A. M. BHATTACHARJEE, J. ( 1 ) JUDGMENT:- This first Appeal by the tenant against the decree of eviction passed against him by the learned District Judge in a suit for eviction filed in his Court by the landlords-respondents involves two questions only, the first being whether the suit was bad for want of a notice as required under the terms of the tenancy and the second being whether the tenant was a defaulter in payment of rents warranting his eviction under the Gangtok Rent Control and Eviction Act, 1956. ( 2 ) THE seven-Judge Bench decision of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745 must be taken to have settled the question as to the requirement of a notice to determine the tenancy as a condition precedent to a suit for eviction of tenant of premises governed by the Rent Control and Eviction Acts operating in different States and it has been ruled by the unanimous seven-Judge Bench (at 1754, 1755) that no notice under S. 111 read with S. 106 of the Transfer of Property Act or any other law is necessary as a condition precedent to a suit for eviction, unless the relevant Rent Control Act mandates, or the agreement governing the tenancy requires, such a notice. This position has not been, as it obviously cannot be, disputed by Mr. S. R. Sarkar, the learned Advocate appearing for the tenant-appellant, who has, however, contended that the terms of the tenancy in suit not only required such a notice, but that, as would appear from Ext. D-21, they required such a notice to be for one month and to expire with the "end of the each whole year". As would appear from paras 7 and 8 of the plaint and also from Ext. P-1, being the copy of the notice served by the landlords-respondents on the tenant-appellant, the notice was issued to and served on the tenant in June, 1977 asking him to quit and vacate the tenanted premises immediately with the expiry of 31st July, 1977 and this not being the case of any of the parties that the tenancy commenced from the month of Aug. of one year to end with the month of July of the next year, there can be no doubt that this notice was not in accordance with the terms of the tenancy as contained in Ext. D-21. Ext. D-21 is the copy of a document issued in the form of a letter signed by the Manager of the landlords and also signed by the tenant containing the conditions of the tenancy and Condition No. 2 appears to be as hereunder : - "you have to vacate the rooms if we request you at the end of each whole year after one month's notice. " ( 3 ) IN fact Mr. N. K. Maitra, the learned Advocate for the landlords-Respondents, has frankly conceded that the notice, Ext. P-1, was not in accordance with the terms as contained in Ext. D-21; but Mr. Maitra has argued that, as would appear from Ext. D-21 also, the terms contained in that document were settled between the parties initially when three rooms were let out to the tenant at a monthly rental of Rs. 350/-, and as thereafter the tenant on the request of the landlords vacated two out of the three tenanted rooms, and the rent was also reduced to Rs. 200/-, the terms and conditions embodied in Ext. D-21 could not any longer govern the tenancy. But P. W. 1, who is the Manager of the landords and has represented them in the suit and who also executed the document Ext. D-21, has clearly stated in his deposition that "after the defendant gave up possession of two rooms, the rent was reduced to Rs. 200/- per month", but "the other terms and conditions of the tenancy remained the same" and, therefore, the submission made by Mr. Maitra that the original terms and conditions of the tenancy, as contained in Ext. D-21, ceased to govern the tenancy with the vacation by the tenant of two out of the three tenanted rooms, cannot be accepted. It should, be noted that in para 13 of his written statement, the tenant asserted that the notice dt. Maitra that the original terms and conditions of the tenancy, as contained in Ext. D-21, ceased to govern the tenancy with the vacation by the tenant of two out of the three tenanted rooms, cannot be accepted. It should, be noted that in para 13 of his written statement, the tenant asserted that the notice dt. 10-6-1977 was "illegal and invalid" and that "the defendant cannot be asked, in view of the Agreement, to vacate the suit premises with the expiry of a month in the middle of the year except at the end of each whole year" and that "the tenancy in question commenced on and from the month of Mar. 1971". It should also be noted that these allegations have not been denied by the plaintiff either by filing any replication or through the statements of P. W. 1, who represents the plaintiff in the suit as their Manager and that, as already noted, P. W. 1 has, on the contrary, stated that in spite of vacation of a portion of the tenancy, the other terms and conditions remained the same as before. ( 4 ) IT was pointed out by this Court in Jokhiram v. Mangturam 1977 Sikkim LJ 30 that though the Gangtok Rent Control and Eviction Act, 1956 does not provide for and does not require any notice terminating the tenancy, yet if under an agreement between the landlord and the tenant, the latter is entitled to a notice of certain period before he can be asked to vacate the premises or sued for eviction, such a notice must be served on the tenant before he can be proceeded against by a suit for eviction and the right of the tenant to receive such a notice is in no way affected by the Gangtok Rent Control and Eviction Act, 1956. In Jokhiram v. Mangturam (supra), reliance was placed by this Court on the Supreme Court decision in Manujendra v. Purendu, AIR 1967 SC 1419, where it was held (at 1423, 1424) that even though S. 3 of the Calcutta Thika Tenancy Act, 1949, like the Premises Tenancy Acts enacted in various States, provides that the tenants could be ejected only on the grounds specified in that Section and even though this Section, being armed with a non-obstante clause, was to operate "notwithstanding anything contained in any other law for the time being in force or in any contract", it could not and did not absolve the landlords from their obligation to give to the tenant the notice provided in and required by the terms of the Deed of Lease executed between the parties. The effect of the non obstante clause, and pointed out by the Supreme Court in Manujendra v. Purendu (supra, at 1423), was that even where the landlord had determined the tenancy by a notice to that effect as required by the terms of the tenancy, still then he would not be entitled to a decree for eviction unless one or more of the grounds specified in S. 3 of the Act were satisfied. As already noted, because of the categorical statement of P. W. 1 to the effect that in spite of the vacation by the tenent of the two out of three tenanted rooms, the other terms and conditions of the tenancy remained the same, I have not been able to accept the contention urged by Mr. Maitra that the terms and conditions as contained in Ext. D-21 ceased to apply to the tenancy in question. It has also been noted hereinbefore that Ext. D-21 requires a notice of one month to expire with the "end of each whole year" and admittedly or, at least, indisputably no such notice was served in this case and, therefore, this suit was to fail for want of such a notice as required by the terms of the Agreement between the parties. D-21 requires a notice of one month to expire with the "end of each whole year" and admittedly or, at least, indisputably no such notice was served in this case and, therefore, this suit was to fail for want of such a notice as required by the terms of the Agreement between the parties. As already noted, the seven-Judge Bench decision of the Supreme Court in V. Dhanapal Chettiar (supra), AIR 1979 SC 1745, has not made any change in law on this point and it should be noted that the decision in Manujendra (supra), AIR 1967 SC 1419 was expressly referred to in V. Dhanapal Chettiar (supra) (AIR 1979 SC 1745 at 1753, 1754) and was distinguished on the ground that the terms of the lease in Manujendra (supra) required six months' notice to be served on the tenant and "such a clause being not unlawful and giving an extra protection to the tenant against eviction, must also be adhered to". This view in Manujendra (supra) and in the decision of this Court in Jokhiram. v. Mangturam (1977 Sikkim LJ 30) (supra) being thus still good law even after and in spite of the later seven-Judge decision of the Supreme Court in V. Dhanapal Chettiar (supra), I must hold that the suit for eviction decreed by the learned District Judge was bad for want of a notice required by the terms of the tenancy and, therefore, the decree, so far it relates to eviction, is liable to be set aside on this ground alone. ( 5 ) THOUGH this is sufficient to dispose of this Appeal I propose to discuss the other issues also which have been argued before me by the learned counsel appearing for both the parties. The claim for eviction by the landlords was based on two of the grounds specified in S. 4 of the Gangtok Rent Control and Eviction Act, 1956, namely, that the premises were required for the expansion of their business and as such were required for the bona fide occupation of the landlords and that the "rent in arrears" amounted to more that "four months' rents". As to the claim for ejectment on the ground for bona fide requirement of the landlords, the same has been negatived by the learned District Judge who has, however, decreed the suit on the ground that the ','rent in arrears" amounted to more than four months' rents. As pointed out by this Court in Nauranglall v. Basant Kumari, AIR 1981 Sikkim 22 at 23, the landlords-respondents having thus obtained a decree of ejectment in their favour, could have, under the provisions of O. 41, R. 22, C. P. C. , sought to support the decree, even without preferring any cross-objection, on the ground of bona fide requirement also, though the said ground has been decided against them in the Court below. But since Mr. Maitra, the learned Advocate appearing for the landlords-respondents, far from attempting to support the decree on the ground of such bona fide requirement, has expressly given up this point, this aspect, namely, whether the learned District Judge ought to have decreed ejectment on the ground of such requirement also, need not be gone into in this Appeal. Therefore, the only question that now survives for consideration in this Appeal is whether the Court below was right in decreeing the suit on the ground that the "rent in arrears amounts to four months' rent or more" within the meaning of S. 4 of the Gangtok Rent Control and Eviction Act, 1956. ( 6 ) BEFORE going into the evidence on record on this question, I would like to point out that the view of the learned District Judge that tender of rent by Cheque by the tenant was not a valid tender, cannot be accepted. There are no doubt a number of old authorities both english and Indian, to the effect that tender by Cheque or Bank-Draft and the like is not a legal tender and reference, for example, may be made to a Division-Bench decision of the Allahabad High Court in Mohanlal v. Kanwar Sen, AIR 1954 All 480. This view, if I may say so with respect, is archaic, anachronistic and is too old to keep pace with the felt necessities of the fast moving modern times and must be disfavoured by the modern Courts, unless they are bound to countenance it by clear Legislation or by binding judicial decision to that effect. This view, if I may say so with respect, is archaic, anachronistic and is too old to keep pace with the felt necessities of the fast moving modern times and must be disfavoured by the modern Courts, unless they are bound to countenance it by clear Legislation or by binding judicial decision to that effect. The decision of a learned single-Judge of the Delhi High Court in Phulwant Singh v. Jai Narain was relied on in the Court below for the proposition that payment by Cheque does not amount to a valid tender. But the report of the decision that was placed before and referred to and relied on by the District Judge was a sketchy and circumscribed version thereof as reported in the NOC Section of the AIR, being, AIR 1980 NOC 159, and it is very often difficult to ascertain with reasonable certainty the real ratio of a decision from such a truncated report. It, however, appears from the report that the learned single Judge has ruled that "unless otherwise agreed in advance, or implied by subsequent conduct, the landlord is not bound to accept any other mode of payment, be it a cheque or a demand-draft" and that unless so agreed, expressly or impliedly, the offer of payment, in order to amount to legal tender must be "in cash or Bank-notes", I would like to think that the attention of the learned Judge was not drawn to the decision of the Supreme Court in Damadilal v. Parashram, AIR 1976 SC 2229 where the following observations of the Madhya Pradesh High Court in the Judgment under appeal before the Supreme Court were quoted with approval : -"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 handing over of the Cheque is not a sufficient tender of the arrears of rent if a Cheque is drawn for that amount. . . . . . . In the present day society. . . . an implied agreement should be inferred that if the payment is made by a Cheque, that mode of payment would be accepted. . . . . . . In the present day society. . . . an implied agreement should be inferred that if the payment is made by a Cheque, that mode of payment would be accepted. " ( 7 ) AGREEING with this view taken by the Madhya Pradesh High Court, the Supreme Court observed that "rent is payable in the same manner as any other debt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement" and that "in the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of the case indicate otherwise". The position in law, therefore, appears to be that payment by Cheque should ordinarily be taken to be a legal tender as "it is reasonable to suppose" an agreement to accept payment by Cheque "as implied", unless the facts and circumstances of a case indicate to the contrary and not that, as the Delhi decision appears to suggest, payment by cheque is ordinarily not a legal tender unless such mode of payment is "agreed in advance or implied by subsequent conduct". ( 8 ) IN the case at hand, there is nothing on record to show that the rent tendered by the tenant by cheque was refused by the landlords on the ground of such mode of payment, and, on the contrary, P. W. 1, the Manager of the landlords, has admitted in cross-examination that "we accepted some cheques sent by the tenant prior to the return of these two cheques". That being so, the tender by the tenant of the amount of rent by cheques could not be regarded to be illegal or invalid tender on the ground that the rent was sought to be paid, not in cash or bank-notes but, by cheques. ( 9 ) BUT Mr. Maitra has argued that even assuming that the payment by cheques would otherwise have been legal tender, the tenant in this case has admittedly sent the rents for the months of Oct. to Dec. 1976 by a cheque in Jan. 1977, which was refused and thereafter the tenant again sent rents for the months of Oct. 1976 to june 1977 by a cheque in June 1977 which was also refused. And Mr. to Dec. 1976 by a cheque in Jan. 1977, which was refused and thereafter the tenant again sent rents for the months of Oct. 1976 to june 1977 by a cheque in June 1977 which was also refused. And Mr. Maitra has contended that in June 1977, before notice was served followed by the present suit for eviction, the tenant already defaulted to pay rents for the months from Oct. 1976 to May, 1977, that is, for a period for much more than four months to justify his ejectment under S. 4 of the Gangtok Rent Control and Eviction Act, 1956, on the ground that rent in arrears amounted to four months' rent or more. ( 10 ) WHEN rent, or, for the matter of that, any amount can be said to be in arrears? The Gangtok Rent Control and Eviction Act does not define the terms "arrears" or "rent in arrears" and, therefore, as pointed out by the Supreme Court in, among others, Karnani Properties v. Augustine, AIR 1957 SC 309 at 312, or South Bihar Sugar Mills v. Union of India, AIR 1968 SC 922 at 928, the Legislature must be taken to have used that expression in its ordinary dictionary meaning. Both according to the Shorter Oxford and the Chambers Dictionaries, the word "arrears" should mean a debt or something which has remained unpaid. In Stroud's Judicial Dictionary it has been stated that "arrears" presupposes a time fixed for payment of a sum of money and the lapse of time thereafter without payment. In Osborne's Law Dictionary the word has been defined as "debts not paid at the due date". In Aiyer's Law Terms and Phrases, the word has been defined to mean money unpaid even though due time for payment has elapsed. In Venkataramaiya's Law Lexicon, the word has been defined to involve not merely amount unpaid, but unpaid at the due time and to involve the existence of some default on the part of the debtor and reference has been made to the Full Bench decision of the Calcutta High Court in Kripa Sindhu v. Annada Sundari, (1908) ILR 35 Cal 34 at 42 where Rampini, A. C. J. adopted such a construction relying on the provisions of Section 54 (3), Bengal Tenancy Act. In the Law Dictionary by A. R. Biswas and the Law Lexicon by Justice T. P. Mukherjee, the expression has been defined to signify "money unpaid at the due time" and while in the former, reference has been made to a Division Bench decision of the Punjab High Court in Basant Ram v. Gurcharan,, AIR 1959 Pandh 578, in the latter, reference has been made to Basant Ram (supra) as well as to a Division Bench decision of the Mysore High Court in V. Narayanachari v. Bangalore Corporation, AIR 1971 Mys 186. In Basant Ram (supra, at 580), Dua, J. (as his Lordship then was) observed that the "word 'arrears' is not a term of art" and that "it is commonly used to describe sums overdue and payable in respect of periods of time" and "it means something which is behind in payment or which remains unpaid, implying a duty and a default" and "it signifies money unpaid at the due time". In V. Narayanachari (supra, at 189) the expression "arrears of any kind" has been taken to mean "amounts which a person is liable to pay or under a duty to pay, but has defaulted in payment thereof even after the time therefore had arrived and expired. " ( 11 ) THIS being the denotation and connotation of the word "arrears", the expression "rent in arrears" in S. 4 of the Gangtok Rent Control and Eviction Act, 1956 must be taken to mean rent unpaid at the due time and a tenant can be said to be in arrears in payment of rent only when he was under an obligation to pay the rent at a certain time or within a certain period, but has defaulted in payment thereof even after the time or the period thereof had arrived and expired. Therefore, the time at which or the period within which the tenant-appellant in this case was bound to pay the rents due must be ascertained before it can be ruled that there was "rent in arrears" in this case and the arrears amounted "to four months' rent or more". Therefore, the time at which or the period within which the tenant-appellant in this case was bound to pay the rents due must be ascertained before it can be ruled that there was "rent in arrears" in this case and the arrears amounted "to four months' rent or more". ( 12 ) IT was pointed out by this Court in Paul Sangay v Mahabir Prasad, AIR 1980 Sikkim 13 at 17-18: 1980-1 Rent Control J. 540 at 546 that the preamble of the Gangtok Act shows that the avowed and proclaimed object of the Act is to control eviction of the tenants. The language of S. 4, declaring that "a landlord may not ordinarily eject a tenant" but that, "when, however" any of the three grounds mentioned in that Section, namely, requirement for bona fide occupation, requirement for thorough overhauling and rent in arrears amounting to four months' rent or more, is made out, "the landlord may evict the tenant by filing a suit", would inevitably give rise to the impression that the law-making authority regarded continuity of tenancies as the ordinary and the desired state of affairs and termination of tenancies as something extraordinary, or, to put it in other words, non-ejectment of tenants as the ordinary rule and eviction of tenants as the exception. Following the observations of the Supreme Court in Mattulal v. Radhe Lal, AIR 1974 SC 1596 at 1602 and in Neta Ram v. Jiwan Lal, AIR 1963 SC 499 at 502 while construing similar restrictive enactments relating to eviction of premises-tenants, it was observed in Paul Sangay (supra, at 17, 18) that the Gangtok Rent Control and Eviction Act, 1956 has imposed a restriction on the right of the landlord to evict and on the jurisdiction of the Court to decree eviction of tenants and that the onus of proving the conditions on proof of which alone the tenant may be evicted lies squarely and heavily on the landlord. In Deccan Merchants Co-operative v. Dalichand, AIR 1969 SC 1320, the Supreme Court has observed (at 1328) that "the scheme of the various Rent Acts and the public policy underlying them are clear; the policy is to give protection to the tenants", and these observations have been relied on by the Supreme Court in the recent decision in Natraj Studios v. Navrang Studios, AIR 1981 SC 537 at 545. The observations in Paul Sangay (AIR 1980 Sikkim 13) (supra) have been quoted with approval by this Court in the later decision in Nauranglall v. Basant Kumari (supra), AIR 1981 Sikkim 22 at 24. It is for the landlords, therefor, to discharge to the satisfaction of the Court the onus to prove that there was a due date or a due period on or within which the tenant was obliged to pay rent and that the tenant failed to do so and, therefore, rent in arrears amounted to four months' rent or more. ( 13 ) AS to the due date or period on or within which rent was to be paid, Ext. D-21 shows that the rent of Rs. 350/- per month, which was the rent fixed for the three rooms initially let out to the tenant, was, according to the Condition No. 1 recorded therein, to be paid "on the 1st week of each month. " But in para 2 of the plaint, however, it has been clearly stated that "the rent of each month for the said premises is payable by the defendant to the plaintiff within the first week of the following month. . . . . " In his evidence in Court P. W. 1, who represented the landlords as their manager, said nothing as to when or on what date or within what period the rent was payable according to agreement between the parties. ( 14 ) THE defendant, on the other hand, in paras 10 and 12 of his written statement, while denying the allegations in the plaint that the rent was payable "within the first week of the following month" and that rent was in arrears since Oct. 1976, has categorically stated that "the rent has always been paid whenever the same was demanded by the landlord by submitting bills" and that "the system was that the rent should be paid on receipt of the bills from the landlord, who, however, did not submit any bills since the month of Oct. 1976. " In his deposition also the defendant, as D. W. 1, stated that "i used to pay rents by cheques on receipt of the bills from the landlord" and these bills have been filed in the Court and marked as Exts. 1976. " In his deposition also the defendant, as D. W. 1, stated that "i used to pay rents by cheques on receipt of the bills from the landlord" and these bills have been filed in the Court and marked as Exts. D-1 to D-5 and D-10 to D-15, while Exhibits D-8 and D-9 are two receipts by the landlords acknowledging payment of rents. All these bills and the two receipts relate to various periods from May, 1972 to Sept. 1976 and while some of them were for one month only, some others were for two months and also three months and quite a number of them were dated after the first week of the following month. These bills and receipts, therefore, may be taken to lend countenance to the contention of the defendant, as made out by him in his written statement as well as in his deposition, that there was no agreed date or period on or within which the rent was to be paid. The Gangtok Act, unlike the enactments operating in other States, does not provide for any time or period for the payment of rent when no such time or period is fixed by agreement between the parties. ( 15 ) BUT as already stated, whether or not the defendant has been able to prove his case that rents were payable as and when bills therefor were presented, the plaintiff, at any rate was to prove satisfactorily that the rents were payable on or within a certain date or period so that the rents payable by the defendant could be regarded to be in arrears as a result of not having been paid on or within such date or period. ( 16 ) IT is true, as urged by Mr. Maitra, that in para 2 of the plaint it was averred that the "month of the tenancy is computed according to English Calendar" and that PW 1 has also deposed that the rent was "payable according to English Calendar month". But I have my doubts as to whether an allegation to the effect that the tenancy is governed by English Calendar month would by itself mean that the tenancy was to commence from the first day of each English month and to end with the last day of each English month. But I have my doubts as to whether an allegation to the effect that the tenancy is governed by English Calendar month would by itself mean that the tenancy was to commence from the first day of each English month and to end with the last day of each English month. I would be rather inclined to think that all that such allegation would mean is that the tenancy was governed by the months of English Calendar and was not governed by the months of any other Calendar, like the Nepali or the Tibetan or the Hindu or the Bengali Calendar and I would like to think that a tenancy commencing from, say, middle of an English month and ending in the middle of the next English month may nevertheless be a tenancy governed by the months of English Calendar. But it is not necessary for me to decide this question as it appears to be settled law that the mode of payment of rent may very often vary from the months of the tenancy and the period according to which rent is paid may be quite different from the period according to which the tenancy is regulated. A monthly tenancy obviously does not cease to be so because rents have been agreed to be paid or are being paid after every two months or three months or six months or the like. Only when in the case of a monthly tenancy, the rent is agreed to be paid yearly, the case may, as pointed out by the Supreme Court in Ram Kumar Das v. Jagdish Chandra Deo, AIR 1952 SC 23, bring in some legal complication as under Section 107 of the Transfer of Property Act a lease reserving a yearly rent has got to be effected by a registered instrument. The series of Division Bench decisions of the Calcutta High Court relied on by Mr. Sarkar, namely, Carrara Marble v. Charu Chandra, AIR 1957 Cal 357 at p. 359, Baidyanath v. Nirmala, AIR 1957 Cal 649 at p. 651, J. Mc. The series of Division Bench decisions of the Calcutta High Court relied on by Mr. Sarkar, namely, Carrara Marble v. Charu Chandra, AIR 1957 Cal 357 at p. 359, Baidyanath v. Nirmala, AIR 1957 Cal 649 at p. 651, J. Mc. Gaffin v. Life Insurance Corporation, AIR 1978 Cal 123 at p. 127, supports the view that I have taken and though no further citation should be necessary yet it may be noted that the Supreme Court also in Ram Kumar Das, AIR 1952 SC 23 (supra) pointed out that the operation of S. 106 of the Transfer of Property Act is entirely subject to contract between the parties and that such a contract need not be an express one, but may also be implied. It is, therefore, difficult to hold that there was any agreed date or period on or within which the rent for the suit-premises was payable and that the tenant-appellant committed default in payment of rent by not paying that the rents were in arrears as alleged, the appeal, as already noted, must be allowed and the suit must be dismissed so far it relates to the claim for ejectment on the ground that the same was bad for want of a proper notice as required by the terms of the tenancy. ( 17 ) THE decree under appeal, therefore, so far it relates to ejectment of the defendant-appellant from the suit-premises and to recovery of possession thereof by the plaintiff-respondents, must be set aside though the rest of the decree shall stand confirmed. The appeal is accordingly allowed to the extent as aforesaid with no order as to costs. Order accordingly. --- *** ---