1. The only question that has been canvassed in this case is with regard to the validity of the tender of rent made by the defendants. The plaintiffs brought a suit for rent on the basis of a kabuliat executed before the Bengal Tenancy Act came into force in which interest on arrears of rent was stipulated at one anna per rupee per month. The plaintiffs claimed interest at half anna per rupee and damages and costs. The only defence with which we are now concerned is that the rent was sent to the plaintiffs by money orders which were refused and, therefore, they are not entitled to claim interest. The trial Court held that the tenders were not good and allowed the plaintiffs' claim in full and half-costs. Defendants 3 and 4 appealed and the learned Subordinate Judge was of opinion that the tenders were good and. effective and dismissed the plaintiffs' claim for interest, allowing him a decree for the rent and cesses claimed.
3. The plaintiffs have appealed and it is contended on their behalf that on the facts found by the Courts below the tender must be held to be illegal and inoperative. It has been found and it must be accepted as a fact, that the defendants remitted rents even before they actually became due to the plaintiffs by money orders which were refused; but afterwards the defendant neither deposited the money in Court under Section 61, Ben. Ten. Act, nor paid the admitted amount in Court after the institution of the suit. As a matter of fact it was not deposited until after the decision of the trial Court when execution was taken out. The requisites of a valid tender have been considered in many cases and have been explicitly laid down in text books. One of the requisites of a valid tender is that the party making the tender must always be ready to fulfil the obligation whenever sailed upon or, as it is otherwise expressed a tender in order to be valid must be kept good, in accordance with the requirements of the law. Now the plea of legal and valid tender must not only allege that the defendant is still ready but must be accompanied by payment into Court. Leake on Contract, 7th Edition, p. 645. The law of tender has been partly borrowed into the Indian Contract Act from the English law and that portion of it which has not been incorporated in the Indian law should be applied as embodying rule of justice, equity and good conscience. Under Order 22, Rule 3, of the Rules under the English Judicature Act a plea of tender is not to be received in Court unless accompanied by payment in Court. The same view has been taken in this country in Abdul Rahman v. Nur Mahommad  16 Bom. 141. Under Order 24, Civil P.C., 1908, in order to stop running of interest it is necessary for the defendant to deposit the amount admitted by him in Court. In the present ease by not depositing the amount in Court, the defendants have not only rendered themselves incompetent to raise the plea of valid tender but have forfeited their right to remission of interest under Order 24, Civil P.C.
4. In answer to the appellants' case on this point the learned advocate for the respondents has relied upon the Pull Bench decision of this Court in Kripa Snidhu Mukherji v. Annoda Sundari Debi  25 Cal. 34. That case has no bearing upon the question in controversy in the present ease. Before the Pull Bench decision it was held that a tender of rent under the Bengal Tenancy Act must be followed by a deposit under Section 61 of the Act. The Full Bench disagreed with this view and held that a tender in order to be legal and valid need not be followed by deposit under Section 61, Ben. Ten. Act. But it did not consider the further question as to whether under the law it is necessary in order to render a tender effective to deposit the money in Court at the institution of the suit. In the Pull Bench case in fact the money was tendered several times to the plaintiffs, his pleader and Naib and ultimately when-it was refused it was deposited in Court before the institution of the suit. On these facts the Court held that it was a valid tender which was kept good as shown by the conduct of the tenant and it should stop the running of interest from the date of the tender.
5. Apart from the considerations which apply to the present case with reference to the law of tender, there is a particular section in the Bengal Tenancy Act which deals with the procedure to be followed where a tenant in a suit for rent admits a certain amount to be due to the landlord. Section 150 says when a defendant admits that money is due from him to the plaintiff on account of rent but pleads that the amount claimed is in excess of the amount due, the Court shall refuse to take cognizance of the plea unless the defendant pays into Court the amount so admitted to be due. This provision of the law was not apparently brought to the notice of the Courts below. As in the present case the defendants admitted that the actual rent fixed under the kabuliat was due from them to the plaintiffs and they not having deposited that amount in Court, the Court ought to have under the law refused to take cognizance of the plea that the amount claimed was in excess of the amount which was actually due to the landlords. That the law as laid down in Section 150, Ben. Ten. Act, is applicable to cases where the defendant admits that money is due from him to the plaintiff on account of rent has been held in several cases. Banarashi Pershad v. Makhan Roy  30 Cal. 947. The Patna High Court in Kesho Prasad Singh v. Trilohe Nath Tewari A.I.R. 1925 Pat. 489, has taken a wider view of the application of the section. In this view also the defendants' plea of tender must be rejected. In our opinion this appeal must succeed. The respondents ask us to remand the case to the lower appellate Court in order to determine the question what amount of interest the plaintiffs are entitled to claim from the defendants under the contract. This is a question which we find from the judgment of the lower appellate Court was not raised before that Court. The only contentions of the defendants were that the tender was a valid tender and that the Munsif should not have allowed interest, damages and costs to the plaintiffs presumably on the ground that the tender was valid. We have looked into the judgment of the trial Court and we do not think that it would be necessary to remand the case for consideration of the question now raised before us by the respondents.
6. The result is that this appeal is allowed, the decree of the Court below set aside and that of the trial Court restored. But as this litigation has been occasioned by the unreasonable refusal by the plaintiffs of the rent sent to them by money order, we direct that the plaintiffs should bear their own costs throughout.