DALHOUSIE PROPERTIES LTD Vs. EASTERN JAPAN TRADING CO

JUDGEMENT

(1.) THIS is an application for an order permitting the petitioner to deposit in this Court a sum of Rs. 100/- being the rent for the month of January 1963 and thereafter to continue to deposit in this Court month by month the monthly rents at the rate of Rs. 100/- per month in future. The summons was taken out on 13th February 1964 and an interim order was made on the same day. When this application was moved it was contended on behalf of the plaintiff respondent that the defendant had been a defaulter and no deposit has been made in respect thereof in compliance with the provisions of the West Bengal Premises Tenancy Act and therefore the application should be dismissed and the petitioner was not entitled, to any relief. Thereupon an adjournment was obtained by the defendant applicant for amendment of the petition. The application for amendment was moved and was allowed without prejudice to all rights arid contentions of the plaintiff. No affidavit-in-opposition was filed but it was specifically made clear that all the contentions of the plaintiff were kept open to be advanced at the time of hearing of the application.

(2.) THE suit was filed on July 23,1963. The suit is for possession and decree for several sums of moneys as mentioned in paragraphs 8 (a) and 8 (b) of the plaint, alternatively, an enquiry as to mesne profits and decree for sums found due. It is the plaintiff's case that the defendant was a tenant of room No. 11 at premises No. 12, Dalhousie Square East at a monthly rent of Rs. 100/- according to the English Calendar month. The monthly rent was payable within the 15th of the month next following. That is the plaintiff's case. The further case of the plaintiff is that the defendant defaulted in making payment of rent in respect of the premises to the plaintiff for the months from October 1931 to July 1962 within a period of 12 months. The plaintiff terminated the tenancy by notice to quit dated July 18, 1962. The further case of the plaintiff is that on the expiry "of the note the defendant continued in wrongful possession. The suit was filed as I have already stated on July, 23, 1963. The defendant alleges that the writ of summons was served on or about 31 January, 1964. The defendant gave notice of entering appearance on February 7, 1964. The present summons was taken out on February 13, 1964. The applicant alleges in the petition that there was agreement between the plaintiff and defendant that the rent was to be payable by the end of the month following the month for which the rent was payable. The further case made by the defendant is that the plaintiff refused to give receipt for the month of September 1961, the rent for which was already paid to the plaintiff and thereafter the defendant called upon the plaintiff's peon who used to collect rent to receive rent for the month of October, 1961. The defendant's case is that on the plaintiff's refusal the defendant on November 30, 1961 sent the rent for the month of October 1961 to the plaintiff by money order and the plaintiff refused to accept the money order and thereafter on such refusal the defendant applied to deposit the rent with the Rent Controller on December 16, 1961.

(3.) ON behalf of the defendant an order is now asked for that if necessary the dispute as to the amount, if any, of rent payable by the petitioner to the landlord or to be deposited in Court be determined and an order be made for deposit of such sum as may be found due and payable together with interest at the rate of 8 and 1/3 per cent. In paragraph 7 of the petition as amended it is alleged that inasmuch as it is contended that the petitioner is a defaulter there is a dispute as to the amount of rent payable to the landlord or to be deposited in Court. On these allegations counsel on behalf of the defendant contends that the defendant is not a defaulter with regard to the month of October and if there has been any default, which allegation is not admitted, an opportunity should now be given to the defendant to deposit the amount in Court and That such deposit may be made without prejudice to rights and contentions of both parties. Mr. Poddar on behalf of the plaintiff contends that under the provisions of section 17 of the West Bengal premises Tenancy Act a suit or proceeding being insulated 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 writ of summons on him, deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it was 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 night and one third per cent etc. It is indisputable that there has been no such deposit within one month. Further to allow any deposit to be made when there has been a default as contended for by the plaintiff would be to extend the time for deposit in violation of mandatory provision of the Statute. I am unable to accept the contention on behalf of the defendant that any such opportunity can now be given to the defendant Deposit under the Statute shall be made within 1 month of the service of the writ of summons.