Jogesh Chandra Dutta vs Monorama Gupta

A.K. Dutt, J.—The Defendant-tenant in a suit for ejectment is the Appellant in the present appeal. The suit was instituted on ground of reasonable requirement and on ground of default. The Plaintiffs could not establish their case as to reasonable requirement but succeeded on the ground of default and the suit was decreed accordingly. An appeal by the tenant failed.

The learned Advocate-General appearing on behalf of the Appellant has challenged the judgment of the Court of appeal below on two main grounds. His first contention is that the Court of appeal below has entirely misunderstood the defence plea or case, about an agreement or arrangement regarding mode and time of payment of monthly rent. His next contention is that the findings of the learned Subordinate Judge as regards payment of rent for the controversial period or for the period in default and acceptance of rent for the said period by Plaintiff No. 4, are contrary to materials and evidence on record and the said findings are perverse. He has also contended that the Court of appeal below did not decide the issues before him on the basis of evidence and materials on record and the said Court overlooked some materials on record and to some extent proceeded on conjectures and accordingly, the judgment of the Court of appeal below has been vitiated.

In order to appreciate the contentions raised by the learned Advocate-General, it is necessary to refer to the facts of the case and also other aspects somewhat in detail. The suit property comprises of one room and a garage in the ground floor of premises No. 34, Lake Road, P.S. Tollygunge. Late Rai Bahadur Jogendra Nath Gupta, a retired engineer to the Government of Assam, was the husband of Plaintiff No. 1 and father of the other Plaintiffs and was owner of the said premises No. 34, Lake Road. The Appellant was inducted as a tenant by him in 1941 and the agreed monthly rental payable at the material time was Rs. 50 according to English calendar. On the death of Rai Bahadur Jogendra Nath Gupta, the Plaintiffs became owners of the said premises and it has been alleged, that so long Rai Bahadur was living, the Appellant was paying rent regularly, but he became very irregular in payment of rents after his death. It has been further alleged that the Appellant has defaulted in payment of rents from the month of April, 1960 and that on account of rent, there is an arrear to the tune of Rs. 600 calculated from the month of April, 1960 to March, 1961.

It appears that the Defendant is the Managing Director of East Kajoria Collieries and Eastern Motors Private Ltd. and the suit premises is used as his office. The defence case inter alia was that, after the death of Rai Bahadur, the Plaintiffs-Respondents Nos. 1 to 3 authorised Plaintiff-Respondent No. 4 to collect rents from him on their behalf, that the said Plaintiff-Respondent No. 4 is a wireless operator in certain Air Service company and does not remain in Calcutta always and the said Plaintiff-Respondent No. 4 instructed the Appellant to pay rents to him only and by cross-cheques when he would turn up for collection. According to Appellant, it was agreed between him and the Plaintiffs-Respondents, that he was never to deposit rent with the Rent Controller and he should never bother for any default, if there is any delay in collection of rents for months together. According to Appellant Plaintiff-Respondent No. 4 collected cheque for Rs. 400 in November, 1960, towards rent for the months of April to November, 1960 and the said cheque was accepted without any protest and after such acceptance the said Plaintiff-Respondent No. 4 promised to send the receipt later on. It has been further alleged by the Appellant, that another cheque was issued by him in January, 1961, towards the rent for the month of December, 1960, which was also accepted by the said Plaintiff-Respondent No. 4 without any protest, that the Appellant in, February, 1961, by a letter demanded receipt for all these months and along with that letter, sent another cheque for Rs. 100 towards rents for the months of January and February, 1961 and the said letter along with the cheque was refused by the Plaintiffs with some ulterior motive. Thereafter, the Plaintiffs served an ejectment notice and have instituted the present suit for ejectment. According to Appellant, since the cheques for Rs. 400 and Rs. 50 were accepted by the Plaintiff-Respondent No. 4 without any protest, the Appellant fulfilled his obligations on his part regarding payment of rents for the relevant months and the said payments were valid of legal tender and he was never a defaulter from the month of April, 1960, as alleged.

The notice determining the tenancy is dated April 11, 1961 and the suit was instituted on July 30, 1961. It appears that an application u/s 17(2) of the West Bengal Premises Tenancy Act was filed and the learned trial Court held that there was a bona fide disputes as to amount of rent payable by the tenant as contemplated by the said section and the Appellant was directed to deposit Rs. 450 in Court. It also appears that the Appellant deposited rents from the month of March, 1961, with the Rent Controller for some time and from August, 1961 the Appellant has been depositing monthly rents in Court. With regard to the rents for the months of January and February, 1961, it appears that the Appellant deposited the same in Court with statutory interest within the prescribed time.

On behalf of the Plaintiffs, altogether 6 witnesses appear to have been examined including Plaintiff No. 4. On the question of default, mainly Plaintiff No. 4 (P.W. 4) gave evidence. According to him, the Appellant used to remit Rs. 100 or Rs. 200 by cheque and the said Plaintiff after collecting rents, issued rent receipts and there was some delay in the issue of receipts for rents. Plaintiff-Respondent No. 4 admitted that payment of rents was usually made through order cheques and only once it was made in cash and for the purpose of collecting rents, he personally went to the office of the Defendant since 1956. In cross-examination Plaintiff No. 4 admitted

I last demanded rent for the period in default in October, 1960, before that I demanded rent regularly at the end of every month. I last met the accountant of Defendant in November, 1960, when the latter requested me to met him one day to take the rent.

On behalf of defence, the secretary of the Collieries and accountant of Eastern Motors, gave evidence and his evidence was that all through rents were paid by cheque and rent receipts were usually received after one or two months and that in November, 1960, a cheque for Rs. 400 was handed over to Plaintiff No. 4 in payment of rents for the months of April to November, 1960 and another cheque 12:18 PM 11/14/2011 ue for Rs. 50 was similarly given to Plaintiff No. 4 in January, 1961, on account of rent for the month of December, 1960 and till sometime in February, 1961, Defendant was not aware of the fate of the said two cheques. The Appellant in his evidence stated that Plaintiff No. 4 told him that

I should not worry for payment of rent. He would collect the same whenever he would be at Calcutta.

His further evidence was that in November, 1960, he handed over a cheque for Rs. 400 to Plaintiff No. 4 and similarly, in January, 1961, he handed over another cheque for Rs. 50 to Plaintiff No. 4 and he was not aware of the fate of the two cheques till he received the bank statement from his Bank in February, 1961.

On these materials and/or evidence on record, the learned Munsiff, inter alia, held that

admittedly rents before April, 1960, had all along been paid and accepted by cross-cheques except on one occasion,

and that

Plaintiff No. 4 has admitted to have personally collected rents by cheques from Defendant''s office in the suit premises. Admittedly receipts were not granted immediately on acceptance of the cheques. Admittedly, the Defendant did not pay rent regularly month by month and rents were ordinarily collected in lump through cheques.

In spite of these findings, the learned Munsif came to the conclusion that on evidence he was not satisfied that the two cheques, one for Rs. 400 and another for Rs. 50, were handed over to Plaintiff No. 4 as contended by the Defendant and that payment of rent by cheque was not complete until the cheques were cashed and mere handing over of the said two cheques does not mean payment of rent in terms of Section 4 of the West Bengal Premises Tenancy Act. The trial Court further held that the Plaintiff was a defaulter in payment of rent for the months of January and February, 1961, as also from the months of March, 1961 upto July, 1961, as the rent for the month of March, 1961, was not validly deposited and accordingly, Defendant is a defaulter from April, 1960 to July, 1961. On the issue as to whether there was any arrangement or agreement between the parties about mode and time of payment of rent, the trial Court held that there was no contractual time limit fixed by the Plaintiff and rent for each month was payable within 15th of the following month. As mentioned above, the trial Court held that the Plaintiffs have not been able to prove their reasonable requirement.

On appeal, the learned Subordinate Judge held that the Defendant never handed over the two controversial cheques and is a defaulter for the months from April to December, 1960 and as rents for eight months have not been paid, the Appellant is a hopeless defaulter and is liable to be evicted on that ground. The learned Subordinate Judge held that even if it is assumed that the two cheques, namely, one for Rs. 400 and another for Rs. 50 were handed over to Plaintiff No. 4, they did not constitute any valid and legal payment towards rents. The learned Subordinate Judge further held that though the evidence and/or materials on record may faintly suggest a convention between the parties about payment of rent by cheques, there is nothing on record to show that there was any agreement between the parties whereby the Defendant''s liability to pay-rents would be discharged by merely handing over the cheques to Plaintiff No. 4.

Amongst other findings, the learned Subordinate Judge observed that there is

absolutely not an iota of evidence to show that the Defendant handed over the aforesaid two controversial cheques to Plaintiff No. 4 in payment of rents towards the aforesaid months in respect of the suit premises,

and that

Defendant is a man who always pressed for rent receipt from the Plaintiff immediately after he handed over a cheque in payment of rent of the suit premises for any particular month or months.

These above findings of the learned Subordinate Judge have been severely criticised by the learned Advocate-General and he has, in this connection referred to the oral evidence on record and to relevant portions of the pleadings of the parties. The grievances raised, in my opinion, have no real merit, because of the reasons given below.

The principal point for consideration both before the trial Court and before the learned Subordinate Judge was, whether the Appellant was a defaulter or not and whether the Appellant has defaulted in payment of rents for 4 months within a period of 12 months preceding the date of the institution of the suit. For a decision on these two matters both the trial Court and the learned Subordinate Judge were required to consider the evidence adduced by the parties as to payment of rents for the alleged period of default and come to certain findings. On the question of default, the trial Court has held in favour of the Plaintiffs and the said finding has been affirmed by the Court below. This finding is a finding of fact and such findings of facts, even if they are grossly erroneous, cannot be interfered within a second appeal. If, however, it could be shown that the said findings are really perverse and/or have been arrived at on the basis of a part of the evidence on record, certainly the Appellant could successfully attack such findings. But that is not the case here.

The question whether the Defendant is defaulter in the payment of rent as alleged, was issued No. 2 in the suit. The learned Munsiff held that the two cheques were never handed over to Plaintiff No. 4 on November 28, 1960 and January 29, 1961 respectively and that there was no payment of rent for the months April to December, 1960. The question whether the Appellant is a defaulter or not was also one of the issues which was framed by the learned Subordinate Judge and he dealt with the said issue elaborately. It is true that while dealing with the said issue, the learned Subordinate Judge at one place had made the observation, namely, there is absolutely not an iota of evidence to show that the Defendant handed over the aforesaid two controversial cheques to Plaintiff No. 4 in payment of rents towards the aforesaid months in respect of the suit premises. The said observation of the learned Subordinate Judge though rather unhappy has to be considered with his other findings. It appears that the learned Subordinate Judge while dealing with the said issue has referred to the defence case and also has referred to the evidence of the Defendant (D.W. 3) and his office employee, Shri B.K. Bose (D.W. 1). As against the evidence of these two witnesses, the learned Subordinate Judge has considered the evidence of Plaintiff No. 4 and ultimately has relied upon the statement of Plaintiff No 4 to the effect that he did not receive the said two cheques. It further appears that the learned Subordinate Judge had in his mind, the materials on record particularly, the documents produced by the Plaintiffs showing realisation of rents and granting of receipts. The learned Subordinate Judge referred to the usual course of conduct of Plaintiff No. 4 in the matter of encashment of cheque and also upon Defendant''s insistence upon rent receipts in the past. Upon consideration of all these aspects, he has ultimately come to the conclusion that the said two cheques of Rs. 400 and Rs. 50 were never handed over to the Plaintiff No. 4. The Court of appeal below did not rely upon the evidence adduced on behalf of the Defendant and has preferred the evidence on the Plaintiff''s side and based his conclusion on that view. It may be that another Court may, on assessment of this evidence, come to a different conclusion. It may be, that the conclusion of the learned Subordinate Judge may be erroneous or even grossly erroneous, but it cannot be said that the learned Subordinate Judge proceeded upon a part of the evidence on record and/or there is no evidence on record in support pf his finding. Accordingly, the finding of the learned Subordinate Judge that the cheques were not handed over to Plaintiff No. 4 is not a perverse finding and the judgment of the learned Subordinate Judge is not vitiated, as contended. If the finding that the two controversial cheques were not handed over by the Defendant to Plaintiff No. 4 remains, there is no question of acceptance of rents by Plaintiff No. 4 for the defaulting period.

Dealing with the question whether the Defendant was a defaulter or not, the learned Subordinate Judge considered the legal aspect of a tenant''s liability to pay rents to the landlord and also payment of rents by cheques. There cannot be any dispute as to tenant''s liability to pay rent in current coins. A payment of rent by cheque is not complete until the cheques are cashed. The learned Subordinate Judge correctly held that even if it is assumed that the said two controversial cheques were handed over to Plaintiff No. 4, that would not amount to payment of rent within the meaning of Section 4 of the West Bengal Premises Tenancy Act, because the Defendant has not been able to prove any contract or agreement that mere handing over cheques by way of payment of rent would discharge his liability to make a valid and legal payment of rent. How far payment by cheques operates as discharge of a debt under the Contract Act has been considered by a Division Bench of the Bombay High Court in Keshav Mills Co. Ltd. Vs. Commissioner of Income Tax, Chagla C.J., as he then was, held that ordinarily payment of debt by cheques or sending a cheque is not an unconditional discharge of the liability and payment of a debt by cheque would only be a discharge of the legal liability provided there is an arrangement or agreement between the debtor and creditor that the receipt of a cheque by the creditor would result in an unconditional discharge of the debt. I have already referred to the relevant pleadings of the Defendant with regard to the so called agreement or arrangement regarding the mode of payment of rent and also the evidence adduced by the Defendant on this aspect and I find that no such case was pleaded and there is no evidence regarding any arrangement or agreement wherefrom it could be inferred that mere handing over of cheques by the Defendant to the Plaintiff No. 4 would amount to an unconditional discharge of the Defendant''s liability to pay rents in accordance with law. It is true that in the instant case, save and except one occasion, all payments of rents were made by cross-cheques and all such cheques received by Plaintiff No. 4 were cashed and rent receipts were issued after such encashment. The learned Subordinate Judge doubted the fact of handing over two controversial cheques because of the reason that the Plaintiff No. 4, if he had received the cheques, would have cashed them and the Defendant would have asked the Plaintiffs for receipt and would not have waited till February, 1961. These inferences made by the learned Subordinate Judge is based upon the usual course of conduct of the parties and I do not find anything wrong in such assumption.

With regard to the contention that the findings of the learned Subordinate Judge as regards payment of rent for the controversial period and acceptance of rent for the said period by Plaintiff No. 4 are contrary to materials and evidence on record and the said findings are perverse, I am of the view that the said contentions have no substance. The learned Subordinate Judge, as noticed above, has considered the materials on record including the oral evidence of D.Ws. 1 and 2 and the Plaintiff No. 4 regarding payment of rent and/or acceptance of rent by the Plaintiff No. 4. The learned Subordinate Judge has, however, preferred to rely upon the evidence of Plaintiff No. 4. The said Court was neither required to refer to each and every statement of the witnesses and every documentary evidence nor it is required to give elaborate reasons why it preferred the evidence of the Plaintiff. Nothing has been pointed from the record to show that findings as to payment and acceptance of rent as made by the learned Subordinate Judge is perverse. Where there are two sets of evidence which are contrary to each other on a particular point, a Court can, on assessment of the said evidence, accept one and reject the other. Whether the two cheques were in fact handed over by the Defendant to the Plaintiff No. 4 or not, depended purely upon oral evidence on record to show that, in fact, the said cheques were handed over by the Defendant to Plaintiff No. 4 and the Plaintiff No. 4 accepted them on the dates as alleged by the Defendant. Therefore, the entire case of Defendant on the question of payment of rent and acceptance of rent depended upon appreciation of oral evidence and as the Court below has referred to such evidence and has come to some conclusion, its decision, in my opinion, is neither contrary to materials on record nor perverse.

The next point that arises for consideration is, whether the Court of appeal below has misunderstood the defence plea or case about an agreement or arrangement regarding mode and time of payment of monthly rents. All that was pleaded by the Defendant in his written statement with regard to this aspect, was that Plaintiff No. 4, for self and on behalf of other Plaintiffs, expressly stipulated that the Defendant need not be anxious for default and in view of very old friendship, collection of rents after months together would not be considered as default in payment of rents and the Defendant would not, under any circumstances, deposit rents with the Rent Controller, Calcutta. Ex facie, this pleading was not by way of a specific contract or agreement between the tenant and the landlord regarding time of payment of rent and/or mode of payment of rent contrary to the general provisions of law. If the Defendant was relying upon any special contract or arrangement, such contract had not only to be specifically pleaded but evidence was required to be led in support of such case. u/s 4 of the West Bengal Premises Tenancy Act, rent is required to be paid within the time fixed by contract or in the absence of such contract, by the 15th of next month following the month for which it is payable. If the Defendant wanted to establish that there was a contract whereunder the Defendant was not liable to pay rents either according to the provisions of the said section or by the 15th of following month and that mere handing over cheques would amount to an unconditional discharge of Defendant''s liability to make valid and legal payment of rent, such contract must have to be pleaded specifically. The evidence adduced by the Defendant also does not support such case of contract or arrangement. As no such contract was pleaded specifically, the Plaintiffs were not called upon to give any evidence in that connection. No doubt there is evidence from which it could be inferred that on some occasions the Appellant paid rents at a time for two months or four months and they were accepted by the Plaintiffs that itself, in my opinion, does not establish a case of a contract or agreement regarding time and mode of payment of rent in deviation from the general law.

In this connection, on behalf of the Respondents, reliance has been placed upon a Bench decision of the Madras High Court in Natha Apparao Vs. Narulasetti Suryaprakasa Rao, In that case it was held that there cannot be any agreement under which rent is payable at irregular intervals and that even if the landlords did not insist upon regular payment in the past and was accepting arrears of rents which had accumulated without any protest, that does not debar the landlords from applying for an order for eviction of the tenant, if the landlord can prove that the tenant has not paid or tendered rents in accordance with law. As noticed earlier, the mere fact that in past, some payments were made on account of arrears of rent in a lump after they became due, that does not debar the Plaintiffs from alleging that the Defendant is a defaulter in payment of rents for the statutory period for which the Defendant is not entitled to any protection under the law. For that purpose the Plaintiffs would be required to prove that either no valid and legal tender was made by the Defendant towards payment of rents for the period in default or no payment has been made for the said period and this has been done in the instant case. Therefore, the learned Subordinate Judge, in my opinion, was not wrong in discarding the Defendant''s contention as to any arrangement or agreement between the parties regarding mode of payment of rent and also payment, of rents long after they became legally due and payable.

On behalf of the Respondents it has been urged that the learned Subordinate Judge was not right in holding that the Defendant is not a defaulter beyond March, 1961. I need not go into this question in view of the fact that there is a concurrent finding that the Appellant is a defaulter in payment of rents for the period from April, 1960 to December, 1960, that is, for eight months and for the said default the Defendant is liable to be evicted from the suit premises.

The result is this that this appeal is concluded by concurrent findings of facts of two Courts below and is hereby dismissed. In view of the fact that the Appellant is being ejected from the suit premises merely on ground of default and in view of the fact that the Appellant has been carrying on a business from the suit premises and/or is occupying the suit premises as an office in connection with his business, I am inclined to give the Appellant reasonable, time to vacate the suit premises. The Appellant is hereby granted time to vacate the suit premises by the end of April, 1968, failing which the Plaintiffs-Respondents would be entitled to execute the decree and recover khas possession. The Appellant will continue to deposit in the trial Court month by month a sum equivalent to the monthly rent by the 15th of the month following the month for which it is due. The Appellant will deposit the amount payable for the month of April, 1968, along with the amount payable for the month of March, 1968. If the Appellant makes any default in depositing the amounts referred to above within time, the Plaintiffs-Respondents would be entitled to execute the decree forthwith.

There would be no order as to costs so far as this appeal is concerned.

Leave to appeal under Clause 15 of the Letters Patent prayed for is refused.