Mukerji and Dalal, JJ.
1. This is an appeal from a final decree passed by the learned Subordinate Judge of Aligarh in a suit for accounts. The grounds of appeal are:
(1) That the amount of profits alleged to have been recovered by the defendant between the years 1904 to 1907 as fixed by the Commissioner who took accounts was excessive.
(2) That the defendant was wrongly refused credit for three items:--(a) of Rs. 2,791, (b) of Rs. 1,505 and (c) of Rs. 608-10.
(3) That the defendant was not liable to pay interest on the taking of accounts and he was wrongly saddled by the lower court with the payment thereof. The ground of appeal No. 5 was abandoned.
2. As regards the calculation of profits of the two markets which, it is now decided, were received by the defendant, we think that the Commissioner has correctly assessed them. The Commissioner did not trust for valid reasons the account books produced by the defendant, and his opinion was that the safest way of assessing the income for the period from the 1st of January, 1904 to the 30th of April, 1907, was to apply the average of eight months from May to December, 1907. This is as good a way of valuing the profits as any other that may be suggested. We therefore, affirm the finding of the lower court on this point. [The judgment then discussed the evidence and continued.]
3. Finally there remains the question of interest. In two judgments of a Bench of this Court of 1918 it was pointed out that the only grounds upon which interest can be claimed upon a sum of money when the liability for the sum is established are to be found either in Section 73 of the Contract Act, illustration (n) or in the Interest Act, No. XXXII of 1839. In the present case interest is not recoverable on either ground. Obviously there was no contract between the parties for the payment of interest. The Interest Act provides that interest would be payable if debts or sums are due by virtue of some written instrument or, if payable otherwise, then from the time when demand of payment shall have been made in writing so as such demand shall give notice to the debtor that interest shall be claimed from the date of such demand until the time of payment: Lalman v. Chintamani (1918) 17 A.L.J. 169. This principle was affirmed by the same Bench in Nathu v. Ghansham Singh (1918) I.L.R. 41 All. 259. The judgment in the second case was delivered by the other learned Judge constituting the Bench. At pages 268 and 269 of the report the same principle was affirmed. There is a Privy Council authority which has not been cited in either of these rulings. In Kalyan Das v. Maqbul Ahmad (1918) I.L.R. 40 All. 497, their Lordships of the Privy Council observed, at page 504 of the report, that interest depends on contract, express or implied, or on some rule of law allowing it. If there is no contract, allowance of interest can be made only as a matter of law. In the present case the money in the hands of the defendant was not demanded till the 6th of January, 1920, and there was no contract for the payment of interest. It was pointed out that the plaintiff was a minor. If it be argued that for that reason he could not make a demand, the reply would be that the defendant would not know to whom to make the payment upon a sufficient receipt during the infancy of the plaintiff. We think that the plaintiff is not entitled to receive any interest up to the 6th of January, 1920.