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In Re: Purshattamdas Bhiwaniwala and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberRevision under S. 155, C.P.C.
Judge
Reported inAIR1982Cal505
ActsWest Bengal Premises Tenancy Act, 1956 - Section 22(2)
AppellantIn Re: Purshattamdas Bhiwaniwala and ors.
Appellant AdvocateSaktinath Mukherjee, ;G.N. Pugalia and ;Bhaskar Ghosh, Advs.
Respondent AdvocateA.C. Bhabra and ;Tarun Chatterjee, Advs.
DispositionRevision allowed
Cases Referred(Bengal Tent Factories Ltd. v. Amiya
Excerpt:
- .....rate of rent last paid. it appears that on 15th march, 1976, the defendant deposited rent with the rent controller in favour of m/s. p. bhiwaniwala & others, a firm, for the month of february, 1976. it also appears that since february, 1976, till december, 1977 the defendant deposited rent in favour of m/s. p. bhiwaniwala and others, a firm. under section 17 (3) of the act the application was filed by the petitioners and that the defence against the delivery of possession was struck out whereupon the defendant moved this court against the order of striking out of defence against delivery of possession under section 17 (3) of the act and this hon'ble court by order dated 9th march, 1978 made the rule absolute and directed the rehearing at the application under section 17 (3) of the act on.....
Judgment:
ORDER

Pradyot Kumar Banerjee, J.

1. This application is directed against an order passed by the learned Judge, City Civil Court, on an application under Sections 17 (2) and 17 (2A) of the West Bengal Premises Tenancy Act read with Section 5 of the Limitation Act. The petitioners Nos. 1 to 5 purchased the suit premises on 27th March, 1974. On 27th March, 1974 the letter of attornment was sent to the defendant opposite party informing the names of the persons who purchased the premises in suit, On 10th April, 1974, it is alleged that the defendant opposite party acknowledged the receipt of the said letter and sought to know who are the actual purchasers from the erstwhile landlord, I do not like to consider any other facts for the purpose of this rule. The notice of ejectment was served on behalf of the 5 persons on 22nd March, 1976. Mr. S, P. Roy, Advocate, on behalf of the defendant acknowledged the receipt of the notice of ejectment on 30th April, 1976 and the suit was instituted on 27th May, 1976. On 12th March, 1976 the defendant appeared and deposited the amount calculated at the rate of rent last paid. It appears that on 15th March, 1976, the defendant deposited rent with the Rent Controller in favour of M/s. P. Bhiwaniwala & others, a Firm, for the month of February, 1976. It also appears that since February, 1976, till December, 1977 the defendant deposited rent in favour of M/s. P. Bhiwaniwala and others, a Firm. Under Section 17 (3) of the Act the application was filed by the petitioners and that the defence against the delivery of possession was struck out whereupon the defendant moved this Court against the order of striking out of defence against delivery of possession under Section 17 (3) of the Act and this Hon'ble Court by order dated 9th March, 1978 made the rule absolute and directed the rehearing at the application under Section 17 (3) of the Act on certain points, Under Section 17 (3) of the Act the application is still pending. In the meantime the defendant opposite party filed an application under Sections 17 (2), (2A) and (2B) read with Section 5 of theLimitation Act. The learned Judge, City Civil Court, held, inter alia, that the deposits were made with the Rent Controller for the period from February 1976 to December 1977 in the name of M/s. P, Bhiwaniwala & others, a Firm, within one month from the date of service of summons were valid deposits. The defendant validly deposited the rent in the Court for the month of October, 1975 to January 1976 with interest under Section 17 (1) of the Act, The question for the decision was whether the deposits made in favour of M/s. P. Bhiwaniwala and others, a Firm, were valid deposits or not. The learned Judge held that the deposits are valid. It is further held that the rent for the month of December 1975 was remitted by postal money order dated 10-1-1976. He sent the cheque for the rent for the month of February 1976 but the landlord refused the cheque, As the landlord refused to accept, the rent was deposited with the Rent Controller from February 1976 to December 1977, The dispute, therefore, was raised under Section 17 (2) of the Act as to the validity of the deposit with the Rent Controller in the name of M/s, P. Bhiwaniwala and others, a Firm. The learned Judge also held that they are all valid deposits, Being aggrieved by the said judgment and order under Section 17 (2) of the Act read with Section 17 (2A), the landlord moved the present application.

2. Mr, Saktinath Mukherjee on behalf of the petitioners contended that the deposit made under Section 22 (2) of the West Bengal Premises Tenancy Act is invalid as according to Mr. Mukherjee the deposit was made by the tenant wilfully and negligently making the false statement for depositing the rent and the landlord hag not withdrawn the amount deposited. Mr. Mukherjee contended that the rent deposited in the name of M/s. P. Bhiwaniwala and others, a Firm, is wilfully and negligently made by the tenant and as such the deposits are invalid.

3. Mr. Bhabra contended that the deposit was made after the proper temper to the landlord and alter the landlord refused to receive the payment, the not was deposited with the Rent Controller.

4. Mr. Bhabra contended that the petitioner gave receipt as M/s. P. Bhiwaniwala and others and therefore the deposit in the name of M/s. P. Bhiwaniwala and others, a Firm, is valid deposit. Mr. Bhabra contended that the word 'Firm' is erroneous description of the landlord as the word 'Firm' was redundant. The word 'Firm' is used loosely on the advice of the Advocate of the tenant. It is argued by Mr. Bhabra that the Court may ignore the word 'Firm' and in support of his contention relied upon the case reported in (1963) 2 All ER 647, (1898) 2 Ch D 551. Mr. Bhabra further contended that the deposit wag made by the wrong advice of the lawyer and the client cannot suffer. Mr. Bhabra relied upon the case reported in : [1980]3SCR325 , in support of his contention.

5. It appears to me, however, that Mr. Bhabra's contention cannot be accepted in view of the clear provision in law as stated in Section 22 (2) of the West Bengal Premises Tenancy Act. Section 22 (2) of the W. B. P. T. Act comes under Chapter IV regarding the deposit of rent. Section 21 provides for the tenant for depositing rent when the rent is not accepted by the landlord. Section 22 also provides for procedure for making the deposit and consequences of incorrect particulars in the application for deposit. In the present case, admittedly, the deposit has been made in the name of M/s. P. Bhiwaniwala and others, a Firm, after an affidavit has been sworn by Mr. Keshardeo Singhania. Mr. Bhabra relied upon the case (reported in (1898) 2 Ch D 551 at p 554 Cowen v. Truefitt, Limited) in support of his contention.

6. In the said case there was a dispute between the plaintiff and the defendant for use of a staircase leading to four rooms on the second floor of the premises, 14 Old Bond Street, where the plaintiff carried on business of ladies' tea-room and ladies' club. There was no staircase in room No. 13 directly and there was only a staircase in No. 14, old Bond Street. It was admitted that the reference in the under lease to the staircase by which access was granted was not in accordance with the facts and had been inserted in this form by mistake. In the said case it was held in the facts and circumstances of thecase that in construing a deed purporting to assure a property, if there be a description of the property sufficient to render certain what is intended, the addition of a wrong name or of an erroneous statement as to quantity, occupancy, locality, or an erroneous enumeration of particulars, will have no effect. In a case reported in (1963) 2 All ER 647 (Finbow v. Air Ministry) it was found that the order was made or approval granted in exercise of the statutory power or the order is otherwise a valid order though the reference of a particular section in the statute was patently wrong. This case, however, does not, in my opinion, at all answer the question raised in this case. In the present case the question is whether the opposite party tenant while depositing rent with the Rent Controller has acted wilfully and negligently in making the deposit in the name of M/s. P. Bhiwaniwala & others, a Firm. The admitted case is now that Mr. P. Bhiwaniwala and 4 brothers, the petitioners herein, purchased the property from the erstwhile owner who gave a letter of attornment to the petitioner but still thereafter the petitioners (defendant?) deposited rent with the Rent Controller in the name of the Firm. It must be remembered that while the petitioner (defendant?) made the deposit before the Rent Controller (he) had sworn an affidavit. In the said affidavit Mr. Keshardeo Singhania stated specifically that M/s. P. Bhiwaniwala and others, a Firm, is a landlord of the tenant applicant. In the body of the affidavit it has been stated that they tendered the money to the landlord opposite party, that is, M/s. P. Bhiwaniwala and others, a Firm, who not having been accepted the same tender, the deposits are being made with the Rent Controller. In a case reported in (1960) 64 Cal WN 342, (Bengal Tent Factories Ltd. v. Amiya Prova Das Gupta) it was held by the Division Bench of this Court that the deposit of rent in favour of M/s. Amiya Prova Das Gupta instead of Mrs. Amiya Prova Das Gupta was a clear case of gross negligence and the deposit is held not to be valid deposit.

7. Mr. Bhabra, however, contended that the said case was decided on the basis of 1950 Act and the wordings of 1950 Act and the present Act are different. It was stated that the depositwas made in the wrong name wilfully and negligently calculated to prevent the landlord from withdrawing the money. This argument, in my opinion, is of no avail to the opposite party tenant, inasmuch as, in the present case the opposite party tenant knew fully well in view of the fact that the letter of attornment was given by the erst while landlord giving full name of the present landlords who purchased from the erstwhile landlord and asking them to attorn to the present landlords. That letter was replied to by the tenant's Lawyer asking for the production of documents regarding the purchase. Assuming for a moment that he did not know Who is his landlord, then he ought to have deposited the rent under Section 21 (1) of the Act on the ground that there is bona fide doubt as to the person to whom the rent is payable but in the present case in the affidavit the tenant has already stated that he deposited the rent because the landlords have not accepted the rent sent to them by money order or by cheque. In the present case, there is no doubt, in my opinion, that the petitioners are the landlords. In fact, after the suit was filed the petitioner went on depositing in favour of all the landlords. The affidavit filed before the Rent Controller before the deposit for the month of February, 1976 onwards, categorically stated that M/s. P. Bhiwaniwala and others is a Firm who was the landlord of the opposite party. This according to me was wilfully and negligently made by the tenant making the false statement about the description of the landlords. In my opinion, therefore, the opposite party tenant deposited the rent before the Rent Controller and the deposit is an invalid deposit being deposited wilfully and negligently in the name of a Firm who is not the landlord of the opposite party tenant.

8. Mr. Bhabra argued before me that the mistake in the affidavit filed before the Rent Controller was a mistake of the Lawyer through whom the affidavit has been filed and he wanted to rely upon the case reported in : [1980]3SCR325 , (Santosh v. Om Prakash) in which the Supreme Court held that the parties should not suffer for the laches of the Advocate or the wilful failure of the Advocate to deposit therent. In this case Mr. Bhabra wanted to file before me a copy of the affidavit filed by the learned Advocate but that was never filed in this case. In the circumstances, in my opinion, the plea that this is an Advocate's mistake or laches cannot be accepted to be correct, moreover, when it is found that one of the tenants himself, had sworn the affidavit before the Rent Controller and thereafter wilfully and negligently deposited in the wrong name cannot be attributed to the tenant the mistake of the learned Advocate, The case reported in (1960) 64 Cal WN 342 (Bengal Tent Factories Ltd. v. Amiya prova Das Gupta) was also a case where the tenant wanted to give evidence saying that it was a mistake of the learned Advocate or their Advocate's clerk but that was not accepted by the Division Bench. In the present case, however, there is no affidavit filed by the learned Advocate. On the other hand, there are number of letters written by the learned Advocate which were taken into consideration by the Court below and in coming to a finding it was held that the word 'Firm' does not make the deposit invalid, in my opinion, the learned Judge failed to consider in its proper perspective. Following the Division Bench decision reported in (1960) 64 Cal WN 342, it appears to me that there cannot be any doubt that the deposit made in favour of M/s. P. Bhiwaniwala and others, a Firm, is patently invalid deposit.

9. I, therefore, set aside the order passed by the learned Judge, City Civil Court, holding that the deposits made with the Rent Controller between February 1976 till December 1977 are not valid deposits and under Sections 17 (2) and (2A) of the West Bengal Premises Tenancy Act the application filed by the petitioner ought to have been rejected after holding that the deposits are invalid deposits. The learned Judge was wholly wrong in rejecting the application under Section 17 (2) of the Act after deciding that the deposits are valid deposits. In this matter no Rule was issued as notices were served on both the parties and both the parties argued at length and as such after hearing both the parties, I dispose of the matter setting aside the order passed under Section 17 (2) and (2A) of theWest Bengal Premises Tenancy Act holding that the deposits made in the name of Bhiwaniwala and others a Firm, are invalid deposits under Section 22 (2) of the West Bengal Premises Tenancy Act.

10. The application is thus disposed of.

11. There will be no order as to costs.


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