Subrata Mukherjee vs Bisakha Das

The Judgment of the Court was as follows:

These two matters, by the administrative order dated 12th September, 2011, have been referred to this Court by the Hon''ble Chief Justice for decision on the question as follows:

Whether provisions of section 5 of the Limitation Act, 1963 would be applicable for condoning the delay in presentation of a time barred petition u/s 7(2) of the Bengal Premises Tenancy Act, 1997.

In CO. 3443 of 2011 (Subrata Mukherjee v. Bisakha Das)., learned single Judge of this Court (hereinafter referred to as the Referring Court), while entertaining a revisional application faced with a legal issue as to whether the time-barred deposit as mentioned in section7 of the West Bengal Premises Tenancy Act, 1997, can be accepted on an application being made by the tenant, beyond the period stipulated therein or not.

Another learned single Judge, in the case of C.O. 4216 of 2006 (Md. Safique v. Chowdhury Abdul Kader @ Abdul Kader Chowdhury and Ors.) held that the provisions of section 5 of the Limitation Act could not be made applicable, by necessary implication that the time limit prescribed in section 7(2) of the said Act of 1997 is rigid and Court has no power to condone the delay.

The learned referring Court could not accept the aforesaid decision and was of the view that there is scope for applicability of section 5 of the Limitation Act, 1963. This view is also reiterated by the same Court subsequently in C.O. 3054 of 2011 (Pratap Singh Bengani and Ors. v. M/s. Calcutta Tent Industries).

Hence, both the cases have fallen for decision, as stated above.

Mr. Ashok Chakraborty, learned Senior Advocate submits, drawing our attention to the provisions of section 29(2) of the Limitation Act, 1963 that in view of this provision, sections 4 to 24 of the Limitation Act will be applicable in the proceedings of all description in 1997 Act, which is a special and local Act.

He has also drawn our attention to the language of section 40 of the 1997 Act to contend that by virtue of the provisions of this section, all the provisions of Limitation Act, 1963, Including section 5, has been made applicable to the 1997 Act. According to him, when the provisions of Limitation Act. 1963 has been adopted by this Act, the learned Referring Court is absolutely right in holding that section 5 of the Limitation Act has full application,

He contends further, drawing our attention to the entire section 7 of the Act of 1997 that there is no express provision excluding applicability of sections 4 to 24 of Limitation Act, particularly, section 5of the Limitation Act of 1963. Under those circumstances, section 5 of the Limitation Act will have automatic application. He submits that it will appear from the language of section 7 of the 1997 Act that it is not mandatory, rather directory in nature, it cannot be said to be running counter to the provision of section 40 of 1997 Act.

Mr. Chakraborty urges that the provisions of section 7 of the 1997 Act, so far it relates to fixation of time limit, should be read liberally as this section is beneficial part of legislation and for the benefit of the tenant. If this provision is read otherwise, it would have serious consequence and the tenant would be totally remediless in appropriate cases and there would be situation beyond control of tenant and. therefore, very object and purpose of the Act will be frustrated.

His further contention is that while interpreting provision of law, the court must take special care to see that the same is not applied in such a manner which may lead to absurdity. In support of his contention, he relies on a decision rendered in the case of Gaya Prasad Kar v. Subrata Kumar Banerjee, reported in (2006)1 WBLR (SC) 1, wherein it has been held that section 5 of the Limitation Act is applicable in a case of this nature under the 1956 Act (previous legislature on the same subject).

He has drawn our attention to paragraph 18 of the said judgment which has discussed applicability of the Limitation Act by virtue of section 39 of the 1956 Act which is pari materia of section 40 of the present Act of 1997.

That apart, he has also drawn our attention to another Supreme Court decision rendered in the case of Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker, , wherein taking note of Kerala Rent Act, Supreme Court held that section 5 of the Limitation Act is applicable while reading the language of section 18 of the Kerala Rent Act vis-a-vis section 29(2) of the Limitation Act.

He has summarised his argument contending that in view of the aforesaid position of law, section 5 of the Limitation Act will have full application while entertaining a time-barred application for deposit u/s 7 of the 1997 Act.

He further contends that the view taken by the learned First Court in the case of Md. Safique v. Chowdhury Abdul Kader (C.O. 4216 of 2006) is not a good law in view of authoritative pronouncements, as mentioned above. Moreover the learned Single Judge had no occasion to consider the implication of section 40 of the 1997 Act vis-a-vis section 29 of the 1963 Act. as the same were not drawn to attention of His Lordship.

Mr. A. B. Routh, learned counsel appearing for the landlord/opposite party fairly contends that provisions of section 40 of the 1997 Act was not brought to attention of the learned Single Judge when Md. Safique''s case was dealt with. However, he submits that the language of section 40 of the 1997 Act is very clear and this has to be applied subject to the provisions of this Act relating to limitation.

According to him, the provision made in section 7 of the 1997 Act relating to time frame for making application, is mandatory in nature and this time limit cannot be extended by the Court, either under inherent power of the Court or applying section 5 of the Limitation Act. In other words, his argument is that by necessary implication of the word "shall" employed in the said section 7 of the 1997 Act makes it clear that there is no scope for applying the provisions of section 5 of the Limitation Act and the mandatory character of this section can be said to have excluded expressly application of section 5of Limitation Act, 1963 as mentioned in section 29(2) of the Act of 1963.

According to him, law is well settled that if the legislature wishes to do a certain thing in a manner, then it has to be done in that manner or not at all. Besides, he has drawn our attention to a Division Bench judgment of this Court rendered in the case of Akshat Commercial Pvt. Ltd. and Anr. v. Kalpana Chakraborty and Ors., reported in (2010) 2 Cal LT 582 (HC) to contend that the provisions of section 19 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in the similar situation, as the case here, has been held to be mandatory, so far time limit is concerned. In that case, it was held that provisions of section 5 of the Limitation Act will not be applicable although there is no express exclusion as regards application of the provisions of section 5 of the Limitation Act.

We have heard the learned Counsel for the parties. In order to answer the aforesaid reference, the first question is as to whether there has been any general application of Limitation Act in the proceedings or appeals under the 1997 Act or not.

We agree with the learned Counsels'' submission that section 40 of the 1997 Act was not brought to attention of the learned single Judge while the Md. Safique''s case was dealt with and this provision was drawn attention to the learned Referring Court.

Now, we shall at present examine the extent of applicability of the provisions of section 5 of the Limitation Act to all the actions that can be brought u/s 7 of the 1997 Act. For the sake of convenience, we reproduce the provisions of section 40 of the 1997 Act hereunder:

Section 40: Application of the Limitation Act, 1963 to proceedings and appeals. Subject to the provisions of this Act relating to limitation, the provisions of the Limitation Act, 1963 (36 of 1963) shall apply to proceedings and appeals under this Act

On plain reading of the said section, it appears to us that provisions of Limitation Act shall apply mandatorily to all the proceedings and appeals, under the said 1997 Act, wherever it is possible, unless of course by specific provision of this Act. the legislature intended otherwise, as the aforesaid section starts with a rider phraseology "Subject to the provisions of this Act relating to limitation......"

It is now incumbent upon this Court to read closely the provisions of section 7 of the 1997 Act to find whether by itself, application of section 5 is rendered inapplicable, which is set out hereunder:

Section7-When a tenant can get the benefit of protection against eviction.-

(1)(a) On a proceeding 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 sub-section (2) of this section, pay to the landlord or deposit with the Controller (or the Civil Judge) all arrears of rent, calculated at the rate at which it was last paid and upto 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 proceeding without the summons being served upon him, within one month of his appearance.

(c) The tenant shall thereafter continue to pay to the landlord or deposit with the Controller (or 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 proceeding referred to in sub-section (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 sub-section, deposit with the Controller (or 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 Controller (or the Civil Judge) shall, having regard to the ate 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;

Provided that having regard to the circumstances of the case, an extension of time may be granted by the Controller (or 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 sub-section (1) or sub-section (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 proceeding.

(4) If the tenant makes deposit or payment as required by sub-section (1) or sub-section (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."

While reading sub-sections (1) and (2) of section 7of the 1997 Act, it is noticed that there are two limbs - one limb is time limit of one month to deposit admitted amount of arrears of rent in full, as mentioned in sub-section (1) and in case of disputed amount, as mentioned in sub-section (2) and another limb is time limit for payment of adjudged disputed amount, as mentioned in sub-section (2) and then the extended time limit as mentioned in the proviso thereof.

Mr. Routh submits that the language of the said section shall be read as being mandatory and if it is read as mandatory, the provisions of the Limitation Act will have no application by virtue of section 40 of the 1997 Act, meaning thereby, there will be no applicability of section 5 of the Limitation Act, at all, so far this section is concerned.

We are unable to accept the contention that the time limit for payment or deposit of admitted amount of rent, as mentioned in the said section 7 sub-sections (1) and (2), is mandatory. It is well settled by the law of interpretation that legislature sometimes uses the word "shall" not to make it mandatory but sometimes it means directory and this rule of interpretation will be dwelt upon later in the context of the argument advanced by Mr. Chakraborty that the aforesaid provision is a beneficial portion of the said legislation and while accepting his argument, we hold that if the said provisions of law is really interpreted and further applied to the detriment of the tenant litigant, treating the language being mandatory, then the very object and purpose of the aforesaid portion of the said section is frustrated.

The scheme and purport of the aforesaid portion of section 7 is to give a protective umbrella to the defaulting tenant when an action is brought, amongst others, on the ground of default of a tenant. When opportunity is offered to the tenant to deposit admitted amount of arrears of rent, as mentioned in the aforesaid sub-sections (1) and (2), this time limit is adhered to mandatorily, object of this provision will be frustrated in certain unavoidable circumstances. The opportunity given to the tenant to deposit admitted amount of arrears of rent for varieties of reasons may be, in our considered view, due to unjustified refusal to accept the rent by the landlord despite lawful tender or the land-lord being non-available and so on.

Our aforesaid observation finds support of an old decision of the Supreme Court, reported in The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, . Justice Subba Rao, speaking for the Bench in that case observed as follows:

When a statute uses the word ''shall'', prima facie it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court, may consider inter alia, the nature and design of the statute, and the consequence which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely that the statutes provides for contingency of the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and above all, whether object of the legislation will be defeated or furthered."

Shortly thereafter, in another case of Sainik Motors, Jodhpur and Others Vs. The State of Rajasthan, Justice Hidayatullah observed at page 1485 of the report The word ''shall'' is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands."

In view of the above discussion, we hold that time limit of deposit of the admitted amount of arrears of rent, as mentioned in sub-sections (1) and (2) of section 7 of the 1997 Act is not mandatory but directory. Hence, there is a scope for extension and the Court must have power to grant such extension; obviously then, the provisions of Limitation Act, viz. section 5, by virtue of section 40 of the 1997 Act, will be applicable.

That apart, irrespective of the language mentioned therein, applicability of section 5 of the Limitation Act cannot be ruled out by virtue of section 29 sub-section (2) of the Limitation Act, 1963. Accordingly, we set out the provisions of said section 29 sub-section (2) of the Limitation Act, 1963.

Section 29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."

From a plain reading of the said provision, it will appear that the same has not expressly excluded the applicability of provisions contained in sections 4 to 24. Language of the said section 29 sub-section (2) itself clearly shows that exclusion of applicability of the provisions of sections 4to 24 cannot be read and understood impliedly when the statute does not say express exclusion.

Accordingly, for this reason, we hold that section 5 of the Limitation Act will be applicable for the purpose of making deposit of admitted amount of arrears of rent, as mentioned in sub-sections (1) and (2) of section 7 of the 1997 Act.

However, we think that the time limit fixed for payment of adjudged amount of rent, mentioned in sub-section (2) of section 7 of the 1997 Act is of mandatory character. In the proviso, it has been made clear that having regard to the circumstances of the case, extension of time may be granted by the Civil Judge only once and period of such extension shall not exceed two months. The aforesaid language with negative import of the legislature is very clear to make it mandatory, more so when sub-section (3) provides for consequence. It is well settled principle of interpretation of statute that with the use of the word ''shall'' coupled with negative import followed by consequence, the same is always mandatory.

Section 40 of the Act of 1997 in this context cannot be of any help as the provisions of said section 40 has to be read, subject to any other provisions of the said Act. Therefore, the time limit mentioned in the said proviso overrides the provision of section 40. Consequently section 5 of the Limitation Act of 1963, by virtue of section 40, will not be applicable at all.

Even, section 29(2) of the Limitation Act, as quoted above, will not be applicable because of the language used therein. Provision of other statute with almost identical language viz. section 34 of Arbitration and Conciliation Act, 1996, came for consideration on identical issue before Supreme Court in the case of State of Goa Vs. Western Builders, . The Supreme Court in paragraph 25 held that the prohibitory provision of the statute has to be construed strictly.

It was also observed in the said report, "..........In the present case u/s 34 by virtue of sub-section (3) only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of section 5 of the Limitation Act will stand excluded...........".

The decision cited by Mr. Chakraborty of Supreme Court in the case of Gaya Prasad Kar v. Subrata Kumar Banerjee, reported in (2006) 1 WBLR (SC) 1 is not applicable in this case, as the corresponding provision u/s 17 of the West Bengal Premises Tenancy Act, 1956 is not an identical provision, as mentioned in section 7 sub-sections (1) and (2) of the 1997 Act, On comparative study of both the provisions, we find that there has been a considerable difference of contents of both the said sections. Hence, this decision will not be of any assistance.

The decision cited by Mr. Routh, of this Court in the case of Akshat Commercial Pvt. Ltd. and Anr. v. Kalpana Chakraborty and Ors. reported in (2010)2 Cal LT 582 (HC) is also not appropriate to this case as Their Lordships in that case were examining the nature of the proceedings u/s 19 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It was held that it was an original proceeding like a suit where section 5of the Limitation Act is not applicable. Even the provisions of section 5 of the Limitation Act makes it clear that it does" not apply in case of a suit. Accordingly, applying that principle, Their Lordships held that proceedings u/s 19 of the said Act is of nature of original proceedings which is akin to suit.

On the other hand, inspiration may be drawn from the ratio laid down by the Supreme Court in the case of Nasiruddin and Others Vs. Sita Ram Agarwal, . In the said decision the Apex Court was called upon to decide the applicability of section 5 of the Limitation Act to section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The said provision is very similar to the proviso to section 7(2) of the West Bengal Premises Tenancy Act, 1997. u/s 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, a tenant is required to deposit the amount of rent determined by the Court under sub-section (3) within 15 days of the date of determination or within such further time not exceeding three months, as may be extended by the Court. The Apex Court while interpreting the said section held that not only such time frame was mandatory but there was no scope of applicability of section 5 of the Limitation Act with regard thereto. In coming to such conclusion, the Apex Court held as follows:

On perusal of the said section it Is evident that the question of application of Section 5 would arise where any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not making the appeal or application with such period. Section 13(4) provides that in a suit for eviction on the ground set forth in clause (a) of sub-section (1), the tenant shall on the first date of hearing or on or before such date, the court may on the application fixed in this behalf or within such time the tenant shall deposit in court or pay to the landlord in court as determined under sub-section (3) from the date of such determination or within such further time not exceeding three months as may be extended by the court. Thus, sub-section (4) itself provides for limitation of a specific period within which the deposit has to be made, which cannot be exceeding three months as extended by the Court.

The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of section 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of section 5 cannot be extended where the default takes place in complying with an order under sub-section (4) of section 13 of the Act.

The provisions of section 5 of the Limitation Act must be construed having regard to section 3 thereof. For filling an application after the expiry of the period prescribed under the Limitation Act or any other special statute, a cause of action must arise. Compliance with an order passed by a Court of law in terms of a statutory provision does not give rise to a cause of action. On failure to comply with an order passed by a Court of law, instant consequences are provided for under the statute. The Court can condone the default only when the statute confers such a power on the Court and not otherwise. In that view of the matter we have no other option but to hold that section 5 of the Limitation Act, 1963 has no application in the instant case."

In view of the aforesaid discussion, we, therefore, conclude as follows:

The time limit fixed, as mentioned in sub-sections (1) and (2) of section 7 of the 1997 Act to pay or to deposit with the Controller or the Civil Judge all admitted arrears of rent together with interest, as mentioned in clause (b) thereof and consequently, the time limit mentioned for this purpose, as mentioned in sub-section (2) is not inflexible and it can be extended by the Court by virtue of section 5 of the Limitation Act, 1963.

However, the time limit fixed for payment to the land-lord, after adjudication of the dispute with regard to the rate of rent with the extended time limit, as mentioned in the proviso of sub-section (2), is inflexible and this cannot be extended by the Court under any circumstances, naturally, provisions of section 5 of the Limitation Act will not be applicable. Urgent Xerox certified copy of this order, if applied for, be supplied to the applicants.