send the rent which became payable by money orders. The mere fact that they were put to the necessity of going to the post office to send the rent b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
