M.N. Roy, J.
1. The tenant, defendant/petitioner obtained this Rule with the corresponding interim order on 6th July 1981, against the landlord, plaintiff/opposite party for quashing and setting aside, Order No. 52dated 2nd June 1981, passed by the learned Judge. City Civil Court at Calcutta in Ejectment Suit No. 1360 of 1977 and whereby the said learned Judge has directed the defendant/petitioner to deposit Rupees 22,588,55p, towards arrears of rent, including statutory interest thereon at a monthly instalment of Rs. 500/-, apart from directing that first of such instalments will have to be paid on July 1981 and the rest in the succeeding months. Over and above such directions, the learned Judge of the Court below has directed the defendant/petitioner to go on depositing the current rents since June 1981 @ Rs. 250/- per month. Such order was made while disposing of applications under Sections 17 (2) and 17 (2A) of the West Bengal Premises Tenancy Act, 1956, as filed by the defendant/petitioner.
2. It was claimed that the defendant/ petitioner was A tenant under the plaintiff/ opposite party since 1966, in respect of a portion of the 5th Floor of Premises No. 6A. Saklat Place, Calcutta-13. It was also his case that such tenancy was created on the basis of a written agreement dated 16th February 1966 and the rent was Rs. 250/-per month, payable according to English calendar month.
3. It was also claimed by the defendant/ petitioner that subsequent to such agreement as mentioned above, there was a verbal agreement whereby the earlier agreement stood varied and the rent was split into two parts viz. Rs. 200/- as rent and Rs. 50/- per month as service charges and still thereafter there was a subsequent verbal agreement, thereon, the parties agreed that if rent was paid within the 10th of the succeeding month then the plaintiff/ opposite party, landlord would accept Rupees 237.50 p. as total rent, inclusive of service charges and in case such payment was not made within the date as mentioned above, the defendant/petitioner tenant would be required to pay the full amount of Rs. 250/- per month.
4. It was also the case of the defendant/ petitioner that since payments were made by him within the 10th of the day of the month as mentioned above, so the landlord opposite party accepted Rs. 237.50 p. as rent and granted receipts for, such payments. It was also claimed that there was a still further agreement between the parties to the effect that, the plaintiff/opposite party, would send bills for collection from the defendant/petitioner, tenant and then, hewould pay the rent by cheque to the concerned collector.
5. It has now been stated that since the plaintiff/opposite party did not send rent bills for the month of December 1974, the tenant defendant/petitioner wrote letter to the plaintiff/opposite party, stating that a cheque for Rs. 237.50 p. being the rent for the month of December 1974, was lying ready and the landlord was requested to arrange for collection of the said cheque against proper receipt. It has been claimed that the landlord refused to accept such letter and on such, the tenant petitioner again tendered rent for the month of December 1974, by postal money order and such payment was also refused by the landlord opposite party. It has been stated that in view of such refusal to accept rent, the tenant, defendant/petitioner began to deposit rents with the Rent Controller since the month of January 1975. It was also his case that as the money order came back to him on 12th February 1975, on such refusal as mentioned above, it was not possible for him to deposit rent for the month of December 1974, within the month of January 1975 and therefore, the tenant petitioner adjusted the rent for the said month of December 1974, against security deposit of Rupees 250/-, which was lying in deposit with the landlord opposite party, it was the further case of the tenant petitioner that since he was making payment within 10th of the month following, with the Rent Controller, so deposits were made @ Rupees 237.50 p. per month, in terms of the oral agreement as mentioned above. Such deposits were also claimed by the defendant/ petitioner to be valid and as such, he has also claimed that he was not in arrears of rent.
6. The landlord opposite party, admittedly instituted Ejectment Suit No. 1306 of 1977 in the City Civil Court at Calcutta, claiming ejectment of the tenant petitioner on the ground that he was a defaulter in payment of rent since December 1974 and further, the entire amount deposited in the office of the Rent Controller were illegal, void and invalid. It was the tenant petitioner's case that on receipt of the writ of summons he filed an application under Section 17 (2) of the West Bengal Premises Tenancy Act, 1956, stating that there was a dispute with regard to the rate of rent and the current rent was Rs. 237.50 p. per month and such rent having been deposited at the appropriate rate, he was not in ar-rears and in view of the dispute as raised, the learned Court below should determine the rate of rent on the basis of the facts as mentioned above. That apart, an application under Section 17 (2A) was also filed. It has further been stated that at the time of hearing before the learned Judge of the Court below, the tenant petitioner's Advocate was asked to produce a statement showing the difference between the rent that was payable according to him and the rent that was actually paid by him. The petitioner has stated that he believed that such necessary statement was filed by the learned Advocate concerned in any event, he has also filed a chart in this proceeding, showing the details of rent bills and receipts for the premises in question. This chart was not of course available in the records of the learned Court below. It has of course been claimed by the tenant petitioner that all necessary documents, showing the payment of rent up to date were filed in the Court below. It has also been claimed that the learned Judge of the Court below stated that he would look into challans and certificate for payment on behalf of the tenant petitioner and so also the documents, particularly the rent receipts filed before him and the last rent receipt as was filed by him and then pass necessary orders.
7. It appeared that the learned Judge of the Court below by his Order No. 52 dated 2nd June 1981, as impeached, has observed that deposit made by the tenant petitioner were invalid and directed him to make payment in the manner as indicated hereinbefore. It has been claimed that the finding of the learned Judge, that a rebate of 5 per cent, as allowed by the plaintiff/opposite party, was an ex gratia rebate, and that would not change the contractual rate of rent from Rs. 250/- to Rs. 237.50 p., was inappropriate, invalid and void.
8. Mr. Roy Chowdhury, appearing in support of rule, claimed that such findings of the learned Judge of the Court below, on the ground of rebate, were not only improper, irregular and invalid, but he also acted illegally and with material irregularity, in not looking into the last receipt for rent as paid by the petitioner and as such, he did not decide question of validity of the deposits as made, as result whereof, the determination as impeached, be without jurisdiction and void. It was also claimed by Mr. Roy Chowdhury that rent receipts filed on behalf of the tenant petitioner,dearly showed that the sum of Rs. 237.50 p. was accepted as rent by the landlord opposite party, without any qualifying remark and as such also, the teamed Judge of the Court below acted without jurisdiction in ignoring those receipts and more particularly when, such acceptance of rent on due rebate being given, was not shown or established to have been granted as an ex gratia facility which was claimed.
9. The landlord opposite party, in his affidavit-in-opposition dated 10th June 1982, admitted about the filing of the proceeding and so also the applications which were determined by the order as impeached. But, ft was stated and which incidentally was also claimed in the Court below, that one of the conditions of tenancy of the tenant petitioner was that he would get rebate of 5 per cent, if the payment was made within the first 10 days of the following month and that on such happening, Rs. 237.50 p. would be received. It was also stated that Rs. 237.50 p. upon the deduction in the manner as indicated hereinbefore, was paid for the month of November 1974 and rent receipt was granted for the said sum by the landlord opposite party. It has also been stated that the tenant petitioner, tendered rent for the month of December 1974 by postal money order on 20th January 1975 and the same appeared to have been refused, and on such, the tenant petitioner started depositing the rents with the Rent Controller since January 1975. It has also been claimed that the rent for the month of December 1974 was inappropriately adjusted against the security deposit of Rupees 250/- and on such contentions as indicated hereinbefore, a dispute was sought to be raised through the concerned application as to whether the monthly rate of rent was Rs. 250/- or 237.50 p. as claimed, after granting rebate.
10. It was the specific case of the landlord opposite party that in order to ensure prompt payment of rent, he allowed the ex gratia deduction by way of rebate @ 5 per cent, if the rent was paid within seven days of the following month and such being the position, the deposits made by the tenant petitioner with the Rent Controller, were not valid. It was his case that the contractual rent was really Rs. 250 and not 237.50 p. as claimed and even if such rebate as mentioned hereinbefore, was granted that would not have changed the nature and character of the contractual rent or rate of rent as stipulated.It was also claimed that the security deposit, which was adjusted by the tenant petitioner, was irregular and disputes, as sought to be raised by him, were not bona fide. The order as made by the learned Judge of the Court below, has been claimed to be due, proper and legal and it was also specifically claimed that apart from the written agreement as mentioned above, there was no other agreement, verbally or otherwise and as such, the question of variation of contract or to split the rent into two parts viz. Rs. 200/- as rent and Rs. 50/- per month as service charges, were without any basis and imaginary. It has also been restated that in order to ensure prompt payment of rent the landlord opposite party allowed ex gratia deduction by way of rebate @ 5 per cent, provided the rent was paid within seven days of the following month. In that state of affairs, it has been claimed that when payments were made within seven days of the following month for which the rent was due, receipts were granted showing the said rebate of 5 per cent. It has been claimed that granting of rebate for quick payment, would have nothing to do with the contractual rent or any variation of the same and such being the position the tenant petitioner was not entitled to pay the rent after deducting the said rebate, if rent was not paid within the days as stipulated. It was also the case of the landlord opposite party that the ex gratia deduction by way of rebate, which was allowed in the manner and for the convenience as mentioned above, could not be claimed by the tenant petitioner as ground for depositing the rent with the Rent Controller and in any view of the matter or in any event, it was incumbent on the tenant petitioner to de-posit contractual rent of Rs. 250/- per month. The system of collecting rent as indicated hereinbefore and which was the case of the tenant petitioner, has been denied. It has been stated that since the tender of rent for the month of December 1974 by postal money order dated 20th January 1975, was invalid, so the landlord opposite party had every right to refuse the same and because of such invalid tender, the subsequent deposits with the Rent Controller, as made by the tenant petitioner became invalid. It was stated that in any event, the failure to deposit the rent for the month of December 1974, does not authorise the tenant petitioner, to adjust the rent for the said month of December 1974 against the security deposit of Rs. 250/-.
11. Mr. Roy Chowdhury, appearing in support of the Rule, referred to the chart as disclosed with this petition and that too for the first time and pointed out that on a reference to the same it would appear that a rebate of 5 per cent was allowed even when payments were made after the 7th day of a month. Although it was the case of the landlord opposite party that such rebate was allowable in case the payment was made by the 7th day of the succeeding month for which the rent became clue, the tenant petitioner claimed that for such claim the outer date of the grant of rebate @ 5 per cent, as rent was not 7th but 10th. Be that as it may, the whole question in the instant case would be, whether and when such ex gratia payment is allowed on the happening of or making of deposits within a certain date, if that would change the contractual rate of rent If the answer is in the affirmative and in favour of the contentions of the tenant petitioner, then certainly, it would not be proper to hold him in default in respect of the rents which were deposited with the Rent Controller. But if the answer is otherwise, then there would be no other way but to hold in default. Mr. Roy Chowdhury of course claimed the tenant petitioner to be not in default. It was also claimed by him that such dispute as raised was required to be adjudicated and since the learned Judge of the Court below has not appropriately adjudicated such dispute viz. the effect of allowing such rebate, so the determination as made, was not a proper one.
12. Rent has been found and observed in the case of Usha Ranjan Bhattacharjee v. Mahalakshmi Thacker, (1975) 79 Cal WN 221, to mean and include the whole amount which is agreed to be paid by the tenant as consideration for the occupation of the premises. Such determination has been as proved in the case of Smt. Parul Banerjee v. Ananda Kumar Agarwala, (1979) 2 Cal LJ 297. On the basis of the determinations in Usha Bhattacharjee's case, Mr. Roy Chowdhury claimed that the rent in the instant case and if paid by 7th or 10th of the following month for which the same was due would be Rs. 237.50 p. after allowing the necessary rebate of 5 per cent and when payment was made in terms of such stipulation, the tenant petitioner could not be held to be in default if he has paid to Rs. 237. 50 p., which according tohim became the contractual rent for thepremises in question, on the happening of the exigencies as mentioned above. It was Mr. Roy Chowdhury's contentions that determination as to the concerned effect of the granting of ex gratia rebate, has not been duly considered. Such submissions cannot of course be accepted oh consideration of the judgment and order as impeached and therein it has been observed that the contractual rate of rent as agreed by and between the parties was Rs. 250/- and the rebate of 5 per cent was a facility- granted ex gratia by the landlord to the tenant petitioner, to ensure payment within a stipulated date. It has also been observed that the granting of such ex gratia rebate, would not change the contractual rate of rent from Rs. 250/-per month of Rs. 237.50 p. per month. Such ex gratia facility, which the tenant petitioner was entitled to, was in fact granted to him for ensuring prompt payment of rent and I am of the view, on consideration of the statements as advanced at the Bar, that the said facility would not in any event change the nature and character of the contractual rent, on the basis of the definition of rent as indicated hereinbefore. Such and above being my determination, I am not also in a position to agree with the submissions of Mr. Roy Chowdhury that the determination on the point has not been made by the learned Court below.
13. The above being the position, the determination as made in the Vikam Chand Khothari v. Upendra Nath Sarkar, : AIR1982Cal205 and those in the case of Rajputana Trading Co. (P) Ltd v. Rawatmal Bhairudan, : AIR1976Cal73 , which were cited by Mr. Roy Chowdhury, in my view, would not also have any application in this case.
14. Such and above being my views, I think and more particularly when the whole amount which was agreed to be paid by the tenant petitioner as consideration for the occupation of the premises in question as Rs. 250/- and not Rs. 237.50 p., this Rule should fail and I order accordingly.
15. The Rule is thus discharged. There will be no order as to costs.
16. Let the records be sent down at once.