GROVER, - (1.) THE Judgment of the court was delivered by
(2.) THIS is an appeal against a judgment of a division benchof the Calcutta High court reversing in appeal a decision of the Trial Judgeby whom the suit had been dismissed. In 1943 the 2nd and 3rd floor of premises No. 46/7, Lower ChitpurRoad, Calcutta, were taken on rent by the government, the agreement oftenancy having been entered into by the then governor General-in-Council.The rate at which the rent was payable was Rs. 2225-50 n.p. per month apartfrom the occupier's share of taxes. The respondents are the trustees under adeed of settlement executed by R. K. Modi who had originally leased out thepremises. On the Rent Controller being moved for fixation of the standardrent it was fixed at Rs. 3427-4-3 per month with effect from 1/12/1948. The tenancy in favour of the governor-General-in-Council devolvedupon the Union of India which is the appellant before us. The tenant continued to pay rent at. the above rate along with the occupier's share of taxesup to the end of May, 1960 but stopped paying any rent after June, 1960. On 21/03/1961 the respondents filed a suit for recovery ofRs. 23990,89 n.p. as arrears of rent of the aforesaid premises for the period369 1/07/1960, to 31/12/1960, at the rate oF Rs. 3427.27 per month. Inaddition a sum of Rs. 716.00 was claimed on account of occupier's share oftaxes as also the interest at the rate of 12 per cent. from 1/11/1960, anotice having been given under the Interest Act of 1839. The substantialdefence of the appellant was that under the provisions of the West BengalPremises Rent Control (Temporary Provisions) Act, 1950, hereinafter calledthe "Act" the standard rent came to the following amounts for the periodsmentioned below: JUDGEMENT_368_3_1970Html1.htm It was alleged that by mistake the appellant had continued to pay to therespondents the standard rent fixed under the Act of 1948 at the rate of Rupees3427.27 n.p. per month up to the end of May, 1960. This was discovered forthe first time in June, 1960. Consequently a sum of Rs. 82,009.42 n.p. hadbeen paid in excess to the respondents. There was thus no liability to pay therent claimed until the said excess payment had been adjusted or appropriated.
(3.) AMONGST the issues framed by the Trial court the following two issuesalone need be reproduced : "4 (a) Did the defendant pay rent at the rate of Rs. 3427.27 n. p.per month up to the end of May, 1960, by mistake ? 4 (b) If so, is the defendant entitled to set-off and/or adjust thepayment made in excess against the plaintiff's claim for rent ?" It was held by the Trial Judge that from 1/04/1950 the appellantwas not liable to pay more than Rs. 2815.26 per month as rent and, therefore,the total excess payment made came to Rs. 82,009.42. He, therefore, heldthat the excess payment had been made through mistake. The appellantwas found entitled to ask for adjustment or set off in respect of the amountthat had been so paid. The suit was dismissed. The appeal court referredto S. 7 to 11 and 17 of the Act of 1950 and expressed the view that theLegislature intended to define and alter, if necessary, the rights of the landlordsand tenants immediately after the Act came into force. If a tenant was underthe; impression that the rate at which he was paying rent was higher thanwhat would be the standard rent under the Act he could at once apply forfixation of standard rent. Conversely if a landlord thought that the rentwas lower than that which would be fixed as the standard rent he couldsimilarly apply to the Controller for fixation of the standard rent. So long,however, as the standard rent was not fixed the landlord was precluded byreason of Section 11 from claiming rent at a rate higher than that of whichho was in receipt. If the tenant had paid or deposited any amount in excessof the standard rent he could within six months from the date of payment ordeposit apply to the Rent Controllor for refund or adjustment in terms ofSection 7. Both the landlord and the tenant stood to lose the benefit of theAct at least in part if they did not take stock of their position as soon as theAct came into force and applied in accordance with its provisions for thenecessary relief. In the present case the appellant did not make any application under Section 7 and therefore no question of adjustment or refund arose.It was, further, held that Section 72 of the Contract Act had no application370to the facts of the case. The appeal was allowed and the decree for the periodclaimed was granted at the rate of Rs. 2815.26 n.p. per month.;