JUDGMENT 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. 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 of the ejectment notice issued on the defendant on 28th July, 1962 (vide Ext A/1). 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 of the ejectment notice issued on the defendant on 28th July, 1962 (vide Ext A/1). Thereafter on 27th September, 1962, the tenant sent the rent for the months of July to September, 1962 by three cheques drawn on the National and Grindlays Bank, Chowringhee, Calcutta (vide Ext A/3) and the said cheques were again returned by the landlord on October 12, 1962, in view of the latter ejectment notice issued on 15th September, 1962 superseding the earlier notice dated 28th July, 1962. This according to Mr. Banerjee constitutes a valid tender, whilst according to Mr. Dutt tender of rent by cheques could not be regarded as a valid tender within the meaning of section 21 of the West Bengal Premises Tenancy Act (to be hereinafter referred to as the Act) so as to entitle the tenant to make the deposit of such rent with the Rent Controller in accordance with sections 21 and 22. Mr. Banerjee contends that the unreasonable refusal by the landlord to accept payment of rent even if made by cheques, would amount to valid tender within the meaning of section 21 of the Act. It appears that the writ of summons in the suit was served on the defendant on 25-4-63 and he entered appearance in the suit on May 4, 1963. On 13-5-63, he was permitted to deposit the rent for the months of July and August, 1962 and April. 1963 and pursuant to the above order the tenant undoubtedly deposited the arrears of rent for these months within time. Consequently, these deposits would be regarded as valid deposits within the meaning of section 17(1) of the Act. It now remains to examine if the deposit for the month of September, 1962 made with the Rent Controller on 17-10-62 is a valid deposit within the meaning of section 21. According to Mr. Dutt, rent for the month of September, 1962 although stated to have been offered by cheque No. SB 073: 68 dated October 1, 1962 was sent to the landlord along with the letter dated 27th September 1972 (Ext. A/3), that Is, at a' time when the rent bad not become due for payment within the meaning of section 4. Mr. Dutt, rent for the month of September, 1962 although stated to have been offered by cheque No. SB 073: 68 dated October 1, 1962 was sent to the landlord along with the letter dated 27th September 1972 (Ext. A/3), that Is, at a' time when the rent bad not become due for payment within the meaning of section 4. Mr. Banerjee drew our attention to the proviso to sub-section (2) of section 4 of the Act which entitled the tenant to pay rent for any month at any time during such month before it fell due. This proviso, it would appear, was introduced into the Act by section 3 of the West Bengal Premises Tenancy (Second Amendment) Act (Act 34 of 1969) which came into force on November 14, 1969. Section 3 of the Amending Act no doubt gave retrospective effect to certain sections introduced by the amending Act in all pending suits and appeals but section 3 of the amending Act was not included therein. Consequently, the proviso did not have any retrospective effect in respect of suits or appeals pending at the date when the particular provision of the Amendment Act came into force It would thus appear that the rent for the month of September, 1962 was not tendered In accordance with the provisions of section 4 of the Act, as it then stood, and could not, therefore, be regarded as a valid tender within the meaning of section 21 read with section 4 of the Act. 7. The contention of Mr. Banerjee is that the payment of rent by cheque where the parties agreed to accept such payment would be regarded as a valid tender within the meaning of section 21 of the Act. He drew our attention to the tenant's evidence wherein he stated that he always paid rent by cheque and it was always accepted. There is no cross-examination, Mr. Banerjee contended, of the tenant on this point and the landlord also did not choose to assert that the rent used to be paid by any other mode or manner. It must therefore be taken that the rent had been previously paid by cheques and accepted by the landlord, but even in such a case the tenant cannot claim the benefit of section 21 of the Act which pre-supposes payment of rent in cash. It must therefore be taken that the rent had been previously paid by cheques and accepted by the landlord, but even in such a case the tenant cannot claim the benefit of section 21 of the Act which pre-supposes payment of rent in cash. The only exception to the section was introduced by the amending Act 34 of 1969 on November 14, 1969 by insertion of the proviso to sub-section (1) which by a deeming provision laid down that where rent was remitted by the tenant to the landlord by postal money order, the date of issue of the postal money order shall, for the purpose of sub-section (1) of section 21, be deemed to be the date of tender of such rent by the tenant to the landlord even though the money order may have been offered to the landlord at a subsequent date Section 21 of the Act, it is to be pointed out, refers to actual payment of rent and it is only where the tenant offers the rent to the landlord in cash and the landlord does not accept the same within the time stipulated in section 4, it would be regarded as refusal on the part of the landlord so as to entitle the tenant to make the deposit with the Rent Controller. In (1) Shree Nursing Timber Works and anr. v. Sm. Amala Bala Dassi (AIR 1969 Calcutta 12), a Division Bench of this court held that the delivery of a cheque in order to constitute a valid tender must be accepted by the payee as such and in the absence of any agreement between the parties that rents could be paid by cheques, there can be no valid tender of rent when offered by cheques. In that case, the tenant defendant paid rent for a certain period by cheques which were neither encashed by the landlord nor were the cheques returned to the tenant. The defendant deposited the rent subsequent to the period offered by cheques, With the Rent Controller. This tender was not regarded as a valid tender by the court. It was pointed out by their Lordships in paragraph 7 of the judgment that more tender of cheques did not tantamount to payment unless of Course, there was a clear agreement to that effect. In the instant case, no such agreement is either pleaded or proved. This tender was not regarded as a valid tender by the court. It was pointed out by their Lordships in paragraph 7 of the judgment that more tender of cheques did not tantamount to payment unless of Course, there was a clear agreement to that effect. In the instant case, no such agreement is either pleaded or proved. All that the evidence makes out is that the tenant used to pay rent by cheques and the plaintiff used to accept the same. The fact that the plaintiff ordinarily accepted payment of rent by cheques would not make it obligatory on the part of the plaintiff to accept such cheques every time, more particularly when it was received by them after they had caused a notice to quit to be served on the defendant. 8. Mr Banerjee relying on section 38 of the Indian Contract Act contended that the tenant having made an offer to pay rent to the landlord and the offer not having been accepted by the landlord, he was no longer responsible for the non-performance of the contract nor did he thereby loose his right under the contract and in support he relied upon a decision of the Bombay High Court in (2) Keshav Mills Co. Ltd. v. Commissioner of Income-tax (AIR 1950 Bombay 166) In that case, the payment of a debt by cheque or a hundi was held not to result in the discharge of the debt except where there was an arrangement between a creditor and a debtor that the receipt of a cheque or hundi by the creditor may result in an unconditional discharge of the debt, and in the event of the cheque or the hundi not being honoured, the creditor would have no right to sue on the original cause of action but only on the cheque or the hundi. A cheque merely represents an order by the drawer of the cheque to his banker to pay the amount to the person named in the cheque and till that payment was made the debt is not discharged. Therefore, the sending of a cheque ordinarily did not amount to an unconditional discharge of the liability. A SImilar argument was also canvassed before the Division Bench in Shree Nurshing Timber Works case and it was repelled by their Lordships. Therefore, the sending of a cheque ordinarily did not amount to an unconditional discharge of the liability. A SImilar argument was also canvassed before the Division Bench in Shree Nurshing Timber Works case and it was repelled by their Lordships. To do so, the Division Bench pointed out, would be put an entirely wrong construction on the section. It cannot, therefore be contended that handing over the cheque is as good as making the payment. A creditor is not bound to accept the cheque. 9. Mr. Banerjee also tried to distinguish the decision in Shree Nursing Timber Works case on the ground that the actual decision proceeded on a different ground. Upon reading the decision, we are unable to hold that the question did not arise for decision in the aforesaid case and paragraphs 7 and 8 clearly set out the circumstances under which a tender if made by cheque could amount a valid tender. We have already pointed out that section 21 read with section 4 of the Act makes it clear that payment of rent to the landlord means actual payment unless the parties had agreed to some other mode or manner of payment for discharging the obligation. No such agreement, as has already been pointed out, bas been pleaded or proved. The fact that payment of rent had previously been made by cheque and accepted, would not by itself be sufficient. Mere sending of a cheque to the landlord would not, therefore be a valid tender of the rent, and consequently even if it is followed by a deposit with the Rent Controller within the time specified it would not afford any protection to the tenant. In the instant case when the cheque for the month of September, 1962 was returned. the tenant made no further attempt to tender the amount in cash and proceeded to deposit the rent with the Rent Controller on 17-10•62. 10. Mr. Banerjee next contended that refusal on the part of the landlord to receive the cheque on a different ground would not be sufficient to make the tender an invalid tender. This contention, in our view, cannot be accepted. The landlord in refusing to accept payment by cheque is not bound to assign any reason to the tenant. So if any reason is assigned at all, it cannot ennure to the benefit to the tenant. This contention, in our view, cannot be accepted. The landlord in refusing to accept payment by cheque is not bound to assign any reason to the tenant. So if any reason is assigned at all, it cannot ennure to the benefit to the tenant. On the other hand, the fact that the landlord promptly refused to accept the cheque would have been sufficient to put the tenant on his guard. In the circumstances, the initial deposit before the Rent Controller, viz. for September, 1962 could not be regarded as having been preceded by a valid tender of rent to the landlord within the meaning of section 21 of the Act. In (3) Ballabhdas Agarwal Private Ltd v. Dalhousie Properties Ltd. (65 CWN 1021) it was pointed out that a valid timely tender of rent by the tenant to the landlord and the refusal to accept the same is a condition precedent to the validity of the relative or corresponding deposit and all subsequent deposits with the Rent Controller. The decision was followed by another Division Bench in the case of (4) Ganesh Ch Nandy v. J. N. Chatterjee & Bros, (70 CWN 676) wherein it was held that a deposit with the Rent Controller without being preceded by the requisite tender would make all the subsequent deposits invalid. The same view was also taken by another Division Bench in the case of (5) Dinanath Mondal v. Fatick Chand Seal (70 CWN 1086) where it was held that the tender of rent in order to be effective and legal must be followed by corresponding or relevant deposit with the Rent Controller. It would therefore appear on a discussion of the authorities referred to above that the tender of rent for the month of September 1962 could not be regarded as valid tender within the meaning of section 21 of the Act and as such the deposit with the Rent Controller of rent for the month .of September, 1962 and all subsequent deposits upto March 1963 would be regarded as invalid deposits. 11. Coming now to the question of sub-letting and/or transfer of tenant's interest in the premises, Mr. 11. Coming now to the question of sub-letting and/or transfer of tenant's interest in the premises, Mr. Dutt contends that the plaintiff came forward with a specific case that the defendant without the previous consent in writing of the plaintiff had sub-let or otherwise transferred the said premises to some other person but the defendant did not choose to give a specific reply to this challenge. The defendant in paragraph 7 of his written statement merely denied that he had ever sublet or transferred his tenancy right in the demised premises to another person. In the notice of ejectment (Ext. 1). the plaintiff even alleged that in violation of the condition of the agreement, that the premises would not be sublet, assigned, underlet or otherwise transferred to any other person, the defendant. it transpired had been using the premises for a purpose other than residence for about two years and allowed one J.P. Agarwala to use and occupy it. The said notice had been made part of the plaint (vide paragraph 6). The learned Judge on this question found against the plaintiff on the ground that P.W.1 had no personal knowledge about the sub-letting even though the finding was that one Mr. Agarwal was occupying the disputed premises for some time and the defendant himself was putting up in a friend's house. On the defendant's own showing he was taken. In and was out of Calcutta in October and November, 1961 and allowed his personal friend Mr. Agarwalla to occupy the flat, but he asserted that this was done without payment of any rent and on a caretaker basis. At the date of the defendant's evidence in April, 1964 Mr. Agarwalla was still occupying the flat and it has not been contended before us that there has been a change of circumstances or occupation upto this date. In August, 1962 when the defendant admittedly came down to Calcutta, he started staying with a friend of his at No. 138, Dharamtalla Street and there is no evidence nor any affidavit on record to show where the defendant is putting up ever since. It is true that the plaintiff has not been able to lead any evidence to show that this occupation by Mr. Agarwalla was for consideration but there can be little doubt that Mr. It is true that the plaintiff has not been able to lead any evidence to show that this occupation by Mr. Agarwalla was for consideration but there can be little doubt that Mr. Agarwalla has been in exclusive occupation of the premises for nearly 15 years and it is too late in the day for the defendant now to contend that be retains control over the flat or that Mr. Agarwalla stayed there on care-taker basis. Mr Dun relied upon the decision of the Bombay High Court in the case of (6) Dattatraya v. Narayan Das (AIR 1974 SC 189) where the word 'sub-letting' occurring in section 13 (3) (iii) of CP and Berar Letting of Houses and Rent Control Order (1949) came to be interpreted. There it was held that the word 'sub-let' is of wider amplitude and takes in the Jetting even to licensees or their occupation at the instance of the tenant either for some consideration like rent or premium and if such induction was without the written permission of the landlord, the requirements of sub-clause 3(iii) will be fully satisfied. In the said case the purchaser moved an application seeking permission to determine the lease of the tenant Narayandds who had been inducted prior to the petitioner's purchase on the ground that the tenant without the written permission of the landlord bad inducted some person as a sub- tenant. The Nagpur Bench of I he Bombay High Court was of the opinion that the word 'sub-let' should be interpreted in a wider sense. In the case of (7) Associated Hotels of India Ltd. v. S. B. Sardar Ranjit Singh ( AIR 1968 SC 933 ), the Supreme Court had to interpret whether a particular occupier was a licensee or a tenant in the context of section 13(1), Proviso (b) and (c) of the Delhi and Ajmer Rent Control Act, 1952. There, It was pointed out that although the onus of proving the sub-letting was on the respondent landlord, the respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of apartments for valuable consideration but the appellant did not choose to rebut the prima facie evidence by proving and exhibiting the relevant agreement. There, It was pointed out that although the onus of proving the sub-letting was on the respondent landlord, the respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of apartments for valuable consideration but the appellant did not choose to rebut the prima facie evidence by proving and exhibiting the relevant agreement. The test of exclusive possession in the context was held by the Supreme Court to be a very important indication in favour of a tenancy though not a conclusive one. The tenancy of the appellant was in respect of a hotel premises together with fittings and furniture for a term of thirty years on the basis of a written lease. The landlord respondent alleged that in contravention of the express condition of the lease the appellant sublet the portion or the premises to different persons for valuable consideration. This observation of the Supreme Court came to be considered in a later case reported in (8) AIR 1974 SC 280 , Krishwati v. Hans Raj). In that case the landlord alleged that the tenant had sublet the premises and was running a business there and the appellant had complely parted with possession without the written consent of the respondent. It came out in evidence that the alleged sub-tenant was either the husband of the tenant or had been living with her and both of them carried on business as Chemists. The Supreme Court concurred with the earlier decision in (7) Associated Hotel of India Ltd's. case. It would be evident from the two cases cited above that on the peculiar facts of this cases the onus would be clearly on the landlord to substantiate that there has been a sub-letting. In the instant case not only is the alleged sub-tenant in exclusive possession of the premises for the last 15 years, there is no indication to show that the tenant had retained any control whatsoever of any portion of the premises, although the tenant claimed that Mr. Agarwalla was his cartaker It is interesting to note that even when the tenant was staying somebody else's house in Calcutta he presumably did not or could not have any access or right of residence in the said premises. Agarwalla was his cartaker It is interesting to note that even when the tenant was staying somebody else's house in Calcutta he presumably did not or could not have any access or right of residence in the said premises. Undoubtedly, the tenant who is in possession of all the facts did not choose to lead any evidence to show on what consideration the alleged sub-tenant was permitted to occupy the premises. It is difficult to accept that the possession of Mr.Agarwalla was on a care• taker basis, when the tenant himself was putting up in somebody else's house. Mr Agarwalla who is in occupation of the flat has not been examined for some unexplained reason. In the absence of any evidence to show that the tenant retained any control over the premises and having regard to the fact that Mr. AgarwaJIa is in exclusive possession of the flat in question for the last 15 years. there can be little doubt that there has been a transfer of the tenant's interest in the demised premises Mr. Banerjee sought to contended that the tenant retained control in the matter of payment of rent either with the Rent Controller or in the Court, a fact which would be sufficient to negative the inference of sub-letting or transference of tenancy. We have carefully considered all the aspects of the Case and it appears to us that this device to put in the rent through the tenant, has been used as a cloak so as to protect the interest of the person in occupation and for all the reasons discussed above, we must conclude disagreeing with the finding of the learned trial Judge that there has been either a sub-letting or transfer of tenant's interest in the premises to a third person without the consent of the landlord We have already pointed ant that the legality and the validity of the notice in question has not been disputed the notice was admittedly served on the defendant. The tenant must therefore be found to be a defaulter and he has also sub-let and/or transferred his interest in the tenancy in favour of a third person without the consent of the landlord and is therefore not entitled to any protection under any of the provisions of the West Bengal Premises Tenancy Act. The tenant must therefore be found to be a defaulter and he has also sub-let and/or transferred his interest in the tenancy in favour of a third person without the consent of the landlord and is therefore not entitled to any protection under any of the provisions of the West Bengal Premises Tenancy Act. It follows therefore that the landlord is entitled to a decree and the appeal must succeed. 12. The appeal in the circumstances is allowed. The judgment and decree of the learned trial Judge are hereby set aside and the suit be decreed with costs to the appellant. The appellant do get a decree for recovery of possession against the respondent but the respondent is granted time till 30th June, 1976 to vacate, subject to his depositing in Court an amount equivalent to the rate of rent month by month within the 15th of the next succeeding month, the rent for the month of June must however be deposited within the 30th June. 1976. On the expiry of the period aforesaid or on failure to deposit the amounts as directed above the appellant will be at liberty to execute the decreed. Janah, J.: I agree.