B. C. CHAKRABARTI, J. ( 1 ) THESE two Rules were obtained by two different tenants of the landlord-opposite party and involve an identical point of law. As such they have been heard together and this order shall govern both of them. ( 2 ) C. R. No. 2618 of 1981 arises out of Ejectment Suit No. 700 of 1979 now pending in the 5th Bench of the City Civil court at Calcutta and C. R. No. 2663 of 1981 arises out of Ejectment Suit No. 701 of 1979 pending in the same court. Both these suits were suits for eviction on the ground, inter alia, that the defendants (petitioners herein) were defaulters in the payment of rent. In Suit No. 700 of 1979 the allegation was of default in payment of rent at the rate of Rs. 50/- per month from March, 1978. In the other suit the allegation was of default since July,1978. In both these cases the petitioners filed applications under Section 17 (2) of the West Bengal Premises Tenancy Act, stating that they were made liable to pay certain sums of money on account of Corporation taxes payable by the landlord pursuant to distress warrants issued at the instance of the Corporation. The petitioners claimed that the amounts which they were thus compelled to pay were liable to be adjusted against the rent. The learned Judge overruled the petitioners' contentions claiming adjustment of rent and observed that the tenants may at the most be entitled to be reimbursed in appropriate proceedings but that it is not open to a tenant to unilaterally adjust a payment made by him on behalf of the landlord but without his consent. Taking such a view of the matter the learned Judge determined the amount which the defendant was liable to pay by way of arrears of rent and directed the same to be paid or deposited in court within one month from the date of the order. Incidentally it may be mentioned that the learned Judge while determining the amount did not include the interest thereon. Incidentally it may be mentioned that the learned Judge while determining the amount did not include the interest thereon. ( 3 ) THE petitioners' contention now before me is that the amount which the petitioners' claim should be adjusted against the rent, was paid by the petitioners on account of owners' share of Corporation rates pursuant to distress warrants, and that this being not a voluntary payment made by the tenants on account of the landlord is liable to be adjusted against the rent. In support of this contention Mr. Chatterjee appearing for the petitioners in the first place referred to a decision (Ganesh Chandra vs, Bhargabi Debi, 69 C. W. N. 641 ). This was a case where the tenant paid certain sums of money on account of the occupier's share of municipal rates. It was observed that in view of the provisions of the Calcutta Municipal Act, 1951 that primarily, or in the absence of any agreement to the contrary, the occupier's share of municipal rates would be payable by the tenant or occupier and therefore in order to find the plaintiffs' liability for the said rates there should be such an agreement to the contrary. The case proceeded on the footing that the existence of an agreement to the contrary had not been proved and as such the liability for the occupiers share of rates would be on the defendant and not on the plaintiffs, and the dependant would not be entitled to get any adjustment against rent payable by him, by reason of discharge of such liability on his part. On facts it was found that even assuming that there was an agreement, the defendant on his own materials was only entitled to a deduction of only an amount of Rs. 15. 75 N. P. and there would yet remain arrears for some more months even after adjustment of the amount. Therefore on both grounds the defence contention was overruled. On a parity of reasoning it seems that where the agreement is established the defendant tenant is entitled to claim adjustment, even though such a view has not been specifically expressed in the decision. But nonetheless such a view can be spelt out from the judgment itself. ( 4 ) MR. Chatterjee also referred to another decision in the case of Bhabatosh Nanda vs. Smt. Dolly Dutt 1981 (2) C. L. J. 254. But nonetheless such a view can be spelt out from the judgment itself. ( 4 ) MR. Chatterjee also referred to another decision in the case of Bhabatosh Nanda vs. Smt. Dolly Dutt 1981 (2) C. L. J. 254. This, however, is not a case on the point and it relates to the question whether a security deposit can be adjusted or not. Finally Mr. Chatterjee referred to the case of Rupeswari Debi v. Loknath Hosiery Mills, 66 C. W. N. 414. This was an appeal from an appellate decree by the plaintiff form a suit for eviction under the Rent Control Act, 1950. The plaintiff instituted the suit on the ground of default in payment of rent and upon determination of the tenancy treating the same as a tenancy for residential purposes. The suit eventually failed on the question of notice, it being held that the tenancy was for manufacturing purposes. In this suit the defendants took a plea of payment of a certain sum of money representing both the owner's and occupier's share of taxes and after adjusting the same, paid the balance in court. It was contended that since the defendants were forced to pay the payment on demand the amount was liable to be adjusted. The plaintiff contended to the contrary on the plea that it was a voluntary payment and therefore not liable to be adjusted. It was held in this case that there was no default in respect of two months because the defendants were forced to pay the said sum on demand on behalf of the landlord. This decision undoubtedly supports the case of the petitioners herein that where the payment is not voluntary but made under compulsion, the tenant is liable to claim adjustment therefor. ( 5 ) LEARNED Advocate for the landlord wanted to refute the contention of Mr. Chatterjee upon a reference in two cases, reported in 79 C. W. N. 88 (Hanuman Estate vs. Dhanuka Industries) and A. I. R. 1976, 328 (Dhunseri Tea and Industries vs. Hanuman Estate ). In both these cases the defendant wanted to escape liability for the payment of rent in view of prohibitory notices under Section 226 (3) of the Income Tax Act, 1961. In both these cases the defendant wanted to escape liability for the payment of rent in view of prohibitory notices under Section 226 (3) of the Income Tax Act, 1961. In the former it was held that the prohibitory notice could not have the effect of overriding the special provision of Section 17 of the West Bengal Premises Tenancy Act, 1956 and absolve the tenant from his statutory obligation to deposit sums equivalent to rent in court. In that sums equivalent to rent in court. In that case the defendant did not even pay any rent to the landlord nor paid any sum to the Revenue pursuant to the notices served upon him. If there was no payment at all pursuant to the notice there could not necessarily be any adjustment on a hypothetical consideration that the amount was payable not to the landlord but the Revenue. Therefore this decision clearly is of no assistance to the plaintiff landlord. In the other case there was of course some payments made pursuant to the prohibitory notice. It was held that the payment so made by a tenant is compliance with the notice, constitutes a good and valid discharge of a tenant's liability to pay rent to the assessee landlord to the extent of the amount paid riding 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 payments to the Income-tax Authority were made within time strictly in accordance with the provisions of Section 17 (1) or (2) of the Tenancy Act. It appears upon a perusal of the decision in that case that periodical payments were made by the tenant in compliance with the prohibitory notice but they were not in accordance with the provisions of section 17 (1 ). In the instant case before me the petitioners' case in the court below was not a case of payment month by month to the Revenue pursuant to a prohibitory notice but their case was of a lump payment made on account of the landlord towards owner's share of municipal rates and adjustment of the said sums. In the instant case before me the petitioners' case in the court below was not a case of payment month by month to the Revenue pursuant to a prohibitory notice but their case was of a lump payment made on account of the landlord towards owner's share of municipal rates and adjustment of the said sums. ( 6 ) THERE can be no dispute that if the payment was made on account of the owner's share this could not be a voluntary payment and could not be subject to proof of any agreement as has been found in the case of Ganesh Chandra Vs. Bhargabi (Supra ). Their Lordships in deciding that case observed that the payment of occupier's share of rates is not always a liability of the tenant but that in view of the provisions of the Calcutta Municipal Act it becomes an obligation of the tenant subject to any agreement to the contrary. The position is different where the payment allegedly made by the tenant is on account of the owner's share of taxes as in these cases. There, is could not be said that the payment was voluntarily made by the tenant and as such the tenant cannot be referred to a separate proceeding for being reimbursed in view of the provisions of the Calcutta Municipal act itself. Sub-section (4) of Section 246 of the Act provides that if any sum is paid by or recovered form any occupier or sub-tenant under this Section he shall be entitled to deduct the same from the rent payable by him in respect of such land or building for the period for which the arrear of consolidated rate was due, or for any subsequent period. Keeping this Section in view and the positive averment of the defendants that they were compelled to pay the sum under a distress warrant, I am of the view that the defendants are entitled to claim adjustment of the sum so paid on account of the landlord. The learned Judge in the court below has not found on fact as to whether the plea of the defendants as to the amount paid under distress warrant is true or not. He has not gone into that question even upon a view that even if it has been so paid the claim for adjustment of the amount in the suit for eviction is not tenable. He has not gone into that question even upon a view that even if it has been so paid the claim for adjustment of the amount in the suit for eviction is not tenable. I am unable to agree with the view so taken. I find that the amount paid under compulsion, if any, is liable to adjustment and in that view of the matter the Rules are made absolute. The impugned orders are accordingly set aside. The learned Judge in the court below is directed t hear the applications under Section 17 (2) afresh and in the light of the observations made above. There will be no order for costs. Let the record be sent down to the court below forthwith. Rules made absolute.