Decided on December 22,1965

Yogendra Nath Bhargava Respondents


- (1.)THIS is a tenants second appeal from the concurrent decrees of the courts below ordering his ejectment from a house. The appellant Navin Chandra, who is a lawyer practising at Aligarh, is a tenant of the house of which Sri. Yogendra Nath Bhargava is the owner and landlord. The appellant sent two cheques on 3-7-1961 and 31-7-1961 respectively in full payment of the rent, but both were returned by the landlord who wrote that he was not prepared to accept the payment by cheque and requested the appellant to pay the rent in cash. In reply to this letter the appellant wrote on 21-8-1961 that in future he would make payment by cheque or money order, at the option of the landlord, but if by money order he would deduct the postal charges. However he never sent the remittance by money order. The landlord served on him a notice of demand together with a conditional termination of the tenancy, but the amount remained unpaid. Thereupon the landlord filed this suit for his ejectment which was decreed by both the Courts below.
(2.)MR . Navin Chandra argued only one point in support of this appeal. He contended that the Courts below erred in holding that the appellants remittance by cheque before the receipt of notice of demand was not a valid tender of payment. It is common ground that if the appellants remittance by cheque was a valid tender, there was no rent due on the date of demand. The Courts held that payment by cheque was not a valid tender in this case. I think they were right.
The question whether a tender of payment by cheque by the debtor is equivalent to payment is one of fact and must be decided according to the facts and circumstances of each case.

(3.)IF the creditor accepts the cheque, it will be a valid lender unless the cheque is subsequenlly dishonoured. If however the creditor refuses to accept the cheque and contends that there was no valid tender of payment, the debtor must establish that he was entitled to tender the payment by cheque the may establish this by proving that the creditor had accepted payment by cheque on all previous occasions or that there was a custom sanctioning payment by cheque. For example, among business-men payment by cheque will ordinarily be treated as valid payment unless the cheque is dishonoured. But in the absence of circumstances permitting payment by cheque, a debtor cannot claim a legal right to make payment by cheque if the creditor insists on being paid in cash. In this case, the parties are not business-men, nor did the debt arise out of any business transaction. The tenant is a lawyer and the landlord was at the time a student studying at Allahabad. The landlord refused to accept payment by cheque. He was entitled to do so. Therefore, the appellant cannot claim that he had tendered the rent before receiving the notice of demand.

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