JUDGMENT: I.P.MUKERJI, J. 1. THIS is another instance where a Chapter XIIIA application has been filed by the plaintiff for eviction of the defendant, on the ground of determination of the lease. The plaintiff is Williamson Magor and Company Ltd. The defendant is New India Assurance Company Ltd. I will hereafter refer to them by their names. By a lease dated 3rd July, 1970 the predecessor-in-interest of Williamson Magor let out to New India Assurance an area of about 26,080 sq. ft. covering the first and second floors of premises no. 4, Mangoe Lane, Kolkata for a term of 26 years commencing from 1st October, 1968. After expiry of this lease by efflux of time, a fresh agreement was entered into between these parties on 27th June, 1997, purporting to create a further lease for 15 years. This was with effect from 1st October, 1994. It was not registered. I will go into the effects of non-registration later. 2. WILLIAMSON Magor treated New India Assurance as a monthly tenant/lessee. On 6th April, 2009 they issued to New India Assurance a notice to quit, trying to determine a monthly lease/tenancy. It was said therein that the "tenancy" would determine after 30th September, 2009. New India Assurance was asked to quit and deliver vacant possession of the above property to Williamson Magor. 3. THIS application has been filed on the simple ground of determination of a monthly tenancy by the above notice. 4. BUT it was not so simple for Williamson Magor at the hearing of this application. Many twists and turns in the case were caused by arguments made by Mr. Moloy Ghosh, learned counsel for New India Assurance. I will discuss the submissions as I proceed to discuss the merits of the matter. DISCUSSION: 5. WHAT is the effect of a lease for 15 years which is not registered? According to the decision of the Supreme Court in the case of Anthony vs. K.C. Ittoop and Sons and others reported in 2000 (6) SCC 394 (paragraphs 13 and 14), it could be treated as a month to month lease or tenancy. This is so because under Section 49 of the Registration Act, 1908 such an unregistered instrument of lease does not "affect immovable property". This plainly means that this lease had no effect whatsoever. This is so because under Section 49 of the Registration Act, 1908 such an unregistered instrument of lease does not "affect immovable property". This plainly means that this lease had no effect whatsoever. If an unregistered lease does not affect immovable property, its terms and conditions are also nonest in the eye of law. There is another factor which is to be taken into account. It was not argued before the Supreme Court in the above case. This is the argument based on Section 53A of the Transfer of Property Act, 1882. Section 53A inter alia stipulates that when an instrument of lease is required to be registered and has not been registered and the lessee is in possession, the lessor cannot act contrary to the terms of the agreement. This is an equitable principle. This estops the lessor from making any contention contrary to the terms of the unregistered instrument of lease. I have every reason to believe that Williamson Magor was fully aware of this position in law. That goes to explain why the notice of determination dated 6th April, 2009 called upon New India Assurance to quit and deliver vacant possession of the property after 30th September, 2009. That is the time when the equitable protection under the unregistered lease dated 27th June, 1997 with effect from 1st October, 1994 came to an end after 15 years. Mr. Ghosh's contention is that since the lease was with effect from 1st October, 1994 for 15 years, in computing 30 days' notice under Section 106 of the Transfer of Property Act, 1882, the date 1st October, 1994 has to be excluded, relying upon Section 110 of the Transfer of Property Act, 1882. Therefore, the notice to determine the lease after 30th September, 2009 was defective. It could only have been determined after 1st October, 2009. 6. THIS submission is not accepted for two reasons. The first is that if this lease or tenancy is considered as a monthly lease or tenancy following the case of Anthony vs. K.C. Ittoop and Sons And others reported in 2000 (6) SCC 394 , then only 15 days' notice was required for determination of such tenancy (Section 106 of the said Act). The first is that if this lease or tenancy is considered as a monthly lease or tenancy following the case of Anthony vs. K.C. Ittoop and Sons And others reported in 2000 (6) SCC 394 , then only 15 days' notice was required for determination of such tenancy (Section 106 of the said Act). Even if the month's notice was short by one day, more than 15 days' notice was provided by the letter dated 6th April, 2009 determining the so called monthly lease or tenancy. Secondly, on the basis of my observations above, if Williamson Magor could not contend contrary to the instrument of lease which was not registered, the possession of New India Assurance could only be defended up to the duration of the defective lease, that is upto 30th September, 2009. Possession became trespass after 30th September, 2009. In other words the equitable lease came to an end. No notice was necessary. It was not a legal lease for which any notice under the Transfer of Property Act, 1882 was necessary. It is just that New India Assurance continued with their possession after 30th September, 2009. 7. IN view of what I have said before in either of the two cases the position of New India Assurance was that of a trespasser immediately after 30th September, 2009. Now, the question of holding over. This point was not even taken in the Affidavit-in-Opposition. It is a mixed question of fact and law. If it was desired to be taken with any seriousness it ought to have been introduced in the Affidavit-Opposition to allow Williamson Magor to deal with the point in their reply. However, since it is also a question of law I allowed the learned counsel for 8. NEW India Assurance to raise this point during argument. It appears that by their letter dated 22nd October, 2009 New India Assurance had tendered to Williamson Magor the rent along with general charges, municipal tax, commercial surcharge and so on aggregating to Rs. 53, 140/- for October, 2009. It appears that even subsequently cheques were tendered by New India Assurance to Williamson Magor towards rent, charges, tax etc. 9. It appears that by their letter dated 22nd October, 2009 New India Assurance had tendered to Williamson Magor the rent along with general charges, municipal tax, commercial surcharge and so on aggregating to Rs. 53, 140/- for October, 2009. It appears that even subsequently cheques were tendered by New India Assurance to Williamson Magor towards rent, charges, tax etc. 9. DURING hearing of this application an order was passed by this Court on 16th May, 2012 at the instance of Williamson Magor, recording that the validity of the cheques for electricity charges and maintenance had expired and that New India Assurance should replace those cheques without prejudice to the rights and contentions of the parties. By a letter dated 2nd June, 2011 written by Khaitan and Co. Advocates on record for Williamson Magor bills were raised upon New India Assurance for general charges and maintenance charges for the period October, 2009 to May 2012. They also returned the above cheques tendered to them by New India Assurance. New India Assurance replied by their letter dated 18th June, 2012, enclosing a cheque of Rs. 16,97,226/- on Central Bank of India. It appears that another cheque for Rs. 43,57,140 was sent by New India Assurance to Williamson Magor's advocates-on-record towards, inter alia, electricity charges. By an order made by me on 26th June, 2012 I permitted these two letters to be taken on record. It was submitted on behalf of Williamson Magor that these cheques were not encashed by them because they also included the rent component. The order dated 16th May, 2012 only directed acceptance of electricity and maintenance charges without prejudice to the rights and contentions of the parties. The cheques tendering the rent and changes from October, 2009 were also produced in Court to show that Williamson Magor had not encashed them. 10. IN considering the question of holding over, Section 116 of the Transfer of Property Act, 1882 has to be examined in the minutest of detail. The cheques tendering the rent and changes from October, 2009 were also produced in Court to show that Williamson Magor had not encashed them. 10. IN considering the question of holding over, Section 116 of the Transfer of Property Act, 1882 has to be examined in the minutest of detail. Section 116 is inserted below: "116.Effect of holding over.-If a lessee or under lease of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease, is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106." 11. THIS Section makes it plain that there has to be acceptance of rent by the lessor or assent to the continuance of the lease on his part to constitute holding over by the lease. Mr. Deb submits that since rent was not accepted there was no holding over by creation of a month to month lease or tenancy. Neither could the circumstances, according to him, suggest that there was assent to the continuation of the lease/tenancy. Seeds of the argument of holding over were sown in the pleading of the Williamson Magor itself. At paragraph 3 of the application they pleaded as follows: "3. .................................................. At all material times, until the time mentioned hereinafter, the defendant was a tenant in respect of the suit premises under the plaintiff paying a monthly rent of Rs.24,776/- payable in advance on or before the 7th day of every month for which the same is payable. In addition the defendant was also liable to pay the electricity charges on actual and fixed amount of monthly charges basis. This would be demonstrated by the conduct of the parties. In connection therewith hereto annexed and marked with letter 'B' are documents evidencing payments actually made by the defendant on these accounts." 12. THE records show that the cheques furnished by New India Assurance from October, 2009 were not returned by Williamson Magor. They held on to the cheques throughout their validity period. The suit was instituted within the validity period of the cheques. THE records show that the cheques furnished by New India Assurance from October, 2009 were not returned by Williamson Magor. They held on to the cheques throughout their validity period. The suit was instituted within the validity period of the cheques. Therefore, for the entire period between tender of the cheques and institution of the suit Williamson Magor held on to the cheques. Not a single letter was written showing that they did not assent to the continuance of New India Assurance Company and that the cheques were therefore not encashed by them. 13. NOW, the Supreme Court has categorically said that for creation of a tenancy by holding over there has to be payment of rent and assent to such payment of rent by the tenant by the lessor, to create tenancy or lease by holding over. I quote the words of Justice Fazal Ali J. in the case of Karnani Industrial Bank Ltd. vs. The Province of Bnegal and Others reported in AIR 1951 SC 285 . They are as follows: ".......................................... There can be no question of the lessee "continuing in possession" until the lease has expired, and the context in which the provision for acceptance of rent finds a place clearly shows that what is contemplated is that the payment of rent and its acceptance should be made at such a time and in such a manner as to be equivalent to the landlord assenting to the lessee continuing in possession...................................." 14. IN the case of Ram Barai Singh Vs. Tirtha Pada Misra reported in AIR 1957 Cal 173 P.N. Mookerji J remarked that when there was absence of dissent for a long time it would reasonably give rise to an inference of assent. In the case of Damadilal and others Vs. Parasharam and others reported in AIR 1976 SC the Supreme Court had recognised payment by cheque as good tender of rent. It said in paragraph 13: "13. .......................................................... 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. In the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise. In the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise. In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent.............." 15. ALL this in my opinion raises substantial questions of law and fact. The questions are: a) Did the conduct of Williamson Magor suggest speculation by them whether to accept and encash the cheques representing rent or to return them? b) Did such tender of cheques by New India Assurance amount to valid tender of rent? c) Did the above conduct by Williamson Magor suggest assent to continuance of the lease or tenancy or did it suggest absence of dissent over a period of time? It was held by the Division Bench of our Court that even a substantial question of law properly raised did not entitle a Court to pronounce a summary judgment (See the case of Coal India Vs. Apeejay Pvt. Ltd. reported in 2009 (4) CHN 192 ). This Division Bench judgment of the Court followed the Supreme Court judgment in the case of Raj Duggal Vs. Ramesh Kumar reported in 1991(Suppl) SCC 191. Moreover there are connected questions of fact to be tried. Hence in my opinion, New India Assurance has been able to raise triable issues. 16. THEREFORE, leave is granted to New India Assurance to defend the suit. This Chapter XIIIA Application is dismissed. 17. URGENT certified photocopy of this judgment/ order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.