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1990 Supreme(Cal) 361
IN THE HIGH COURT AT CALCUTTA
Amulya Kumar Nandy, J.
Pushpa Devi Gourisaria – Petitioner
Versus
Sudera Enterprises Pvt. Ltd. - Opposite Party
AND
Jaikrishnan Pratab Rai Gangwani – Petitioner
Versus
Sudera Enterprises Pvt. Ltd. - Opposite Party
C. O. No. 2365 of 1989 and C. O. No. 2366 of 1989
Decided On : August 31, 1990
Mr. S. P. Roychowdhury, J. R. Chatterjee, and S. Nayak, for the Petitioners
Mr. Tarun Bose, Saktinath Mukherji, Alok Banerjee, Debal Banerjee, Sudhangsu Sil and S. Mondal, for the Opposite Parties
Rent includes all payments agreed to be made by the tenant to the landlord for enjoyment of the demised property, including service charges, A.C. charges, corporation tax, commercial surcharge, and multi-storeyed building tax.
Headnote:
RENT - LEVY OF DISTRESS WARRANT - INTERPRETATION OF RENT - COMPONENTS OF RENT - WEST BENGAL PREMISES TENANCY ACT, 1956 - PRESIDENCY SMALL CAUSE COURT ACT, 1882 - HELD, ALL PAYMENTS AGREED TO BE MADE BY THE TENANT TO THE LANDLORD FOR ENJOYMENT OF THE DEMISED PROPERTY CONSTITUTES RENT, INCLUDING SERVICE CHARGES, A.C. CHARGES, CORPORATION TAX, COMMERCIAL SURCHARGE, AND MULTI-STOREYED BUILDING TAX.
Fact of the Case:
The landlord levied distress warrant against two tenants for arrears of rent for eleven months under the Presidency Small Cause Court Act, 1882. The tenants challenged the levy, arguing that distress warrant could not be issued for any claim other than rent and that rent was not in arrears as they had deposited rent with the Rent Controller. The landlord claimed additional charges, including service charges, A.C. charges, corporation tax, commercial surcharge, and multi-storeyed building tax.
Finding of the Court:
The court held that all the levies agreed by the tenants to be paid to the landlord for enjoyment of the suit shop rooms are rent. The court found that rent was in arrears and that distress warrant could be issued for charges other than basic rent.
Issues: 1. Whether the levies claimed by the landlord constitute rent? 2. Whether distress warrant can be issued during the pendency of a fixation of fair rent proceeding?
Ratio Decidendi: 1. The court interpreted the term 'rent' broadly to include all payments agreed to be made by the tenant to the landlord for enjoyment of the demised property. The court relied on several precedents, including Anita Dasgupta v. A. C. Sett, Usha Ranjan Bhattacharya v. Mahalakshmi Thacker, and Parul Banerjee v. Anand Kumar Agarwala, to support its conclusion. 2. The court held that there is no bar in law to levy distress warrant during the pendency of a fixation of fair rent proceeding. The court distinguished the case of P. V. Shetty v. B. S. Giridhari, where the Supreme Court stayed eviction proceedings until disposal of fixation of fair rent proceeding, on the ground that in that case there was a stay of distress proceeding and the tenants had a scope to ask for it.
Final Decision: The court dismissed the tenants' revisional applications, upholding the impugned orders and the levy of distress warrant.
The landlord Sudera Enterprises Pvt. Ltd. levied distress-warrant under section 53 of Presidency Small Cause Court Act, 1882 against two tenants Puspa Devi Gourisaria and Jaikrishnan Pratap Rai Gangawani figuring as petitioners in two revisional cases for arrears of rent for eleven moths form July, 1988 to May, 1989, in the Presidency Small Causes Court, Calcutta in respect of shop rooms in air conditioned market at, Shakespeare Sarani. The Registrar issued distress warrant in Distress Case Nos. 29 and 30 of 1989 against the tenants. The tenants filed objection under section 60 of the said Act before the fifth Bench of the Court of Small Causes. The court overruled all the objections of the tenants and dismissed the application on 24.7.89. The tenants feel a aggrieved by the decision.
2. The tenants now challenge the levy of distress Common question calls for consideration in both the cases.
3. Mr. Roychowdhury appearing for the tenants-petitioners contends that in these cases levy of distress warrant is unwarranted both on facts and law.
4. Section 53 Presidency Small Cause Courts Act, 1882 reads.
Application for distress warrant-Any person claiming to be entitled to arrears of rent of any house or premises to which this chapter extends, or his duly constituted attorney, may apply to any Judge of the Small Cause Court, or to the Registrar of the Small Cause Court, for such warrant as is hereinafter mentioned.
5. It is contended that unless rent is in arrear distress warrant under this provision cannot issue. Secondly, distress warrant cannot also issue for any claim other than rent.
6. In support of the first contention it is argued that the rent for the entire disputed period has been deposited with the Rent Controller by the tenants. Tenant Puspa Devi, however, defaulted for July, 1988. Mr. Basu contends that the amount deposited falls far short of rent agreed upon. The tenants claim that they have deposited rent at the rate last amicably paid by the tenants and accepted by the landlord. Rent upto June, 1988 had been accepted by the landlord. Since the landlord refused to accept rent thereafter the tenants deposited rent with the Rent Controller.
7. Two questions are inextricably mixed together. It has to be decided first as to what is the rent. The answer will dispose of other two questions, viz., whether rent was in arrear to warrant a distress and whether distress warrant was issued for any claim other than rent.
8. The term rent has not been defined in the Statute. Section 4 of West Bengal Premises Tenancy Act. 1956 lays down that in absence of fixation of fair rent the tenant is liable to pay the rent agreed upon.
9. Admittedly the parties settled the terms of tenancy by virtue of an agreement dated 31st March, 1980. The relevant provisions as quoted below should be carefully examined to determine whet the parties agreed to pay and receive as rent.
Paragraph-I-“o Hold the same unto the tenant as monthly tenant from the 1st day of April one thousand nine hundred and eighty according to English Calendar at a consolidated monthly rental of Rs. 1350/- only comprise of a basic rent of Rs. 100/- only service charges of Rs. 100/- only for the services to be rendered in respect of items mentioned in Schedule 'C' hereunder and air conditioning charges of Rs. 1050/- only clear of all deductions to be paid to the landlord on or before the 1st day of each and every English Calendar month for the month immediately preceding.
Paragraph-II-The tenant doth hereby covenant with the landlord as follows:
(5) To strictly, regularly and punctually pay to the landlord such proportion of the existing owners' and occupier's share of Municipal Rates and Taxes of the said Premises No. 1, Shakespeare Sarani, Calcutta, the present agreed payable amount being Rs. 75.30 and also all future increase or increases in the Municipal Rates and Taxes and all other taxes, charges, cesses, levies, impositions, that have been or may be hereafter be levied impose
