Calcutta High Court (Appellete Side)
M/S. Smart Enterprises vs Shree Ram Trust on 16 August, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
12 16.8.17 C.O. 2644 of 2017
akb
M/s. Smart Enterprises
-Versus-
Shree Ram Trust
Mr. Sabyasachi Bhattacharjee
Mr. Shamba Chakraborty
Mr. Arun Kumar Das ... For the Petitioner
Mr. Mainak Bose
Mr. Supratim Laha
Mr. Abhishek Jain
Mr. Rakesh Jain ...For the Opposite Party
This petition and, indeed, the application that was filed by the petitioner in the Trial Court, the rejection whereof has given rise to the present petition, may have been wholly unnecessary.
The petitioner is the defendant in an eviction suit. The petitioner did not apply or make any payment within the one-month period as envisaged in Section 7 of the West Bengal Premises Tenancy Act, 1997 and applied sometime thereafter, both under Section 7(1) of the said Act and under Section 7(2) thereof. The application under Section 7(2) of the Act is still pending. The application under Section 7(1) of the Act was disposed of by permitting the petitioner to make the payment or the deposit at the petitioner's risk.
Upon the petitioner seeking to make the deposit, the department of the Trial Court refused to accept the same on the ground that it was not made within the time permitted under the relevant provision. The petitioner thereupon applied for permission to make the monthly deposits. Such application has been dismissed by the order impugned dated July 17, 2017.
Section 7(1)(a) of the said Act mandates that the tenant shall, subject to the provisions of sub-section (2) thereof, pay to the landlord or deposit with the Court, all arrears of rent, calculated at the rate at which it was last paid and upto the end of the month previous to that in which the payment is made together with interest at the rate of 10% per annum. Clause (b) of Section 7(1) of the Act requires the deposit as envisaged in clause (a) thereof to be made within one month of the service of the writ of summons on the tenant or within one month of his appearance, if the writ of summons is not served on him. Section 7(1)(c) of the Act deals with the situation during the pendency of the eviction suit. Such provision requires the payment or deposit of the monthly amounts on account of rent to be made by the 15th day of the following month.
Section 7(2) of the Act provides for the adjudication of any dispute regarding the rate or quantum of rent payable or even - by judicial interpretation - of the landlord-tenant relationship as between the plaintiff and the defendant. The second limb of Section 7(2) of the Act prohibits a lesser amount than the amount claimed in the plaint to be deposited in Court unless such lesser deposit is accompanied by an application for determination of the rent payable. It is of some significance that such provision does not prohibit the application to be received without the admitted amount of dues being deposited. There is sufficient reason behind this.
The third part of Section 7(2) of the Act provides for the adjudication and commands that the Court shall make "an order specifying the amount, if any, due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the order". The sub-section also has the following proviso as an integral part thereof :
"Provided that having regard to the circumstances of the case an extension of time may be granted by the Civil Judge only once and the period of such extension shall not exceed two months."
Strictly speaking, Section 7(1) of the Act does not conceive of any application being made thereunder. But a practical difficulty arises in a deposit being made in Court without anything in writing. Thus, a practice has developed whereunder an application is made under Section 7(1) of the Act, even if only to make good the default or pay the entire amount that is perceived to be due, at least for the first time. The monthly deposits may be more easily made if there is a file opened in the department of the relevant Court in the name of a particular suit where at least one previous deposit has been made.
There is a dimension of time that is indicated both in the second and third limbs of Section 7(1) of the Act. The time indicated in Section 7(1)(a) thereof is fixed; but the time indicated in the other two clauses of the sub-section may be flexible. There is no embargo in Section 7(1) of the said Act for any payment or deposit in terms thereof being made - whether on account of the initial amount or the subsequent monthly amounts - after the time envisaged thereunder; such time may be enlarged by the relevant Court upon sufficient cause being shown by a tenant for the delay in making the payments or deposits. When there is a provision for doing a certain thing within a particular time by any statute dealing with a civil matter and the relevant provision does specifically prohibit the extension of the time therefor, the general law through the Limitation Act, 1963, particularly Section 5 thereof, comes into play. Thus, it is conceivable that a tenant does not make the payment or the deposit of the amount envisaged in Section 7(1)(a) of the Act within the time prescribed under Section 7(1)(b) thereof; but he applies under Section 5 of the Limitation Act for condonation of the delay and, thereupon, makes the payment or the deposit in accordance with the order that may be passed on the application for condonation of delay.
In such a scenario, when the tenant raises no dispute regarding the quantum or rate of rent or as to the relationship between the parties, there is no need for any application to be made under Section 7(2) of the Act. As long as such a tenant continues to make payment or deposit of monthly rent in terms of Section 7(1)(c) of the Act, the suit waits its turn to be tried.
However, it is possible that the whole or a part of the amount due or the rate of rent or the status of the plaintiff as landlord is in dispute in a particular action, whereupon an application under Section 7(2) of the Act becomes unavoidable. It is also possible that a disingenuous tenant with no real dispute to talk of merely questions the status of the landlord or manufactures an imaginary dispute to avail of the notorious delays on the part of the Court and wards off immediate payment. Once an application is filed under Section 7(2) of the Act, it calls for an adjudication. The provision also envisages a swift adjudication. The answer upon such adjudication may well be that there is no credible dispute which has been raised. Yet, the mandate of such provision is that the Court has to specify an amount that is due for the liability of the defendant-tenant to be crystallised thereupon and for the time to start running, in accordance with the third part of Section 7(2) of the Act read with the proviso thereto, thereupon. Till such time that an amount is adjudged to be due and owing from the defendant to the plaintiff in terms of Section 7(2) of the Act when an application under such provision is made, there is no question of the defence being struck off or the tenant not having any opportunity to make good the default.
The defendant loses the opportunity once the period of two months after the expiry of one month from the date of the order indicating the amount due elapses. That appears to be inflexible in view of the wording of the proviso and the general principle recognised by Section 29 of the Limitation Act that prohibits further time being afforded in case a statute specifies the time and places an embargo on any extension thereof.
Since it is the admitted position in this case that an application under Section 7(2) of the said Act has been filed and such application has not been taken up yet for consideration, whether the petitioner has made the payment in terms of any order said to have been passed under Section 7(1) of the Act or not is of little relevance. Technically speaking, in view of the wording of Section 7(3) of the Act, an order may be passed for striking out the defence in view of the non-compliance with the requirement under Section 7(1) of the Act; but an order under Section 7(3) of the Act passed at this stage would not attain any degree of finality. Thus, since the final figure of the amount due has not yet been indicated by the Trial Court in terms of Section 7(2) of the said Act, the petitioner herein need not be overly worried at the needless application that the petitioner filed before the Trial Court being dismissed or of this petition being disposed of without any apparent relief to the petitioner.
It is open to the petitioner to make any payment or deposit or to wait for the final amount to be indicated in the order to be passed under Section 7(2) of the said Act and to make the payment within the prescribed time thereafter.
C.O. 2644 of 2017 is disposed of without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sanjib Banerjee, J.)