Case: Union of India Vs. Jal Rustomji Modi &amp; Another

2. In 1943 the 2nd and 3rd floor of premises No. 46/7, Lower Chitpur Road, Calcutta, were taken on rent by the Government, the agreement of tenancy having been entered into by the thenThe rate at which the rent was payable was Rs. 2225.50np per month apart from the occupiers share of taxes. The respondents are the trustees under a deed of settlement executed by R. K. Modi who had originally leased out the premises. On the Rent Controller being moved for fixation of the standard rent it was fixed at Rs.per month with effect from December 1, 1948. The tenancy in favour of thedevolved upon the Union of India which is the appellant before us. The tenant continued to pay rent at the above rate along with the occupiers share of taxes upto the end of May, 1960 but stopped paying any rent after June, 1960.3. On March 21, 1961 the respondents filed a suit for recovery of Rs. 2399O.89 np as arrears of rent of the aforesaid premises for the period July 1, 1960 to December 31, 1960 at the rate of Rs. 3427.27 per month. In addition a sum of Rs. 716.00 was claimed on account of occupiers share of taxes as also the interest at the rate of 12 p. c. from November 1, 1960 a notice having been given under the Interest Act of 1839. The substantial defence of the appellant was that under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act 1950 hereinafter called the "Act" the standard rent came to the following amounts for the periods mentionedApril 1, 1950 to October 30, 1951 Rs. 2448.05 p. m. 2. December 1, 1951 onwards Rs. 2815.26 p. m. It was alleged that by mistake the appellant had continued to pay to the respondents the standard rent fixed under the Act of 1948 at the rate of Rupees 3427.27 np per month upto the end of May, 1960. This was discovered for the first time in June, 1960. Consequently a sum of Rs. 82,009.42 np had been paid in excess to the respondents. There was thus no liability to pay the rent claimed until the said excess payment had been adjusted or appropriated.Amongst the issues framed by the trial court the following two issues alone need be(a). Did the defendant pay rent at the rate of Rs. 3427.27 np per month upto the end of May, 1960 by mistake ?4 (b). If so, is the defendant entitled to set off and/or adjust the payment made in excess against the plaintiffs claim for rentIt was held by the trial Judge that from April 1, 1950 the appellant was 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, held that the excess payment had been made through mistake. The appellant was found entitled to ask for adjustment or set off in respect of the amount that had been so paid. The suit was dismissed. The appeal court referred to Ss. 7 to 11 and 17 of the Act of 1950 and expressed the view that the legislature intended to define and alter, if necessary, the rights of the landlords and tenants immediately after the Act came into force. If a tenant was under the impression that the rate at which he was paying rent was higher than what would be the standard rent under the Act he could at once apply for fixation of standard rent. Conversely if a landlord thought that the rent was lower than that which would be fixed as the standard rent he could similarly apply to the Controller for fixation of the standard rent. So long, however, as the standard rent was not fixed the landlord was precluded by reason of S. 11 from claiming rent at a rate higher than that of which he was in receipt. If the tenant had paid or deposited any amount in excess of the standard rent he could within six months from the date of payment or deposit apply to the Rent Controller for refund or adjustment in terms of S. 7. Both the landlord and the tenant stood to lose the benefit of the Act at least in part if they did not take stock of their position as soon as the Act came into force and applied in accordance with its provisions for the necessary relief. In the present case the appellant did not make any application under S. 7 and therefore no question of adjustment or refund arose. It was, further, held that S. 72 of the Contract Act had no application to the facts of the case. The appeal was allowed and the decree for the period claimed was granted at the rate of Rs. 2815.26 np. per month.

Reasoning: If it could be shown that the rate at which the rent was being sought to be collected was in excess of the standard rent determined in accordance with Schedule A the Court trying the suit for recovery of arrears of rent could give relief to the tenant. But he could get such relief only in respect of the rent which had remained unpaid at the date of the suit. It is, however, unnecessary, to express any final opinion on this point.8. Now in the present case the entire claim of the appellant for adjustment of the excess rent that had been paid was based on the provisions of the Act which made any amount in excess of the standard rent irrecoverable. The determination of the standard rent had also to be made in accordance with relevant provisions of the Act.It is not possible to see how the appellant could rely on certain provisions of the Act and seek to ignore S. 7 which lays down the procedure for claiming the refund or adjustment of any sum which by the provisions of the Act is irrecoverable. The limitation for filing an application in that behalf has been laid down in clear terms in S. 7, namely, a period of six months form the date of payment or deposit of the excess amount. It is indisputable that if the limitation provided in S. 7 is to govern the present case the appellant could not claim any relief by way of adjustment of the excess amount which had been paid upto the date of the suit.A faint suggestion has been made on behalf of the appellant that it was not debarred under the general law from claiming a set off in respect of the amounts which had been paid in excess and which werea contention cannot be entertained because no proper foundation was laid for it at prior stages nor does it have any merit by reason of the express provisions of S. 7 of the Act. It is not open to the appellant to rely on certain provisions of a special enactment and ignore the others which are contained in it. If the right and the remedy have been provided in the same statute one cannot be disassociated from the other.10. As regards the applicability of section 72 of the Contract Act we are unable to comprehend how its provisions can be of any avail to the appellant particularly in view of the finding given on appreciation of the relevant material by the appeal court that no mistake had been proved to have been made by the appellant in the matter of payment of the excess rent.