Tender of rent by cheque, without an agreement between the parties, does not constitute a valid tender under section 21 of the West Bengal Premises Tenancy Act.

The judgment of the Court was as follows:

BhattacharJya J: -- This appeal by the plaintiff landlord is directed against the judgment and decree passed by the Chief Judge, City Civil Court Calcatta, dismissing the plaintiff's suit for eviction of the tenant defendant.

2. Facts of the case may briefly be stated:

The defendant-respondent was admittedly a tenant under the plaintiff in respect of Flat No.519 of Premises No.,25A, Park Streets Calcutta, known as "Karnani Mansions" at a rental of Rs. 250/- per month. payable according to English Calendar. The plaintiff alleged, that the defendant in violation of the agreement, without the previous consent of the plaintiff sublet or otherwise transferred the said premises to some other persons and also defaulted in the matter of payment of rent since July 1962 and accordingly the plaintiff cause a notice to quit to be served on the defendant on. September 21, 1962 terminating the tenancy of the defendant, Inspite of the said notice, the defendant failed or neglected to comply and the plaintiff instituted the suit for eviction on January 14, 1963. The defendant contested the suit, inter alia, denying the default and also the alleged sub-letting and/or transfer of the tenancy right, of the defendant in the demised premises to other persons. The service of notice was not disputed by the defendant.

3. The learned Chief Judge' who tried the case found that the defendant was not a defaulter and further held that the story of sub-letting has not been substantiated. On that finding, the learned Judge dismissed the suit. The notice to quit was, 'however, found to 'be legally" valid and reasonably sufficient to terminate the tenancy of the defendant. Hence this appeal by the plaintiff.

4. In this appeal, Mr. B. C. Dutt, the learned Advocate appearing for the appellant has assailed the judgment of the court below on both counts. It is contended in the first place that the deposit with the Rent Controller, in particular, for the month of September, 1962 was invalid inasmuch as it was not preceded by a valid or proper tender to the landlord. Consequently, the subsequent deposits with the Rent Controller from October, 1962 to March, 1963 must be regarded as invalid deposits. In the next place, Mr. Dutt contends that the tenant defendant sublet the premises in favour of one Mr. Agarwalla, who was in occupation of the entire premises to the exclusion of the tenant and the mere fact that there was no evidence as to payment of rent by Mr. Agarwalla to the defendant, would not be sufficient to come to a conclusion that the premises has not been sub-let and/or transferred.

5. Mr. Banerjee appearing for the defendant respondent in this case, on the other hand, contended that the evidence as regards sub letting and/or transference of the tenancy at best establishes that another person was in occupation of the premises and it has neither been shown nor established that this occupation was either as a sub-tenant or on some other account and in the circumstances, the test of exclusive possession in the absence of anything else would not be sufficient to justify a finding of the transference of tenancy or of sub-letting. As to the ground of default. Mr. Banerjee contends that the deposit of rent before the Rent Controller was preceded by a valid and proper tender to the landlord as will be evidenced by the tenant's letters dated 14th August, 1962 (Ext.A) and 27th September, 1962 (Ext. A/3) and the landlord's reply thereto dated 28th August, 1962 (Ext. A/1) and 12th October, 1962 (Ext. A/2).

6. Coming now to the question of default, it is to be pointed out that the tenant admittedly sent the rent for the month of July, 1962 to the landlord under a cheque dated 2-8-62 drawn on the National and Grindlays Bank, Chowringhee, Calcutta along with his letter dated 14th Augmt,1962 (Ext. A). The said cheque was returned by the landlord on the 28th August, 1962 on the ground that they could not accept the cheque in view