Decided on November 06,1967



- (1.) THIS second appeal is by the defendants against whom a decree for ejectment has been passed by the lower appellate Court. The decree is based on two grounds, namely, that the house was required bona fide by the plaintiffs for carrying on their own business and that the defendants were in arrears of rent. Both these grounds are challenged before me.
(2.) THE house in question is situate in Bazar Chowk, Satna, while the plaintiff's reside at village Nadan, Tahsil Maihar, where they carry on their business. THE plaintiff's case is that the house was given to the defendants on a monthly rent of Rs. 275 for the purposes of business ; that between the time the house was rented out and the date of the suit the family of the plaintiffs has grown in volume; that the income from the business carried on at Nadan is not sufficient for the upkeep of the family and there is no possibility of expanding the business at Nadan; that the adult members of the family, namely Jawaharlal and Radhyeshyam, under the guidance of Tirath Prasad, desire to start the wholesale business in cloth and Kirana at Satna, where they have no other accommodation of their own, for this purpose; that the necessity of starting the business is genuine for the upkeep of the growing family; and that the family has sufficient experience of the business. It was also pleaded that the defendants were in arrears of rent from 1-10-1961 till 31 -5-1962 which was also not paid even after notice till the filing of the suit. In defence it was stated that the rent of the house was fixed at Rs. 175 with effect from 1-8-1961 by the Rent Controlling Authority and that the defendants had sent the rent for the period 1-10-1961 to 31-5-1962 by a cheque on the Punjab National Bank under a registered cover which was returned by the plaintiffs. It was also pleaded that the house was mainly for residential purposes and that there was no necessity of starting the business at Satna. The income from the business at Nadan was sufficient and that this fact could be inferred from the fact that the plaintiffs could acquire house property worth Rs. 50,000 at Satna. It was also pleaded that the plaintiffs wanted to increase the rent from Rs. 275 to Rs. 500 and as the defendants got the rent fixed at Rs. 175 per month before the Rent Controller, the present suit for ejectment was filed. It was, therefore, stated that the need of the plaintiffs was not bona fide. The trial Court dismissed the suit on the ground that the plaintiffs had failed to make out a case for genuine need and that the defendents were not in a arrears of rent.
(3.) ON the question of arrears of rent, the lower appellate Court, on the basis of two decisions of the Allahabad High Court in Mohanlal v. Kanwar Sen(AIR1954 Ml. 480) and Saligram v. Jaigopal (AIR 1955 All.350.), held that sending of the cheque was not tender of the rent according to law and that the plaintiffs were within their rights in refusing to accept the same and that the default thus continued till the filing of the suit. The lower appellate Court further held that the defendants failed to apply under sub-section (2) of section 13 of the M. P. Accommodation Control Act to get the rent provisionally fixed by the Court; nor did they deposit the amount at the rate provisionally fixed by the Court. Not only that but the amount deposited by the defendants at the rate of Rs. 175 was subsequently withdrawn by them. Even at the appellate stage the monthly rent was not deposited. The defendants, therefore, were not entitled to any protection under section 12 (3) of the M. P. Accommodation Control Act and that the plaintiffs were entitled to a decree for ejectment. Shri Dabir, learned counsel for the appellants, urged that the lower appellate Court was in error in holding that the defendants did not tender the whole of the arrears of rent within two months of the date on which the notice of demand for arrears of rent as contemplated under section 12 (1) (a) of the M. P. Accommodation Control Act, 1961, was served by the landlord on the tenants. He urged that the decisions of the Allahabad High Court did not lay down the correct law. I have perused the two Allahabad decisions, referred to above. They do not contain any discussion on the point. In Chalmers on Bills of Exchange, 13th Edition, at page 338, the general rule as to payment is quoted as under: "The general rule of English law is that when a debt becomes due, it is the duty of the debtor, in the absence of any different agreement, to seek out his creditor,.. and tender him the exact amount of his debt in cash or other legal tender On the one hand the debtor is under no obligation to honour a bill drawn on him by a creditor, unless he has agreed to do so; on the other hand a creditor is under no obligation to receive a bill, note or cheque in discharge of his debt......... Where a bill or note is given by way of payment, the payment may be absolute or conditional, the strong presumption being in favour of conditional payment." Section 50 of the Contract Act provides that the performance of any promise may be made in any manner, or at any time which the promisee prescribes or sanctions. It would thus appear that the obligation to discharge the debt is discharged only when the amount is paid either in cash or by presentation of any other legal tender unless by agreement of parties any other mode, such as, acceptance of a cheque or a bill of exchange is prescribed by the parties. The view that sending of a cheque by post on the request of the creditor operates as a conditional payment and, in certain circumstances, as full discharge of the obligation has been confirmed in Income Tax Commissioner v. M /s. Ogale Glass Works Ltd.(AIR 1954 SC 429). But the question still remains whether in the absence of any contract the presentation of a cheque is enough to discharge the obligation of tendering the amount within the specified period. It may be noted that under section 12 (1) (a) of the M. P. Accommodation Control Act what is required is that the arrears of rent should be either paid or tendered. The question is as to whether, instead of presenting the cash, if a cheque is sent to the landlord, that is sufficient tender of the arrears of rent or not. In the above cited case of the Supreme Court, in paragraph 10 of the judgment their Lord ships have observed: "That a sum of money may be received in more ways than one cannot be doubted. It may be received by the transfer of coins or currency notes or a negotiable instrument which represents and produces cash and is treated as such by businessmen." In the highly developed society, payment by cheque has become more convenient mode of discharging one's obligation. If a cheque, is an instrument which represents and produces cash and is treated as such by businessmen, there is no reason why the archaic principle of the common Law should be followed in deciding the question as to whether the handing over of the cheque is not a sufficient tender of the arrears of rent if the cheque is drawn for that amount. It is no doubt true that the issuance of the cheque does not operate as a discharge of the obligation unless it is encashed, and it is treated as a conditional payment. Yet, in my view, this is a sufficient tender of the arrears if the cheque is not dishonoured. In the present day society, I am of the view, an implied agreement should be inferred that if the payment is made by a cheque, that mode of payment could be accepted. A cheque supplies good evidence of the fact that the tender was made, and there is nothing wrong in the tenant in resorting to this method in order to avoid the plea of the landlord that no such tender was made. It was conceded before me that if the amount had been sent by money-order, that would have been a good tender. But it was urged that it is so because the cash is produced by the post-office. It was urged that if the creditor is made to accept a cheque, even as a conditional discharge, he would be put to unnecessary botheration of presenting it to the appropriate Bank for collecting the sum ; that is not the requirement of law, and there is no reason why the creditor should be required to undertake the additional burden. There is some amount of force in this submission. But in the present structure of society, I think that obligation should be imposed on the creditor. In this view of the matter, I am of the opinion that the landlord was not entitled to refuse the cheque which was sent to him under a registered cover and that there was good tender of the arrears of rent. It thus follows that the landlord is not entitled to base his claim for ejectment on ground No. (1).;

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