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Kamla Prasad Ram Pandey Vs. Hasan Ali Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1939All308
AppellantKamla Prasad Ram Pandey
RespondentHasan Ali Khan
Excerpt:
- - such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want of failure of consideration, or mistake in fact or law. precisely, a similar case arose in ram bharosay lal v......the oral agreement as to interest between the parties? the lower appellate court has held that oral evidence on this point is admissible and on the evidence on the record the court has held that the parties agreed that the interest should be rs. 2 per cent per mensem and that the words 'per cent' had been omitted by the defendant when he filled in the blanks in the printed form. on the other hand, for the appellant-defendant, it is claimed that oral evidence is not admissible and that the entry as filled in by defendant should be taken to mean that there was a lamp sum of rs. 2 payable and the construction placed by learned counsel on the word 'basharah' is that this word refers to the printed word which follows after the blank, that is 'mahwar.' the argument of learned counsel is.....
Judgment:

Bennet, J.

1. This is a second appeal by the defendant against a decree in favour of the plaintiff by the lower Appellate Court decreeing recovery of Rs. 875 principal on a promissory note and interest at 24 per cent per annum simple from the date of the promissory note, 15th January 1931, up to the date of the suit, 6th January 1934, and thereafter at 6 per cent per annum simple. The appellant alleges that the interest which should have been decreed should be only at; Rs. 2 per mensem as a lump sum, that is Rs. 24 per annum for the three years, Rs. 72. This rate on Rs. 875 is about Rs. 2-9.0 per annum per cent which is a remarkably low rate. The promissory note In question was on a printed form in Hindi, the kind of form which is commonly sold in the bazar and it was as follows:

sud mo sud dar sud upar asal har shash mahi ke aj ki tarikh se taroz wasul kul mutalba ke bashrah do rupaiya mahwar....

2. The signature of the defendant is in Hindi and Is similar to the writing in which the form wart filled in. It is clear therefore that the blank in the form between the words 'basharah' and 'mahwar' was filled in in Hindi writing by the defendant and he wrote there the words 'do rupia,' that is ho entered Rs. 2. The question is, did this entry correctly represent the oral agreement as to interest between the parties? The lower Appellate Court has held that oral evidence on this point is admissible and on the evidence on the record the Court has held that the parties agreed that the interest should be Rs. 2 per cent per mensem and that the words 'per cent' had been omitted by the defendant when he filled in the blanks in the printed form. On the other hand, for the appellant-defendant, it Is claimed that oral evidence is not admissible and that the entry as filled in by defendant should be taken to mean that there was a lamp sum of Rs. 2 payable and the construction placed by learned Counsel on the word 'basharah' is that this word refers to the printed word which follows after the blank, that is 'mahwar.' The argument of learned Counsel is based on Section 92 that whore the terms of a contract have been reduced to the form of a document, evidence shall note be admitted between the parties 'for the purpose of contradicting, varying, adding to or subtracting from its terms.' Learned Counsel also relies on Section 93, Evidence Act, which provides:

When the language used in a document is, on its face, ambiguous or defective, evidence may not be given it facts which would show its meaning or supply its defects.

3. On the other hand, reliance is placed for the plaintiff-respondent on Proviso 1 to Section 92 which states:

Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want of failure of consideration, or mistake in fact or law.

4. Under this Proviso, the respondent claims that there was a mistake in fact in filling in the document and that such a mistake was a mutual mistake and this would entitle him to a decree for rectification under Section 31, Specific Relief Act. Alternatively, if the defendant knowing that the plaintiff agreed to Rupees 2 per cent, per mensem interest, intentionally entered Rs. 2 intending that the plaintiff should be defrauded, the plaintiff would be entitled to rectification under the same Section 31, Specific Relief Act. As the plaintiff would be entitled to such a decree in either case, the plaintiff-respondent claims that he is entitled to produce oral evidence in regard to this fact under Proviso 1 to Section 82, Evidence Act. Precisely, a similar case arose in Ram Bharosay Lal v. Janki Prasad (1930) 17 A.I.R. Oudh. 95. This was in a more formal document, a mortgage deed, and the document specified that the interest was payable at the rate of Re. 1 per cent, per mensem, but by reason of a clerical omission the words 'per cent.' were left out from the deed. Oral evidence was allowed to show that the words 'per cent.' had been omitted and it was held that that oral evidence was permissible under Proviso 1 to Section 92, Evidence Act. This ruling distinguished a ruling on which the appellant relied, namely Protap Chandra Shaha v. Mahomed Ali Sarkar (1914) 1 A.I.R. Cal. 881, on the ground that in that case no reference was made to Proviso 1 to Section 92, Evidence Act, and that the omission in that case was whether the interest was payable monthly or annually and such an omission was tantamount to a blank in the document which would give rise to a patent ambiguity and therefore Section 93, Evidence Act, would apply to such a case. Learned Counsel for the appellant relied on another ruling, Sarjo Sahu v. Sukhi Lal (1924) 11 A.I.R. Pat. 96, where there was a similar omission as to whether the rate of interest was per mensem or per annum. We consider that the distinction drawn by the Oudh ruling Ram Bharosay Lal v. Janki Prasad (1930) 17 A.I.R. Oudh. 95 is one which we should follow and that the present case is one to which the provision of Proviso 1 to Section 92, Evidence Act, applies. Moreover, it does not appear to us to be a natural construction to apply the word 'basharah' (at the rate of) to the words 'per mensem.' That expression is more commonly used in connexion with the words 'per cent.'

5. Another point which was found by the Court below is in regard to other transactions between the parties. One of these was an earlier promissory note for Rs. 500 in which the defendant had filled in the rate of interest as Rs. 25 per cent, per annum in a similar form and again there was a third promissory note for Rs. 300 executed by the defendant on 5th March 1928 in favour of the plaintiff which he had filled in in Urdu 'pachchis rupia saikra salana,' that is Rs. 25 per cent, per annum. The interest therefore between the parties would probably be 24 per cent, per annum and not Rs. 2.9-0 per cent, per annum as is claimed by the appellant. We consider that the oral evidence was admissible. It may be noted that so far as these two earlier promissory notes are concerned, they are not barred out at all by Section 92, Evidence Act, because that Section only applies to oral evidence. We consider that the Court below was correct in allowing the oral evidence and in coming to the finding that the agreement between the parties was for interest at the rate of Rs. 2 per cent, per mensem and not a lump sum of Rs. 2 per mensem.

6. The last ground of appeal was that the rate of interest was excessive. At the time at which this suit was brought, the Amending Act of the United Provinces, Act 23 of 1934, had not been passed and therefore under Section 1, Sub-section (2) of that Act does not apply to the present case. The Act which applies is Act 10 of 1918, Government of India Act, Usurious Loans Act. We consider that the rate of interest Rs. 24 per cent, per annum is excessive, even though in appeal the appellant-plaintiff before the Court below gave up his claim to compound interest with six-monthly rests which was entered in the promissory note and reduced his claim to simple interest only. It is true that the rate of 12 per cent, per annum simple has been laid down by this Court in various rulings such as Gajraj Singh v. Mohammad Mustaq Ali : AIR1933All913 as a fair, proper and reasonable rate in a mortgage transaction and the present case is not one of a loan secured by mortgage but of a loan merely on a promissory note. We consider however that the rate of Rs. 24 per cent, per annum is high without some special cause for a promissory note and no special cause has been shown in the present case. Under these circumstances, we reduce the rate from 24 per cent, pep annum simple interest to 18 per cent, per annum simple interest. We allow the appeal to this extent with proportionate costs. The appeal is otherwise dismissed.


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