KUNJALAL DEBIDUTTA Vs. AIR CARRYING CORPORATION

JUDGEMENT

(1.) THE Plaintiff -Petitioner firm, after serving notice of ejectment as landlord, instituted Title Suit No. 74 of 1972 (old 157 of 1969) for ejectment of the Defendant -Respondent Corporation on the ground of default in payment of rents from the month of April, 1966 to October, 1965. The Defendant Respondent contested the suit stating that it bad deposited and had been depositing rents due to the Plaintiff -Petitioner with the Income -Tax Department at Gauhati in compliance with the letter of the Income -Tax Department dated 1.12.66 against challans issued by the Department which informed that the Plaintiff -Petitioner was to pay income -tax to the tune of Rs. 30,250/ -. The trial Court found that by notice under Section 226(3) of the Income -tax Act (Ext. C) the Defendant Corporation was asked to pay to the Income -Tax Department the future rent payable to M/s. Dasuram Mirjamal and the Defendant Corporation continued to pay the rent upto March, 1966 pending correspondence with the Income -tax Department. By another notice dated 1st December, 1966 (Ext. B) the Income -tax Department asked the Defendant Corporation to pay the future rent to the Income -tax Department instead paying to the Plaintiff -Petitioner; but the challan depositing the rent for the period from April, 1966 to December, 1966 (Ext. Gha.) was dated 2.12.66 and Ext. Gha (1) shows that the rents were paid for some dues of one Lakshinarayan Keyal, who was not a partner of the Plaintiff firm but was a partner of M/s. Dasuram Mirjamal. The rent was thus not paid within 15 days from falling due as rents for nine months from. April, 1966 to December, 1966 were paid only on 2.12.66 by which time the Defendant Corporation was already a defaulter within the meaning of the Assam Urban Areas Rent Control Act, 1966 (hereinafter referred to as 'the Act') and the law did not allow it to ignore its landlord and to pay rent to the income -tax Department against the dues of one Lakshinarayan Keyal. It was accordingly held to have been a defaulter and the suit for ejectment was decreed.

(2.) ON appeal by the Defendant Corporation the learned lower appellate Court also found that the rent for the period from April, 1966 to October, 1966 had been deposited with the Income -tax Department on 2.12.66 against the income -tax dues of Lakshinarayun Keyal who was the uncle of P.W. 1, Shri Kunjalal Agarwalla a partner of the Plaintiff firm and the amount was deposited long after the rents for the months fell due. P.W. 1 admitted that be asked the Defendant corporation to pay the rent for three months to the Income -tax Department by his letter dated 11.2.66 and rents upto the month of March, 1966 were thus paid. The Court also found that the Income -tax Department had written a letter (Ext. C) to the Defendant Corporation on 20.11.65 asking it to pay and deposit in future rent payable by it to the firm M/s. Dasuram Mirzamal of Gauhati or its partners, in the Income -tax Department at every month. It also found that the said firm, M/s. Dasuram Mirzamal was later on bifurcated and the Plaintiff -Petitioner firm was constituted as a separate firm, but P.W. 1, remained as common partner of both these firms and that the suit premises were stated to have fallen in the share of the Plaintiff Petitioner firm after bifurcation of M/s. Dasuram Mirzamal. The Court also found that the Defendant corporation was asked to deposit the rent due for the suit premises he the Income -tax Office Gauhati every month by letter dated 23.11.65 (Ext. C) to which the Plaintiff -Petitioner firm bad no objection and the Defendant Corporation was asked by the Petitioner firm to deposit rents upto March, 1966 in compliance thereof and the Defendant Corporation being again asked pay to the Income -Tax Department by subsequent letter dated 1.12.66 (Ext. B) the Defendant was required to pay rent for that period to the Income -tax Department after correspondence and the Defendant Corporation could not be held to have been defaulter in the eye of law under Act. The Court further found that under Section 226(3)(i) of the Income -tax Act, the Income -tax Officer might ask any person from him money was due to the Assessee to pay the same to the Income -tax Officer by issuing notice to the person concerned find that though there was no evidence to show at a copy of the notice was served on the Assessee it appeared from the evidence of P.W. 1 that he was aware of this fact and he himself asked the Defendant to pay the rents for 3 months by his letter dated 11.2.66 and the Defendant Corporation had no alternative but to deposit the amounts with the income -tax Officer as directed failing which they them selves would have been deemed to be Assessee in default in respect of the amounts specified in the notice. If the Plaintiff Petitioner firm was not an Assessee the matter could have been taken up with the Income -tax Department which was not done. Accordingly it was held that the Defendant -Respondent -corporation was not a defaulter and consequently the decree was set aside. The Plaintiff -Petitioner firm there from filed second Appeal No. 103/78 on 18.7.78, As in L.P.A. No. 11/76 Rames Chanira Basak v. Deenarayan Prasad it was held that second appeals would not lie under the Act, the Second Appeal was converted to a revision petition and the same has been numbered as Civil Revision No. 143 of 1984.

(3.) MR . S. Medhi, the learned Counsel for the Defendant -Corporation supports the impugned appellate judgment submitting that by Ext. C dated 29.11.65 the Defendant -Respondent corporation was required to deposit all future rents with the Income -tax Office and the Plaintiff -Petitioner firm itself directed the Defendant Corporation to deposit the rents pursuant to this notice upto March, 1966; and the Corporation was in correspondence with the Income -tax Department in reply to which by subsequent letter dated 1.11.56 (Ext. E) the Corporation was required to deposit future rent with the Income -tax Office against challans and the Corporation had to deposit the rents in compliance with the letter and had been depositing rent up -to -date against challans issued by the Income -tax Department and it, therefore, committed no default. Mr. Medhi further submits that the suit itself was barred under Section 69 of the Indian Partnership Act inasmuch as the firm was not registered and the persons suing were not shown in the register of firms is partners of the firm. According to him, the Plaintiff -Petitioner produced the Registration Certificate only at the time of hearing and the Respondent -corporation had no opportunity to object to it, but, it is submitted, that this being a question of jurisdiction it is entitled to raise objection in this revision. Mr. Medhi relies on : AIR 1969 Guj. 178 : AIR 1970 Mys 279 : AIR 1971 J & K 109.