1. The Court: This appeal arises out of an order dated July 12, 2005.
2. Similar question, as involved in this appeal, arose in another appeal being ACO No. 128 of 2005, APO. T.No. 507 of 2005, C.P.No.616 of 2004 (AVO Engineering Pvt. Ltd. v. India Ice Aerated Water & Cold Storage Ltd.) to the effect that whether a landlord has a power under Sections 4A, 17(4A) and 17(4B) of the West Bengal Premises Tenancy Act, 1997 to enhance the rent of a tenant without giving a notice u/s 20 of the said Act notwithstanding the fact that he fulfils all the conditions mentioned therein.
3. We have already decided the aforesaid question arose in this appeal in ACO No. 128 of 2005, APO.T.No.507 of 2005, C.P. No. 616 of 2004 (AVO Engineering Pvt. Ltd. v. India Ice Aerated Water & Cold Storage Ltd.) by our judgment dated 19th September, 2005 wherein we have held that jurisdiction has been given u/s 17 of the said Act to the Controller. We have also held that the amendment has been made by the legislature for giving benefits to the landlord as well as to the tenants. Section 17 of the said Act, in this connection, specifically dealt the fixation of fair rent. Further, Sections 17(4A) and 17(4B) of the said Act categorically provide that "fair rent to be determined". Therefore, until and unless such fair rent is determined by the Controller, who has the authority to do so, it cannot be said that the Company has failed to make payment of rent since before it is determined. It cannot also be said that a debt is prevailing on the date of the filing of the winding-up petition or at the time of service of notice of the winding-up petition u/s 434 of the Companies Act. Thus, following the principles laid down in our above decision, we set aside the order passed by the Hon''ble First Court for the reason that Court has no power to determine the fair rent. Further, the winding-up petition is premature since rent has not yet been determined by the Controller and no notice was served u/s 20 of the said Act. It also to be taken into account that the appellant/petitioner is not a defalter in payment of rent in view of the fact that the appellant/petitioner has paid admitted rent upto January, 2005. The claim in the winding-up petition relates to the period from July, 2001 to May, 2004 and admittedly rent was accepted by the respondent for the said period. Further, there was no determination of fair rent by the Controller in terms of Section 17 of the Act.
4. Hence, it cannot be said that there is a debt of the Company and further the Company has not neglected to pay rent. We, therefore, in the given facts of the case allow the appeal and set aside the order of the Hon''ble First Court dated July 12, 2005.
5. By consent of the parties, we treat the application as short appeal. Both the appeal and the application are thus disposed of on the above terms.
6. All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.
