- (1.) THE petitioners are the defendants 1 and 2 in a suit for eviction, registered as Title Suit No.97 of 2008, pending on the file of the learned Assistant District Judge, 1st Court, South 24 Parganas at Alipore, instituted by the plaintiff/opposite party no.1 (hereafter the plaintiff).
(2.) AN application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 (hereafter the Act) had been filed by the petitioners praying for adjudication as to whether relationship of landlord and tenant between the plaintiff and them existed or not and in the event the answer be in the affirmative, to adjudicate the quantum of arrears of rent in respect of the suit premises. AN application under Section 17(2A) of the Act was also filed by the petitioners praying for necessary order permitting them to pay arrears of rent, if any, by easy monthly instalments. It appears from the application under Section 17(2) of the Act filed by the petitioners that rent in respect of the suit premises was paid up to April, 1992 to the plaintiff, who collected the same on behalf of the other co-sharers. He, however, refused to accept rent for the month of May, 1992. Rent for the said month was remitted by money order but the plaintiff refused to accept the same. Since May, 1992, the petitioners have been depositing rent in respect of the suit premises month by month before the Rent Controller, Calcutta to the credit of the plaintiff and that there are no arrears. The applications were contested by the plaintiff by filing written objection whereby he prayed that the same be rejected. He averred therein that the petitioners and the other defendants, being the heirs of the original tenant Jagadish Chandra Roy Chowdhury (since deceased), are tenants in common under him in respect of the suit premises at a monthly rent of Rs. 62/- payable according to English calendar; that he had collected rent as landlord from the defendants up to February, 1992; that the defendants are habitual defaulters who defaulted in payment of rent ?since March, 1992 and May, 1992 to December, 2000? and as such are not entitled to any protection; that any deposit made before the Rent Controller, Calcutta is invalid because no rent was tendered to him immediately prior thereto; and that the defendants are not entitled to any relief.
(3.) BY order no.92 dated September 29, 2010, the learned Judge was of the view that the petitioners committed default in payment of rent from April 1992 and directed payment of arrears of rent together with interest w.e.f. April, 1992 by November 30, 2010. The quantum of arrears, however, was not calculated. This order is the subject matter of challenge in the present revisional application under Article 227 of the Constitution. I have heard Mr. Mukherjee, learned advocate appearing for the petitioners and Mr. Bhattacharya, learned advocate representing the plaintiff and perused the order impugned. Much argument was advanced by Mr. Mukherjee on tender of rent by the petitioners by an account payee cheque dated September 8, 1992, being the rent for the month of August, 1992, sent to the plaintiff. He attacked the material finding of the learned Judge (that such tender of rent by cheque is invalid) by referring to Section 21 of the Act as well as to the decisions of the Supreme Court reported in (1997) 5 SCC 329 : Mahendra Raghunathdas Gupta v. Visvanath Bhikaji Mogul and (1976) 4 SCC 855 : Damadilal v. Parashram. The cited decisions, he contended, are authorities for the proposition that payment of rent by cheque being an ordinary incident of present day life is legal and unless it is agreed by and between the parties that payment of rent must be in cash, payment by cheque shall be treated to be due payment if ultimately the cheque is encashed. According to him, Section 21 does not specify the mode of tendering rent and there being no agreement between the parties that rent must always be tendered in cash, tender of rent by cheque cannot be said to be invalid.;