Anannya Chowdhury And Another vs Ranjit Kumar Basu And Another \

1.Sabyasachi Bhattacharyya, J.

The defendants, being tenants in an eviction suit filed under the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as “the 1997

Actâ€), have filed the instant revisional application challenging an order dated May 18, 2018 whereby the petitioners’ application under Section 5

of the Limitation Act, for condonation of delay in filing an application under Section 7(1) of the 1997 Act, was dismissed on contest.

Learned Senior Advocate appearing for the petitioners submits that, prior to filing of the eviction suit, the defendants/petitioners had applied on

February 26, 2007 before the Rent Controller under Section 21 of the 1997 Act for deposit of rents. However, on the basis of the objection taken out

by the plaintiffs/opposite parties, the said application was not entertained on the ground that the disputes were covered by an arbitration clause in the

tenancy agreement.

Accordingly, the petitioners referred the disputes to arbitration and filed an application under Section 9 of the Arbitration and Conciliation Act, 1996

before the District Judge at B-ara-sat for supply of water and access to electric meter. In the meantime the arbitration proceeded, but, in view of the

plaintiffs/opposite parties having withdrawn their nomination, the appointed arbitrator withdrew from the proceeding.

Subsequently, on February 26, 2008 this Court directed the plaintiffs to accept arrear rents from the defendants, which was duly paid by cheque

through the learned Advocate onrecord of the plaintiffs, as directed by this Court.

The opposite parties thereafter filed the present eviction suit on May 6, 2008 and the defendants/petitioners entered appearance therein on January

5, 2009. -

Meanwhile, on February 19, 2009, this Court appointed an arbitrator under Section 11 of the said Act of 1996, when the plaintiffs disclosed about

filing the suit. The petitioners moved an application under Section 8 of the said Act of 1996 in the eviction suit, which was disallowed by the Trial

Court. Thereafter, the petitioners c-hallenged such order in revision, which was disposed of by a coordinate Bench of this Court referring the dispute

to arbitration and permanently staying the eviction suit, being Title Suit No. 89 of 2008.

Ultimately, on March 7, 2014, the Hon’ble Supreme Court decided an appeal preferred by the present opposite parties, holding that only the

Civil Courts mentioned in ScheduleIV of the 1997 Act had jurisdiction to take up such eviction suits, and not the arbitrator. By the same order, the

Hon’ble Supreme Court granted leave to the petitioners to file their written statement in the eviction suit. Accordingly, the petitioners filed their

written statement on August 26, 2014.

It is submitted that the petitioners have been tendering monthly rent to the landlords/opposite parties all along, without a single default, and the latter

have been refusing the same. Photocopies of documents in support of such contention were also produced in this Court.

Ultimately on September 23, 2015, the petitioners filed an application under Section 7(1) of the 1997 Act, along with an application under Section 5

of the Limitation Act, for condonation of delay in filing the application under Section 7(1).

It is argued, on the basis of a Division Bench judgment of this Court reported at 2012 (3) CHN (Cal) 423 [Subrata Mukharjee vs. Bishakha Das],

that despite the stipulation as to time limit in Section 7(1)(b) of the 1997 Act, the Court is empowered under Section 5 of the Limitation Act to extend

such time and that the time limit of one month from the service of summons or appearance in the suit, as stipulated in the said provision, was not

inflexible.

In the circumstances, it was argued, there was no fault on the part of the petitioners for the delay occasioned in filing the application under Section

7(1) of the 1997 Act, since such delay occurred due to erroneous legal advice, and since the petitioners had, in any event, been tendering rent to the

landlords, as contemplated in Section 7 (1) of the 1997 Act, by money order. As to the filing of the written statement prior to the said application, it

was submitted that wrong legal advice was evident from the said fact itself. It is further submitted that the written statement was filed not to comply

any mandatory stipulation in the statute but in terms of the leave granted by the Hon’ble Supreme Court. As such, the filing of written statement

did not, by itself, indicate proper legal advice having been received by the petitioners. Since the petitioners have all along been paying rent by money

order to the landlord and had filed their written statement immediately after leave being granted by the Supreme Court, there could not be any reason

for the petitioners to have abstained from depositing the money contemplated under Section 7(1) of the 1997 Act afte-r the statutory period. As such, it

is argued, no mala fides could be attributed to the petitioners for such inadvertent delay. -

In controverting such arguments, learned Senior Advocate appearing for the plaintiffs/opposite parties argues that the Trial Court was elaborate in

its reasoning for refusal of the application filed by the defendants/petitioners for condonation of delay. Such wellreasoned order ought not to be

interfered with. It was further contended that since the statute stipulates a mandatory timeperiod for depositing the amounts contemplated under

Section 7(1) of the 1997 Act, it was for the tenants to comply with t-he same within such time. Since the petitioners failed to so comply, the Court

below was within its jurisdiction to reject the application for condonation of delay. In this context, apart from Section 7(1)(b) and Section 7(1)(c) of the

1997 Act, learned Senior Adv-ocate appearing for the opposite parties places reliance upon the following judgments:

i) (2016) 1 Cal LJ 202 [Loknath Dhal vs. Gita Rani Roy], where a coordinate Bench of this Court held, placing reliance inter alia on Nasiruddin vs.

Sita Ram Agarwal reported at (2003) 2 SCC 577, held that there was no scope for the Court to extend the time or condone the delay in making the

deposits under Section 7, SubSections (1) as well as (2) of the 1997 Act.

ii) (2015) 8 SCC 640 [Monoj Lal Seal and others vs. Octavious Tea and Industries Limited], in which case the Hon’ble Supreme Court held that

the benefit conferred on tenants under Sections 6 and 7 of the 1997 Act could be enjoyed by the tenants only after strict compliance with the statutory

provisions. In the said case, however, the Supreme Court affirmed the order of the High Court, whereby deposits made by the tenant with the Rent

Controller instead of Civil Judge, as per the amendments to the 1997 Act, were accepted.

It is submitted by learned Senior Advocate for the opposite parties that, in view of such decisions, the Court below was justified in refusing to

condone the delay in making deposits under Section 7(1) of the 1997 Act.

It was further argued that the petitioners had not properly explained the delay for the period between the filing of their written statement and the

filing of the application under Section 7(1) of the 1997 Act. As such, the impugned order ought to be sustained.

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Upon hearing both sides, it appears that the petitionerstenants have produced sufficient documents to show that they have been tendering rent all

along, by money order, to the landlords during pendency of the suit. The provisio-ns of Section 7 of the 1997 Act are required to be looked into in such

context. The said provisions are as follows:

“7. When a tenant can get the benefit of protection against eviction.â€"(1) (a) On a suit being instituted by the landlord for eviction on any of the

grounds referred to in section 6, the tenant shall, subject to the provisions of subsection (2) of this section, pay to the landlord or deposit with the Civil

Judge all arrears of rent, calculated at the rate at which it was last paid and up to the end of the month previous to that in which the payment is made

together with interest at the rate of ten per cent per annum.

(b) Such payment or deposit shall be made within one month of the service of summons on the tenant or, where he appears in the suit without the

summons being served upon him, within one month of his appearance.

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(c) The tenant shall -thereafter continue to pay to the landlord or deposit with the Civil Judge month by month by the 15th of each succeeding month, a

sum equivalent to the rent at that rate.

(2) If in any suit referred to in subsection (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time

specified in that subsection, deposit with the Civil Judge the amount admitted by him to be due from him together with an application for determination

of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of

the application, the Civil Judge shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the

tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, thereupon,

the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the order:

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Provided that having regard to the circumstances of the case an extension of time may be granted by the Civil Judge only once and the period of such

extension shall not exceed two months.

(3) If the tenant fails to deposit or pay any amount referred -to In subsection -(1) or subsection (2) within the time specified therein or within such

extended time as may be granted, the Civil Judge shall order the defence against delivery of possession to be struck out and shall proceed with the

hearing of the suit.

(4) If the tenant makes deposit or payment as required by subsection (-1) or subsection (2), no order for delivery of possession of the premises to the

landlord on the ground of default in payment of rent by the tenant, shall be made by the Civil Judge, but he may allow such cost as he may deem fit to

the landlord:

Provided that the tenant shall not be entitled to any relief under this subsection if, having obtained such relief once in respect of the premises, he again

makes default in payment of rent for four months within a period of twelve months or for three successive rental periods where rent is not payable

monthly.â€​

It is amply clear that Section 7(1)(a) of the 1997 Act permits the tenant to pay to the landlord or deposit with the Civil Judge all arrears of rents

with interest. In the present case, the tenants invoked the first mode of payment as stipulated in the said provision by tendering rent to the landlord.

Although it was argued on behalf of the opposite parties that, on refusal by the landlords, the tenants should have deposited the amounts with the Civil

Judge, as stipulated in the statute, such arguments do not lie in the mouth of the landlords in view of their own refusal to accept the amounts. The

principle of Estoppel debars the opposite parties from taking such point. This is not a case of Estoppel against the law, since the factum of tendering of

rents was a factual aspect, having legal consequences but not being a pure legal question itself.

Moreover, unlike Section 21 of the 1997 Act, which envisages prior tender of rent by money order and, upon refusal to accept by the landlord,

payments with the Rent Controller, Section 7(1)(a) of the 1997 Act contemplates dual modes of payment, which are independent of, and distinct from,

each other. A comparison of the two sections would show that the alternative mode, as provided in Section 21, is absent in Section 7(1)(a) and as

such, the tender of rent to the land-lord would be sufficient to be deemed as payment as contemplated in the latter provision. At least for the purpose of

ascertaining bona fides, the tender of rent by money order ought to suffice to relieve the tenant of the rigours of clause (b) of Section 7(1) of the 1997

Act. -

As to the judgment of the coordinate Bench, cited by the opposite parties, being reported at (2016) 1 Cal LJ 202 [Loknath Dhal vs. Gita Rani

Roy], the same did not take into consideration the Division Bench judgment of this Court, Subrata Mukharjee vs. Bishakha Das (supra). It was held by

the Division Bench categorically that the provisions of Section 5 of the Limitation Act was applicable to SubSections (1) as well as (2) of Section 7 of

the 1997 Act and the mandates of such sections were not inflexible but time could be extended by the Court by virtue of Section 5 of the Limitation

Act.

As such, with utmost respect, the judgment reported at (2016) 1 Cal LJ 202 [Loknath Dhal vs. Gita Rani Roy], has to be held to be par incuriam, at

least as far as the application of Section 5 of the Limitation Act to Section 7 (1) of the 1997 Act is concerned.

The other judgment of the Supreme Court, cited by the opposite parties, reported at (2015) 8 SCC 640 [Monoj Lal Seal and others vs. Octavious

Tea and Industries Limited], although generally lays down that there has to be strict compliance with statutory provisions; in the said case itself,

deposit before a wrong forum, not even contemplated by the statute, was condoned.

In the case at hand, the tenants/petitioners are on a better footing inasmuch as the petitioners complied with Section 7(1)(a) substantially by

resorting to one of the modes of payment contemplated therein, that is, payment to the landlord. Hence, the petitioners could not be faulted for any

default, let alon-e mala fide.

As to the applicability of Section 5 of the Limitation Act, Subrata Mukharjee’s case (supra) is an unshaken authority till date, as far as deposits

under Section 7(1) of the 1997 Act are concerned. A consideration of Nasiruddin’s case and other case law on the subject reveals that the

proviso to SubSection (2) of Section 7 has been interpreted in several judgments to be of mandatory nature in a sense. Since the language of the said

proviso is couched in negative language as far as the period and number of extensions are concerned, the Courts have, in recent times, consistently

held, in line with Nasiruddin’s case (supra), that if the tenants failed to avail of the benefit of the proviso within two further months after the expiry

of the first month subsequent to an order being passed under Section 7(2), by depositing the arrears as directed, the Court does not have further power

to extend the time to deposit.

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However, the ratio laid down in Subrata Mukharjee’s case (supra) remains unadulterated by subsequent judgment of any Bench of same

strength, insofar as its applicability to SubSection (1) of Section 7 is concerned. Since there is no proviso containing a negative language in the said

provision, the only fetter to the scope of applicability of Section 7 of the Limitation Act exists in the form of clause (b) to SubSection (1) of Section 7.

Clause (b) is couched in a positive language, although the term

“shall†has been used therein. However, although both clauses (b) and (c) of SubSection (1) use the expression “shallâ€, such shall has to be

read as directory having the import of “mayâ€​, in view of Subrata Mukharjee (supra).

In the present case, as such, the Court had ample power as to condonation of delay occasioned in making the deposits.

As to the time gap between the filing of the written statement and the application under Section 7(1) of the 1997 Act, the same is amply explained

by the plausible explanation that the written statement might have been filed pursuant to the leave granted by the Supreme Court, without having

knowledge of the statutory limitation to file written statement. Hence, such filing of written statement ipso facto does not mean that the petitioners

were aware of the provisions of Section 7 (1) (b) of the 1997 Act too.

As to the delay prior to that, since various fora entertained the plea of the opposite parties as to arbitrability of the matter, and the opposite parties

took a stand before the Rent Controller that the dispute was arbitrable, the petitioners could not be faulted for the delay occasioned during that period

in pursuing matters under the Arbitration and Conciliation Act, 1996.

The bona fides of the petitioners was ample clear from their conduct in tendering rent all along to the landlords.

Hence, the Trial Court acted in the exercise of its jurisdiction illegally and with material irregularity in refusing to condone the delay in depositing

the amounts contemplated under Section 7(1) of the 1997 Act.

It also has to be noted that, contrary to the presumption taken by the Trial Court due to the jewellery business and conceived wealth of the

petitioners, such business or wealth could not by themselves be indicators of proper legal advice or absence of bona fides. Since the best of the Bar

and the cream of the Bench are also prone to errors, wealth itself might not always indicate mala fides or purchase correct legal advice. The said

yardstick was irrelevant for the purpose of deciding the application for condonation filed by the petitioners.

In the aforesaid circumstances, the impugned order suffers from patent illegality and jurisdictional error.

Accordingly, C.O. No. 1709 of 2018 is allowed on contest, thereby setting aside the impugned order dated May 18, 2018 passed by the Civil Judge

(Senior Division), Second Court at Barasat, District: North 24 Paraganas in Title Suit No. 89 of 2008 and allowing the application under Section 5 of

the Limitation Act, filed by the defendants/petitioners for condonation of delay in depositing the amounts contemplated in Section 7(1) of the 1997 Act.

The petitioners will make such deposits within a fortnight from date in the Court below, if not already deposited. In the event such amounts have been

deposited, the Trial Court will accept the same. In either case, the Trial Court will dispose of the application under Section 7(1) of the 1997 Act in

terms of the observations made herein. However, in default of payment of such amounts as directed herein, the impugned order will automatically

revive and the application for condonation of delay filed by the petitioners will remain dismissed.

There will be no order as to costs.