Anil K. Sen, J.
1. This is a revisional application at the instance of the tenant-defendant arising out of a suit for eviction which has been heard on contest by the plaintiff landlord. The facts relevant for our present purposes are not in dispute. The defendant-petitioner is a tenant under the plaintiff in respect of suit premises on a monthly rent of Rs. 1150/- payable according to English Calendar month. The plaintiff instituted Title Suit No. 122 of 1977 in the second court of the learned Subordinate Judge at Alipore for eviction of the defendant on certain grounds including a ground that the tenant-defendants had forfeited their protection under Section 13 of the West Bengal Premises Tenancy Act (hereinafter referred to as the said Act) on the ground of default. In this suit the defendant filed two applications-- one under Section 17 (2) and the other under Section 17 (1) read with Section 17 (2A) of the said Act. The case made out in these applications was to the effect that when the defendant tendered twenty months' rent from April 1974 to November 1975 amounting to Rs. 23,000/- to the plaintiff by a cheque, the plaintiff refused to accent the same. The defendant further pleaded that the rent was being deposited month by month with the Rent Controller since May 1976. Admitting the arrears for the period from April 1974 to April 1976 in the application under Section 17 (1) read with Section 17 (2A) of the said Act the defendant prayed for an order allowing them 'to deposit the arrears of rent legally payable with interest in monthly instalment equal to one month's rent beginning from November 1978.' In their application under Section 17 (2) the defendant prayed for adjudication of a dispute as to whether the deposits made with the Bent Controller since May 1976 are valid or not and 'further determine as to whether any portion of the rent in arrears has become barred by limitation and as such not legally payable.' The learned Subordinate Judge by the order impugned dated July 16, 1979 has disposed of the application under Section 17 (1) read with Section 17 (2A) of the said Act which was strongly contested before him by the plaintiff. He found the defendant to be in arrears for the admitted period from April 1974 to April 1976 and assessed the rent in arrears for those months at Rs. 28,750/-. He further found that the defendant is liable to pay statutory interest on such arrears up to July 1979 at the rate of Rs. 8 1/3% and assessed the same at Rs. 10,789.22. He refused to grant any liberal instalment as prayed for by the defendant and directed the entire amount of Rs. 39,539.22 to be deposited by August 20, 1979. Feeling aggrieved by the order as aforesaid the defendant has preferred the present revisional application.
2. Mr. Mitra appearing in support of this revisional application has raised a solitary point. He has contended that when a part of the arrears was not legally recoverable on the date of the suit, that is on August 31, 1979, being time barred, the learned Subordinate Judge could not have directed deposit of the entire arrears under Section 17 (1) read with Section 17 (2A) of the said Act. Reliance is placed on a Bench decision of this Court in the case of Raghunath Singh v. Patel & Co. (1961) 65 Cal WN 1093 and a single Bench decision following the aforesaid Bench decision in the case of N. N. Ghosh Chowdhury v. Tripti Rani Chakraborty ILR (1976) 2 Cal 359. The point thus raised by Mr. Mitra has been contested by Mr. Das Gupta appearing on behalf of the plaintiff. According to Mr. Das Gupta, the decisions relied on by Mr. Mitra stand overruled by the decision of the Supreme Court in the case of Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir : 2SCR249 .
3. The Bench decision of this Court relied on by Mr. Mitra no doubt well supports the contention raised by him, Unfortunately for Mr. Mitra in that case he himself had failed to convince the learned Judges that in order to get relief under Section 17 (4) of the said Act, the tenant must deposit the entire arrears whether the whole or any part of it is time barred or not. To us it appears that It was rightly contended by him then that Section 17 (4) of the said Act incorporates in substance the same principle as underlies Section 114 of the Transfer of Property Act and when the liability for the time barred rent in arrears is not extinguished though its recovery is barred it was incumbent upon a tenant to discharge that liability in order to be entitled to relief under Section 17 (4), Necessarily Mr. Mitra then relied on the well-known decision in the case of Vasudev Udpa v. Krishna Udpa (1921) ILR 44 Mad 629 which has been approved by the Supreme Court. The learned Judges there, however, rejected such a contention raised by Mr. Mitra when they held that 'the first part of Sub-section (1) of Section 17, on its true construction, imposes upon the tenant the duty to deposit or pay the amount to the plaintiff as landlord on account of arrears of rent which the tenant is otherwise under legal obligation to pay to him.' Accordingly it was held that when the tenant had no legal obligation to pay the time barred arrears, he cannot be made to pay or deposit such part of the time barred arrears under Section 17 (1) nor can there be any order made under Section 17 (2) of the said Act directing any such payment or deposit. The learned Judges relied on an earlier decision of this Court in the case of Daya Debi v. Chapala Debi, (1959) 63 Cal WN 976 in holding as such and approved a single Bench decision in the case of Nashiban Bibi v. Parulbala Dutta (1958) 62 Cal WN 778. With great respect there are, however, good reasons to doubt the correctness of the view so expressed as pointed out by a learned single Judge of this Court in a later decision in the case of Sujit Kumar v. Kartick Chandra 1979 (2) Cal HN 280.
4. Section 17 (1) provides as follows: 'On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13, the tenant shall subject to the provisions of Sub-section (2), within one month, of the service of the writ of summons on him or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance deposit in court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.'
The first part of this Sub-section clearly provides that the tenant shall deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have made default. To that what is to be added is interest at the statutory rate calculated from the date when any such amount was payable up to the date of deposit. Even the term 'payable' as used in this Sub-section qualifies the term 'amount' only for the purpose of determining the date from which the interest is to be calculated. Sub-section (1) on its terms quite clearly requires the tenant to deposit in Court or pay to the landlord the rent for the entire period for which he may have made default irrespective of whether any part of it is irrecoverable being barred by law or not. The learned Judge's deciding the case of Raghunath Singh v. Patel & Co. (supra) introduced on their own construction a restrictive clause into this subsection to the effect that such arrears must be the arrears which the tenant is otherwise under a legal obligation to pay. We do not think there is any scope for incorporating into the provision a restriction of that kind which the legislature in its wisdom had not incorporated. We are not supposed to alter the law by judicial pronouncement but we are merely to interpret the law as made by the legislature. The restriction as has been brought in by the learned Judges on construction of Sub-section (1) neither follows expressly from the provision thereof nor by necessary implication. Moreover, such a restriction, in our view, is against the very spirit of the provision which read with Sub-section (4) provides for relief of the nature contemplated by Section 114 of the Transfer of Property Act This is the reason why we have expressed ourselves to say in agreement with the learned single Judge of this Court that there are good reasons to doubt the correctness of the view expressed in the aforesaid Bench decision. The other single Bench decision relied on by Mr. Mitra merely follows the Bench decision.
5. We are quite conscious of the position that sitting in a Division Bench when we are not agreeing with a Bench decision normally we are to refer the matter to a larger Bench but that is not required of us in the present case as we agree with the learned single Judge when he said in the case of Suchit Kumar v. Kartick Chandra (supra) that this decision stands overruled by necessary implication by the decision of the Supreme Court in the case of Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir. In that case the Supreme Court was considering the parallel provision of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972). The material provision of that Act provides in case of a suit for eviction on the ground of default, if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him together with statutory interest thereon and the landlord's costs of the suit the Court may, in lieu of passing a decree on that ground, pass an order relieving the tenant against his liability for eviction on that ground. Interpreting the aforesaid provision the Supreme Court laid down that in order to be entitled to the relief so provided the tenant-defendant must deposit the entire arrears irrespective of whether any part of it is time barred or not. Mr. Mitra appearing in support of the present revisional application before us wanted to distinguish the above decision on the ground that under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972) what the tenant is to deposit is the arrears due so that when time barred arrears remain due, notwithstanding recovery thereof being barred by law of limitation, it might have been rightly held that the tenant's liability extends to the extent of requiring him to deposit even the time barred arrears but such is not the provision in the West Bengal Premises Tenancy Act. We have carefully considered this contention raised by Mr. Mitra but we have failed to find any material difference with regard to the material provision in the two statutes. While under the U. P. Act the tenant was required to deposit the entire amount of rent and damages due here as we have indicated hereinbefore under Section 17 (1) the tenant is required to deposit or pay to the landlord the entire amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have made default. Substantially the provision is the same and the requirement is that the entire amount in arrears has to be deposited by the tenant in order to entitle him to get relief under Sub-section (4) thereof. This being the position, we are of the view that the decisions relied on by Mr. Mitra stand overruled by the aforesaid decision of the Supreme Court in the case of Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir.
6. The only point raised by Mr. Mitra, therefore, fails. Mr. Mitra in his fairness has not disputed the propriety of the learned Judge's order refusing to grant any liberal instalment in view of the fact that the tenant-defendant is a Government undertaking and also in view of the fact that the entire amount had already been deposited by the tenant-defendant in the court below. Both the parties, however, agree before us that the learned Subordinate Judge had not calculated the interest correctly. They agree that statutory interest on the arrears would amount to Rs. 10,182.29 so that the total amount payable towards arrears under consideration and the interest thereon would be Rs. 38,932.29 and not Rs. 39,539.22 as assessed by the learned Subordinate Judge. Subject to the modification of the order in this regard the order passed by the learned Subordinate Judge is upheld. The excess amount if paid or deposited may be refuned or adjusted. The application is disposed of accordingly. There will be no order for costs.
B.C. Chakrabarti, J.
7. I agree.