John Wallis, KT., C.J.
1. This is an appeal by the 1st defendant from a decree of the Temporary Subordinate Judge of Cocanada in a suit brought by the plaintiff to recover from the 1st defendant money payable for work and labour done under a building contract. One of the points argued before us relates to the price with which the plaintiff has been charged in account with the 1st defendant for timber supplied by the latter for the building. The 1st defendant claimed an allowance for the timber supplied by. him at the rate of Rs. 3 a cubic foot. The evidence is not very strong on either side and we are not prepared to interfere with the finding of the subordinate Judge in paragraph 35 of his judgment in favour of the lower figure.
2. The next objection is to the disallowance of the 1st defendant's claim for Rs. 1081-11-10 for stone and sand supplied by the 1st defendant for the purpose of the building. The 1st defendant admittedly stored stone and sand on the premises for the purposes of the building when he intended to have the building erected without employing a contractor. The interested evidence of the plaintiff that he made no use of these materials which had been collected for this very building seems highly improbable. The evidence of the 1st defendant's overseer whom the subordinate Judge gives no good reason for discrediting that he himself measured the stone and sand supplied to the plaintiff seems much more in accordance with the probabilities of the case. We accept the case for the 1st defendant on this point and allow him Rs. 1081-11-10 on this account.
3. The 1st defendant next objects to so much of the decree as directs him to pay interest on the sum found due to the plaintiff from the date when the building was handed over to him on completion. There is no provision for payment of interest in the contract nor is there any proof of demand, but the sub-Judge has held that the money claimed by the plaintiff under the contract was ' a debt or sum certain payable at a certain time ' within the meaning of the Interest Act, XXXII of 1839 and that therefore the court had a discretion to allow interest under the Act from the time when the money became payable. The contract provides that ' all work done by the contractor shall be paid for by the Rajah according to the rates herein specified within a reasonable time after it has been inspected and finally approved and passed.' I do not think that is a provision for the payment of a sum certain or for the payment of such sum on a certain day. If authority be wanted reference may be made to Hill v. South Staffordshire Railway Co.' (1874) L.R.18 Eq. 154 and to the observations of the Judicial Corammittee in Jaggan Mohun Ghose v. Manick Chund (1859) 7 M.I.A. 263 . The respondent has therefore endeavoured to support the decree on the ground that it was open to the court to award interest in this case independently of the Interest Act under the proviso to the act that 'interest shall be payable in all cases in which it is now payable by law '. This contention is opposed to the settled course of decisions of the Court in Kisara Rukkumma Rao v. Cripathi Viyanna Dikshatulu (1863) 1 M.H.C.R. 369. Kamalammal v. Peeru Meera Levvai Rowthen I.L.R(1897) . M. 481 and to the earlier decision of the Privy Council, Jugganmohan Ghose v. ManickChand (1859) 7 M.I.A. 263 which proceeded on the view that interest not payable under the terms of the contract could only be awarded under the Act or as being in accordance with usage as to the particular class of instruments. In that case the claim founded on the act was rejected, and the claim founded on usage was upheld. The English decisions on Section 28 of Lord Tenderden's Act 3 and 4 Will 4 c 42 are to the same effect, and are entirely applicable because the Interest Act 1839 was passed, as recited in the preamble, to extend this section to India and re-enacted it in substance. The English Act as pointed out by Lord Watson in London Chatham, and Dover RailwayCo. v. South Eastern Railway Co. (1893) A.C. 429 at 441 , was passed upon the assumption that Lord Tenderden had correctly laid down the Law in Page v. Newman (1829) 9 B. & C. 381 where he said ' interest is not due on money secured by a written instrument, unless it appears on the face of the instrument that interest was intended to be paid or unless it be implied from the usage of trade, as is the case of mercantile instruments.'
4. In the Court of Appeal Lindley, L.J. as he then was, had stated the law as follows: ' As regards interest it was settled by Higgins v. Sargent (1823) 2 B.C. 348 Page v. Newman (1829) 9 B. & C. 381 and Foster v. Weston (1830) 6 Bing. 709 that at Common Law interest was not payable on ordinary debts unless by agreement or by mercantile usage, nor could damages be given for non-payment of such debts. London Chatham and Dover Railway Co. v. South Eastern Railway Co. (1892) Ch. 120. What the statute does, it is now well settled, is to provide for interest being awarded by way of damages in cases covered by it as held in Cook v. Fowler (1874) L.R. 7 H.L. 27, and numerous other cases.
5. It is I think clear that the provisions of Section 28 of the Lord Tenderden's Act were extended to India upon the same assumption as to the general state of the law in India, although there might of course be special cases inIndia coming within the proviso as to the cases in which interest was already payable. We have been referred to a case in which it was held by the Judicial Committee in Ghajamal Das v. Brij Bhukan Lal I.L.R(1895) . A. 511, that post diem interest not provided for in a mortgage deed might be awarded by way of damages for the detention of the mortgage debt after it fell due, but this was only an application to India of the decision in Price v. The Great Western Railway Co. (1847) 16 M. & W. 244, where it was held with reference to the corresponding section of Lord Tenderden's Act that interest might be awarded by way of damages in such a case because it had been the constant and invariable practice in cases of mortgage to give such interest by way of damages. That practice was apparently regarded as saved by the proviso to the section, and the rule as to mortgages is treated as an exception to the general rule, Fisher on Mortgages paragraph 1805. The decision in Ghajamal Das v. Brij Bhukan Lal I.L.R(1895) . A. 511 , is therefore no authority for the proposition that in other cases of contract interest may be given by way of damages for detention when it is not provided for in the contract and cannot be claimed under the Act. That contention, as already pointed out, is opposed to the scheme of the Act and the assumption on which it is based. The decision of the Privy Council in Hurropershad Roy v. Shatna Persaud Roy I.L.R.(1878) Cal. 654, in favour of allowing interest on mesne profits was based on the long settled practice of the court and this and other cases in which interest was allowed by the Privy Council in the absence of contract and independently of the Act must in my opinion be regarded as cases coming within the proviso to the Act saving cases in which interest was payable by law when the Act was passed. The decision of this court in Abdul Saffur Rowther v. HamidaBibi Ammal I.L.R(1919) . Mad. 661 which has also been cited, does not affect the present case as that was not a case of contract as to which in my opinion the law is clear; it is therefore unnecessary to consider it further on this occasion. At the suggestion of the court the appeal as to the disallowance of the fines imposed by the 1st defendant has not been pressed in. view of our disallowance of intefest and with reference to the position of the parties. The decree will be modified accordingly. Each party to bear his own costs.
Seshagiri Aiyar, J.
6. I agree. This appeal relates to four items allowed in favour of the plaintiff contractor against the 1st defendant, the Rajah of Pittapore.
7. As regards the contention that the contractor was bound to take timber from the Rajah at the rate at which local boards supplied their contractors, it is enough to point out that the contract in this case does not contain any such stipulation. In the absence of any agreement to the contrary, the presumption is that the purchase by the plaintiff was at the market rate and not higher. I therefore agree with the conclusion at which the subordinate Judge arrived on this question.
8. As regards the claim for the fine levied by the Rajah against the plaintiff for delay in finishing the building, Mr. Srinivasa Aiyengar has agreed not to press this claim.
9. As regards the third item namely the value of the sand and stones supplied to the plaintiff, the document established very Clearly that the appellant's contention is well-founded. The subordinate Judge has not given sufficient weight to Ex. F. 8. It was an estimate which was prepared at the spot when it was sent to office of the Rajah, it was scrutinised there and the correct units supplied were entered. It was after this that the plaintiff signed the estimates. On his signing it, an order was made that a cheque should be issued for the amount. This by itself is almost conclusive of quantity of sand and stones which the plaintiff received from the 1st defendant.
10. There are also exhibits C and XVII (a). The latter is a measurement spoken to by the plaintiff's overseer and was prepared on the 13th August, 1912. That gives the quantity of sand as mentioned in F. 8. There is also the oral evidence of the overseer which there is no reason for not believing. I am clear that the 1st defendant is entitled to a reduction as claimed by him in this respect.
11. Now comes the last question, namely, that relating to the award of interest on the sums decreed. The question arises in this way. The work was finished in November 1914 Soon after the plaintiff sent in a bill claiming payment. The 1st defendant, according to Mr. Srinivasa Aiyengar, scrutinised the bill and did not come to a final, conclusion until a year later and when the amount was fixed and tendered by him, the plaintiff did not accept it. Thereupon this suit was instituted. The question for consideration is whether from the date of the tendering of the bill by the plaintiff, the amount should bear interest.
12. Sitting with Ayling, J., I had to consider the provision of the Interest Act XXXII of 1839 at some length in Abdul Saffur Rowther v. Hamida Bibi Ammal I.L.R(1919) . M. 661. In my opinion, unless a claim is within the four corners of the Interest Act, the limitations contained in the Act are not applicable. The language employed by some of the noble and learned Lords in London Chatham and Dover Railvay Co. v. South Eastern Railway Co. L.R. (1893) A.C. 429 shows that the object of 3 and 4 William was to extend the discretion of the court in favour of awarding interest in cases of contracts which do not in terms provide for interest; and this view receives considerable support from Hill v. South Staffordshire Railway Co. (1874) L.R. 18 Equity 154 where Mr,. Lindley as he then was who appeared as counsel discussed the history as to interest very fully. Mr.Narayanamurthy contended that the Act should be held to affect only those cases in which interest is awardable under the Act and not all cases of contract. To accept this contention would amount to saying that contracts are within the benefit of the Act and not within its mischief. A class of cases cannot come within the protection of a statute without submitting itself to its mischief. We find the Privy Council in Jugganmohun Ghose v. ManickChand (1859) 7 M.I.A. 263 holding that in a case of contract which does not come within the Act, interest was not awardable. In this court in Kamalammal v. Peeru Meera Levvai Rowther (1897) I.L.R. 20 M 481 and Subramania Iyer v. Subramania Iyer and Ors. I.L.R(1908) . M. 250 it was held that in cases of contracts which are not covered by the Act, there should be no award of interest. In the case in Abdul Saffur Rowther v. Hamida Bai Ammal I.L.R.(1919) M. 661 we did not differ from these decisions. I am therefore of opinion that where a case is one relating to a contract the mere fact that the contract does not come within the protection afforded by the Act is not a reason for holding that it is not controlled by the Act.
13. Now comes the question whether the claim in this case is within the Act. As I began by saying, it was a claim advanced by the plaintiff for money due after rendering accounts of the work which he had done for the 1st defendant. In such a claim 'a debt or sum certain payable by virtue ofa written instrument at a certain time ' there is no doubt that there was a written instrument; but I am not satisfied that it is a sum certain. It is a sum which is sought to be made certain by the concurrence of the first defendant to the demand. Until that assent is obtained it is an unliquidated sum. Further I doubt whether it is a sum payable at a certain time. It may be, as was suggested by the learned vakil for the respondent that when no time is fixed for payment the money becomes payable at once. But I do not understand the Act as referring to such a legal presumption. As at present advised in my opinion the words payable at a certain time relate to the agreement between the parties and not to presumption of law. However that may be, this case is covered by the decision in the Court of Appeal in Hill v. South Staffordshire Railway Co. (1874) L.R. 18 Eq. 154 . That was a case where the contractor made a demand in writing for a sum as balance due to him and claimed interest. The Vice-Chancellor held that the claim did not relate to a sum certain payable at a certain time. The same view was taken by the House of Lords in London Dover Chatham Railway Co. v. South Eastern Railway Co. (1893) A.C. 429. In that case there was a stipulation between the parties that accounts should be rendered and that a payment of not less than 75 per cent should be made on account of the balance appearing to be due on the face of the accounts so rendered. The House of Lords came to the conclusion that there was no doubt of a sum certain payable at a certain time. The present case is an a fortiori one. Here there is no agreement to pay any portion of the bill on its being tendered to the appellant; it became due only after the parties had settled the accounts. It follows from the above discussion that the claim in this case is one relating to a contract and not one in which a sum certain is payable on a certain date. The provisions of the Act are therefore not complied with and consequently the plaintiff is not entitled to the interest awarded by the lower court. So much of the decree as related to the award of the interest up to the date of the suit must be disallowed. In this appeal, each party will bear his own costs.