Arun K. Mukherjea, J.
1. These are two appeals by two tenants against a judgment dated December 17, 1959 of the Judge, 4th Bench of the Court of Small Causes, Calcutta, by which a decree of eviction was passed against both the two defendants separately in favour of the same plaintiff, namely, Sm. Amala Bala Dassi, who is the respondent in both the appeals. M/s. Shree Nursing Electric Stores was the defendant in ejectment Suit No. 1403 of 1957 while Jiwandas Mundhra carrying on business under the name and style of Shree Nursing Timber Works was the defendant in Suit No. 1058 of 1957. The suits were heard analogously by the learned trial Judge along with another Suit, namely, Suit No. 1159 of 1957. All the three suits were ejectment suits on the grounds of default in payment of rent and also on the ground of the plaintiff's reasonable requirement of the premises in the possession of the respective defendants in the suits. All the suits were decided in favour of the plaintiff-respondent and decrees of eviction passed against the defendants. Three separate appeals were filed against the one judgment which was delivered in respect of all these three suits. The appeal in respect of suit No. 1159 of 1957 has already been disposed of by a consent order. The present two appeals are, however, contested and we heard them together analogously.
2. The plaintiff's case in ejectment Suit No. 1403 of 1957 was as follows. The plaintiff is the owner of premises Nos. 43-D, 43-E and 43-F, Nimtala Ghat Street, Calcutta. These premises will hereinafter be referred to in brief as merely Nos. 43-D, 43-E and 43-F respectively. The defendant Messrs. Shree Nursing Electric Stores is a business firm and was the monthly tenant in respect of ground floor hall rooms at premises Nos. 43-E and 43-F at a rental of Rs. 115 and a tax of Rs. 11-12-0 per month. The tenancy was according to the English Calendar month. By a notice to quit dated February 11, 1956 the defendant was asked to quit, vacate and deliver up quiet possession of the rooms in his possession upon the expiry of March, 1957. The plaintiff contends that the defendant is not entitled to any protection of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as 'the Act'), firstly, on the ground that the defendant was a defaulter in payment of rent and tax for four months within a period of twelve months before the filing of the suit and, secondly, because the plaintiff requires the said rooms for her own occupation, namely for the expansion of a business carried on by her husband under the name and style of M/s. Bysack and Company. The defendant firm in its written statement denies that it is a defaulter in payment of rent and also denies that there is any reasonable requirement on the part of the plaintiff for the rooms under the defendant's tenancy. As to the plaintiff's story of default, the defendant states that the defendant was in the habit of paying its rent including the tax by cheque and that the plaintiff always accepted such cheques. The defendant tendered such cheques in payment of rent and taxes upto and including the month of September. 1956 and the plaintiff accepted the said cheques as usual. After that date, i.e. to say, from October, 1956 onwards the defendant deposited the rent and taxes with the Rent Controller Calcutta, month by month upto April, 1957. Rents and taxes for May and June 1957 were deposited in Court.
3. In ejectment Suit No. 1058 of 1957 the defendant M/s. Shree Nursing Timber Works, a business firm, was tenant under the plaintiff in respect of ground floor hall rooms at premises No. 43-F at a rental of Rs. 33-12-0 plus the occupier's share of taxes at the rate of Rs. 3 per month. The tenancy was according to the English Calendar month. By a notice dated February 11, 1957 the defendant was asked to quit, vacate and deliver up quiet possession of the ground floor hall rooms under its tenancy upon the expiry of March, 1957. In this suit also the plaintiff contended that the defendant was not entitled to any protection from eviction under the Act of 1956 for exactly similar reasons which the plaintiff pleaded against the defendant in Suit No. 1403 of 1957. The defendant in its written statement denies the plaintiff's allegations and, inter alia, contends that the defendant was not at all a defaulter in payment of rent. The defendant claims that following its usual practice the defendant tendered cheques in payment of rent and taxes from May, 1958 (sic) to November, 1956 and the plaintiff accepted and retained the said cheques. Thereafter from December, 1956 to April 1957 the defendant deposited the rent and taxes with the Rent Controller. Rent for May, 1957 was deposited in Court. The defendant also denies that the plaintiff has reasonable requirement of the hall rooms under its tenancy.
4. On these pleadings certain issues were framed in ejectment Suit No. 1403 of 1957 on 27th August, 1957. One issue was added to it on 10th March, 1959, Likewise, certain issues were settled in respect of Suit No. 1058 of 1957. One issue was added on 10th March, 1959. It appears that subsequently on 17th September, 1959 all the issues were completely recast and consolidated for all the three suits to which I have referred to before. The trial of the two suits under appeal proceeded on these reformulated issues which were as follows:
1. Are the defendants in all the suits defaulters in payment of rents and as such, are not entitled to claim any protection against eviction under the provisions of the W. B. P. T. Act, 1956?
2. Does the plaintiff reasonably require the portions of all the defendants, for her own use and occupation?
3. Were the notices to quit served on all the defendants, if so, are the same legal, valid and sufficient?
4. Have the plaints correctly valued (sic) and are the Court fees paid correct?
5. Is the plaintiff entitled to recover Khas possession of the properties in suit?
5. (Mr. Satyendra Nath Sen appearing for both the appellants did not press his objection about want of proper proof of the notices to quit after the plaintiff, with Court's permission, deposed in proof thereof. The judgment then proceeds.)
We can, therefore, pass on to the two Issues on which the appellants' counsel argued with vehemence and, if I may say so, with skill. For the sake of convenience we shall take the two issues separately. We shall first take up the issue of default. It is, however, necessary to deal with the issues separately for the two different appeals.
6. Ejectment Suit No. 1403 of 1957 and Appeal No. 250 of 1961:
On the question of default the plaintiff's case in this suit was that the defendants had defaulted in payment of rents since July, 1956. The defendant denies it. The basic facts about the payment of rent are more or less admitted by both sides and understand the respective contentions of the parties to the suit it is necessary to recapitulate those facts. The defendant paid its rents and taxes by cheques to the plaintiff for the months of July, August and September, 1956. These cheques were not, however, encashed by the plaintiff. By a letter dated 14th September, 1956 the defendant told the plaintiff that the defendant had already sent a cheque for Rs. 126/12/- towards the rent of the godown for the month of July, 1956. The defendant also enclosed in that letter a cheque dated 13th September, 1956 for Rs. 126-12-0 as rent for the month of August, 1956. The defendant asked for acknowledgment of the cheques. Thereafter by another letter dated 15th November, 1956 the defendant again reminded the plaintiff that cheques for rents for premises No. 43-D, Nimtala Ghat Street, Calcutta, for the months of July, August and September. 1956 had been already sent to the plaintiff. As for October, 1956 the rent had been sent by money order on 9th November, 1956. The defendant states in this letter that the defendant had found out from its accounts that the plaintiff had not cashed the aforementioned cheques and that the plaintiff had not also communicated to the defendant any reason for not encashing the cheques. The plaintiff, it appears, did not send the defendant any reply to this letter. The rent for October, 1956 which was sent by money order was not accepted by the plaintiff and the defendant deposited it with the Rent Controller on December 1, 1956. It is nobody's case that the plaintiff deposited any rent for the months of July, August or September, 1956 with the Rent Controller. In respect of these months the defendant remained satisfied with the fact that it had already paid cheques to the plaintiff though the plaintiff had not cashed those cheques. Thereafter from November, 1956 to April, 1957 the defendant deposited rents with the Rent Controller and from May, 1957 onwards the defendant deposited rents with the trial Court after it had received summons of the suit. On these facts the question arises whether the delivery of the cheques by the plaintiff to the defendant could be regarded as payments of rent for the months of July, August and September 1956. The learned trial Judge held that there was no valid payment of rent for the month of October, 1956 as the defendant's deposit of rent for that month with the Rent Controller was out of time. The learned trial Judge, however held in favour of the defendant that since the plaintiff had accepted the cheques for the months of July to September, 1956 she could not be heard to complain that rents had not been tendered to her in cash. According to the learned trial Judge the fact that the plaintiff did not send any reply to the defendant's letter of 15th November, 1956 shows conclusively that the defendant's story made out in that letter that the plaintiff had accepted the cheques must be taken as correct and, that since the plaintiff did not give any notice to the defendant intimating to the defendant the fact of her intention of not accepting the cheques, the defendant cannot be said to be defaulter within the meaning of the Act of 1956 for these three months. We do not think that the learned trial Judge was correct in disposing of the issue of default on this ground. It is well known that a cheque is never a valid tender unless it is accepted by the payee as a valid tender of payment. The plaintiff in this case denies that she ever accepted the cheques. The defendant on the other hand, insists that she did. Fortunately, it is not necessary for us to decide in the state of this conflicting evidence as to what actually did happen in this matter. Even assuming that the plaintiff had accepted the defendant's cheques without demur the defendant cannot avoid the charge of default for grounds which are quite different and are at the same time incontrovertible. The defendant's own story is that after, the rent for October, 1956 had been deposited with the Rent Controller on 1st December, 1956 the defendant deposited rents from November, 1956 to April, 1957 with the Rent Controller. There is no evidence anywhere to show that there was any previous tender before the; rents for November, 1956 and January to April, 1957 were made before the Rent Controller. In a recent judgment given by this Bench we have decided that under the provisions of Section 21 of the Act of 1956 it is necessary to make a tender of rent on each occasion before a valid deposit with the Rent Controller can be made. The defendant's counsel wanted to reargue the matter before us. We were of course, prepared to listen to him and, if necessary, to re-consider our finding. But the learned counsel appearing for the plaintiff-respondent told us that he would not rely on this point at all. He contended that even after abandoning the point about requirement of a tender on each occasion, he was in a position to establish that the deposits of rent before the Rent Controller were all invalid. He argued that unquestionably there must be at least one valid deposit of rent before the Rent Controller, before a tenant could claim that once having made a deposit before the Rent Controller after a prior tender to the landlord, it was no longer, necessary for him to tender the rent on each future occasion to the landlord. The learned counsel relied on a case reported in (1966) 70 Cal WN 676, Ganesh C. Nandy v. J. N. Chatterjee and Bros. In that case the tenant had deposited rents from January to March of a year with the Rent Controller beyond time. The rent for April was thereafter deposited with the same authority in time but it does not appear to have been preceded by the requisite tender. A Division Bench of this High Court presided over by P. N. Mookerjee, J. held that in these circumstances all the above deposits would be invalid. We respectfully agree with this finding of their Lordships and applying the same logic to the facts of this case, there can be no doubt at all that deposits before the Rent Controller for all months subsequent to November, 1956 were invalid. The deposit for Nov. 1956 was also invalid because it was made beyond time. Under the circumstances even if we do not take into account the months of July, August, September and October 1956 there can be no doubt that there was default in respect of the months of November and December, 1956 and January, February, March and April, 1957. That makes out altogether six months of clear default. Therefore, the defendant is not entitled to any protection under the Act of 1956.
7. Ejectment Suit No. 1058 of 1957 and Appeal No. 251 of 1961:
On the question of default the plaintiff's case in this suit is that the defendant has been a defaulter in payment of rents since the month of May, 1956. The defendant denies this. The defendant contends that the defendant 'used to pay rent' including tax by cheques and the plaintiff 'used to accept' such cheques. Between May, 1956 and November, 1956 the defendant claims to have tendered month by month cheques to the plaintiff who accepted and retained the same. From December, 1956 to April, 1957 the defendant duly deposited rents with the Rent Controller, Calcutta and from May 1957, i.e. after the filing of the suit, rents have been duly deposited in Court. According to the defendant, the plaintiff by accepting the cheques and retaining the same is estopped from saying that the defendant is a defaulter. At the time of evidence it transpired that the cheque for rent and taxes for the month of May 1956 had been dishonoured by the bank on 27th June, 1956 on the ground that there were insufficient funds in the defendant's account. The statements of account of the defendant prove conclusively that the amounts standing to his credit were not in fact, sufficient on the material date. According to the plaintiff's husband who gave evidence on behalf of the plaintiff the dishonoured cheque was sent back to the defendant but the defendant not only refused to accept the same but also humiliated the plaint tiffs' messenger who had carried the dishonoured cheque. The proprietor of the defendant firm who himself gave evidence denies this fact. He further gave evidence to say that even after this episode of the dishonoured cheque the plaintiff continued to accept cheques by way of rents from the defendant from June to November, 1956 month by month. This of course is contrary to the version of the plaintiff's husband according to whom after the cheque for May, 1956 had been dishonoured 'cash, payment was insisted upon' but the defendant persisted in sending cheques which the plaintiff did not encash. Before the defendant started depositing rents with the Rent Controller, the defendant sent the rent for December, 1956 by money order which was refused. When the defendant started depositing rents in Court after May, 1957, i.e. after the summons in the instant suit had been served on him, the defendant did not deposit rents from May, 1956 to November, 1956. Though in regard to Suit No. 1403 of 1957 the defendant had deposited rents in Court for those months for which cheques had already been paid but not encashed by the plaintiff the defendant in this particular suit did not follow that procedure. Jiwandas Mundra, the proprietor of the defendant firm admitted in evidence that he used to get statements of accounts from his bank once a month and he knew from these statements that the cheques he had made over had not been cashed. Since, the defendant, even with his knowledge that cheques had not been encashed by the plaintiff, did not deposit the rents in Court for the months of May to November 1956 the learned trial Judge has held that the defendant was a defaulter in payment of rent for more than four months within a period of twelve months from the date of institution of the suit and was not, therefore, entitled to claim any protection against eviction. We are in agreement with the learned trial Judge that the defendant was a defaulter and is not entitled to any protection under the Act. In our opinion, mere tender of chques is not tantamount to payment unle-of course, there is a clear agreement to that effect. No such agreement has been either pleaded or proved. All that has been said in the written statement is that the defendant 'used' to pay by cheques and the plaintiff 'used' to accept them. The fact that the plaintiff ordinarily used to accept cheques would not make it obligatory on the part of the plaintiff to accept such cheques every time. Particularly, on the defendant's own showing the defendant's cheque for the month of May, 1956 had been dishonoured. It is strange that even after the cheque had been dishonoured the defendant did not take care to send that amount again to the plaintiff either in cash or by cheque. In fact, so far as the default for May, 1956 is concerned, the defendant did not at any stage make any attempt to cover up that default. As regards the subsequent months defendant has given evidence to say that once a month he got statement of accounts. Though he says in his evidence in a vague sort of way that statements of accounts are not always verified, he did admit that he 'saw' from the statement that the 'cheque was not cashed'. In any case, it is only reasonable to assume that he, a businessman of some standing, should have discovered from his accounts that his cheques had not been encashed by the plaintiff. Further, as we have already said, even a valid tender of rent before a landlord does not absolve the tenant from his obligation to pay rent. Section 21 of the West Bengal Premises Tenancy Act makes it clear beyond any doubt that what the Act insists upon is actual payment. If after a due tender the landlord refuses to accept the tender, the Act has provided in Section 21 the manner in which the defendant could in those circumstances discharge his obligation. The Act nowhere suggests that a mere tender is as good as payment. Even tender in cash is not, by itself, a good payment unless followed by a valid deposit before the Rent Controller. In this case when the defendant discovered that his cheques had not been cashed, the most that he could say was that he the defendant had made a valid tender though the plaintiff had made such tender infructu-ous by not sending the cheques to the bank. The defendant could not by any stretch of imagination say that he had actually made the payment. Even if we concede that the defendant had made a valid tender, that tender not having been followed by a valid deposit before the Rent Controller one must take those months as months of default. The learned counsel appearing on behalf of the appellant relied on Section 38 of the Indian Contract Act in this connection. The terms of Section 38 which are relevant for our purpose are as follows:
'Section 38. Where a promisor has made an offer of performance to the promisee and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract.
Every such offer must fulfil the following conditions: (1) it must be unconditional :** ** **'
8. It is argued that since the defendant had made an offer of performance to the plaintiff and the plaintiff had not accepted the offer, the defendant is not responsible for non-performance, nor can he lose his rights under the contract of tenancy. This, to our mind, is putting an entirely wrong construction upon the section. What has to be offered by the promisor and refused by the promisee to bring a case within the ambit of Section 38 of the Indian Contract Act is actual performance and the offer has to be in any case unconditional. It has neither been pleaded nor proved in this case that the defendant had merely promised to deliver cheques to the plaintiff. Therefore, it is not possible to argue that non-acceptance of cheques by the plaintiff can absolve the defendant from further performance of his obligations under the contract of tenancy. Obviously, so Ear as the defendant is concerned, he had promised actual payment. Had the plaintiff refused to accept actual cash payment there might have been some justification for invoking section 38. Nobody can say that handing over a cheque is as good as making a payment. A creditor is never bound to accept a cheque. Besides, even refusal to accept payment on the part of the plaintiff does not necessarily exonerate the defendant from his obligation to deposit the amount of rent with the Rent Controller in accordance with the provisions of sections 21 and 22 of the Act of 1956. To say that without making such deposit the defendant cannot seek for protection from eviction on the ground of default is not tantamount to saying that the defendant loses any rights under the contract of tenancy. All that Section 38 of the Contract Act provides is that when a real offer of performance is refused by the promisee, the promisor is no longer responsible for non-performance and does not therefore lose his rights under the contract. But the right to resist eviction in certain circumstances given by the West Bengal Premises Tenancy Act is not a right under the contract at all. It is a special right given by the West Bengal Premises Tenancy Act and to be entitled to that right it is not enough for the tenant to invoke Section 38 of the Contract Act; the tenant has also to show that he has performed his obligations laid down in the West Bengal Premises Tenancy Act before he can claim to be entitled to protection from eviction under the Act of 1956.
9. There are further infirmities in the defendant's case. Under Section 17(1) of the Act a tenant could get the benefit of protection against eviction if within one month after the service of the writ of summons on him he deposited in Court or paid to the landlord the amounts for which there have been default. So far as this suit is concerned, the defendant does not appear to have made any deposits in Court for the months of May to November, 1956, The defendant's counsel argued that the word 'default' connotes a blameworthy conduct on the part of the defendant. But since the defendant had paid the cheques and it was the plaintiff who had refused to accept them one cannot say that the defendant had committed default. We are not inclined to accept this plea. This period of nonpayment of rent had started in May, 1956 when the defendant's cheque had been dishonoured. Therefore, so far as the month of May, 1956 is concerned, there is no question that the defendant was at fault. After starting with a month like this the defendant should have taken pains to see that his cheques were encashed. He should not have assumed that the mere handing over of the cheque would have saved him from further liability to pay. Therefore, it is difficult to argue that his conduct was not blameworthy. In any case, we do not consider that the word 'default' has been used in Section 17 in the sense suggested by the defendant. From the scheme of the Act it is quite clear that by the word 'default' the framers of the Act merely wanted to refer to the fact of non-payment of rent for any particular period. In any case, there was nothing to prevent the defendant from having asked for an adjudication under Section 17 (2) of the Act about the amount of rent that was due from him to the landlord and that had to be deposited in accordance with the provisions of Sub-section (1) of Section 17. For all these reasons we agree with the learned trial Judge that the defendant had committed default in respect of four months prior to the filing of the suit and was not, therefore, entitled to protection from eviction under the Act of 1956.
(In paragraphs 10 to 12 the judgment agrees with the trial Court's finding about the reasonable and bona fide requirement of the suit premises by the plaintiff for her own use and occupation.
In paras 13 to 15 the Court rejects an application for adducing additional evidence about some additional accommodation having already been available to the plaintiff on grounds that the default has been proved and further that such additional accommodation was also not sufficient for expansion of the business. The judgment then proceeds.
16. It was faintly argued on behalf of the appellant in Appeal No. 251 of 1961 that the lease was for manufacturing purpose. This obviously was done to support the contention that the defendant was entitled to a longer notice. There is however, no evidence that the tenancy was for a manufacturing purpose. As is well known, it is not enough to prove that the tenant manufactures certain commodities or that the tenant uses the premises for such manufacture. The intention of the tenant or even the actual user of the tenant after the taking out of the tenancy are immaterial. What must be pleaded and proved is that the tenancy agreement itself was for manufacturing purpose. There is no evidence on record on this point and we have no hesitation in rejecting this contention of the appellant.
17. In this view of the matter both the appeals fail and we order as follows Both the appeals are dismissed with costs. Save as to the question of default in appeal No. 250 the judgment dated 17th December, 1959 and the decree passed by the learned trial Judge are upheld.
18. In view of our finding in the appeals the cross-objections in Appeal No. 250 are not pressed and we pass no order in regard to the same.
19. I agree.