Raghunath Singh v. Messrs. Patel & Co. Opposite Party.

Bachawat, J.:— This is a petition under section 115 C.P.C arising out of an order made under section 17 of the West Bengal Premises Tenancy Act, 1956. On May 4, 1959 the plaintiff’ landlord instituted the suit for recovery of possession of the suit premises from the defendant tenant. The tenant is in arrears from January, 1955 till December, 1960. On September 17, 1959 the plaintiff applied for an order under section 17(4) of the West Bengal Premises Tenancy Act, 1956 that the defence against delivery of possession be struck out. The defendant contended that he was not liable to pay or deposit the arrears of rent for the period January, 1955 up to March, 1956, their recovery by suit was barred by limitation on May 4, 1959 and that he should be directed to pay or deposit the amount which was legally recoverable from him on that date and his defence could be struck out only if he made a default in carrying out this direction. The learned trial Judge rejected this contention and directed that the defendant do deposit the arrears of rent for the period January, 1955 till December, 1960 and that in case of default his defence against delivery of possession be struck out.

2. Clearly there was a dispute as to the amount of rent payable by the tenant so as tc attract the provisions of sub-section (2) of section 17. The question is whether the defendant is liable to deposit or pay under subsection (2) read with sub-section (1) of section 17 the arrears of rent which were not recoverable by the landlord through the process of the court on the date of the institution of the suit. It is plain enough that a suit instituted on May 4. 1959 for the recovery of the rent for the period January, 1955 up to and including March, 1956 would have been barred by the law of limitation. section 17 of the West Bengal Premises Tenancy Act, 1956 reads as follows:—

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

“(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 13, the tenant shall, within one month of the service of the writ of summons on him, deposit in Court or pay to the landlord an amount calculated at 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 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 for the date when any such amount was payable up to the date of deposit, and shall thereafter 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 any suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the Court shall determine, having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant in accordance with the provision of sub-section (1).

“(3) If a tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2), the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

“(4) If a tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no decree or 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 Court but the Court may allow such costs as it may deem fit to the landlord:

“Provided that a tenant shall not be entitled to any relief under this sub-section if he has made default in payment of rent for four months within a period of twelve months.”

3. Now sub-section (2) of section 17 applies where there is a dispute as to the amount of rent payable by the tenant, whereas sub-section (1) of section 17 applies where there is no such dispute. It is now well established that the amount required to be deposited under sub-section (1) and the time for its deposit are not necessarily the same as the amount to be deposited under sub-section (2), see Chowrin-ghee Properties Ltd. v. Madanlal Khanna (1) 1959 C.L.J 43, Ahmed Ali Khan v. Mrs. Ivy Claire Nabi Buksh, (2) 64 C.W.N 391 and the time for deposit of the latter amount see Dwijesh Chandra Maitra v. Khitish Chandra Ghosh, (3) 61 C.W.N 837 and Gujrat Printing Press… v. Naraindas Jewraj…Opposite Party. (4) 64 C.W.N 157 at 161. Nevertheless the two sub-sections are integrally related to each other and each derives its colour from the other.

4. The first part of sub-section (1) of section 17, on its true construction, imposes upon the tenant the duty to deposit or pay the amount due to the plaintiff as landlord on account of arrears of rent which the tenant is otherwise under a legal obligation to pay to him. In Daya Debi… v. Chapala Debi…Opposite Party., (5) 63 C.W.N 976 it was held that where the plaintiff is the assignee of the arrears of rent, there is no duty on the tenant under sub-section (1) to deposit or pay any amount in respect of those arrears; in such a case though the tenant is under a legal obligation to pay to the plaintiff the amount of the debt assigned to him, the amount is due to the plaintiff as the assignee of the debt and not as landlord. A fortiori there is no duty on the tenant to deposit or pay an amount which he is under no obligation to pay to the plaintiff at all. Thus he is not required to deposit or pay any amount in respect of arrears of rent which have been assigned by the plaintiff landlord to a stranger. Similarly he is not required to deposit or pay any amount in respect of time-barred arrears of rent which are not recoverable from him on account of the bar of limitation.

5. The amount to be deposited or paid under sub-section (2) of section 17 is the amount which is determined by the court having regard to all the provisions of the Act to be the amount to be deposited or paid under subsection (1). Consequently there is no duty on the tenant under sub-section (2) of section 17 also to deposit or pay an amount which he is under no legal obligation to pay to the plaintiff; for such a duty is not imposed on him either by sub-section (1) of section 17 or by any other provision of the Act.

6. The matter may be looked at from another point of view. Under subsection (2) of section 17, the court has to decide a dispute as to the amount of the rent payable by the tenant, with a view to determine the amount to be deposited or paid by him. The amount of the rent payable by the tenant thus furnishes the measure of his obligation as to the deposit or payment. The word “payable” is of somewhat vague import, but in the context of the section it means “legally enforceable”. The word may well bear that meaning, see P. Ramanath Aiyar's. The Law Lexicon of India. Thus under both the sub-sections (1) and (2) of section 37 the tenant is required to deposit or pay the amount in respect of which the claim against him can be legally enforced by the landlord.

7. The contention of the tenant in this case is that payment of a portion of the rent accrued due before the institution of the suit could not be legally enforced against him on account of the bar of the limitation. Now what is the relevant date for ascertaining whether the recovery of the arrears of rent is barred by the law of limitation. We find that sub-section (1) of section 17 requires the tenant to pay inter alia an amount calculated at the rate of rent at which it was last paid “for the period for which the tenant may have made default”. This part of section 17(1) imposes a duty upon the tenant to deposit or pay an amount on account of arrears of rent in respect of defaults made by him prior to the institution of the suit, i.e, pre-suit defaults, see Rampher Jaiswal… v. Ram Subhag Shaw…. (6) 64 C.W.N 880 at 884. The duty arises “on a suit or proceeding to be instituted by the landlord on any of the grounds referred to in section 13.” The tenant is given time to deposit or pay this amount “within one month of the service of the writ of summons on him.” Con sidering that (a) the duty is to pay in respect of arrears of rent prior to the institution of the suit and (b) that the duty arises on the suit being instituted by the landlord, I have come to the conclusion that the duty is imposed in respect of only the claim which could be legally enforced against the tenant on the date of the institution of the suit. In order to ascertain whether the claim has ceased to be legally enforceable on account of the bar of limitation, the period of limitation must be computed backwards from the date of the institution of the suit. In the instant case the limitation period of three years for a suit for the recovery of the arrears of rent for the period January 1955 up to and including March, 1956 had expired on the date of the institution of the suit. Those arrears of rent could not be recovered from the tenant without filing a suit against him for its recovery. In view of the expiry of the period of limitation the claim for those arrears was not legally enforceable against the tenant on the date of the institution of the suit. The tenant is therefore not required to pay or deposit any amount in respect of those arrears.

8. In this connection our attention has been drawn to the decision in Nashiban Bibi v. Parul Bala Dutta (7) 62 C.W.N 778. There the tenant had defaulted in payment of the arrears of rent from November, 1951 up to September, 1956 and Banerjee, J. held that the payment or deposit referred to in section 17(1) of the West Bengal Premises Tenancy Act, 1956 is in respect of all arrears of rent legally recoverable in payment of which the tenant may have made default either before or after the Act came into force.

9. Under sub-section (4) read with sub-section (1) of section 14 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 the tenant was required to deposit “the amount of rent legally payable by the tenant and which is in arrears”. With regard to this provision of law it was held that the tenant could be require-ed to deposit only the portion of rent which was not barred by limitation, see Krishna Chandra Bose v. Radharani Ghose (8) 57 C.W.N 801 and that the period of limitation would be computed backwards from the date of the filing of the application under section 14(4), see Magunlal Javer-chand v. Raja Jansakinath Roy Narendra Nath Roy & Co. Ltd., (9) 59 C.W.N 747. These decisions are of historical interest only. The structure of section 17 of the West Bengal Premises Tenancy Act, 1956 is in many respects materially different from section 14 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and the former provision of law must be constructed in the light of its own language.

10. I will now refer to the other decisions cited at the Bar. It has been held that the lessee or the tenant must pay even time-barred arrears of rent under section 114 of the Transfer of Property Act which requires the lessee to pay the “rent in arrear” as a condition of relief against forfeiture for nonpayment of rent; see Vasudevapa v. Krishna (10) I.L.R 44 Mad. 629; under section 6 of the Calcutta Thika Tenancy Act, 1949 which requires the tenant to pay “the arrear of rent due to the landlord” as the condition for stay of ejectment, see (11) Civil Revision Case No. 125 of 1954 (Pravash Chandra Roy v. Surendra Nath Man-dal), an unreported case decided by me on the 12th September, 1956 and Ganga Kumar v. Chintamoni Roy (12) 65 C.W.N 639; as also under section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which requires the tenant to pay “the standard rent or permitted increases then due” as a condition of protection from eviction. See Ramrao Raoji Patkar v. Amir Kasim Bhagwan (13) (1956) 58 Bom. L.R 284. Reference was also made to various decisions construing the word “due”. In Exparte Cawley (14) (1889-90) 34 Sol. J. 29 it was held that the debt remained “due” notwithstanding the bar of limitation. On the other hand in re Moss, Exparte Hallet, (15) (1905) 2 KB. 307 it was held that in a legal sense that money can only be said to be “due” which may be recoverable by action and in Hansraj Gupta v. Official Liquidators, Dehra Dun Mussorie Electric Tramway Co., (16) L.R 60 I.A 13 at 23 that the expression “any money due” in section 186 of the Indian Companies Act, 1913 meant monies due and recoverable in a suit by the company. It is well settled that the Indian Limitation Act, 1908 bars the remedy only for the debt and does not destroy the debt. But the question in each case is whether the particular statute requires the debtor to pay the time-barred debt. In the instant case the question in issue must be decided on a true construction of section 17 of the West Bengal Premises Tenancy Act, 1956. Having regard to the several considerations already mentioned by me I have come to the conclusion that section 17 of this Act does not require the tenant to deposit or pay any amount in respect of time-barred arrears of rent. The decisions relied upon on behalf of the landlord are based upon the materially different languages of other statutes and they are clearly distinguishable.

11. I therefore propose that the following order be passed.

12. The Rule is made absolute. The order of the learned Munsif dated the 13th December, 1960 is set aside. We direst the defendant petitioner to deposit in the trial court within one month of the arrival of the records in the court below an amount calculated at the rate of Rs. 5/- for the period April, 1956 up to and including June, 1961 with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date when the amount in respect of each month became payable up to the date of the deposit less any amount, if any, which has already been deposited by the petitioner in the trial court in respect of the aforesaid period. We also direct that in respect of the period after June, 1961 he do continue to deposit or pay month by month a sum of Rs. 5/- by the 15th of each succeeding month. In case of default the defence against delivery of possession shall be struck out. There will be no order as to costs. Let the records be sent down at once. The landlord will be at liberty to withdraw all sums deposited by the tenant in the trial court without furnishing any security.

Chatterjee, J.:— I agree with my Lord but add a few paragraphs.

13. The question involved in this petition is whether in determining the amount of rent payable by the tenant under sub-section (2) of section 17 of the West Bengal Premises Tenancy Act the court can take into consideration the amount of arrears of rent, the recovery of which is barred under the provisions of the Limitation Act. The only decision under the West Bengal Premises Tenancy Act of 1956 that has been referred to is the decision of Banerjee, J. in Nashiban Bibi v. Parul Bala Butt reported in (7) 62 C.W.N, 778.

14. While considering the meaning of the words “arrears of rent due thereon” under section 6 of the Thika Tenancy Act I had to consider the aforesaid decision of Banerjee, J. in (7) Nashiban Bibi v. Parol Bala Butt. I had to construe the meaning of the word “due” in (12) 65 C.W.N, 639 and what I decided was that in the context of the Thika Tenancy Act “due” means “what ought to be paid”. I also said that in the context of that Act the word “due” means “payable” and the word “payable” I understood to mean “ought to be paid” or “should be paid” and finally I held, the amount barred by limitation would also be recovered. In an earlier decision Bachawat, J (not yet reported) in (11) Civil Revision Case No. 125 of 1954 between Prokash Ch. Roy and Surendra Nath Mondal came to the same conclusion that barred debts are to be paid for the purposes of section 6 of the Calcutta Thika Tenancy Act. A debt is due to a creditor and is payable by the debtor. Are the barred debts payable by the tenant under section 17(2) of the Act even though they may be due to the landlord?

15. We are here to construe the meaning of the word “payable”. A debt is payable (i) if the debtor should pay it or (ii) if the debtor is bound to pay the same and (iii) if the time for payment has arrived. Money may be due to the creditor but may not be payable as the time for payment is still to arrive. The last matter is one, which, so far as section 17 is concerned, does not arise, because section 17 refers to arrears of rent which have already become due.

16. If we look to section 17(1) and section 17(2), it appears that under section 17(1) the tenant is bound to deposit all sums at the rate of rent at which it was last paid for the period for which the tenant may have made default. The tenant may raise an objection that all the amounts referred to under sub-section (1) are not payable and, if there is a dispute, the court has got to determine that dispute under sub-section (2). The dispute may be that a part has been paid. It may further be that the amount of rent has been fixed by the Rent Controller and the rate of rent at which it was last paid by the tenant to the land-lord is not payable since the fixation of rent having regard to the provisions of this Act. It may also be that the amount claimed by the landlord is not “rent”. If subsequent to the last payment of rent there has been a determination of fair rent by the Rent Controller, the court cannot determine the arrears at the contractual rate because that would contravene other provisions of the West Bengal Premises Tenancy Act. The court therefore has power to go into the matter and see whether the tenant is bound to pay the amount of rent at which it was last paid and the court may determine that the tenant is bound to pay not at that rate but at the rate determined by the Controller. Coming next to the decision of Lahiri and Ray, JJ. in (5) 63 C.W.N, 976, the amount assigned by the former landlord to the purchaser had not the character of rent. The amount was none-the-less payable to the purchaser but it was held under sub-section (1) that as it did not bear the character of rent, it was not payable under section 17(1). Therefore, it follows, under section 17(2) the court cannot determine that sum to be arrears of rent and cannot direct the tenant to deposit such debt for the reason that it is not rent. Hence, in both cases the Court has to determine the arrears of rent with reference to law in force. Had the Court no duty to determine the amount of arrears and had the tenant to deposit everything due to the landlord and payable by him, the position might have been different. As the arrears have to be determined by the court, it has to decide in accordance with law. If the recovery of a debt is barred by the law of limitation, it would be difficult for a court to directs a tenant to pay that sum.

17. Further the Rent Act in 1950 contained a corresponding provision and only “arrears legally payable” were to be determined. If we now hold that all barred arrears of rent could be realised, the effect would be, arrears, which could not be realised by the 1950 Act, may now be realised under the 1956 Act. This again would result in inconsistencies.

18. Finally, in a suit under the present Act for ejectment and for realisa tion of arrears of rent if the court determines under section 17(2) that barred debts are payable, even then the court would not be in a position to grant a decree for the said barred debt and the order under section 17(2) of the Act would be inconsistent with the decree.

19. When a duty is imposed upon the court to determine the arrears of rent, the court has to determine it in accordance with law. The court can determine a debt to be payable if only it is payable under the law. In section 17(2) of the Act, the court has to determine the arrears and in section 6 of the Calcutta Thika Tenancy Act, the Controller will merely “specify the amount”. There he is not directed to determine in accordance with law.

20. Even if there is a doubt regarding the meaning of the word “payable”, that word should be interpreted in a manner which would harmonise with the other provisions of the same Act and also with law for the time being in force. It is significant to observe that the non-obstante clause is absent from section 17 of the Act. Hence, the determination of the arrears by the court should be in a manner consistent with this Act and consistent with other law for the time being in force. The rule of harmonious construction was accepted by the Supreme Court in Bengal Immunity v. State of Bihar (17) 1955(2) S.C.R, 603 and A.I.R 1959 S.C 352.

21. The decision between Hansraj v. Official Liquidators in (16) 60 Indian Appeals, 13 at page 23 has been referred to. That decision refers to a process for realisation of debt alternative to the normal process for such realisation. The Judicial Committee while interpreting section 186 of the Indian Companies Act, as it stood at that time, held that the barred debts could not be realised under that section. But in arriving at the decision the Judicial Committee held, “Their Lordships are satisfied that the position in this respect is, in India, the same as in this country for the reason that in view of the place and context in which these words are found, they must be confined in their Lordships' judgment to money due and recoverable in a suit by the company and they do not include any moneys which at the date of the application under the section could not have been so recovered.” The Judicial Committee therefore considered the history of the Act as also the “place and context” in which the words were used.

22. Section 17(2) is a provision laying down the circumstances when a tenant can get the benefit of protection against eviction. If there is any doubt regarding the construction of this section or interpretation of the words used in this section, the doubt should be resolved in favour of the tenant as the section is remedial.

23. I would, therefore, agree in holding that in the context of the West Bengal Premises Tenancy Act directing the court to determine, in the light of the history of the Act and further the particular provisions in the statute being remedial, I agree with my Lord that barred debts are not the amount which the court can determine as the amount of rent payable by the tenant to the landlord.

S.K.B