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Dhunseri Tea and Industries Ltd. Vs. the Hanuman Estates Private Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2028 of 1975
Judge
Reported inAIR1976Cal328
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13, 17, 17(1), 17(2) and 17(3); ;Income Tax Act, 1961 - Section 226 and 226(3); ;West Bengal Premises Tenancy (Amendment) Act,1965; ;Constitution of India - Article 254(2)
AppellantDhunseri Tea and Industries Ltd.
RespondentThe Hanuman Estates Private Ltd.
Appellant AdvocateTibrewal, ;M.P. Chowdhury and ;P.L. Khaitan, Advs.
Respondent AdvocateSaktinath Mukherji, Adv.
DispositionApplication dismissed
Cases ReferredSitala Devi v. Man Bahadur
Excerpt:
- .....respect of the months of june and july, 1970. the learned chief judge, further, held that the current rents have not also been deposited by the defendant and in view of the decision reported in the case of hanuman estates pvt. ltd. v. dhanuka industries pvt. ltd. ((1975) 79 cal wn 88) came to the conclusion that the defendant did hot comply with the requirement of section 17 (1) or (2) of the act and accordingly allowed the opposite party's application and struck out the defence of the petitioner. it is against this order the petitioner moved this court and obtained this rule.4. mr. tibrewal the learned counsel appearing for the petitioner has canvassed two points. in the first place, it has been contended that the tenant defendant having been served with a notice under section 226(3).....
Judgment:

S.K. Bhattacharyya, J.

1. This Rule was obtained by the tenant defendant under Section 115 of the Code of Civil Procedure against an order passed by the Chief Judge, City Civil Court, Calcutta, striking out the defence of the defendant against delivery of possession under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 (to be hereinafter referred to as 'the Act') in a suit for eviction filed by the plaintiff opposite party.

2. The suit was instituted on July 16, 1973 on the allegation that the petitioner had failed and neglected to pay rent since June, 1970. The writ of summons was served in the suit upon the petitioner on June 3, 1974 and on July 17, 1974, the petitioner filed an application under Section 17 (2) of the Act. The said application was dismissed by the Court on September 4, 1974 and exactly a month thereafter the opposite party filed an application under Section 17 (3) of the Act, out of which the present Rule arises.

3. Before the learned Chief Judge, the petitioner company contended that they were not defaulters inasmuch as they had discharged their liability in so far as the opposite party's claim is concerned, pursuant to a notice issued by the income-tax authorities under Section 226(3) of the Income-tax Act, 1961. The learned Chief Judge on a consideration of the materials placed before him came to the conclusion that the petitioners were defaulters inasmuch as they had not deposited the statutory interest due to the landlord in accordance with the provision of the Act with the income-tax authorities and the petitioners were also defaulters at least in respect of the months of June and July, 1970. The learned Chief Judge, further, held that the current rents have not also been deposited by the defendant and in view of the decision reported in the case of Hanuman Estates Pvt. Ltd. v. Dhanuka Industries Pvt. Ltd. ((1975) 79 Cal WN 88) came to the conclusion that the defendant did hot comply with the requirement of Section 17 (1) or (2) of the Act and accordingly allowed the opposite party's application and struck out the defence of the petitioner. It is against this order the petitioner moved this Court and obtained this Rule.

4. Mr. Tibrewal the learned counsel appearing for the petitioner has canvassed two points. In the first place, it has been contended that the tenant defendant having been served with a notice under Section 226(3) of the Income-tax Act, 1961 and having paid whatever arrear rent was due from him on account of the assessee plaintiff, would be deemed to have completely discharged his obligations and his client is thus relieved of making any further payment to his landlord within the meaning of Section 17 (1) or (2) of the Act. In the next place, Mr. Tibrewal contended that even before his client was served with the writ of summons, a learned single Judge of this Court in the case of Hanuman Estates Pvt. Ltd. v. Dhanuka Industries Pvt. Ltd. being Suit No. 319 of 1973 of the original side of this Court, held on 8-11-1973, that such payment to the Income-tax authorities would relieve the tenant of his liability to pay any rent under Section 17 (1) or (2) of the Act and accordingly he cannot any longer be regarded as a defaulter. The said decision was, however, reversed in appeal on September 23, 1974 (appellate decision reported in ((1975) 79 Gal WN 88) wherein the learned Judges have held that the notice served by the Income-tax Department under Section 226(3) of the Income-tax Act did not have the effect of overriding the provisions of Section 17 (1) of the Act. Mr. Tibrewal further contended that during the interregnum the law was as laid down by the learned single Judge of this Court on November 8, 1973 and accordingly he was protected, when he made this payment to the Income-tax Authorities and nothing remains payable to the landlord within the meaning of Section 17 (1) or (2) of the Act During this period the tenant appears to have paid up arrear rents upto the period of September 1974.

5. Mr. Sakti Nath Mukherjee the learned Advocate appearing for the plaintiff opposite party conceded that if the tenant pays the entire amount, that had become due as a result of his default, to the income-tax authorities within the period specified in Section 17 (1) of the West Bengal Premises Tenancy Act, then it would operate as a complete discharge of his liability to the landlord and nothing would be payable to the landlord within the meaning of Section 17 (1) or (2) of the Act. Mr. Mukherjee however contended that even assuming that the decision rendered by the learned single Judge on November 8, 1973 afforded protection to the petitioner, no such protection would be available after the decision was reversed on September 23, 1974.

6. In order to examine the respective contentions of the parties, it is necessary to set out a few further facts. On August 28, 1970 the petitioner was served with a prohibitory notice under Section 226(3) of the Income-tax Act which inter alia recites that a sum of Rs. 8,24,370 is due from the plaintiff opposite party on account of income-tax and the petitioner was required to forthwith pay any amount due from him to the plaintiff or held by him on plaintiff's account and it was further stated in the said notice that whatever payment was made by him in compliance with the notice will, in law, constitute a good and valid discharge of the petitioner's liability to the person assessed to the extent of the amount paid. The said notice has been marked annexure 'A' to the petition. Pursuant to this notice, the petitioner is alleged to have paid half the rent for the months of August and September, 1970 to the credit of the Income-tax Department on November 6, 1970 and thereafter he continued to pay half rent to the Income-tax Department from time to time up to June 4, 1974, on which date half month's rent upto May, 1974 was paid to the credit of the Income-tax Department aggregating a total sum of Rs. 16,502-50 P. The other half of the rent for period from June, 1970 to May 1974 amounting to Rs. 17,220 was deposited under a challan on August 8, 1974. Thereafter, the petitioner paid the rent for the full month from June, 1974 to March, 1975 in 8 instalments on different dates, in all aggregating a sum of Rupees 41,615. Besides, a sum of Rs. 717-50 P. towards half the rent for the months of June and July, 1970 was paid or deposited with the United Bank of India respectively on July 23, and September 1, 1970 on the authority of a letter stated to have been received by the petitioner on August 8, 1971. Against the background of these payments, Mr. Mukherjee requested us to examine if these payments could be regarded as valid deposits or payments within the meaning of Section 17 (1) of the Act, at any rate, after expiry of one month from the date of service of the writ of summons on the defendant on June 3, 1974.

7. Before we discuss the first contention of Mr. Tibrewal that the provisions of Section 226(3) of the Income-tax Act, 1961 override the provisions of the special law enacted in Section 17 of the West Bengal Premises Tenancy Act, we propose to scrutinise the deposits or payment made by the petitioner with the income-tax authorities, it would appear that all the payments made by the petitioner are enumerated in a chart annexed to the petition, which has been marked Annexure 'C' to the application. Mr. Mukherjee did not dispute the correctness of these deposits and accepting the chart as it is, he contended that the payments for the months of June 1974, September to November, 1974 and January, 1975 were all made beyond time and in contravention of the provisions of Section 17 (1) of the Act. As for the payments made prior to the service of the writ of summons by the petitioner, Mr. Mukherjee argued that all these deposits were invalid deposits as these consist of half month's rent end the balance sum of Rs. 17,220 was not paid within one month from the date of service of the writ of summons on the tenant defendant viz. by July 3, 1974. None of these deposits, according to Mr. Mukherjee, could therefore be regarded as payment to the landlord within the meaning of Section 17 (1) of the Act.

8. We have carefully gone through the table annexed to the revisional application (Annexure 'C') and there is little doubt that had these deposits as enumerated therein, been made either with the Rent Controller or with the Court, they could not be regarded as valid deposits within the meaning of Section 17 (1) of the Act. Undoubtedly, half month's rent upto May 1974 had been in deposit at the date of service of the writ of summons and the remaining half month's rents from June 1970 to May 1974 were deposited in a lump on August 8, 1974 that is beyond the period of one month from the date of service of writ of summons. This apart, no interest as Mr. Mukherjee contends, has been paid to the credit of the income-tax authorities in accordance with the requirement of Section 17 (1) of the Act. Besides, the rent for the month of June, 1974 and September to November, 1974 as also January 1975 could not be regarded as valid deposits or payments within the meaning of Section 17 (1) of the Act. That is, these amounts were not deposited or paid by the 15th of each succeeding month. Mr. Mukherjee accordingly urges that these payments, even if they operate as valid discharge within the meaning of Section 226(3) of the Income-tax Act, could not be regarded as payment to the landlord within the meaning of Section 17 (1) of the Act. Relying on the Supreme Court decision in the case of Kaluram v. Baidyanath, : [1965]3SCR34 , Mr. Tibrewal contends on a parity of reasoning that payment with the Income-tax Officer made by the tenant under a statutory obligation imposed on him would, in law, be treated as payment of rent made by him to the landlord. Kaluram's case came to be decided by the Supreme Court before the 1965 amendment to Section 17 (1) of the Act, as introduced by the W. B. Premises Tenancy (Amendment) Act (Act 24 of 1965) and the point for consideration before the Supreme Court was whether a deposit of rent made by a tenant with the Rent Controller under Section 21 of the Act after the writ of summons was served on him, could be set up as a valid deposit in an application under Section 17 (3) of the Act. The Supreme Court negatived the contention and following the Supreme Court decision, the section was amended so as to include the deposit with the Controller as a valid deposit. According to Mr. Tibrewal, the expression 'pay to the landlord' in Section 17 (1) of the Act would mean actual delivery or parting with money physically and for the purpose relied upon the decision in the case of Rajputana Trading Co. Pvt. Ltd. v. Iswarsingh Kripalsingh : AIR1972Cal56 . Stretching the meaning of the expression a little further, Mr. Tibrewal contends that where the tenant is statutorily obliged to part with his money physically because of landlord's default, it would amount to payment to the landlord within the meaning of Section 17 (1) of the Act. That position has been accepted by Mr. Mukherjee subject to this that the payment in order to be valid must comply with the requirements of Section 17 (1) of the Act.

9. An obligation to pay an amount equivalent to rent or to deposit the same in accordance with the provisions of Section 17 (1) of the Act, in our view, is a statutory obligation, which cannot be regarded as having been superseded or taken away by the introduction of Section 226(3) of the Income-tax Act, 1961. These two Acts operate in different fields and there is no apparent conflict or inconsistency in the provisions contained in Section 17 of the West Bengal Premises Tenancy Act and those contained in Section 226(3) of the Income-tax Act. Consequently, the principle of implied repeal cannot be called in aid for the purpose of Article 254(2) of the Constitution nor can it be said to be a case of direct conflict between the provisions of the two statutes. Moreover, if there is an apparent conflict between the two independent provisions of law, one special and one general, the special provision must prevail. Section 226 of the Income-tax Act is a general provision applicable to all assessees and in all circumstances enumerated therein but Section 17 of the West Bengal Premises Tenancy Act deals with particular classes of tenants, who had made defaults and against whom proceedings for eviction have been initiated. It is also settled law that if there is any inconsistency in the provisions of a general law and a local law, the provisions of local law shall prevail and the general statute must yield to the provisions of the special Act applicable to a particular locality. Mr. Tibrewal however contended that Section 226 of the Income-tax Act is a special provision and in a case of a conflict between two special Acts, each of which may be described as special in some particular sense, the court would lean against repeal of the earlier Act by implication and in support relied upon an observation of Mr. Jagdish Swarup in his Legislation and Interpretation at page 311, Article 11.6, 2nd Edition, 1974. We have already pointed out that the provision of Section 226 of the Income-tax Act is not a special provision and the same is applicable to all assessees and in all circumstances mentioned in the said section. Consequently, this rule enunciated by Mr. Swarup in his book does not assist Mr. Tibrewal. Moreover, in construing tine Rent Acts, Sinha J., (as he then was) in his judgment in the Special Bench case of Siddheswar v. Prakash Chandra : AIR1964Cal105 observed that one must not give too literal an interpretation and it was necessary to give a commonsense rendering of the provisions, such as is likely to achieve the objects with which the Act was framed and not defeat them. In these circumstances, Section 17 must be regarded as a special provision applicable only to particular classes of tenants where there is a suit for eviction on grounds enumerated in Section 13 (1) of the Act and a tenant who fails to comply with the requirement of Section 17 would lose the available right in that his defence against delivery of possession is liable to be struck out. The general provision enumerated in Section 226 of the Income-tax Act does not in any way abrogate the special provisions of Section 17 of the West Bengal Premises Tenancy Act. Article 254 of the Constitution cannot, therefore, assist the petitioner in the instant case in any way,

10. Section 226(1) of the Income-tax Act, no doubt begins with a non-obstante clause but that non-obstante clause relates only to the issue of a certificate to the Tax Recovery Officer under Section 222 of the said Act. On the contrary, Section 17 has been interpreted by the Supreme Court in the case of Kaluram v. Baidyanath : [1965]3SCR34 (supra) as a complete scheme by itself and the Legislature by its introduction intended that the payment of rent by the tenant to the landlord must be made in the manner prescribed by Section 17 (1) of the Act, in any suit or proceedings to which the said provisions apply.

11. Mr. Tibrewal also relied upon the Supreme Court decision in the case of V.N. Vasudeva v. Kiroi Mal : [1964]6SCR181 and contended that the notice under Section 226(3) of the Income-tax Act amounted to a garnishee order and the petitioner could not so long as the notice stood make any payment whatsoever to the landlord. The said decision, in our view, does not assist Mr. Tibrewal at all. In that case before the Supreme Court the tenant was no doubt served with a notice under Section 46 (5A) of the Income-tax Act, 1922 (now Section 226(3)) directing him to deposit all sums by way of rent as also future rents and this notice was utilised by the tenant to withhold payment to everyone viz. landlord, Income-tax Officer, the Receiver appointed by the Court and others. Such a contention were also advanced before the Supreme Court and it was repelled. The decision impliedly holds that the provisions of Section 15(1) of Delhi Rent Control Act was not in any way superseded or abrogated by Section 46 (5A) of the Income-tax Act, 1922. It is true that the tenant in that case did not make any payment or deposit with the Income-tax Officer as was done by the petitioner in the instant case. But, as already pointed out, these deposits were not in accordance with the provisions of Section 17 of the Act. The Division Bench decision in the case of Hanuman Estates Pvt. Ltd. v. Dhanuka Industries Pvt. Ltd. ((1975) 79 Cal WN 88) in our view rightly points out that the notice under Section 226(3) of the Income-tax Act at the most prohibited the petitioner from making any payment to the opposite party but it did not or could not have the effect overriding the provisions of Section 17 (1) or (2) of the Act, with the result that the tenant, in order to avail of the protection of Section 13, must show that the payment to the Income-tax authorities were strictly in accordance with the provisions of Section 17 (1) or (2) of the West Bengal Premises Tenancy Act. In this, the petitioner has failed.

12. Mr. Tibrewal, as a last resort, contended that the court had inherent power to do justice by extending the period in making the deposits and for the purpose relied upon the decision in the case of Sitala Devi v. Man Bahadur, 76 Cal WN 435 = (AIR 1973 Cal 1231 where it was held that under Section 151 of the Code of Civil Procedure the Court had inherent power in an appropriate case to extend time even in respect of deposit in proceeding under Section 17 of the West Bengal Premises Tenancy Act On the facts of the case, however, the Court held that the delay could not be condoned and the order for striking out the defence against delivery of possession was allowed to stand. The circumstances referred to in that decision as would justify condonation of the delay were exceptional cases, which did not fall to be decided in the instant case.

13. In the circumstances discussed above, the instant application must fail and the Rule is accordingly discharged without any order as to costs.

Janah, J.

14. I agree.

The learned Advocate for the petitioner states that he has been instructed to file an application for leave to appeal to the Supreme Court and accordingly prays for stay of the operation of this order. Pending filing of such an application let the operation of this order be stayed for a period of three weeks from this date.


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