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Dipak Basu Vs. Loch Lomond Lodge (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberSuit No. 826 of 1969
Judge
Reported inAIR1981Cal428
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 17 and 21
AppellantDipak Basu
RespondentLoch Lomond Lodge (P) Ltd.
Appellant AdvocateS.L. Kapoor, Adv.
Respondent AdvocateA.C. Bhabra, Adv.
Cases ReferredV. K. Verma v. Radhey Shyam
Excerpt:
- .....the plaintiff alleges that since the institution of this suit a number of challans in respect of rent deposited by the defendant have not been received from the rent controller calcutta between january 1968 till october 1972 and that the defendant has not also made any deposit of rent in this court -- during the said period.5. it is contended that the deposits of rent with the rent controller by the defendant since october 1969 were illegal, invalid and defective as they have been made beyond the time prescribed by sections 17 (1) and 21 of the west bengal premises tenancy act, 1956. the plaintiff states that he has not withdrawn any rent deposited by the defendant after october 1972.6. the case of the defendant is that it had appointed baidyanath sarkar since deceased as its.....
Judgment:
ORDER

Dipak Kumar Sen, J.

1. The plaintiff is the Receiver appointed in Suit No. 1683 of 1964 (Sitaram Dehi v. Basdeo Dehi & Ors.) inter alia, over premises No. 13, Pretoria Street, Calcutta (hereinafter referred to as the said premises).

2. M/s. Loch Lomond Lodge (P) Ltd., the defendant, was a monthly tenant of the said premise's at a rent of Rs. 885.50 per month payable according to the English Calendar.

3. The plaintiff has instituted this suit against the defendant for eviction on the grounds of wrongful addition and alteration to the premises and wrongful sub-letting. The plaintiff also claims mesne profits and damages.

4. The plaintiff alleges that since the institution of this suit a number of challans in respect of rent deposited by the defendant have not been received from the Rent Controller Calcutta between January 1968 till October 1972 and that the defendant has not also made any deposit of rent in this Court -- during the said period.

5. It is contended that the deposits of rent with the Rent Controller by the defendant since October 1969 were illegal, invalid and defective as they have been made beyond the time prescribed by Sections 17 (1) and 21 of the West Bengal Premises Tenancy Act, 1956. The plaintiff states that he has not withdrawn any rent deposited by the defendant after October 1972.

6. The case of the defendant is that it had appointed Baidyanath Sarkar since deceased as its advocate-on-record for depositing rent with the Rent Controller. It is alleged that since January 1968 the defendant had been paying amounts equivalent to the rent payable month by month to the said Baidyanath Sarkar well within the prescribed period for deposit of the same with the Rent Controller for and on behalfof the defendant. It is alleged that the defendant reasonably and honestly believed that such rent had duly been deposited.

7. It is alleged further that the said amounts had in fact been deposited and a substantial part thereof has been withdrawn on behalf of the plaintiff. It is also alleged that since July 1975 after the death of Baidyanath Sarkar another learned Advocate viz. S. N. Singh was engaged by the defendant to deposit such rent. Since August 1975 rents are being deposited with the Rent Controller by the said S. N. Singh on behalf of the defendant.

8. It is admitted that the defendant has come to know on enquiry that Baidyanath Sarkar had deposited rents on divers occasions after the time prescribed by the said Act, it is admitted further that even after August 1975 there has also been delay in the deposit of rent on some occasions. Such delay, it is contended was not due to any deliberate action or failure on the part of the defendant.

9. On these facts an application has been made by the plaintiff praying that the defence of the defendant in the suit be struck out and the suit be placed on the undefended list for disposal. The defendant has thereafter made an application praying, inter alia, that the delay in making its application be condoned and that the delay in payment of rents deposited with the Rent Controller be also condoned and the same be treated as deposits within the meaning of Section 17 (1) of the West Bengal Premises Tenancy Act, 1956. In the alternative, the delay in depositing the amounts after the prescribed period be condoned and leave be given to deposit rent for the said months with interest. An injunction restraining the plaintiff to proceed with his application before 1 he disposal of the defendants' application is also prayed for.

10. Both the applications were heard together.

11. At the hearing learned Counsel for the plaintiff submitted that Section 17 (2) of the West Bengal Premises Tenancy Act, 1958 was mandatory and if deposits were not made by the tenant in time the tenant was not entitled to any condonation. In support of hiscontention learned Counsel cited a decision of the single Bench of this Courtin Paritosh Kumar Ghosh v. Saraswati Nandi, reported in : AIR1980Cal280 as also another decision of the single Bench of this Court in Golum Kader v. Hazi Lutfar Rahaman, reported in (1958) 62 Cal WN 858. It has been held by this Court that if the provision of Section 17 of the Act is violated then the tenant must suffer the consequences thereof and the Court has no power to extend the time for deposit of rent.

12. Learned Counsel appearing for the defendant contended to the contrary. He relied on a decision of the Supreme Court in Miss Santosh Mehta v. Om Parkash, reported in : [1980]3SCR325 where the Supreme Court construed Station 15 of the Delhi Rent Control Act, 1958 which provides as follows (Para 2) :

''If a tenant fails to make payment or deposit as required by this section, theController may order the defence against eviction to be struck out and proceed with the hearing of the application.'

It was held by the Supreme Court that as the said section was not couched in mandatory language in contrast with the earlier repealed Act, the same indicated that there was a modification of law in favour of a tenant. The Court had therefore a discretion in the matter and in proper cases might refuse to strike out the defence. The Supreme Court held that the tenant in the case before it was innocent and did not wilfully fail to deposit the rent as she was required to do hut the Advocate concerned was negligent in the matter. On such facts the Supreme Court condoned the delay and set aside the order under which the defence of the tenant had been struck out. In its judgment the Supreme Court noted its earlier decision in V. K. Verma v. Radhey Shyam reported in : AIR1964SC1317 where it had construed Section 13(5) of the earlier Delhi Rent Control Act 1952. This section provided that on the failure of a tenant to deposit the arrears of sent within the prescribed time, the court 'shall order the defence against ejectment to be struck out' and such provision was held to be mandatory.

13. In the instant case it is established clearly that the tenant had been a persistent defaulter for a long time. The Advocate originally acting on he-half of the tenant is now dead and his negligence cannot be gone into any further. Even after the change of Advocate from August, 197') it appears that the delay in depositing rent beyond the prescribed time persisted. Such delay has occurred for the months of March, 1976, May 1977, July 1978, March 1979, June 1979, July 1979, September 1979 and Oct. 1979. No explanation of this delay is forthcoming. There was no affidavit from the Advocate concerned. It is only after the application was taken out by the plaintiff for striking out the defence in this suit that the defendant thought fit to make an application for condonation of the delay. In view of the mandatory language of the section of the Act in question, the decision of the Supreme Court in Miss Santosh Mehta (supra) cannot help the defendant.

14. In the context it may not be out of place to observe that the successive tenancy acts promulgated during and after the World War have given substantial rights to tenants in view of the continuing shortage of housing space in India. The few exceptions in favour of the landlord in such legislation, therefore, ought to be complied with strictly.

15. The application of the plaintiff is allowed with costs. The defence is directed to be struck out. The plaintiff will be at liberty to take steps to place the suit in the appropriate list. The suit is directed to appear in the appropriate undefended list. The defendant's application is dismissed with costs. The question whether the application of the defendant is barred by limitation is kept open.

16. On the oral application the operation of this order is stayed for four weeks.


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