GAYA PRASAD KARversusSUBRATA KUMAR BANERJEE

                           GAYA PRASAD KAR                                       A
                                      v.
                      SUBRATA KUMAR BANERJEE

                             OCTOBER 3, 2005

         [DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.]                            B

       Tenancy-West Bengal Premises Tenancy Act, 1956-Sections 17(2),
 17(2A), 4, 13 & 39-Default in payment of rent-Not made out injacts and
circumstances of the case-Default, if any, too technical-Only on account
of initial refusal of the landlord, the tenant was compelled to tender rent for C
the second time, which was according to the time prescribed under S.4 of the
Act-Since S. 17(2A) of the Act empowers the Court to extend time for deposit
of rent arrears, application filed by tenant under S.5 of the Limitation Act
for condonation of delay in initial tendering of rent was appropriate-
Limitation Act, 1963-Section 5.                                                 D
      The appellant-tenant allegedly failed to pay monthly rent for the suit
premises since the month of March, 1994. Since, the respondent-landlord also
purportedly required the suit premises for his own use and occupation, he
sent notice to the appellant-tenant under S.13(6) of the West Bengal Premises
Tenancy Act, 1956. However, the appellant-tenant failed to vacate the suit       E
premises, on which the respondent filed eviction suit. Appellant was served
with summons of the suit in May, 1995, whereafter with leave of the Court he
began depositing monthly rent in Court w.e.f July, 1995.

      The appellant-tenant had tendered rent for the month of March, 1994
on 2nd April, 1994 and again on 25th April, 1994, but on both the occasions      F
the money orders were refused by the respondent-landlord. The appellant-
tenant thereafter deposited the rents for the months of March, April and May,
1994 with the Rent Controller ar.d continued to deposit the rents regularly
with the said Rent Controller upto June, 1995.
                                                                                 G
      After receiving summons of the suit, the appellant-tenant filed an
application under Section 17(2) and (2A) of the Act invoking power of the
Court to extend time for deposit of rent arrears for the period in default
together with an application for condonation of delay in tendering rent under
Section 5 of the Limitation Act. Trial Court allowed the application under S.5
                                     ~I                                          H
    892                     SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A of the Limitation Act and disposed of the application under Section 17(2) and
    (2A) holding that the appellant-tenant was not a defaulter in payment of rent.
    But the High Court, in revision, held that as the rent for the month of March,
    1994 had been tendered by the Appellant in April, the initial tender was beyond
    the period prescribed under Section 4 of the Act and since the initial tender
    was invalid, all the other subsequent deposits could not be held to be valid.
B   Accordingly, it set aside the order of Trial Court and held that the appellant-
    tenant was a defaulter in payment of rent from the month of March, 1994.
    Hence the present appeal

          Allowing the appeal, the Court

c           HELD: I. The order passed by the High Court in the revision application
    is set aside and the order of the Trial Court holding that the appellant-tenant
    was not a defaulter in payment of rents is restored. [900-CI

           2.1. The West Bengal Premises Tenancy Act, 1956, is a benevolent piece
D   of legislation. While it is no doubt true that Section 4 of the Act provides that
    rents are to be paid within the time fixed by the contract, or, in the absence of
    a contract, by the 15th day of the month next following the month for which it
    is payable, once a suit is filed on any of the grounds referred to in Section
    13, the tenant would be entitled to the benefits of extension of time under Sub-
    section (l) and Sub-section (2) of Section 17 of the Act with reference to the
E   amounts to be deposited within sub-sections (l) and (2) thereof. [897-Fl

          2.2. From Section 17 of the Act it would be evident that, it was the
    intention of the Legislature that on a suit for eviction being filed under the
    provisions of this Act, the tenant was required to deposit rent either in Court
    or with the Rent Controller or pay to the landlord an amount equivalent to the
F   rate of rent at which it was last paid, for the period for which the tenant may
    have made default, including the period subsequent thereto up to the end of
    the month previous to that in whkh the deposit of rent is made together with
    interest at the rate indicated therein. In the instant case, there is no willful
    default in tendering of the rents by the tenant to the landlord and it was only
G   on account of the initial refusal of the landlord that the tenant was compelled
    to tender rents for the month of March 1994 for the second time which was
    according to the time prescribed under Section 4 of the Act. [899-D-E-Fl

          2.3. The provisions of the West Bengal Premises Tenancy Act vests the
    Court with ample authority to extend the time for making the deposit of rents
H   in case of default :1nd this is a fit case where the Trial Court has on a true
        GAYAPRASADKAR1'.SUBRATAKUMARBANERJEE[ALTAMASKABIR,J.]              893

interpretation of the provisions of the Act and the circumstances of the case     A
came to a finding that the appellant-tenant was not a defaulter. (899-G]

      2.4. The default, if any, was too technical to be taken note of so as to
arrive at a conclusion that the tenant had committed willful default in payment
of the monthly rents. [899-G]
                                                                                  B
       2.5. Section 39 of the Act provides that subject to the provisions in this
Act relating to limitation, all the provisions of the Indian Limitation Act, 1908
shall apply to suits, appeals and proceedings under this Act. Since Section
I 7(2A) confers power upon the Court to extend time for making deposits of
all arrears for the period in default, the application made by the appellant- C
tenant under Section 5 of the Limitation Act for condonation of delay in the
initial tendering of the rent becomes meaningful. (899-H; 900-A-BJ

      Mis B.P. Khemka Pvt. ltd v. Birendra Kumar Bhowmick and Anr., (1987]
2 sec 407' relied on.

      Gopa/ Chandra Ghosh v. Renu Bala Majumdar (Smt.) and Anr., (1994]           D
2 SCC 258 and Shibu Chandra Dhar v. Pasupati Nath Auddya, (2002] 3 SCC
617, referred to.

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3178 of2005.

     From the Judgment and Order dated 18.2.2003 of the Calcutta High             E
Court in C.O. No. 472 of2000.

      Pijush K. Roy and G. Ramakrishna Prasad for the Appellant.

      Bijan Kumar Ghosh for the Respondent.
                                                                                  F
     The Judgment of the Court was delivered by

      ALT AMAS KABIR, J. This appeal pursuant to leave granted is directed
against the judgment and order dated 18.2.2003 passed by a learned single
Judge of the Calcutta High Court in a Civil Revision Application being
C.0.No.472 of 2000 wherein the respondent before us, who was the landlord, G
had challenged the Order dated 24.1.2000 pas;~d by the learned Civil Judge
(Junior Division), 3rd Ccurt at Howrah in Title Suit No.181 of 1995. By the said
order the learned court disposed of the petition filed under Section 17 (2) and
(2A) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to
as 'the Act') by the appellant herein who was the tenant and declaring that H
    894                    SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A the appellant-tenant was not a defaulter in payment of rent.
         The respondent before us claims to be the absolute owner of the
  premises situated at Holding No. 25214, Panchanantala Road, Howrah- 711101,
  since his purchase of the property by a registered deed of conveyance dated
   16.3.1992. After attornment, the appellant became the tenant under the
B respondent in respect of the suit premises at a rental of Rs.40/- per month
  according to the English calendar. According to the respondent-landlord, the
  appellant-tenant was a statutory defaulter as he failed and neglected to pay
  the monthly rents since the month of March 1994. Since, according to the
  respondent-landlord, the suit premises was also reasonably required by him
C for his own use and occupation and for the benefit of his dependents and
  family members, the respondent-landlord sent a notice to the appellant-tenant
  under Section 13 (6) of the Act calling upon the appellant-tenant to quit and
  vacate the tenanted premises upon the expiry of the month of March 1995 or
  upon expiry of the month of tenancy which would expire after a month from
  the date of receipt of the notice. Inasmuch as, in-spite of having received the
D notice, the appellant-tenant failed to vacate the suit premises, the respondent-
  landlord was compelled to file a suit for eviction against the appellant-tenant,
  being Title Suit No 181 of 1995, in the Court of Third Munsifat Howrah, inter
  a/ia praying for a decree of eviction against the appellant-tenant and for
  delivery of possession of the suit premises in favour of the respondent-
E landlord.
          The appellant-tenant was served with summons of the suit on 27.5.1995
    and with the leave of the Court he began depositing the monthly rents for
    the suit premises in court with effect from the month of July 1995. Prior to
    the said period, as will appear from the materials on record, the rent for the
p   month of March 1994 was tendered by the appellant-tenant to the respondent-
    landlord on 2nd April 1994 and 25th April 1994 respectively, but the Money
    Orders were refused by the respondent-landlord on 9th April 1994 and 29th
    April 1994. The appellant-tenant thereafter deposited the rents for the months
    of March, April and May 1994 with the Rent Controller, Howrah, and continued
    to deposit the rents regularly with the said Rent Controller up to June 1995.
G
        However, by way of caution, after receiving summons of the suit, the
  appellant-tenant filed an application under Section 17 (2) and (2A) of the Act
  together with an application for condonation of delay under Section 5 of the
  Limitation Act. The respondent-landlord filed his objection to the said
H application under Section 17 (2) and (2A) denying all the statements made
        GA YA PRASAD KAR r. SUBRATAKUMARBANERJEE[ALTAMASKABIR,J.]          895

therein. The appellanHenant's application under Section 5 of the Limitation       A
Act was allowed by the learned Civil Judge (Junior Division) on 4.9.1998 and
thereafter the application filed by the appellant-tenant under Section 17 (2)
and (2A) of the Act was taken up for hearing and after a protracted hearing,
in which evidence was led by the parties, the learned Civil Judge (Junior
Division) came to the conclusion that the monthly rents had been tendered
by the appellant-tenant within the time limit prescribed under Section 4 of the   B
Act, which the respondent-landlord intentionally did not accept, as a result
whereof the appellant-tenant was compelled to deposit the same with the Rent
Controller, Howrah and subsequently with the Court from the month of July
1995.

       Aggrieved by the said decision of the learned Civil Judge (Junior
                                                                                  c
Division), Howrah, the respondent-landlord filed a revision petition before the
High Court at Calcutta under Section 115 of the Code of Civil Procedure and
the same was numbered as C.O.No.472 of2000. The learned single Judge came
to the finding that as the rent for the month of March 1994 had been tendered
by the appellant-tenant first on 2nd April 1994 and thereafter again on 25th      D
April 1994, the initial tender was beyond the period prescribed under Section
4 of the aforesaid Act and since the initial tender was invalid, all the other
subsequent deposits could not be held to be valid. On such reasoning, the
learned single Judge of the Calcutta High Court set aside the order passed
by the learned Civil Judge (Junior Division) and held that the appellant-tenant   E
was a defaulter in payment of rent from the month of March 1994. While
holding that the appellant-tenant was a defaulter, the learned single Judge
also observed that since the rents for the months of March 1994 to June 1995
had already been deposited with the Rent Controller and subsequently in the
trial court, the respondent-landlord would be at liberty to withdraw the same.
                                                                                  F
     It is the said decision of the learned single Judge of the Calcutta High
Court which is the subject matter of the civil appeal before us.

       Appearing in support of the appeal, Mr. Pijush K. Roy, learned advocate,
urged that by no stretch of imagination could the appellant-tenant be said to
be a defaulter in payment of rent, since admittedly the rents had regularly G
been deposited first with the Rent Controller, Howrah and thereafter with the
trial court with effect from March 1994. Mr. Roy submitted that the delay of
15 days in tendering the monthly rent for the month of March 1994 had been
occasioned by the fact that although initially the said amount had been
tendered within the time prescribed under Section 4 of the above Act, upon H
    896                    SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A the refusal by the respondent-landlord to accept the same, the same had to
    be tendered again but a few days beyond the period prescribed under Section
    4 of the above Act. Mr. Roy submitted that on account of the above, the
    appellant-tenant filed an application under Section 5 of the Limitation Act for
    condonation of delay in tendering the rent and such application had been
    duly allowed by the learned Civil Judge (Junior Division), Howrah, upon
B   payment of costs.

         Mr. Roy then urged that, in any event, the West Bengal Premises
  Tenancy Act, 1956, had been enacted as a benevolent piece of legislation and
  under Section 17 (2A) of the said Act the court had been vested with ample
C power to extend the time for making all deposits under Sub-sectio~ (I) and
  Sub-section (2) of Section 17 of the said Act. Mr.Roy submitted that such an
  application having been made, the same had been duly allowed by the learned
  Civil Judge (Junior Division) and it was not open to the respondent-landlord
  to claim that the appellant-tenant was, in fact, a defaulter in payment of
  monthly rents which under the aforesaid Act has very serious consequences.
D In support of his aforesaid submission, Mr. Roy firstly referred to a decision
  of this Court in the case of Mis. B.P. Khemka Pvt. Ltd v. Birendra Kumar
  Bhowmick And Anr., (1987) 2 SCC 407, which was a case dealing with delay
  of two months in payment of the rent. Considering the provisions of Section
   17 (2A) and Section 17 (2A) (b) of the Act, this Court held that the said
E default was a default in a technical sense and not in the real sense and was
  hence of an inconsequential nature. It was further observed that having
  regard to the intendment of the Act and the nature of the provisions, it can
  never be said that the defaults were of such a serious nature as to warrant
  the court refusing to exercise its discretion and to feel constrained to strike
  out the defence.
F
          Following the decision in B.P. Khemka 's case (supra), this Court in the
    case of Gopal Chandra Ghosh v. Renu Bala Majumdar (Smt.) And Anr.,
    (1994) 2 sec 258, took a similar view regarding the powers of the court to
    extend the time for making deposits of rents.

G        Mr. Roy then referred to a three-Judge Bench decision of this Court in
  Shibu Chandra Dhar v. Pasupati Nath Auddya, (2002) 3 SCC 617, where in
  similar circumstances, this Court held that the relevant provisions would
  indicate that the court has power to extend the time but that such power has
  to be judicially exercised. Mr. Roy urged that in the aforesaid circumstances,
H the decision of the learned single Judge of the Calcutta High Court could not
        GAYA PRASAD KAR v. SUBRATA KUMARBANER.IEE[ALTAMASKABIR,l.]
                                                                           897
be sustained and was liable to set aside.                                          A
       Opposing the prayer made on behalf of the appellant-tenant, Mr. Bijan
Kumar Ghosh, learned advocate appearing for the respondent-landlord,
reiterated the stand taken before the High Court that since the initial deposit
of the monthly rent for the month of March 1994 had been tendered beyond
the time prescribed under Section 4 of the Act, the said deposit and all           B
subsequent deposits must be held to be invalid and, therefore, the High Court
had rightly held that the appellant-tenant was a defaulter in payment of the
monthly rents.

      Mr. Ghosh urged that the application under Section 17(2) and (2A) of
the above Act could not possibly cure the initial defect since the provisions C
thereof were referable only to Sub-section (I) and Sub-section (2) of Section
17 and not Section 4 of the above Act.

      Mr. Ghosh submitted that in the aforesaid circumstances, the application
filed by the appellant-tenant under the aforesaid provisions were of no            D
relevance to the facts at issue in the instant case.

      Having regard to the fact that the West Bengal Premises Tenancy Act,
1956, is a benevolent piece of legislation, we have carefully gone through the
provisions of the Act and the submissions made in connection therewith for
the purpose of examining the correctness of the view taken by the learned          E
single Judge of the Calcutta High Court.

       While it is no doubt true that Section 4 of the Act provides that rents
are to be paid within the time fixed by the -contract, or, in the absence of a
contract, by the 15th day of the month next following the month for which
it is payable, once a suit is filed on any of the grounds referred to in Section   F
13, the tenant would be entitled to the benefits of extension of time under
Sub-Section (I) and Sub-section (2) of Section 17 of the Act with reference
to the amounts to be deposited within Sub-section (I) and (2) thereof. For the
purpose of better understanding, the provisions of Section 17( I), Section 17
(2) and Section l 7(2A) are extracted hereinbelow:-
                                                                                   G
        ,;Section I 7. When a tenant can get the benefit of protection against
        eviction.-

        (I) On a suit or proceeding being instituted by the landlord on any
        of the grounds referred to in section 13, the tenant shall, subject to
                                                                                   H
    898                    SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A         the provisions of sub-section (2), within one month of the service of
          the writ of summons on him, or where he appears in the suit or
          proceeding without the writ of summons being served on him, within
          one month of his appearance deposit in court or with the Controller
          or pay to the landlord an amount calculated at the rate ofrent at which
          it was last paid, for the period for which the tenant may have made
B         default including the period subsequent thereto up to the end of the
          month previous to that in which the deposit or payment is made
          together with interest on such amount calculated at the rate of eight
          and one third per cent, per annum from the date when any such
          amount was payable up to the date of deposit, and shall thereafter
c         continue to deposit or pay, month by month, by the 15th of each
                                                -
          succeeding month a sum,._ equivalent to the rent at that rate.

          (2) If in any suit or proceeding referred to in sub-section (I) there is
          any dispute as to the amount of rent payable by the tenant, the tenant
          shall within the time specified in sub-section(!), deposit in court the
D         amount admitted by him to be due from him together with an application
          to the Court for detennination of the rent payable. No such deposit
          shall be accepted unless it is accompanied by an application for
          detennination of the rent payable. On receipt of such application, the
          Court shall-

E         (a) 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,
              a preliminary order, pending final decision .of the dispute,
              specifying the amount, if any, due from the tenant and thereupon
              the tenant shall, within one month of the date of such preliminary
F             order, deposit in court or pay to the landlord the amount so
              specified in the preliminary order; and
          (b)    having regard to the provisions of this Act, make, as soon after
                the preliminary order as possible, a final order detennining the
                rate of rent and the amount to be deposited in Court or paid to
G               the landlord and either fixing the time within which the amount
                shall be deposited, or paid or, as the case may be, directing that
                the amount already deposited or "paid be adjusted in such manner
                and within such time as may be specified in the order.
          (2A) Notwithstanding anything contained in sub-section (I) or sub-
H
       GAYAPRASADKARv.SUBRATAKUMARBANERJEE[ALTAMASKABIR,J.]                899

        section (2), on the application of the tenant, the Court may, by order,- A

       (a)   extend the time specified in sub-section (I) or sub-section (2) for
             the deposit or payment of any amount referred to therein;

       (b) having regard to the circumstances of the tenant as also of the
           landlord and the total sum inclusive of interest required to be
           deposited or paid under sub-section (I) on account of default in B
           the payment of rent, permit the tenant to deposit or pay such sum
           in such instalments and by such dates as the Court may fix:

        Provided that where payment is permitted by instalments such sum
        shall include all amounts calculated at the rate of rent for the period C
        of default including the _period subsequent thereto up to the end of
        the month previous to that in which the order under this sub-section
        is to be made with interest on any" s"Uch. amount calculated at the rate
        specified in sub-section (I) from the date when such amount was
        payable up to the date of such order."
                                                                                   D
       From the said provision, it would be evident that it was the intention
of the Legislature that on a suit for eviction being filed under the provisions
of this Act, the tenant was required to deposit rent either in court or with the
jlent Controller or pay to the landlord an amount equivalent to the rate of rent
at which it was last paid, for the period for which the tenant may have made
default, including the period subsequent thereto up to the end of the month E
previous to that in which the deposit of rent is made together with interest
at the rate indicated therein. In the instant case, there is no willful default in
tendering of the rents by the tenant to the landlord and it was only on
account of the initial refusal of the landlord that the tenant was compelled to
tender rents for the month of March 1994 for the second time which was F
according to the time prescribed under Section 4 of the Act.

      In our view, the provisions of the Act vests the court with ample
authority to extend the time for making the deposit of rents in case of default
and this is a fit case where the learned Civil Judge (Junior Division) has on
a true interpretation of the provisions of the Act and the circumstances of G
the case came to a finding that the appellant-tenant was not a defaulter. As
expressed by this Court in B.P. Khemka's case (supra), the default, if any, was
too technical to be taken note of so as to arrive at a conclusion that the tenant
had committed wilful default in payment of the monthly rents.

      Apart from the above, Section 39 of the Act provides that subject to H
    900                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A the provisions in this Act relating to limitation, all the provisions of the Indian
    Limitation Act, 1908 shall apply to suits, appeals and proceedings under this
    Act. Since Section 17 (2A) confers power upon the court to extend time for
    making deposits of all arrears for the period in default, the application made.
    by the appellant-tenant under Section 5 of the Limitation Act for condonation
B   of delay in the initial tendering of the rent becomes meaningful.

           For the reasons aforesaid, we are unable to agree with the views
    expressed by the learned single Judge of the Calcutta High Court and we
    accordingly set aside the order passed by the learned single Judge in the
    revision application and restore the order of the learned Civil Judge (Junior
C   Division), Howrah holding that the appellant-tenant was not a defaulter in
    payment of the rents. The appeal is accordingly allowed but there will be no
    order as to costs.

    BB.B.                                                          Appeal allowed.