TMI Blog1970 (8) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... the Receiver. The lawyer also should have noticed that two of the deposits made by the applicant were made within the prescribed time. Thus if the lawyer was not negligent and exercised reasonable diligence he could not have been guilty of the aforesaid mistakes and could not have advised the applicant as he is stated to have done. It is significant that the name of the lawyer is not disclosed in any of the affidavits. Even if it were held that Section 5 of the Limitation Act was applicable to the present application no sufficient cause has been shown in the present application by the applicant to enable the Court to condone the delay in making the present application - the applicant was not prevented from making this application by any mistake within the meaning of Section 17(1)(c) of Limitation Act 1963. Application dismissed. - - - - - Dated:- 27-8-1970 - S.C. Ghose, J. JUDGMENT S.C. Ghose, 1. This is an application by the applicant, inter alia, for condonation of delay in making this application and for an order extending the time to deposit the rent in respect of the premises in suit at the rate of ₹ 156.25 per month from September, 1967, until ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in making the said application. Section 17(2B) of the Act provides as follows:-- 17(2B). No application for extension of time for the deposit or payment of any amount under Clause (a) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified therefor in Sub-section (1), or Sub-section (2), and no application for permission to pay in instalment under Clause (b) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified in Sub-section (1) for the deposit or payment of the amount due on account of default in the payment of rent. 6. Now, the time to make payment expired as has been admitted by the applicant itself in paragraph 16 of the petition filed herein on or about 17th August, 1969. This application has been made long after the said date. Section 17(2B), therefore, lays down a special period of limitation for making applications for leave to pay or deposit rent as required by Section 17(1) of the said Act. According to the petitioner, in the instant case, Section 17 (1) (c) of the Limitation Act of 1963 applies and this application is not barred by the laws of limitation. The relevant porti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which the counter-claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of the Court. 9. The Supreme Court has held in Vidya Charan Shukla v. Khubchand Baghel, that Sub-section (2) of Section 29 of the Limitation Act, 1963 has made Sections 4 to 24 uniformly applicable to the period of limitation prescribed by any special or local law in the absence of express exclusion thereof by the said special or local law. Both the parts of Section 29(2) of the Limitation Act are to be read as one whole and the words following the conjunction and for the purpose of determining any period of limitation etc. attract the conditions laid down by the opening words of the said sub-section. It appears therefore that apart from other provisions contained in the West Bengal Premises Tenancey Act, 1956. Section 5 of the Limitation Act is attracted to the present application in view of Section 29(2) of the limitation Act It is to be seen now as to whether Section 39 of the West Bengal Premises Tenancy Act which is in the following terms affect the position. The said Section 39 is set out hereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the powers thereafter given are subject to restrictions or limitations to be found elsewhere in the Act. It was held that the said words were words of restriction. 13. I have already stated that there is no provision contained in the West Bengal Premises Tenancy Act which is contrary to the provision of Section 5. Although Section 17 prescribes a time for making the deposit as well as deals with the question of an application for extension of that time and the conditions under which the same can be granted, it does not in my opinion deal with the condonation of delay in making the said application as has been provided for by and under Section 5 of the Limitation Act. Thus the provisons relating to limitation contained in Section 17 of the West Bengal Premises Tenancy Act are not contrary to and/or inconsistent with the provisions of Section 5 of the Limitation Act. 14. In view however of the judgment D/- 13-8-1969 of Ramendra Mohan Datta J. in Suit No. 829 of 1966 (Cal). Jatindra Nath Samanta v. Rash Behari Dutta Co. I am bound to hold that Section 5 of the Limitation Act is not attracted to the present application and cannot be applied to it. 15. It was submitted bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ltd. case, A. F. O. O. No. 9 of 1956, D/- 25-7-1966 (Cal) as well as the Supreme Court decision in which were not considered in the said judgment, the said judgment is not binding. In support of this contention a Division Bench decision in Jagannath Gupta Co. Pvt. Ltd. v. Mulchand Gupta, 72 Cal WN 872 = (AIR 1968 Cal 363) has been cited which did not follow a previous Division Bench decision of this Court in John Herbert Co. Pvt Ltd v. Pranay Kumar Dutta. (1966) 70 Cal WN 516, which had decided that order made in a company matter refusing to stay the advertisement of a winding up petition was not appealable. The latter iudgment in 72 Cal WN 872 = (AIR 1968 Cal 363) held that the said earlier decision did not take into consideration the statutory provision contained in Section 483 of the Companies Act, 1956 and was inconsistent with the case reported in Shankarlal Agarwalla v. Shankarlal Poddar, . 18. For the aforesaid two reasons the latter Division Bench differed with the earlier view and held that such an order was appealable. It was contended that if the said judgment of R. M. Datta J. stands in the way of my deciding that Section 5 of the Limitation Act, 1963 was appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was pleased to hold that, (see at pp. 73 and 74 of the report) only in the cases of (1) the advice was given by a skilled or competent person, (2) the lawyer who gave the opinion exercised reasonable care, (3) the view taken by the lawyer was such as could have been entertained by a competent person exercising reasonable skill, (4) there was no negligence or want of reasonable skill on the part of the lawyer concerned who gave the advice. -- would a litigant be entitled to get benefit of Section 5 of the Limitation Act. 22. In the instant case, the alleged mistake is stated to have been occasioned by the ignorance of the lawyer that the Receiver was discharged but there was no reason for this ignorance. The applicant himself was aware of the fact of the discharge of the Receiver. The lawyer also should have noticed that two of the deposits made by the applicant were made within the prescribed time. Thus if the lawyer was not negligent and exercised reasonable diligence he could not have been guilty of the aforesaid mistakes and could not have advised the applicant as he is stated to have done. It is significant that the name of the lawyer is not disclosed in any of the affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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