1. We agree with the construction placed by the Subordinate Judge on the clause relating to default in payment of three instalments. The suggestion that the clause provides only for the case of the first two instalments not being paid on the due dates is an unreasonable one and it is not supported by the language of the instrument.
2. We also think the Judge was right in charging the defendant with the full amount of the costs calculated on the amount originally claimed in the plaint, notwithstanding that Rs. 2,771 was paid before the plaint was filed. It is said that the plaintiff might have recovered Rs. 75 or at least some part of the value of the stamped papers used for the plaint, and we are referred to Section 51(a) of the Stamp Act and Section 54.
3. In our opinion, Clause (a) of Section 51 applies only to cases of accidental spoiling of the paper of which the stamp is made, and does not cover cases in which a person has used the paper in the ordinary way, but has made a mistake in using it. Section 54 clearly has no application.
4. The next point argued is that raised by the fifth ground of appeal. There is clearly nothing in the nature of a penalty, for it is from date of default only that the higher rate is made payable.
5. Another contention is that the Subordinate Judge was in error in awarding 2 per cent., interest on all the overdue instalments. On the true construction of the document we are of opinion that interest is payable at the enhanced rate only on the three instalments due at the date of the suit, and not on the whole balance which fell due under the clause relating to the defaults of those instalments.
6. The decree awards further interest at 24 per cent., while the plaint asked for such interest at the rate of 12 per cent. only. No relief can be awarded in excess of what is asked for. We must, therefore, modify the decree by giving 12 per cent, up to date of decree and 6 per cent., from that date till payment.
7. The substantial question argued is whether there was a tender of the fifth instalment as alleged and consequently the suit was premature. The defendants' case is that on 3rd June 1892 he tendered Rs. 755-10-8 for acceptance in satisfaction of the fifth instalment, and that the manager refused to accept it. He attempted to show that the sum was tendered on that day thrice over, at 5 P.M., again at 7 P.M., and lastly about 11 P.M. The first; tender was made by the second defendant, and the other two by the first. There is no doubt evidence (Defence witnesses 1, 2, 3, 4, and plaintiff, witness 4) in proof of first tender. The Subordinate Judge, however, characterises the evidence as false. The second defendant does not refer to the presence of the first witness. There does not seem to have been any necessity for the defendant to refer to the shroff to introduce him to the manager, and it seems strange that he went to the shroff without an irsalnamah. The most suspicious feature is that the alleged tender is not mentioned in the letter said to have been written by the other defendant on the same evening. The manager, supported by the duffadar, says that the second defendant never came at all on the 30th. Moreover, it is extremely doubtful whether the defendant had on that day the sum required. Even if there was such a tender, as is spoken to, it was insufficient as it fell short of the amount due for the fifth instalment. We are unable to say that the Judge was wrong in disbelieving the evidence as to the tender. As to the second tender, there is evidence of the two defendants and the clerk. The evidence of the latter does not impress us favourably. Admittedly, he had nothing to do with the business. The other witnesses are interested and their story as to funds is open to grave suspicion, and wholly uncorroborated. Boyi Shetti, who is said to have lent them Rs. 400, is not called, and no accounts are produced either as to this sum or as to the sum realized by sale of grain. It is true that the manager admits that the first defendant came to him and had a conversation, and was told that the money could not be accepted unless the prior instalments were paid. In this respect the manager was mistaken, for it was for the defendants to determine to what instalment the payment should be applied, and he had good reason for wishing to have the fifth instalment paid first, as otherwise the whole balance would become due. We cannot, however, infer from the evidence that the manager refused absolutey to accept a tender which the first defendant promised to make. All that the manager admits is that the first defendant said he would arrange for the payment, not that he was ready and willing to make the payment then and there. We are inclined to believe that the defendant bad not really sufficient money with him. It is in evidence that on the same evening after 7 P.M. the defendant borrowed Rs. 200. This strongly supports the opinion of the Subordinate Judge.
8. As to the last tender it was really no tender as the manager had left the office. The evidence of the defendants is extremely unsatisfactory.
9. We see no reason to disturb the findings of the Judge on the fourth, fifth and sixth issues.
10. The decree will be modified in two respects as above observed. Otherwise the appeal is dismissed. Proportionate costs
[Section 54: When any person is possessed of a stamp which has not been spoiled or
rendered unfit or useless foe the purpose intended, but for
Allowance for stamps which he has no immediate use, the Collector shall repay to
not required for use. such person the value of such stamp in money, deducting one
anna for each rupee or portion of a rupee, upon such person
delivering up the same to be cancelled, and proving to the Collector's satisfaction that it
was purchased by such person with a bond fide intention to use it, and that he has paid the
full price thereof, and that it was so purchased within the period of six months next
preceding the date on which it is so delivered.]