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2014 DIGILAW 22 (CAL)

Popat & Kotecha Property v. Ashim Kumar Dey

2014-01-15

TRAUN KUMAR GUPTA

body2014
JUDGMENT : Traun Kumar Gupta, J. This revisional application is directed against order dated 30th of June, 2011 passed by learned Judge, Small Causes Court, 5th Court at Calcutta in Ejectment Suit No. 302 of 2006. 2. The petitioner being plaintiff filed said suit for eviction against defendant tenant on the ground of default in payment of rent, maintenance charges, municipal tax and commercial surcharge since April, 2003. The O.P. defendant filed an application under (2) of the West Bengal Premises Tenancy Act, 1997 (hereafter to be referred as Act of 1997) denying those allegations and also denying the relationship of landlord and tenant between the parties. The petitioner plaintiff filed written objection against said application. After contested hearing learned trial court held that there was a relationship of landlord and tenant between the parties, but the defendant was not a defaulter in payment of rent since April, 2003 as he deposited rents in the office of Rent Controller since April, 2003 to December, 2006 after plaintiff refused to accept rent by hand as well as through money orders. Learned trial court, however, opined that O.P. defendants were also liable to pay maintenance charges at the rate of Rs. 52/- per month and also property tax and municipal surcharge and ordered the defendant tenants to pay maintenance charges for the period from April, 2003 to May, 2011 within a stipulated time frame by the order impugned. Learned trial court, however, observed that due amount of property tax and municipal surcharge payable by the tenants could not be ascertained due to insufficient data on that score. 3. Mr. Noelle Banerjee, learned advocate appearing for the petitioner plaintiffs, submits that before depositing admitted rents in the office of the Rent Controller a tenant has to offer the rent to the landlord and on being refused he has to send the same to the landlord through money order and the money order being returned refused he has to deposit rent in the office of the Rent Controller. She submits that on each occasion a time frame was given in of the Act of 1997. She, further, submits that in of said Act the time limit for making deposits was also mentioned. She submits that on each occasion a time frame was given in of the Act of 1997. She, further, submits that in of said Act the time limit for making deposits was also mentioned. According to her, though the plaintiff landlords denied said alleged tender and refusal, or sending of rent by money order but learned trial court did not make any elaborate discussion on this score. She next submits that in terms of agreements between the parties the advance rent of a month was required to be deposited within 10th of said month but the rents were deposited in the office of the Rent Controller mostly out of time as per time limits prescribed therein. According to her, the matter should be remanded back to the court below for considering these aspects de novo on the basis of materials already on record. 4. Mr. Sabyasachi Bhattacharyya along with Mr. Rahul Karmakar, learned advocates, appeared for O.P. tenant. He submits that in the written objection there was no specific objection that there was no valid tender or that the deposits in the Rent Control Office were invalid. He next submits that neither the surcharge nor the municipal taxes were part of rent. He further submits that as plaintiff landlord withdrew the rents deposited in the office of Rent Controller it amounted to waiver of default in terms of the Act of 1995. He submits that on these points there was no discussion in the order impugned and that the matter should be remanded to the court below for afresh decision on these scores. 5. The relevant provisions of Sections 21, 22, 24 and 25 of the Act of 1997 are quoted below:- Section 21 Deposit of rent by tenant.- (1) Where the landlord does not accept any rent tendered by the tenant within the prescribed period, the tenant shall remit the rent to the landlord by postal money order within fifteen days of such refusal. (2) Where any tenant remits rent to the landlord by postal money order within the prescribed period and it is returned to the tenant by the postal authority as undelivered, either on account of the landlord having refused to accept the payment thereof or for any other reason, the tenant may deposit such rent with the Controller within fifteen days from the date on which it is so returned to the tenant. Section 22 The time-limit for making deposit and consequence of incorrect particulars in application for deposit. – (1) No rent deposited with the Controller shall be considered to have been validly deposited under unless deposited within fifteen days of the time fixed by any contract in writing for payment of the rent or, in the absence of any such contract in writing, unless deposited within the last day of the month following the month for which rent was payable, provided where any rent remitted to the landlord by postal money order within the prescribed period is returned to the tenant by the postal authority as undelivered or on account of the landlord having refused to accept the rent or for any other reason, such rent may also be validly deposited within fifteen days from the date on which it is so returned to the tenant. (2) No deposit of rent shall be considered to have been validly made for the purpose of, if the tenant willfully or negligently makes any false statement in his application for depositing the rent unless the landlord has withdrawn, or makes an application in the prescribed form to withdraw, the amount deposited before the date of institution of proceeding for the recovery of possession of the premises from the tenant. Section 24 Savings as to acceptance of rent. - The withdrawal of rent deposited in the prescribed manner shall not operate as an admission against the person withdrawing if of the correctness of the rent or the rate thereof, the period of default, the amount due or any other fact stated in the application of the tenant for depositing the rent under sub-section (1) of, nor shall it operate as a waiver of any notice to quit given by him to the tenant. Section 25 Where there shall be a waiver of default. - Where there is no proceeding pending for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of the rent by the landlord from the tenant shall operate as a waiver of such default. 6. Section 25 Where there shall be a waiver of default. - Where there is no proceeding pending for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of the rent by the landlord from the tenant shall operate as a waiver of such default. 6. At the time of disposing of an application under (2) of the Act of 1997 the court has to decide whether deposits made in the office of the rent control were valid or not with special reference to Sections 21 and 22 of the Act of 1997. The court has also to ascertain whether the maintenance charge, property tax and municipal surcharge were part of the rent or not. Again, when admittedly plaintiff landlords have withdrawn the amount of rent deposited by the tenant in the office of the Rent Controller then it has to be ascertained whether said withdrawal was protected in terms of, or amounted to waiver of default in terms of the Act of 1997. These points are required to be determined by the court below on the basis of materials already on record and further evidence, if any, to be adduced by the parties on this score. I refrain from making any comment on these issues as those comments may influence learned trial court at the time of passing appropriate order. 7. Accordingly, the order impugned is hereby set aside. The learned trial court is requested to dispose of the application under (2) of the Act of 1997 afresh after giving opportunity to the parties to adduce further evidence, if any, on their respective stands. As this is an Ejectment Suit of 2006, it will be appreciated if learned trial court disposes of said application under (2) of the Act of 1997 within six weeks from the date of communication of the order. 8. The revisional application stands disposed of accordingly. 9. I pass no order as to costs. Revisional application allowed.