Calcutta High Court (Appellete Side)
M/S. Popat & Kotecha Property & Ors vs Shri Ashim Kumar Dey on 15 January, 2014
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
C. O. No.3161 of 2011
M/s. Popat & Kotecha Property & Ors.
Vs.
Shri Ashim Kumar Dey
For the petitioners: Mr. Noelle Banerjee
For the O. P. : Mr. Sabyasachi Bhattacharyya
Mr. Rahul Karmakar
Judgement on: 15th January, 2014
Tarun Kumar Gupta, J.:-
This revisional application is directed against order dated 30th of
June, 2011 passed by learned Judge, Small Causes Court, 5th Court at
Calcutta in Ejectment Suit No.302 of 2006.
The petitioner being plaintiff filed said suit for eviction against
defendant tenant on the ground of default in payment of rent,
maintenance charges, municipal tax and commercial surcharge since
April, 2003. The O. P. defendant filed an application under Section 7 (2)
of the West Bengal Premises Tenancy Act, 1997 (hereafter to be referred
as Act of 1997) denying those allegations and also denying the
relationship of landlord and tenant between the parties. The petitioner
plaintiff filed written objection against said application. After contested
hearing learned trial court held that there was a relationship of landlord
and tenant between the parties, but the defendant was not a defaulter in
payment of rent since April, 2003 as he deposited rents in the office of
Rent Controller since April, 2003 to December, 2006 after plaintiff
refused to accept rent by hand as well as through money orders. Learned
trial court, however, opined that O. P. defendants were also liable to pay
maintenance charges at the rate of Rs.52/- per month and also property
tax and municipal surcharge and ordered the defendant tenants to pay
maintenance charges for the period from April, 2003 to May, 2011 within
a stipulated time frame by the order impugned. Learned trial court,
however, observed that due amount of property tax and municipal
surcharge payable by the tenants could not be ascertained due to
insufficient data on that score.
Mr. Noelle Banerjee, learned advocate appearing for the petitioner
plaintiffs, submits that before depositing admitted rents in the office of
the Rent Controller a tenant has to offer the rent to the landlord and on
being refused he has to send the same to the landlord through money
order and the money order being returned refused he has to deposit rent
in the office of the Rent Controller. She submits that on each occasion a
time frame was given in Section 21 of the Act of 1997. She, further,
submits that in Section 22 of said Act the time limit for making deposits
was also mentioned. According to her, though the plaintiff landlords
denied said alleged tender and refusal, or sending of rent by money order
but learned trial court did not make any elaborate discussion on this
score. She next submits that in terms of agreements between the parties
the advance rent of a month was required to be deposited within 10th of
said month but the rents were deposited in the office of the Rent
Controller mostly out of time as per time limits prescribed therein.
According to her, the matter should be remanded back to the court below
for considering these aspects de novo on the basis of materials already on
record.
Mr. Sabyasachi Bhattacharyya along with Mr. Rahul Karmakar,
learned advocates, appeared for O. P. tenant. He submits that in the
written objection there was no specific objection that there was no valid
tender or that the deposits in the Rent Control Office were invalid. He
next submits that neither the surcharge nor the municipal taxes were part
of rent. He further submits that as plaintiff landlord withdrew the rents
deposited in the office of Rent Controller it amounted to waiver of
default in terms of Section 25 of the Act of 1995. He submits that on
these points there was no discussion in the order impugned and that the
matter should be remanded to the court below for afresh decision on
these scores.
The relevant provisions of Sections 21, 22, 24 and 25 of the Act of
1997 are quoted below:-
Section 21
Deposit of rent by tenant.- (1) Where the landlord does not accept
any rent tendered by the tenant within the prescribed period, the tenant
shall remit the rent to the landlord by postal money order within fifteen
days of such refusal.
(2) Where any tenant remits rent to the landlord by postal
money order within the prescribed period and it is returned
to the tenant by the postal authority as undelivered, either on
account of the landlord having refused to accept the payment
thereof or for any other reason, the tenant may deposit such
rent with the Controller within fifteen days from the date on
which it is so returned to the tenant.
.......................................
Section 22 The time-limit for making deposit and consequence of incorrect particulars in application for deposit. - (1) No rent deposited with the Controller shall be considered to have been validly deposited under Section 21 unless deposited within fifteen days of the time fixed by any contract in writing for payment of the rent or, in the absence of any such contract in writing, unless deposited within the last day of the month following the month for which rent was payable, provided where any rent remitted to the landlord by postal money order within the prescribed period is returned to the tenant by the postal authority as undelivered or on account of the landlord having refused to accept the rent or for any other reason, such rent may also be validly deposited within fifteen days from the date on which it is so returned to the tenant.
(2) No deposit of rent shall be considered to have been validly made for the purpose of Section 22, if the tenant willfully or negligently makes any false statement in his application for depositing the rent unless the landlord has withdrawn, or makes an application in the prescribed form to withdraw, the amount deposited before the date of institution of proceeding for the recovery of possession of the premises from the tenant. ....................................... Section 24 Savings as to acceptance of rent. - The withdrawal of rent deposited in the prescribed manner shall not operate as an admission against the person withdrawing if of the correctness of the rent or the rate thereof, the period of default, the amount due or any other fact stated in the application of the tenant for depositing the rent under sub-section (1) of section 22, nor shall it operate as a waiver of any notice to quit given by him to the tenant. Section 25 Where there shall be a waiver of default.- Where there is no proceeding pending for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of the rent by the landlord from the tenant shall operate as a waiver of such default.
At the time of disposing of an application under Section 7(2) of the Act of 1997 the court has to decide whether deposits made in the office of the rent control were valid or not with special reference to Sections 21 and 22 of the Act of 1997. The court has also to ascertain whether the maintenance charge, property tax and municipal surcharge were part of the rent or not. Again, when admittedly plaintiff landlords have withdrawn the amount of rent deposited by the tenant in the office of the Rent Controller then it has to be ascertained whether said withdrawal was protected in terms of Section 24, or amounted to waiver of default in terms of Section 25 of the Act of 1997. These points are required to be determined by the court below on the basis of materials already on record and further evidence, if any, to be adduced by the parties on this score. I refrain from making any comment on these issues as those comments may influence learned trial court at the time of passing appropriate order.
Accordingly, the order impugned is hereby set aside. The learned trial court is requested to dispose of the application under Section 7(2) of the Act of 1997 afresh after giving opportunity to the parties to adduce further evidence, if any, on their respective stands. As this is an Ejectment Suit of 2006, it will be appreciated if learned trial court disposes of said application under Section 7(2) of the Act of 1997 within six weeks from the date of communication of the order.
The revisional application stands disposed of accordingly. I pass no order as to costs.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)