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TMI Blog2005 (9) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Act claiming the enhanced rate any claim for enhanced rent for a period prior thereto cannot said to be a fair rent and under Section 13 of the said Act the tenant cannot be also held liable for the said payment. Therefore, in the instant case it is admitted that firstly no notice under Section 20 of the said Act was served and further the notice under Section 434 of the Companies Act, 1956 was served by the learned Advocate-on-Record to the company dated 4.6.2004 and the letter was duly replied by the learned Advocate on behalf of the appellant on 19th June, 2004. It was specifically stated in the reply that Section 17 of the said Act deals with fixation of fair rent and it is also stated that excepting the Controller the landlord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Therefore, the claim of the respondent of ₹ 4,00,400/- in the winding up petition was frivolous and there is a bona fide dispute. It is further submitted that the Company Court had no jurisdiction to determine the fair rent. Accordingly, the said order is bad in the eye of law. It is submitted that on these grounds the said order should be set aside. 9. On the contrary, Mr. Chatterjee, learned Senior Advocate supplied that the company was liable to pay five times of the existing rent in view of Section 17(4A) of the said Act and he submitted that the appellant was to pay ₹ 11,440/- per month from July, 2001 till May, 2004. Therefore, the outstanding rent from July, 2001 to May, 2004 is amounted to ₹ 4,00,400/-. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andlord to receive enhanced rent and further without serving any notice under the said Act. It is only the duty of the tenant to pay the said sum. He further submitted that golden rule of interpretation if followed it has to be accepted that Section 17(4A) of the said Act is a special provision while Section 20 of the said Act is a general provision, therefore. Section 17(4A) should prevail. He relied upon a decision reported in (1961)ILLJ540SC (J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar Predesh). Apart from the above golden rule of hamonious construction it is submitted that the Court should interpret the provision by which the object of amendment is fulfilled. He has relied upon a decision reported in [1991]3SCR500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fair rent in respect of any premises in accordance with the provisions of this Act. Therefore, we cannot accept the contention of Mr. Chatterjee that without giving an opportunity to the tenant the fair rent can be determined by the landlord and that too without serving any notice under Section 20 of the said Act and further without giving a chance of being heard to the tenant. It has been specifically stated in the amended Act of 17(4A) and 17(4B) that fair rent shall be determined . Therefore, it is the duty of the landlord to apply before the Controller for fixing the fair rent and without taking the burden on his shoulder to fix the same in accordance with the provisions of Section 17(4A) and Section 17(4B) of the said Act as contend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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