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2010 Supreme(Cal) 932
High Court of Judicature at Calcutta
KANCHAN CHAKRABORTY
Monoj Shaw
Versus
Debashis Saha & Others
C.O. No. 450 of 2006
Decided On : 06-08-2010
For the Petitioner:M.M. Verma, Nilam Verma, Abhishek Verma, Advocates.
For the Respondents:Shiba Prasad Ghosh, Swapan Kumar Debnath, Swapan Kr. Chakraborty, Advocates.
A tenant's failure to deposit rent under Section 7(1) of the WBPT Act must be willful default, and the court has the authority to extend the time for making the deposit in case of default.
Headnote:
Rent Deposit - Validity - West Bengal Premises Tenancy Act, 1997 - Section 7(1) - Court's Duty to Determine Arrears - Non-Payment of Rent - Unintentional.
Fact of the Case:
Tenant challenged the order striking out his defense against delivery of possession under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 (WBPT Act) for failing to deposit rent according to Section 7(1) of the Act. The tenant claimed he initially tried to pay the landlord directly but was refused, then sent rent through money order which was also refused, and finally deposited rent with the Rent Controller as per the Controller's order.
Finding of the Court:
The court found that the tenant had not intentionally defaulted on rent payment and had no intention to evade payment. The court noted that the tenant had deposited rent with the Rent Controller as per the Controller's order, which was permissible under the earlier Act but not under the amended Act. The court also noted that the trial court had not considered the tenant's petition under Section 5 of the Limitation Act, which was filed along with the petition under Section 7(2) of the WBPT Act.
Issues: 1. Whether the tenant's deposit of rent with the Rent Controller was valid under the amended WBPT Act. 2. Whether the trial court erred in striking out the tenant's defense without considering the petition under Section 5 of the Limitation Act and the tenant's averments regarding his attempts to pay rent.
Ratio Decidendi: 1. The court held that the tenant's deposit of rent with the Rent Controller was not valid under the amended WBPT Act, which required the tenant to deposit rent either with the Civil Judge or directly to the landlord. 2. The court held that the trial court erred in striking out the tenant's defense without considering the petition under Section 5 of the Limitation Act and the tenant's averments regarding his attempts to pay rent. The court noted that the provisions of the WBPT Act vested the court with ample authority to extend the time for making deposit of rent in case of default, and that the tenant had not intentionally defaulted on rent payment.
Final Decision: The court set aside the trial court's order striking out the tenant's defense and directed the trial court to take up the petition under Section 7(2) of the WBPT Act together with the petition under Section 5 of the Limitation Act and dispose of the same in accordance with the established principles of law.
Kanchan Chakraborty, J.
1) The challenge in this revision application is to the order no.12 dated 18.11.2005 passed by the learned Additional Rent Controller, Sealdah (learned 3rd Civil Judge, Junior Division) at Sealdah in Ejectment no. 146 of 2004 whereby the learned Rent Controller (Civil Judge) struck out the defense against delivery of possession of the petitioner/tenant under Section 7(3) of the W.B.P.T. Act, 1997.
2) Debasish Saha, the opposite party no. 1 herein, instituted an Ejectment Suit in respect of the suit premises against the present petitioner Monoj Shaw and two others on 12.10.2004 in the Court of learned Additional Rent Controller at Sealdah (3rd Civil Judge Junior Division).
3) The present petitioner Monoj Shaw as defendant no. 2 entered appearance in the suit on 8.12.2004. He filed an application under Section 7(2) of the Act on 27.1.2005 praying for ascertaining as to whether he was a defaulter in payment of rent since June 2002 and in case Court finds him a defaulter, direction be given him to pay the arrears of rent no ascertained in installments. He filed another petition under Section 5 of the Limitation Act together with that petition praying for condonation of delay in filing the petition under Section 7 (2) of the Act. The learned Court had taken up only the petition under Section 7(2) for hearing on 18.11.2005 and passed the following order:-
“Both the sides file haziras defendant/O.P. filed W.O. against the petition under Order 39 Rule 7 Civil Procedure Code copies served. The petition under Section 7(2) W.B.P.T. Act is taken up for hearing. Heard both sides. Learned Advocate for the petitioner pointed out that the first Challan filed by the O.P. from June 2004 to December 2004 on 11.1.2005 and the Challan may be deemed as invalid. Considered. The first challan/deposit made by the opposite party is a invalid deposit. Hence the subsequent deposit are invalid as per law. So defence is strike out under Section 7(3) of the WBPT Act. Thus the petition under Section 7 (2) W.B.P.T. Act is disposed of.”
4) The present petitioner being the sole contesting defendant in the suit, filed this revision application challenging the correctness, legality and propriety of that order on the following grounds :
a) that the learned Court failed to appreciate the provisions of Section 7(1), 7(2) and 7(3) of the W.B.P.T. Act, 1997.
b) that the learned Court failed to appreciate that it was vested with a duty to ascertain arrear rent payable by the tenant and direct him to clear out the arrears of rent, if any, within the period specified in the Section 7(2);
c) that the learned Court erred in declaring the deposits made by the petitioner with the Rent Controller invalid;
d) that the learned Court failed to exercise its jurisdiction vested in him as Additional Rent Controller at Sealdah under the Act prevailing at that time.
5) The question to be answered in this revision application is whether the order passed by the learned Court is sustainable in law.
6) Mr. M.M. Verma, the learned Advocate appearing on behalf of the petitioner contended that the Trial Court is duty bound under Section 7(2) to ascertain the amount of arrears of rent, if any, and to direct the tenant to deposit the same within the period as specified under Section 7(2) of the Act. He contended that the learned Court failed to discharge the statuary duty cast on him and, as such, the order is liable to be set aside. In support of his contention Mr. Verma, learned Advocate referred to the decision in M/s B.P. Khemka Private Ltd. –Vs.- Birendra Kumar Rhamni (AIR 1987 S.C. 1010).
7) Mr. Shiba Prasad Ghosh, the learned Advocate appearing for the opposite parties/landlord/plaintiff (hereinafter referred to as opposite party) contended that under the provisions of Section 7(1) of the Act, 1997, the tenant is under obligation to pay, subject to the provisions of Sub Section (2) of Section 7 to the landlord or to deposit with the Civil Judge
