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Chaturbhuj Tulsiram Marwadi Vs. Ambarsing Harji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 303 of 1928
Judge
Reported in(1931)33BOMLR1220; 136Ind.Cas.186
AppellantChaturbhuj Tulsiram Marwadi
RespondentAmbarsing Harji
DispositionAppeal dismissed
Excerpt:
.....interest after suit, the matter is a discretionary one and i do not think there is any ground here on which we can properly interfere with the discretion exercised by the learned..........on the promissory note for a sum of rs. 6,725 and interest at twelve per cent, per annum. the learned judge gave judgment for the plaintiff holding that the amount claimed on the promissory note had been advanced in cash and not as the defendants contended merely in account, and at the end of his judgment he says:-'since the plaintiff has not claimed any interest subsequent to the date of the suit, i pass no order for the payment of any such interest to him.' then the actual order he makes is that the defendants do pay to the plaintiff the amount claimed and costs by annual installments of rs. 900 each and then there are provisions as to the dates of payment of the installments and as to what is to happen if default is made. the judgment was given on november 8, 1927, and apparently.....
Judgment:

John Beaumont, C.J.

1. This is an appeal from an order of the First Class Subordinate Judge of Dhulia. The plaintiff was suing on the promissory note for a sum of Rs. 6,725 and interest at twelve per cent, per annum. The learned Judge gave judgment for the plaintiff holding that the amount claimed on the promissory note had been advanced in cash and not as the defendants contended merely in account, and at the end of his judgment he says:-'Since the plaintiff has not claimed any interest subsequent to the date of the suit, I pass no order for the payment of any such interest to him.' Then the actual order he makes is that the defendants do pay to the plaintiff the amount claimed and costs by annual installments of Rs. 900 each and then there are provisions as to the dates of payment of the installments and as to what is to happen if default is made. The judgment was given on November 8, 1927, and apparently on November 15, 1927, the pleader for the plaintiff made an application to the learned Judge to alter his order in respect of interest after suit. The plaintiff's case was that it was intended that interest after suit should be asked for in the plaint and such interest would have been asked but for a mistake of the pleader's clerk in copying the plaint. The application was heard by the learned Judge on February 19,1928, and he then says:-

It is a pity that the applicant's pleader did not read the plaint before he filed it in Court or while the evidence was being recorded. Had he taken care to read the plaint at least when the evidence was being recorded and made even an oral request to the Court that his client desired to claim subsequent interest also and that the same might be awarded by the Court, the Court would certainly have considered that request.

2. Then the learned Judge goes on to point out that interest subsequent to the date of the suit is discretionary, and he says he has exercised his discretion against the plaintiff and that he has no power to alter his order, and that if the applicant is not satisfied, his remedy lies in appeal. But it is to be noticed that the learned Judge does not say in his supplemental judgment that had he appreciated that he had power to give interest subsequent to suit though not asked for in the plaint he would have done so at any particular rate. Had he said that, it would have helped us in dealing with this matter. If the learned Judge meant to say by his original judgment that he had no jurisdiction to grant interest after suit because it was not asked for in the plaint, I think he was wrong because it seems to me that, having regard to the terms of Section 84 of the Civil Procedure Code, the Court has power to give interest after suit whether claimed specifically in the plaint or not. But that is not the fair result of the original and supplemental judgments, I think the learned Judge exercised his discretion, and in so doing took into account the fact that interest after suit had not been claimed. I do not think that ho meant to say that his sole reason for refusing interest after suit was that it was not claimed and that he would have given it had it been claimed. The defendants were agriculturists and the order for payment is by installments, and I am not satisfied that the learned Judge would have made the same order for payment by installments if he had been awarding interest after suit, The matter is a discretionary one and I do not think there is any ground here on which we can properly interfere with the discretion exercised by the learned Judge. The appeal, therefore, must be dismissed.


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