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2012 DIGILAW 339 (CAL)

Agro Corpex India Ltd. v. Utpal Roy

2012-04-19

PRASENJIT MANDAL

body2012
Judgment Prasenjit Mandal, J. 1. THIS application is at the instance of the defendant and is directed against the Order No.95 dated March 2, 2010 passed by the learned Presidency Small Causes Court, 2nd Bench, Calcutta in Ejectment Suit No.121 of 1999 thereby allowing an application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 filed by the plaintiffs. 2. THE plaintiffs/opposite parties herein instituted a suit being Ejectment Suit No.121 of 1999 before the Presidency Small Causes Court, Calcutta against the defendant-company/petitioner herein for eviction on the ground of, inter alia, default in payment of rent. THE defendant/petitioner is contesting the said suit and it filed an application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 contending, inter alia, that there is no relationship of landlords and tenant between the parties and that the defendant is not a defaulter as claimed in the suit. It is also contended that the suit property belonged to Wakf property known as Tajuddin Wakf Estate and Mr. Musiruddin Munshi was the Mutwalli who used to look after the property and collected the rents from the defendant. The learned Trial Judge disposed of the application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 holding that the plaintiffs are the owners of the suit property and that the defendant-company is a tenant under the plaintiffs at a monthly rent of Rs.250/- per month payable according to English calendar month and that the defendant-company is not a defaulter in payment of rent as there is no arrear of rent. The defendant was also directed to go on paying or depositing current rent month by month in accordance with law. Subsequently, the plaintiffs/opposite parties herein filed an application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 and that application was allowed by the impugned order. Being aggrieved, this application has been preferred. 3. NOW, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I am of the opinion that in order to decide the fate of the application under Section 17(3) of the 1956 Act, the order that was passed by the learned Trial Judge in respect of the application under Section 17(2) of the 1956 Act is very much relevant. Accordingly, the conclusion of the Order No.731 dated March 8, 2007 is quoted below:- "Accordingly, the petition under Sec.17(2) of the W.B.P.T. Act, 1956 is disposed of on contest with the following observation:- 1. that the plaintiffs are the owners in respect of the suit premises for the purpose of this suit only. 2. that the defendant company is a tenant under the plaintiffs at a monthly rental of Rs.250/- p.m. payable according to English calendar month. 3. that the defendant company is not a defaulter in payment of rent as there is no arrears of rent. 4. that the defendant company is directed to go on paying/depositing current rent month by month in accordance with law. Fix 23.04.2007 for P. Hearing of the suit. 4. THUS, from the Item Nos.2,3 and 4 of the said order, it is explicit that the plaintiffs are the owners in respect of the suit premises for the purpose of the suit and that the defendant company is a tenant under the plaintiffs at a monthly rent of Rs.250/- per month payable according to English calendar month and that the defendant has been directed to go on paying or depositing current rent month by month in accordance with law. Therefore, the relationship of the landlords and tenant between the parties had been established by the Order dated March 8, 2007 and the defendant-company was required to deposit the current rent under Section 17(1) of the 1956 Act according to this order. The rent is to be paid or deposited in the name of the plaintiffs only as per Order dated March 8, 2007 and there is no scope of depositing rent in the name of a third party. It may be mentioned herein that the defendant-company was depositing rent previously with the Wakf Board and the Court has accepted the said deposit as valid before disposal of the application under Section 17(2) of the 1956 Act. But, since the relationship between the two had been established by the order dated March 8, 2007, the defendant-company was required to deposit rent in the name of the plaintiffs under Section 17(1) of the 1956 Act. 5. But, since the relationship between the two had been established by the order dated March 8, 2007, the defendant-company was required to deposit rent in the name of the plaintiffs under Section 17(1) of the 1956 Act. 5. ADMITTEDLY, the defendant is not paying or depositing rent for the current months after disposal of the application under Section 17(2) of the 1956 Act in favour of the plaintiffs; but he is depositing rent of the current months with the Wakf Board. 6. MR. S.P. Roychowdhury, learned Counsel appearing for the petitioner submits that as per plaint case, the defendant was described as defaulter in payment of rent since January, 1999 and the Order on the application under Section 17(2) of the 1956 Act had been passed on March 8, 2007 holding that the defendant company was not a defaulter in payment of rent though the deposits had been made in the name of the Wakf Board. Since, deposits had been made in the name of the Wakf Board after filling of the suit and the defendant-company has been directed to go on paying or depositing current rent month by month in accordance with law, deposits made by the defendant-company subsequent to the Order dated March 8, 2007 in the name of the Wakf Board will be treated as valid and so, the impugned order should be set aside. Mr. Roy Chowdhury has also contended that striking out defence against delivery of possession is not mandatory at all but directory and he has placed reliance on the decision of M/s. B.P Khemka Pvt. Ltd. v. Birendera Kumar Bhowmick and anr. reported in AIR 1987 Supreme Court 1010. He has also relied on the decisions of Sabitri Shaw and ors. v. Kalyan Kumar Bose and ors. reported in 97 CWN 1124 which is based on the decision of AIR 1987 Supreme Court 1010. He has also referred to the decision of Ram Prasad Bajaj and Ors. v. Development and Builders (P) Ltd. and Ors. reported in 95 CWN 531 and thus, he submits that the Court has to dispose of the dispute relating to the relationship of landlord and tenant only first and then to decide the other issues such as quantum of arrear of rent, etc. Thus, he submits that the learned Trial Judge is not justified in allowing the application under Section 17(3). 7. MR. Thus, he submits that the learned Trial Judge is not justified in allowing the application under Section 17(3). 7. MR. Roy Chowdhury has also contended that his client filed an application under Section 17(2A)(b) and thus, he submits that as per prayer of the defendant-company, it sought for determination of the relationship between the parties as well as the alleged period of default and this application has not been disposed of and so, an opportunity should be given to the defendant to pay up the dues if the deposits made with the Wakf Board after disposal of the application under Section 17(2) are treated as not valid. He has also contended that the said application has not yet been disposed of and the Court is quite competent to pass another order as per provisions of Section 17(2) of the 1956 Act. So, an opportunity may be given to the defendant-company to pay up the dues by exercising the discretionary power as decided in the case of M/s. B.P. Khemka Pvt. Ltd. (supra). 8. ON the other hand, Mr. Abhijit Roy, learned Counsel appearing on behalf of the opposite parties submits that the Order dated March 8, 2007 passed by the learned Trial Judge is very much clear about the relationship of the parties. The quantum of rent payable by the tenant to the plaintiffs/opposite parties and the direction of the defendant-company to go on paying or depositing current rent month by month in accordance with law are explicit and thus, he refers to Clause No.2 and 4 of the concluding portion of the said order dated March 8, 2007. He has also submitted the relationship between the parties have been determined at the time of the disposal of the application under Section 17(2) of the 1956 Act. It has also been held that there is no arrears of rent and that, in spite of such orders the defendant-company did not pay rent to the plaintiffs or deposit the rent in the name of the plaintiffs month by month in accordance with law. 9. MR. Roy has also referred to the decision of Sukumar Sarkar and Ors. It has also been held that there is no arrears of rent and that, in spite of such orders the defendant-company did not pay rent to the plaintiffs or deposit the rent in the name of the plaintiffs month by month in accordance with law. 9. MR. Roy has also referred to the decision of Sukumar Sarkar and Ors. v. Salil Kumar Chakravarty reported in 1991 CWN 581 and thus, he submits that when the tenant is not depositing rent month by month within 15th day of the succeeding month, such conduct amounts to violation of Section 17(1) of the West Bengal Premises Tenancy Act. In the instant case, though payment was made in the name of third party, such deposit cannot be treated as valid in view of the Order dated March 8, 2007. So, defence against ejectment is to be struck down. Thus, MR. Roy supports the impugned order. 10. HAVING considered the submissions of learned Counsel of both the sides, the decisions referred to above and the above position of law particularly the Order dated March 8, 2007 passed by the learned Trial Judge while disposing of the application under Section 17(2) of the 1956 Act, and the earlier observations, I find that the relationship between the parties had been determined as landlords and tenant with regard the suit premises. So, the defendant-company was required to deposit or pay rent to the plaintiffs and not to any third party after disposal of the application under Section 17(2) of the 1956 Act. So far as the application under Section 17(2A)(b) of the 1956 Act is concerned, the contention of Mr. Roy Chowdhury, with due respect to him, I hold, cannot be accepted because of the fact that in that application the defendant-company challenged the relationship of landlords and tenant as claimed by the plaintiffs and also the arrear of rent as claimed by the plaintiffs. Both these two points had been answered by the learned Trial Judge while disposing of the application under Section 17(2) of the Act by the Order dated March 8, 2007. So, further order with respect to the application under Section 17(2A)(b) becomes redundant and the learned Trial Judge could pass appropriate orders thereon at any time. Both these two points had been answered by the learned Trial Judge while disposing of the application under Section 17(2) of the Act by the Order dated March 8, 2007. So, further order with respect to the application under Section 17(2A)(b) becomes redundant and the learned Trial Judge could pass appropriate orders thereon at any time. But I find after passing of the order dated March 8, 2007 as noted above, the defendant did not deposit or pay current rent in favour of the plaintiffs and as such conduct is nothing but non-compliance of the provisions of Section 17(1) of the 1956 Act. So, the failure to deposit or pay rent in favour of the plaintiffs attracts the provisions of Section 17(3) of the 1956 Act and the defendant is bound to bear the consequences for such failure. So far as, exercising discretionary power and not mandatory in regard to disposal of the application under Section 17(3) of the 1956 Act, the conduct of the defendant-company is very much relevant. From the very beginning of the suit, the defendant company is denying the relationship of the landlords and tenant between the parties to the suit. Even after disposal of the application under Section 17(2) of the 1956 Act when relationship of landlords and tenant between the parties had been established, the defendant-company deliberately ignored the findings of the learned Trial Judge with regard to the Order dated March 8, 2007. The discretionary power could be exercised when the situation was beyond control of the defendant-company to make payment or deposit in favour of the landlords/plaintiffs. It is not such a case. It is the willful neglect or an act of ignoring the plaintiffs on the part of the defendant-company in making deposits of current rent in the name of the Wakf Board in total disregard of the Order dated March 8, 2007. So, discretionary power of taking a lenient view in favour of the tenant, I hold, will not be justified at all and no question of mercy arises. Accordingly, I am of the view that the learned Trial Judge has rightly allowed the application under Section 17(3) of the 1956 Act on contest thereby striking out the defence against the delivery of possession in respect of the suit premises. The learned Trial Judge has not, therefore, committed any errors of law in passing the impugned order. Accordingly, I am of the view that the learned Trial Judge has rightly allowed the application under Section 17(3) of the 1956 Act on contest thereby striking out the defence against the delivery of possession in respect of the suit premises. The learned Trial Judge has not, therefore, committed any errors of law in passing the impugned order. The said order is not without jurisdiction. There is no patent perversity in the impugned order. 11. ACCORDINGLY, I am of the view that this application is devoid of merits. The application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. This C.A.N. application being No.4562 of 2010 has been filed for stay of the Ejectment Suit No.121 of 1999 till disposal of the revisional application. Since, the revisional application is being disposed of, this application has become infructuous. It is, therefore, rejected. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.