ALTAMAS KABIR, J. ( 1 ) THIS appeal arrives out of a suit filed by the respondent herein against the Central bank of India for recovery of khas possession of the suit premises. ( 2 ) THE case as made out in the plaint is that the properties mentioned in the schedule thereto, along with other properties, belonged to one biswanath Chatterjee exclusively. On 21st May, 1965, the said Biswanath chatterjee granted a lease of the suit properties in favour of the Central bank of India for a period of 1 years commencing from 15th June, 1965. The lease deed contained an option clause for renewal of the lease for three further terms of seven years each on such terms and conditions as might be mutually agred upon. ( 3 ) THE said Biswanath Chatterjee died on 8th May, 1975, leaving a will by which he appointed the plaintiff. Baidya Nath Chattopadhyay as his sole Executor. On Biswanath chatterjee's death the plaintiff filed an application for grant of probate before the learned Chief Judge, City Civil court, at Calcutta, and such probate was duly granted to him on 17th august, 1993. Theee aforesaid lease expired by efflux of time on 15 June 1986. Prior to the expiry of the lease the plaintiff gave a legal notice to the bank on 16th April, 1986, informing the Bank that although the lease was to expire on 14th June, 1986, the option of renewal contained in the lease deed had not been enforced. It was also indicated in the notice that in view of such inaction by the Bank it was to be presumed that there was no intention on the part of the Bank to enforce or exercise the option of renewal and consequently the lease would stand determined by efflux of time on and from 15th June, 1986. Despite such notice, the Bank did not take any steps to exercise its option of renewal of the lease and continued in possession of the suit premises even after determination of the lease by efflux of time. ( 4 ) THE plaintiff/respondent thereupon filed the aforesaid suit on 25th june. 1986, immediately after the lease expired. Despite such notice, the Bank did not take any steps to exercise its option of renewal of the lease and continued in possession of the suit premises even after determination of the lease by efflux of time. ( 4 ) THE plaintiff/respondent thereupon filed the aforesaid suit on 25th june. 1986, immediately after the lease expired. The suit was hotly contested on behalf of the defendant/appellant and in the written statement filed on behalf of the defendant it was categorically denied that the lease had been determined by efflux of time on and from the month of June, 1986. It was contended on behalf of the defendant/ appellant that prior to the expiry of the period of the lease a series of negotiations had been carried on between the plaintiff and the defendants with regard to the renewal of the lease and there was, therefore, no occasion for the defendant to deliver up peaceful and vacant possession of the leasehold premises. It was also denied that the defendant was in wrongful possession of the suit premises as alleged by the plaintiff. ( 5 ) A specific defence was taken on behalf of the defendant Bank that the plaintiff was not entitled to a decree for khas possession of the leasehold premises, inasmuch as, even after 15th June, 1986, the plaintiff accepted rents from the defendant thereby creating a new tenancy in respect of the suit premises by way of holding over. Of the two witnesses examined on behalf of the plaintiff, one-was the Manager of the estate of the plaintiff and the other was an employee, who was an attesting witness in respect of the Will executed by Biswanath Chatterjee. The defendant Bank examined its accountant of its Posta Bazar Branch. ( 6 ) AFTER considering the evidence adduced by the parties and the materials on record, the learned Judge, Vlth bench, City Civil Court at Calcutta, decreed the suit by his judgment and decree dated 25th January, 1994 and 21st February, 1994, respectively and directed that the plaintiff do recover khas possession of suit property by evicting the defendant therefrom. The plaintiff was also given a decree for mesne profits at the rate of Rs. 200/- per day from 15th June, 1986, till recovery of khas possession of the suit premises. The plaintiff was also given a decree for mesne profits at the rate of Rs. 200/- per day from 15th June, 1986, till recovery of khas possession of the suit premises. ( 7 ) THIS appeal is directed against the said judgment and decree of the learned Judge, VIth Bench, City civil Court at Calcutta. Appearing on behalf of the appellant, Mr. Rameswar Bhattacharjee submitted that the judgment and decree of the learned Trial Court suffered from various infirmities. Mr. Bhattacharjee submitted that the learned Trial Court had completely failed to take into consideration the provisions of section 116 of the transfer of Property Act, 1882, in the light of acceptance of the monthly rents by the plaintiff after the suit had been filed. Mr. Bhattacharjee Submitted that as would appear from the evidence of the witness examined on behalf of the bank an account was open in the name of the plaintiff in the Posta Bazar branch of the Bank where the rent for the suit premises was deposited. The rent of the suit premises was all along deposited in the name of the plaintiff, baidya Nath Chatterjee, as the sole executor to the estate of Late biswanath Chatterjee. Mr. Bhattacharjee submitted that such account was opened at the request of Baidya Nath Chatterjee and the rents for the suit premises continued to be deposited in the said account even after the expiry of the lease in the month of June, 1986. Mr. Bhattacharjee submitted that, the rents from the said account were withdrawn on 20th December, 1986, long after the lease had expired and the suit for eviction had been filed, thereby creating a new tenancy in respect of the suit premises by way of holding over. Mr. Bhattacharjee submitted that although an attempt had been made on behalf of the plaintiff to show that before withdrawal of the said amounts, a letter (Exhibit 4) had been sent to the Bank, the same had not been received by the Bank and although in the said letter it had been indicated that the amounts were being withdrawn on account of damages, the same was obviously an afterthought and the amount was withdrawn as rent. Mr. Bhattacharjee urged that service of such notice (Exhibit 4) on the Bank had never been proved and no reliance could, therefore, be placed on the said notice. Mr. Mr. Bhattacharjee urged that service of such notice (Exhibit 4) on the Bank had never been proved and no reliance could, therefore, be placed on the said notice. Mr. Bhattacharjee contended that a new tenancy had been created in respect of the suit premises by virtue of the doctrine of holding over on account of withdrawal of the rents by the plaintiff/respondent after the expiry of the lease and after the institution of the suit. Mr. Bhattacharjee urged that the judgment of the learned court below was passed on a wrong premise that the defendant/appellant was not entitled to any relief as the period of lease of 21 years had expired on and from 15th June, 1986, and that no further development had taken place which would entitle the defendant Bank to continue in possession of the suit premises. ( 8 ) IN support of his aforesaid submissions, Mr. Bhattacharjee firstly referred to and relied upon the decision of the Privy Council in the case of Sheikh Mahomed Jan v. Munshi ganga Bishnu Singh and Ors, where it was observed that when money has been paid and received and appropriated, it is not in the power of one of the parties to the transaction, without the assent of the other, to vary the effect of the transaction by altering the appropriation in which both originally concurred. ( 9 ) MR. Bhattacharjee then referred to a decision of the Allahabad high Court in the case of Behari Lal v. Radhye Shyam, where having regard to the provisions of section 8 of the Contract Act, it was observed that where a party accepts payment it, should be deemed that he had accepted it on the condition on which it was offered and it is not open to him to say subsequently that he accepted the payment in part satisfaction of his claim. The next case cited by Mr. Bhatta-charjee is a Single Bench decision of the Gauhati High Court in the case of Prasanna Kumar Ghosh and Ors. v. Dhirendra Mohan Dutta and Anr. , wherein while considering the provisions of section 116 of the Transfer of Property Act, it was observed that the tenant's continuing in possession of the demised property could be held to be a tacit offer of taking a fresh lease where there was no evidence to the contrary. v. Dhirendra Mohan Dutta and Anr. , wherein while considering the provisions of section 116 of the Transfer of Property Act, it was observed that the tenant's continuing in possession of the demised property could be held to be a tacit offer of taking a fresh lease where there was no evidence to the contrary. Reference was also made to a bench decision of this Court in the case of Bengal National Bank Limited v. Janoki Nath Roy and Ors. wherein the doctrine of holding over was considered and it was observed that where the lessees remain in possession after the lease period and pays rent at an enhanced rate as per terms of the renewal clause contained in the original lease deed and the lessors accepted the rent, the lessees must be deemed to have remained in possession under the renewal clause of the lease as persons who had exercised the option given to them by the renewal clause and whose right so to do had been acknowledged by the lessors and acted upon by both parties. Mr. Bhattacharjee then referred to the decision, of the Hon'ble Supreme court in Bhuneshwar Prasad v. United commercial Bank, wherein the provisions of section 116 of the Transfer of Property Act and section 11 of the bihar Buildings (Lease, Rent and eviction) Contract Act, 1983, fell for consideration. In the said case the tenant regularly deposited rent even after expiry of the period of lease at an enhanced rate and the same was duly accepted by the landlord. In such circumstances, the Hon'ble Supreme court held that the landlord's consent to the tenant continuing in possession even after the expiry of the lease could be inferred and a month to month tenancy was created which protected the tenant from eviction on the expiry of the lease. Certain in other decisions on the same line were cited by Mr. Bhattacharjee which only has repetitive value. Mr. Bhattacharjee submitted that the learned Court below had failed to appreciate the significance of withdrawal of the monthly rents by the plaintiff after the expiry of the lease, in arriving at an erroneous conclusion that even though the same had been withdrawn on account of monthly rents no new tenancy had been created by holding over. Mr. Mr. Bhattacharjee submitted that the learned Court below had failed to appreciate the significance of withdrawal of the monthly rents by the plaintiff after the expiry of the lease, in arriving at an erroneous conclusion that even though the same had been withdrawn on account of monthly rents no new tenancy had been created by holding over. Mr. Bhattacharjee urged that the suit had been wrongly decreed in favour of the plaintiff/respondent and the judgment and decree of the learned trial Court was liable to be set-aside. ( 10 ) APPEARING for the plaintiff/ respondent, Mr. S. K. Kapoor denied that the principles of "holding over" would be applicable to this case, Mr. Kapoor submitted that on 16th April, 1986, that is, one month before the original lease period of 21 years was to expire, the plaintiff had sent a notice to the Bank through his learned advocate, informing the Bank that the lease period of 21 years was to expire on 14th June, 1986, and that although there was an option clause of renewal of the lease for three further terms of seven years each on terms to be mutually agreed upon, such option of renewal had not been enforced. It was also indicated in the notice that such inaction on the part of the Bank gave rise to the presumption that the Bank had no intention to enforce or exercise the option of renewal of the lease with fresh terms and conditions. Mr. Kapoor submitted that since no steps were taken by the Bank even after receipt of such notice, the plaintiff filed the suit for eviction on 25th june, 1986, immediately after the expiry of the lease. Mr. Kapoor urged that from the steps taken by the plaintiff to recover possession of the suit premises it could not be contended that the plaintiff had assented to the continue possession of the Bank in the suit premises. Mr. Kapoor questioned the finding of the learned Trial Court that withdrawal of the amounts deposited by the Bank in the account of the plaintiff was by way of rent. Mr. Mr. Kapoor questioned the finding of the learned Trial Court that withdrawal of the amounts deposited by the Bank in the account of the plaintiff was by way of rent. Mr. Kapoor submitted that as per the notice sent by the plaintiff to the Bank on 22nd november, 1986, such withdrawal was made to make good the losses and/ or damages suffered by the plaintiff on account of continued occupation of the suit premises by the appellant bank even after the expiry, of the lease. Mr. Kapoor urged that P. W. 1, Hiren banerjee, who was the Manager of the estate of the plaintiff, had proved the said notice (Exhibit 4) and had stated that the same had been sent under certificate of Posting. No suggestion was, however, made to the witness in cress-examination that such notice had not been received by the defendant bank. evidence of D. W. 1 was not of any consequence since he had no personal knowledge of the events relating to service of the aforesaid notice and it was his evidence that he had come to learn from the Officer-in-Charge of the bank that the said notice had not been received by the Bank. It was urged that neither had the branch Manager of the concerned branch of the Bank nor the Officer-in-Charge been examined as witnesses nor had the relevant records been exhibited in support of the evidence of D. W. 1. Mr. Kapoor submitted that evidence of P. W. 1, Hiren Banerjee, went unchallenged and it must be held that such service had been duly effected, notwithstanding the fact that the same had been sent under certificate of Posting. In support of his submissions, mr. Kapoor referred to a decision of this Court in A. E. G. Carapiet v. A. Y. Derderian, wherein it was, inter alia, observed that whenever the opponent declines to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. Mr. Kapoor submitted that by not cross-examining P. W. 1 on the question of service of the notice dated 22nd november, 1986, it must be presumed that such service was not disputed. Mr. Mr. Kapoor submitted that by not cross-examining P. W. 1 on the question of service of the notice dated 22nd november, 1986, it must be presumed that such service was not disputed. Mr. Kapoor lastly submitted that as would appear from the internal letter of the Bank dated 23rd February, 1987, (Exhibit 'a') the Bank was not contemplating exercise of the option of renewal but execution of a completely fresh lease, which cut at the root of the appellant's case of holding over. Mr. Kapoor urged that though the findings of the learned Trial Court regarding service of the notice dated 22nd November, 1986, and withdrawal by the plaintiff of the amounts deposited in the account of the plaintiff were erroneous, the grounds urged on behalf of the appellant Bank did not merit interference by this Court with the judgment and decree of the learned trial Court. ( 11 ) FROM the evidence adduced on behalf of the parties and the materials on record it is quite clear that the appellant Bank did not exercise its right of option of renewal contained in the lease executed in favour of the bank by Biswanath Chatterjee on 21st may, 1965. In fact, as has been pointed out by Mr. Kapoor from Exhibit 'a', it will be quite apparent that the Bank was contemplating the grant of a fresh lease on fresh terms. ( 12 ) THE only question we are, therefore, left with is whether the withdrawal by the plaintiff of the amounts deposited by the Bank in the account of the plaintiff could be said to have created an altogether new tenancy by holding over. ( 13 ) WHILE on behalf of the appellant it has been contended that such withdrawal had been effected on account of rent, on behalf of the plaintiff/respondent it has been urged that such withdrawal was on account of loss and damage suffered by the plaintiff because of the continued occupation of the suit premises by the defendant/appellant. In this context, the notice given by the plaintiff to the Bank on 22nd November, 1986 assumes importance. No doubt the said notice was alleged to have been sent under Certificate of Posting, which by itself could not have been accepted as good service. In this context, the notice given by the plaintiff to the Bank on 22nd November, 1986 assumes importance. No doubt the said notice was alleged to have been sent under Certificate of Posting, which by itself could not have been accepted as good service. But the plaintiffs assertion that such notice had been duly sent has gone unchallenged, and, on the other hand, a witness who was not competent to depose with regard to such service, was examined on behalf of the Bank. Neither did the witness have any personal knowledge of such service, nor were the relevant records produced by the Bank in support of the oral evidence of D. W. 1. No other competent witness was examined in this behalf by the appellant Bank. We are, therefore, inclined to accept Mr. Kapoor's submission that service of the said notice dated 22nd November, 1986, had been duly effected on the appellant bank. It consequentially follows that the amounts withdrawn by the plaintiff from his account with the Posta bazar Branch of the appellant Bank was on account of damages and not on account of rent and that no new tenancy was, therefore, created in respect of the suit premises by virtue of such withdrawal. Furthermore, by sending the legal notice dated 16th april, 1986. the plaintiff made his intention quite clear that in the event the option of renewal was not exercised by the Bank, the lease would stand determined by efflux of time on and from 15th June, 1986. The Plaintiffs intention not to consent to the Bank's continued possession in the suit premises will also be evident from the fact that while the lease stood determined by efflux of time on 15th June, 1986, the suit for recovery of possession was filed immediately thereafter on 25th June, 1986. ( 14 ) THE various decisions cited by mr. Bhattacharjee is in support of the principles enunciated under section 116 of the transfer of Property Act, which contemplates the creation of a fresh tenancy by holding over. In the instant case, in the absence of acceptance of rents by the plaintiff after the expiry of the lease, the doctrine of holding over can have no application. The said decisions cited by Mr. Bhattacharjee do riot, therefore, come to the assistance of the appellant bank. In the instant case, in the absence of acceptance of rents by the plaintiff after the expiry of the lease, the doctrine of holding over can have no application. The said decisions cited by Mr. Bhattacharjee do riot, therefore, come to the assistance of the appellant bank. ( 15 ) THE Bank, allowed the lease to stand determined by efflux of time and only woke-up to the ground realities much later when it decided to enter into a fresh lease on fresh terms, as indicated in the letter of 23rd february, 1987 (Exhibit A ). We, therefore, see no merit in the appeal preferred by the Bank and the same is accordingly dismissed. ( 16 ) AS far as the cross-objection filed on behalf of the plaintiff/respondent is concerned no proper grounds have been made out for enhancement of the mesne profit granted by the learned Trial Court. The said cross-objection, therefore, is also dismissed. Having regard to the facts of the case the parties shall bear their own costs in the appeal. ( 17 ) IF an urgent xerox certified copy of this judgment is applied for, the same should be made available to the applicant expeditiously, subject to compliance with all the required formalities. Stay as prayed for is considered and rejected. Appeal dismissed.