TaxTMI 
TaxTMI 
2019 (10) TMI 1587
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....ts on the ground of non-payment of arrears of rent in respect of two shops alleging that initially, Sudama Singh was tenant on the monthly rent of Rs. 45/- and Rs. 25/- per month but now the rent payable is Rs. 306/- and Rs. 174/- per month. It is the case of the Respondent that a Receiver was appointed in Money Execution Case No. 23/1961 and the said Receiver was discharged vide order dated 10.02.2009. The Respondent demanded arrears of rent but since the amount of arrears at the rate of Rs. 306/- per month was not paid, the petition for eviction was filed. The Appellant did not deposit any rent but filed an application to determine the arrears of rent asserting that they have paid monthly rent up to the month of June 1993 to the Receiver. However, the Receiver has not informed the Appellants as to the person authorised to collect rent, therefore, they could not pay it. 4. The learned Trial Court allowed the application, determined the arrears of rent and granted time to pay the arrears of rent so determined. The learned Single Bench set aside the order passed by the Trial Court as it chose to follow the order passed in CO 1941 of 2013, though another Coordinate Bench had taken a....
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....t. 8. In another three Judge Bench judgment reported as Nasiruddin and Ors. v. Sita Ram Agarwal (2003) 2 SCC 577, it was held that in terms of Clause (a) of Sub-section (2A) of Section 17 of the 1956 Act, the requisite power to extend the time for deposit of rent on an application made by the tenant is without any restriction. It was further held that the question of application of Section 5 of the Limitation Act, 1963 would arise, if the Appellant or the applicant satisfies the court that he had sufficient cause for not making the appeal or application within such period. Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 for short the "Rajasthan Act". provides that the tenant shall on the first date of hearing or, on or before such date, shall deposit in court or pay to the landlord in court from the date of such determination the amount so determined 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 exceed three months as extended by this Court. The deposit by the tenant within 15 days....
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.... SCC 640, E. Palanisamy v. Palanisamy (2003) 1 SCC 123, and Balwant Singh v. Anand Kumar Sharma (2003) 3 SCC 433 as to when the statutory provisions can be said to be directory or mandatory. Learned Counsel for the Respondent referred to various orders passed by the Calcutta High Court, taking a view that non-deposit of arrears of rent will result in dismissal of the application Under Section 7 of the Act. 10. We do not find any error in the order passed by the High Court. One of the grounds of the eviction in terms of the Section 6(1)(b) of the Act is default in payment of rent for three months within the period of twelve months, or for three rental periods within the period of three years where the rent is not payable monthly. It is Section 7 of the Act which provides for an opportunity to the tenant to make the payment of arrears of rent, to avoid an order of eviction on account of its non-payment. The relevant provisions of Section 7 of the Act read as under: 7. When a tenant can get the benefit of protection against eviction.--(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 prov....
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....ay deem fit to the landlord: Provided that the tenant shall not be entitled to any relief under this Sub-section 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. 11. The Act has repealed the 1956 Act which had almost similar provisions as contained in Section 7(1) and 7(2) of the Act, but the material distinction is of Sub-sections (2A) and (2B) inserted by West Bengal Premises Tenancy (Amendment) Ordinance No. IV of 1967. This was replaced by West Bengal Premises Tenancy (Amendment) Act 30 of 1969 with effect from 26.08.1967, giving retrospective effect to the amendments which were made applicable to all suits, including appeals, which were pending before commencement of the Ordinance. Sub-sections (2A) and (2B) so inserted read as thus: (2A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), on the application of the tenant, the Court may, by order,- (a) extend the time specified in Sub-section (1) or Sub-section (2) for the deposit or payment of any amount referred to the....
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....s the intention of the legislature to restrict the benefits given Under Section 17(2-A) to only those tenants against whom suits had been filed within one month prior to the promulgation of the Ordinance, there was no necessity to give retrospectivity to Sub-section (2-A) Under Section 5 of the Ordinance. It has, therefore, to be held that all tenants against whom suits or appeals were pending on the date of the promulgation of the Ordinance were entitled to seek the benefit of Section 17(2-A) by filing an application within one month from the date of promulgation of the Ordinance. The High Court was, therefore, in error in holding that the application Under Section 17(2-A)(a) was itself not maintainable. If the High Court's view is to be accepted it would then amount to asking the Appellant to perform the impossible i.e. asking the Appellant to file an application Under Section 17(2-A)(b) which came into force on August 26, 1967 within one month from April 6, 1967 when the suit summons was served. Therefore the first question has to be answered in favour of the Appellant. The resultant position would then be that insofar as the payment of arrears for the period ending February....
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....ting to note that in Ganpat Ladha v. Sashikant Vishnu Shinde [(1978) 2 SCC 573: (1978) 3 SCR 198] this Court while interpreting similar provisions occurring in Section 12(3)(a) of the Bombay Rents, Hotel, Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act") held: (SCC p. 580, para 11) Section 12(3)(b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts. Thus under the Bombay Rent Act only on certain grounds the court can exercise its discretionary power and not on other grounds. 16. While examining as to when the provision of a statute is to be treated as directory or mandatory, this Court held in Nasiruddin case that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a tim....
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....erefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the court does not have the power to do so. 41. In that view of the matter it must be held that in absence of such provisions in the present Act the Court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent. 17. Further, a three Judge Bench of this Court in a judgment reported as Union of India and Ors. v. A.K. Pandey (2009) 10 SCC 552 held as under: 15. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a negative form ordinarily has to be read in the form of command. When the word "shall" is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperati....
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....hout the summons being served upon him, within one month of his appearance. 20. Therefore, Sub-section (1) deals with the payment of arrears of rent when there is no dispute about the rate of rent or the period of arrears of rent. Sub-section (2) of the Act comes into play if there is dispute as to the amount of rent including the period of arrears payable by the tenant. In that situation, the tenant is obliged to apply within time as specified in Sub-section (1) that is within one month of the receipt of summons or within one month of appearance before the court to deposit with the Civil Judge the amount admitted by him to be due. The tenant is also required to file an application for determination of the rent payable. Such deposit is not to be accepted, unless it is accompanied by an application for determination of rent payable. Therefore, Sub-section (2) of the Act requires two things, deposit of arrears of rent at the rate admitted to be due by the tenant along with an application for determination of the rent payable. If the two conditions are satisfied then only the Court having regard to the rate at which rent was last paid and for which tenant is in default, may make an o....