When a tenant stops paying rent, the landlord's remedy depends on what is actually wanted. Recovering the arrears is a money claim; ending the tenancy and taking back possession is an eviction claim. The two are different causes of action with different procedures, and mixing them up wastes time. This page sets out the intermediate steps, the two kinds of suit, and why the police are the wrong forum for a pure rent default.
When this matters
This applies to landlords of residential and commercial premises in West Bengal governed by the West Bengal Premises Tenancy Act 1997, and to tenants facing recovery or eviction proceedings. It also applies where the landlord refuses to accept rent and the tenant wants to protect his position by depositing it. If the tenancy is oral, the same steps apply but the evidence of the terms becomes more important.
Arrears are not the same as eviction
Unpaid rent creates a debt. The landlord can claim that debt through a suit for recovery of money. Eviction, by contrast, is about possession, and under the 1997 Act default in rent is also a ground on which eviction can be sought, provided the tenant fails to pay or deposit the arrears within the time allowed after notice. A landlord who only wants the money files a recovery suit; a landlord who wants the premises back pleads the statutory ground in an eviction suit. Both may be sought, but the pleadings must be clear about what is claimed.
Step by step: the intermediate steps before suit
- Reminder. Send a written reminder identifying the months unpaid and the total due. Keep a copy and proof of despatch.
- Statutory notice. Serve the notice the Act requires calling upon the tenant to pay the arrears within the specified period. This notice is a precondition to the eviction ground of default.
- Deposit of rent. Where the landlord refuses to accept rent, the tenant may deposit it with the rent controller under the Act and continue to deposit it; doing so protects the tenant against being treated as a defaulter. A landlord who refuses tendered rent weakens his own case.
- Recovery suit. If the arrears are not paid, file a suit for recovery before the appropriate civil court, claiming the principal and such interest as the agreement or law allows.
- Eviction suit. If possession is also wanted, file the eviction suit on the statutory ground after the notice period ends.
The court fee on a money suit is ad valorem — that is, it is assessed on the value of the claim as prescribed, so the exact figure depends on the amount claimed. These matters are handled by our recovery suits and landlord and tenant disputes teams, with eviction handled under eviction suits.
Adjusting the security deposit
A landlord may generally apply the security deposit towards unpaid rent, damage beyond normal wear and tear, or unpaid utility bills, but only to the extent the agreement permits and only against a sum that is genuinely owed and provable. A deposit is not a licence to retain money that is not due. Where the deposit is adjusted, a written account showing what was applied and why should be given to the tenant.
Evidence to build
- The written tenancy agreement, and any renewal or amendment.
- Rent receipts issued, and the counterfoils of the receipt book.
- Bank statements or UPI records showing the rent pattern and the last payment.
- Messages, emails and notices exchanged about the arrears.
- A ledger showing month-wise rent due and paid.
Build the ledger early. A month-wise statement that reconciles the agreement, the receipts and the bank entries is far more persuasive than a bare assertion that rent is due. Where the rent was revised by agreement, attach the writing that records the change, and where rent was tendered and refused, keep proof of the tender.
Why an FIR is the wrong route
Failure to pay agreed rent is a civil wrong, not a criminal offence. The police cannot recover rent, and pressuring a tenant through a criminal complaint over a pure rent default is not the lawful remedy. A criminal case lies only if the facts disclose an offence, such as forgery or criminal breach of trust; those are separate matters. The correct forum for arrears is the civil court.
Common questions
Can I stop the tenant using the premises if rent is unpaid?
No. Locking out the tenant or cutting utilities is self-help and is not permitted. The lawful step is a notice followed by a suit.
Can a tenant be evicted for one month's default?
Default must be of rent legally due and the statutory process must be followed. A single short delay may not sustain eviction, but persistent default after notice, with failure to deposit, can. The court looks at the pattern and the notice.
What interest can I claim?
Interest is claimable as the agreement provides, or at such rate as the court allows on a money decree. The exact rate should not be assumed and is pleaded with the claim.
Is an oral tenancy enforceable?
Yes, but proof is harder. Bank or UPI records, receipts and messages establish the rent and the terms where there is no written agreement.
FileX Advocates & Legal Consultants, Kolkata, drafts and files these matters before the Calcutta High Court, City Civil and Sessions courts, magistrate, family, consumer and tribunal forums. Call +91 7439811422 or WhatsApp us for a free first consultation.