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Bimal Kumar Das Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata High Court
Decided On
Case NumberAppeal from Appellate Decree No. 1483 of 1969
Judge
Reported inAIR1978Cal420
ActsCalcutta Municipal Act, 1951 - Sections 247, 251 and 253; ;Transfer of Property Act, 1882 - Sections 54 and 122; ;Limitation Act, 1963 - Schedule - Article 62
AppellantBimal Kumar Das
RespondentCorporation of Calcutta
Appellant AdvocateRathindra Nath Bhattacharyya, Adv.
Respondent AdvocatePradip Kumar Ghosh, Adv.
DispositionAppeal dismissed
Excerpt:
- .....limitation act. in the case of karnani properties, there is a pronouncement by this court that in view of the provisions of ss. 165, 168, 172, 180, 181, 191, 200, 235 and 236 of the act and the general scheme of that act, the liability to pay the dues arises on the bills being presented. of course, it was rightly commented upon in that case that the corporation of calcutta would rationalise the process and introduce the process of sending signed bill otherwise various complications might arise. but the position remains that the liability to pay the tax does not arise unless the bills are presented. so the presentation of the bill is the condition precedent to the running of time, within the meaning of article 62 of the limitation act and limitation does not commence unless the bills are.....
Judgment:

B.N. Maitra, J.

1. The Corporation ofCalcutta is the plaintiff. It has been alleged that the defendant is the owner of the disputed premises. A sum of Rs. 1785.60 P. is payable to the plaintiff towards the arrears of consolidated rate and arrear bills up to 4th quarter of 1951-1952 and Rs. 149.53 P. as interest. Such amount was not paid in spite of demands. The suit is for recovery ofsuch amount and for a further declaration that such sum is a first charge on the premises in question.

2. The defence is that the suit is not maintainable and the claim is barred by limitation. During the pendency of an appeal preferred by him, the present suit was illegally instituted.

3. The learned Munsif accepted the plaintiff's version and passed a decree in the preliminary form. The defendant preferred an appeal, which was dismissed by the learned Additional District Judge, Alipore. Being aggrieved by that decision, the present appeal has been filed.

4. Four points have been urged on behalf of the appellant. It has been stated that in view of Section 247 of the Calcutta Municipal Act, the defendant-appellant is liable to pay the dues of only one year. In fact he acquired the property on the footing of a deed of gift. So his liability will extend only to one year's dues prior to the date of the deed of gift. It has been contended that in that section the word 'purchase' has been stated. But that word has not been denned in the Calcutta Municipal Act, 1951. In that view of the matter, we are to go by the definition of the word 'purchase' as will appear from Chambers's dictionary. There the word 'purchase' has been stated to mean to get in any way other than by inheritance. The plaintiff did not acquire the property by inheritance and hence in any view of the matter, the defendant is entitled to some relief even if the court holds that the suit is maintainable.

5. It is, therefore, necessary to note the relevant provisions of Section 247 of the Act. That section deals with liability of a purchaser for vendor's share of the consolidated rate. The proviso to that section lays down that the purchaser shall not be liable for any sum due for any period exceeding one year prior to the date of purchase. The words 'sale' and 'gift' have been defined in the Transfer of Property Act, 1882. According to Section 54, 'sale' is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Only in case of a sale, the purchaser steps into the property covered by the sale. There can be no sale according to the provisions of the Transfer of Property Act without consideration. But in a gift the question of consideration does not crop up. Section 122 of the Act says that gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person called a donor to another called a donee. Of course, sale and gift are covered by the word 'transfer' within the meaning of that Act, but the concept of those expressions is entirely different. So by no stretch of imagination, a 'donee' that is, a person accepting a gift voluntarily and without consideration, can claim to be a purchaser so as to invoke the provisions of Section 54 of the Transfer of Property Act or of the provisions of Section 247 of the Act in question. There can be no purchaser without payment of any consideration. Hence this contention must fail.

6. It has been next contended on behalf of the appellant that the defendant filed an objection and meanwhile the present suit was filed. Since the Corporation chose to institute the suit during the pendency of the appeal preferred by the appellant, the suit is not maintainable. This contention cannot be accepted because there is no such provision in the Act. If the defendant succeeds in the appeal, then necessary refund can be asked for and granted by the Corporation. But that does not mean that the appeal filed by the plaintiff will not be maintainable. If the plaintiff chose not to institute a suit for recovery of consolidated rate then, the claim would have been barred by time according to the provisions of the Limitation Act read with that Act.

7. It has been further contended that in any view of the matter, the claim is time-barred in view of Article 62 of the Indian Limitation Act, 1963. That Article prescribes a period of 12 years to enforce payment of money secured by a mortgage or otherwise charged upon immoveable property and limitation runs from the date when the money sued for becomes due. Reference was made to Section 191 of the Act to show that the payment of consolidated rate shall be made in quarterly instalments and the quarter shall be taken to commence on the first day of April, July, October and January respectively and instalments shall be payable on or before the 15th day of May, August, November and February respectively for such quarters. At all events, the plaintiffs claims regarding the two items are time barred because the suit relates to arrear bills up to 4th quarter of 1951-52, whereas the date of the institution of the suit is 15th November, 1965, that is, after the statutoryperiod of 12 years within the meaning of Article 62 of the new Limitation Act.

8. The learned Advocate appearing on behalf of the respondent has stated that the money due to the Corporation does not become due unless the bill is presented. In order to substantiate his contention, reference has been made by him to the observations made in the case of Karnani Properties reported in : AIR1973Cal488 . In order to determine the question, one has to see when the money sued for becomes due, within the meaning of Article 62 of the Limitation Act. In the case of Karnani Properties, there is a pronouncement by this Court that in view of the provisions of Ss. 165, 168, 172, 180, 181, 191, 200, 235 and 236 of the Act and the general scheme of that Act, the liability to pay the dues arises on the bills being presented. Of course, it was rightly commented upon in that case that the Corporation of Calcutta would rationalise the process and introduce the process of sending signed bill otherwise various complications might arise. But the position remains that the liability to pay the tax does not arise unless the bills are presented. So the presentation of the bill is the condition precedent to the running of time, within the meaning of Article 62 of the Limitation Act and limitation does not commence unless the bills are presented. Of course, hardship may arise if the Corporation chooses to send the bills, say after half a century. Here the bills in question were sent within the period of limitation. In that view of the matter the contention put forward by the appellant cannot be sustained and it is held that the suit is not barred by limitation regarding the two items in question.

9. It has been next contended on behalf of the appellant that the suit is not maintainable because of provisions of Section 251 of the Act. The present suit is filed according to the provisions of that Act and only that section was referred to before the learned Additional District Judge.

10. It has also been stated that if the court holds that in view of Section 251, the suit is maintainable, then the Corporation will be vested with a discretionary power to file a suit or alternatively to take resort to other processes. That will be a discrimination and violation of the provisions of the Constitution of India. In that view of the matter, having regard to the provisions of Order 27A, Rule 1, C. P. C.e notice may be issued to the Advocate General, State of West Bengal, to determine the matter whether the Section 251 (1) of the Calcutta Municipal Act, 1951, is ultra vires the Constitution of India.

11. The relevant Section 251 (1) says that after a defaulter has been proceeded against under the foregoing provisions of the Chapter VII unsuccessfully or with partial success, it shall be competent for the Corporation to recover from him by a suit any sum due on account of the consolidated rate together with all costs. It has been contended on behalf of the appellant that the expression 'after a defaulter has been proceeded against' appearing in the opening portion of Section 251 (1) clearly presupposes that the other processes embodied in Chapter VII of the Act have to be exhausted before the Corporation can proceed to file a suit in a court of competent jurisdiction to recover the amount due on account of consolidated rate and unless those remedies are taken recourse to, the suit will not be maintainable.

12. The plaint shows that two prayers were made, one for recovery of the consolidated rate and the other one for declaration of a charge. The first claim is covered by the provisions of Section 251 and the last one by Section 253 of the Act. Reference may be made to the latest Full Bench case reported in : AIR1976Cal242 . In that case Mr. Justice Masud speaking on behalf of the Full Bench has stated that the Section 253 provides for an independent mode of recovery of the consolidated rate. In that suit, the plaintiff made a prayer for recovery of Rs. 24,442.00 odd on account of consolidated rate with interest and for a further declaration of the first charge. The suit was dismissed by Mr. Justice A. N. Ray, as his Lordship then was. But the Full Bench on the strength of the power of assignment, decreed the suit, declared the charge and passed a decree according to the provisions of Order 34, Rule 4 C. P. C. So, the contention raised on behalf of the appellant that in view of the Section 251 of the Calcutta Municipal Act, the suit is not maintainable cannot be accepted in view of the Full Bench decision. Moreover, the construction sought to be put on behalf of the appellant, namely, that the provision of the Chap. VII, must be first complied with before a suit can be instituted under Section 251 (1) of the Act cannot be accepted. This argument would have prevailed had the wording of that section been that the Corporation would beincompetent to file such suit unless such remedies were exhausted first. Hence all the submissions made on behalf of the appellant must fail.

13. The appeal be, therefore, dismissed.

14. There will be no order as to costs.

15. On the prayer of the learned Advocate on behalf of the appellant, the operation of the decree shall remain stayed for a period of four months from today.


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