Tofa Lal Das vs T.N. Partridge

Dawson-Miller, C.J.—In this appeal the only question is whether a sum of Rs. 2,889-15-0 said to have been deposited by the Defendant u/s 61 of the Bengal Tenancy Act should be taken into account and credited to the Defendant.

The suit was instituted by the Plaintiffs to recover from the Defendant, their tenant a sum of Rs. 20,253-7-3 arrears of rent and cess together with interest for the years 1326 to 1328 M.S. and for the Baisakh kist of 1329. The suit was instituted on the 31st May 1921 in the Court of the Subordinate Judge of Purnea. On the 10th December 1920 the Defendant through his Vakil had deposited in the same Court to the credit of the Plaintiffs for rent and cess a sum of Rs. 2,889-15-0 under a challan of that date. The money appears to have been accepted by the Subordinate Judge by directing the officer in charge of the Purnea treasury to receive the sum if tendered in the treasury by 3 P.M., the same day. The money was deposited and the Treasurer''s receipt was given on the face of the challan. No mention is made of this matter in the judgment and no credit is given for it in arriving at the amount due from the Defendant. The Defendant has accordingly appealed and contends that the sum deposited should be deducted from the sum found payable by the decree which amounted to Rs. 18,380-8-7.

The challan appears to have been tendered in evidence and accepted without objection. Apart from what appears on the face of the document itself there is no evidence to shew under which of the clauses of Section 61 the money was paid into Court. The Defendant''s witnesses are silent about it. From the document itself it appears that the sum was deposited by the Defendant through his Vakil Babu Shushil Chandra Neyogi to the credit of the present Plaintiffs for rent and cess with interest up to the Kartick kist 1328 M.S. and that it was received in the Purnea treasury on the 10th December 1920 upon the instructions of the Subordinate Judge.

It was argued on behalf of the Respondents that there was nothing to shew under which of the provisions of Section 61 the money had been paid into Court or whether the facts were such as to entitle the Defendant to pay the money into Court under that section. Section 62, however, provides in effect that the money shall only be received by the Court if it appears to the Court that the applicant was entitled u/s 61 to make the deposit and if the Court is so satisfied it shall receive the rent and give a receipt for it under the seal of the Court. Once the receipt is given under this section it is provided that it shall operate as an acquittance for the amount of the rent paid by the tenant and deposited, in the same manner and to the same extent as if the amount of rent had been received by the person entitled thereto. It follows therefore that if the challan produced is a valid receipt given u/s 62 it must be presumed that the Court was satisfied at the time the receipt was given that the applicant was entitled u/s 61 to deposit the rent and we cannot now at this stage consider that matter afresh.

It was contended, however, that the challan does not bear the seal of the Court and cannot be regarded as a receipt within meaning Section 62. Apart from the fact that the challan does not bear the seal of the Court it would appear to be a valid receipt for the money deposited. It bears the signature of the Subordinate Judge and of the Treasury Officer who acknowledges receipt of the money. No special form of receipt is prescribed by the Bengal Tenancy Act and it was the duty of the Court to affix its seal thereto. If this was not done it was the fault of the Subordinate Judge and I do not consider that this defect should be held to deprive the Defendant of his just rights. Once the money was received it was also the duty of the Court u/s 63 to notify the receipt by notice in the Court house and to serve notice upon the persons specified in the application free of charge as provided in that section. If within 15 days the money was not paid to the person appearing to be entitled to it u/s 64, the Court may either pay the amount of the deposit to any person appearing to it to be entitled to the same or may, if it thinks fit, retain the amount pending the decision of a Civil Court as to the person so entitled and if the money is not paid under this section within three years of the deposit the Court may, in the absence of any order of a Civil Court to the contrary, refund the money to the depositor on return of the receipt.

In my opinion the Defendant was entitled in the circumstances to have the deposit taken into account in determining his liability in the suit and it follows that the amount of the decree should be reduced by the sum of Rs. 2,889-15-0 and the interest and costs payable under the decree will be reckoned upon the reduced amount and the decree will be varied accordingly.

It is further ordered that the amount in deposit be directed to be paid to the Plaintiffs upon their application to the proper officer.

With regard to the costs of this appeal it appears to me that the Appellant''s grievance has arisen solely owing to his neglect to draw this matter to the notice of the Subordinate Judge at the trial. Had he done so the matter would undoubtedly have been dealt with in the judgment and credit for the amount deposited would have been given to the Appellant. In the circumstances it is ordered that each party bears his own costs of this appeal.

Foster, J.

I agree.