Pinaki Chandra Ghose, J. - (1.) The appeal is directed against an order dated May 4, 2005 passed by the Hon'ble Company Judge admitting the winding up petition and directed the appellant herein to make the payment at the enhanced rate in the terms of section 17(4A) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the said Act). It has further been directed that the company would go on making payment at the enhanced rate commencing from June, 2005 and the balance 50% of the arrear would be paid by the company by six equal monthly instalments payable within January, 2006. The petitioner was directed to file certain undertakings as would be evident from the order so passed by the Hon'ble First Court.
(2.) The interesting point has been taken before us by the learned Counsel appearing on behalf of the company that the company was never served with a notice under section 20 of the said Act to enhance the rate in question. He further contended that no notice under section 20 of the said Act was ever served upon the appellant by the landlord, the petitioning creditor/respondent herein. We directed the learned Senior Advocate appearing on behalf of the respondent to produce the said notice under section 20 of the said Act before this Court showing the receipt thereof by the company but the respondent failed to produce such notice under section 20 of the said Act and to produce any document to show that it was served upon the appellant/company. Therefore, it is submitted it has been recorded in the order dated May 4, 2005 by His Lordship that "Landlord gave notice for increase of rent as permissible under section 17(4A) of the West Bengal Premises Tenancy Act, (1977) 1997" is not a correct position on facts. Therefore, it was submitted that in fact no notice was served upon the company by the landlord excepting a notice under section 434 of the Companies Act, 1956. According to the appellant, admittedly the appellant is a monthly tenant in respect of three separate tenancies under the respondent and a sum of Rs. 2288/-per month is payable by the appellant to the respondent per month in respect of those tenancies.
(3.) By the said notice under section 434 of the Companies Act, 1956, respondent claimed a sum of Rs. 4,00,400/- from the company. It is submitted that enhancement of rent is not automatic even under section 17(4A) of the said Act it has been specifically stated by the Legislators in the amending Act of 2002, which was published in Calcutta Gazette on 6th August, 2002 and it has been stated that it shall be deemed to have come into force on and from 10th July, 2001. The said sections 17(4A) & 17(4B) of the said Act are reproduced hereunder: "17(4A). Where a tenancy subsists for twenty years or more in respect of the premises constructed in or before the year 1984 and used for commercial purpose, the fair rent shall be determined by adding to the rent as on 1.7.1976 five times or by accepting the existing rent if such rent is more than the increased rent determined under this sub-section. 17(4B). Where a tenancy subsists for ten years or more but less than twenty years in respect of the premises constructed in or before the year 1984 and used for commercial purpose, the fair rent shall be determined by adding to the rent as on 1.7.1986 three times or by accepting the existing rent if such rent is more than the increased rent determined under this sub-section.";