JADUPATI CHATTERJEE Vs. KAHETRA NATH PAUL

JUDGEMENT

(1.) IN the present case the defendant made a deposit, of rent under Section 61(a) of the Bengal Tenancy Act, alleging that he had tendered the money to the landlord who had refused to receive it. This deposit was made on 24th September 1913 corresponding with 8th Assin 1320 and was for the rent due in Assin 1320. The plaint in the present suit was preferred by the landlord for, this rent on 1st November 1913 and the landlord had not then notice of the deposit. Both the lower Courts have held that the statement made by the tenant that he made a tender of the rent to the landlord was false, and that, as he was not entitled to make a deposit under Section 61, the landlord s suit for rent should be decreed as if no deposit had been made. Before us it is contended that as the Court accepted the deposit and granted a receipt under Section 62, that receipt operated as an acquittance for the amount of rent payable by the tenant and that consequently at the time the suit was brought there was no arrear due. It appears to us that the lower Courts have rightly held that the receipt given under Section 62, cannot operate as a valid acquittance unless the tenant is entitled to make a deposit under Section 61. The Court which accepts the deposit must do so ex parte, as the Act makes no provision for the serving of a notice of: deposit on the landlord until after a receipt under Section 62 has been granted. It is pointed out in the case of Sirdhar Roy v. Rameswar Sing 15 C. 166 : 7 INd. Dec. (N.S.) 695 that it is entirely at the option of the Zemindar either to receive the rent deposited or not, just as he pleases, and that he may bring a suit for the recovery of the whole of the arrear of rent due to him up to the date of deposit within six months from the date of the service of notice upon him, disregarding altogether the deposit made by the tenant and that if in that suit it be proved that the tenant had, without reasonable or probable cause, neglected or refused to pay the amount of rent due to the Zemindar, the Court might award to him damages and costs in addition to the rent. It appears to us that the law never contemplated that any tenant could make a deposit into Court simply by making a false affidavit that he had made a tender of the rent which had been refused. If the tenant does deposit his rent without having first made a tender or without any of the other conditions existing which make Section 61 applicable, the landlord s only remedy is to sue for rent ignoring the deposit and this, we hold, he is entitled to do. It is contended that, at any rate, the deposit should be taken as a tender to the landlord and should at least suspend the running of interest. We cannot accept the contention that the Court is made by the provisions of this section a statutory agent of the landlords or that the payment into Court can be treated as a tender to the landlords themselves. We, therefore, hold that the appeal fails and must be dismissed with costs.