Calcutta High Court (Appellete Side)
Md. Samud vs Sri Anil Mukherjee on 30 August, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 7 30.8.2017
gd CO 2826 of 2017
Md. Samud
Vs.
Sri Anil Mukherjee
Mr. Abhijit Ray
..for the Petitioner
Mr. Sushanta Kumar Kundu
Mr. Saptarshi Kumar Kundu
Mr. Shibendu Patra
..for the Opposite Party
The grievance of the petitioning
defendant in an eviction suit is that despite the petitioner having tendered payment of the amount adjudged to be due by an order passed under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 within two months and five days of the date of such order, the petitioner's defence has been struck off.
The opposite party is represented. Section 7(2) of the Act mandates that the amount specified to be due from the tenant by an order passed under Section 7(2) of the Act shall be paid to the landlord "within one month 2 of the date of such order". The proviso to Section 7(2) of the Act permits an extension of time to be granted by the court only once and the period of such extension to not exceed two months. In view of the negative command as contained in the proviso, the time to make the payment in terms of an order passed under Section 7(2) of the Act cannot be enlarged beyond two months after the expiry of one month from the date of the order. In other words, a tenant may make the payment subject to an extension being granted by the court, within three months of the date of the order passed under Section 7(2) of the Act specifying the amount due from the tenant to the landlord.
Since the purpose of the Act is to provide certain benefits to a class of persons, and the said Act also specifies how and within what time such benefits may be availed of, as long as a tenant protected by such Act complies with the mandate of the provision within the time envisaged therein, the benefit cannot be taken away from such person. That does not imply 3 that a benefit conferred by the Act may be availed of by a recalcitrant tenant irrespective of the time stipulated in any provision; it only implies that the fullest extent of the benefit must be allowed to be enjoyed by a protected tenant as long as the statute permits the same.
In the instant case the payment ought to have been directed to be made within a month of the date of the order passed on April 15, 2016 under Section 7(2) of the Act. However, the payment was directed to be made within two months of the date of such order. It does not appear from the relevant order that the petitioner herein sought an extension of the statutory period at the time that such order was made. In any event, the extended time available to a tenant to make the payment, if taken into account, appears to be three months from the date of the order passed under Section 7(2) of the Act. The three-month period would have lasted till or about July 15, 2016. The payment was tendered by the petitioner to the landlord on June 20, 2016. Though such payment was 4 tendered five days beyond the time fixed therefor by the order dated April 15, 2016 specifying the quantum due under Section 7(2) of the Act, the petitioning tenant was entitled to the minor extension for a period of five days in view of the good grounds made out therefor.
As a consequence, the order impugned dated June 12, 2017 cannot be sustained since the petitioner had made the payment within the extended period of three months from the date of the order passed under Section 7(2) of the Act by showing sufficient cause for being unable to make the payment within the time stipulated by the order dated April 15, 2016.
CO 2826 of 2017 is allowed by setting aside the order impugned dated June 12, 2017 and by requesting the trial court to proceed expeditiously with the suit without adjourning it at the request of either of the parties.
There will be no 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 5 formalities.
(Sanjib Banerjee, J.) 6