Swapan Kumar Gupta v. Shambhu Nath Mitra — 1984 DIGILAW 14 (CAL)

Judgment 1. THIS revisional application is at the instance of the defendant and it is directed against an order dated April 24, 1981 passed by the learned Munsif of Raiganj in O. C. Suit no. 222 of 1977. Sm. Sudhangshu Bala mitra as plaintiff instituted the said suit on August 29, 1977. The writ of summons was served upon the defendant on September 20, 1977. The defendant appeared on September 26, 1977. The defendant filed his written statement on April 11, 1978. The plaintiff filed an application under Section 17 (3) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act) on July 3, 1980. In this application the plaintiff sudhangshu Bala Mitra alleged that the defendant did not deposit or pay any amount referred to in Section 17 (1) or 17 (2) of the Act within the time specified therein. The defendant did not also pray for extension of time or instalment under sec. 17 (2a) of the Act and, as such the defence against delivery of possession was liable to be struck out under Sec. 17 (3) of the Act. Sudhangshu Bala Mitra died on December 12, 1980 and the opposite party was substituted in her place. On January 5, 1981 the defendant filed an objection against the application under Sec. 17 (3) of the Act. It was contended by the defendant that he had paid and deposited rents in time as specified in Sections 17 (1) and 17 (2)of the Act and, as such, there was no question for any extension of time under sec. 17 (2a) of the Act. The said application was heard by the learned Munsif and by the impugned order the learned munsif allowed the application under sec. 17 (3) of the Act. The defence against delivery of possession has been struck out. The learned Munsif held that the defendant was a tenant in nespect of the suit premises since 1969 in terms of the agreement (Exhibit 1. The defendant failed to pay the rent in accordance with the terms of agreement. The learned Munsif has further held that having regard to the circumstances as laid down in Secs. 17, 21, 22, 13 and other relevant Sections he has reason to believe that the defendant did not pay the rent in accordance with law. The defendant failed to pay the rent in accordance with the terms of agreement. The learned Munsif has further held that having regard to the circumstances as laid down in Secs. 17, 21, 22, 13 and other relevant Sections he has reason to believe that the defendant did not pay the rent in accordance with law. According to the learned Munsif, the defendant was a defaulter in payment of rent and the application under Sec. 17 (3) of the Act was allowed. 2. BEING aggrieved by the said decision, the defendant has come up to this court and obtained the present Rule. Mr. Dipak Kumar Sengupta, learned Advocate for the petitioner, has argued that the learned Munsif was wrong in holding that after the institution of the suit the defendant was liable to pay rent within the time mentioned in the agreement (Ext. 1. Mr. Sengupta argues that the provisions of Sec. 17 (1) of the Act are independent of the other provisions of the Act regarding the time when rent is to be deposited during the pendency of the suit. In the agreement it was mentioned that each month's rent was to be paid within seven days of the next month. Mr. Sengupta argues that according to See. 4 of the Act rent shall be paid within the time fixed by the contract and in the absence of such contract by the 15th day of the month next following the month for which it is payable. Mr. Sengupta argues that Sec. 22 of the Act deals with the validity of rent deposited with the Bent Controller but once Sec. 17 of the Act comes into play, the provisions of Sees. 4 and 22 will not apply. Mr. Sengupta submits that the defendant deposited the rent with the Rent controller regularly and, as such, the application under Sec. 17 (3) should not have been allowed. Mr. Sengupta further submits that there was delay of a few days in depositing rent with the Rent controller during the pendency of the suit but having regard to the circumstances and the principles of law laid down in the case of Shyamcharan Sharma vs. Dharamdas (A. I. R. 1980 Supreme Court 587), the Court could have condoned the delay and extended the time. 3. 3. THE learned Advocate for the opposite party has argued that the defendant did not file an application under Sec. 17 (2) of the Act. He did not also make any prayer under Sec. 17 (2a) of the Act for extension of time of deposit. The contention of the learned advocate for the opposite party is that as there was no prayer on behalf of the defendant for condonation of the delay, there was no question of the Court condoning the delay. The provisions of Sec. 17 (3) of the Act are mandatory and if there be any failure on the part of the tenant to deposit or pay any amount referred to in sub-section (1) or (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub-section (2a) or to deposit or pay any instalment permitted under clause (b) of sub-section (2a)within the time fixed, the Court shall order the defence against delivery of possession to be struck out. It is argued that even if it be held that after the institution of the suit rent was not payable within the time fixed by the contract, still the defendant failed to comply with the provisions of Section 17 (1)of the Act and as such defence against delivery of possession was rightly struck out. 4. THERE was no dispute that the defendant was a tenant under the plaintiff in respect of the suit premises on a monthly rent of Rs.80/- according to English calendar month. The plaintiff's contention is that the defendant defaulted in payment of rent from January 1977 the defendant however denies the allegation. According to the agreement (Ext. 1) the defendant was to pay rent within seven days of the next month section 4 (2) of the Act provides as follows :- "rent shall be paid within the tin fixed by contract or in the absence o such contract, by the fifteenth day the month next following the month for which it is payable. Provided that a tenant may pay the rent payable for any month at any time during such month before it falls due: Section 21 of the Act deals with and posit of rent by the tenant with "the Rer Controller., 5. Provided that a tenant may pay the rent payable for any month at any time during such month before it falls due: Section 21 of the Act deals with and posit of rent by the tenant with "the Rer Controller., 5. ACCORDING to Sec. 22 of the Act., no rent deposited under Sec. 21 shall be considered to have been validly deposited under that section for purposes of clause (i) of sub-section (1) of Sec. 13, unless deposited within fifteen days of the time fixed by the contract in writing for payment of rent or in the absence of such contract in writing unless deposited within the last date of the month following that for which rent was payable. 6. SECTION 17 (1) of the Act reads as follows : "on a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 13, the tenant shall, subject to the provisions of sub-section (2), within one month of the service of the writ of summons on him, or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance deposit in Court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. " It appears that prior to the institution of the suit the question of default will depend upon the time mentioned in Sec. 4 when the rent is paid to the landlord and in case of deposit with the rent Controller, it will be governed by sec. 22 of the Act. " It appears that prior to the institution of the suit the question of default will depend upon the time mentioned in Sec. 4 when the rent is paid to the landlord and in case of deposit with the rent Controller, it will be governed by sec. 22 of the Act. Once the suit is instituted by the landlord on any of the grounds referred to Section 13, Sec. 17 (1) of the Act imposes a liability upon the tenant to deposit or pay in accordance with Sec. 17 (1). Section 17 (1) of the act is not governed by Sec. 4 or Sec. 22 of the Act. 7. ACCORDING to Sec. 17 (3) -"if a tenant fails to deposit or pay any amount referred to in sub-section (1) or subsection (2)within the time specified therein or within such extended time as may be allowed under clause (a) of subsection (2a), or fails to deposit or pay any instalment permitted under clause (b) of sub-section (2a) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with, the hearing of the suit. " 8. IN the instant case, no application has been made by the petitioner under sub-section (2) or sub-section (2a) of sec. 17 of the Act. The question is whether the petitioner has failed to deposit or pay any amount referred to in sub-section (1). If there has been such a failure on the part of the petitioner, the defence against delivery of possession is liable to be struck out. The record will show that so far as the rents for the months of January and February 1977 are concerned, they were deposited beyond time. After the institution of the suit, rents for the months of November 1978, December 1978, January to July 1979, September, October, November, December, 1979 and January 1980 were deposited beyond time. The defendant did not pray for any condonation of delay or for any extension of time. The petitioner thus failed to deposit or pay on some occasions in accordance with the provisions of Sec. 17 (1) of the Act. The provisions of Sec. 17 (3) of the Act were thus attracted and the learned Munsif was justified in allowing the said application. The Supreme Court decision was referred to above also placed before the learned Munsif. The petitioner thus failed to deposit or pay on some occasions in accordance with the provisions of Sec. 17 (1) of the Act. The provisions of Sec. 17 (3) of the Act were thus attracted and the learned Munsif was justified in allowing the said application. The Supreme Court decision was referred to above also placed before the learned Munsif. In this case, there was delay on the part of the tenant in depositing the monthly rent a day or two beyond the prescribed date on some occasions. The amount had been received by the Court and withdrawn by the landlord and when the application for condonation of delay was filed there was contention whether the Court had power to extend the time for deposit. The Supreme Court held that the Court had discretion to condone the default and extend the time for payment of deposit. In the instant case, when the deposits were made with the Rent Controller on several occasions there was considerable delay in making the deposits. There was also no prayer for condonation of delay or for extension of time. The provisions of Sec. 17 (3) of the Act were thus applicable in the instant case and the defence against delivery of possession was rightly struck out. In the circumstances, the Rule is discharged. There will be no order as to costs. Let the records be sent below forthwith. All interim orders are vacated.