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Manikka S. Venkatachalam Iyer Vs. Doraiswami Chetty and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in102Ind.Cas.141
AppellantManikka S. Venkatachalam Iyer
RespondentDoraiswami Chetty and ors.
Cases ReferredLachakkammal v. Sokkayya Naik
Excerpt:
mortgage - construction of deed--stipulation for payment by instalments--penal clause for recovery of enhanced and compound interest in default of payment of instalment--waiver--suit to enforce penal clause. - .....were paid and endorsements made on the document. on the 18th june, 1918, a sum of ra. 859 was paid as compound interest but the compound interest paid there was with monthly rests at 14 annas percent, and not as stipulated in the document. then nothing was paid and on the 21st november, 1921, plaintiff sent a notice demanding payment but by the time the notice was sent all the instalments had become due and there was no question of exercising any option. on the facts of the case the subordinate judge relying upon lachakkammal v. sokkayya naik 48 ind. cas. 191; (1918) m.w.n. 586. held that he was entitled to simple interest at 14-annas per cent. and not enhanced interest, or compound interest. it appears that no demand was made when the breach was committed stating that the mortgagee.....
Judgment:

1. The only question in this appeal relates to enhanced rate of interest. The mortgage is dated the 4th of May, 1917, and the amount is payable by instalments of Rs. 2,500 the last instalment being due on the 5th. May, 1921. The penal clause in the document runs as follows: 'Should in any instalment as aforesaid, there be default in paying either the principal sum or the interest, we shall whenever you may require, for the principal sums as may be due till the last instalment and the interest as may be due, till then, irrespective of the subsequent instalments, pay compound interest accruing thereon at 1 1/4 per cent. (1 1/4 per cent.) a month at 12 months rest, from the date of default, from out of the undermentioned secured properties, holding ourselves as well personally liable. It appears that certain instalments were paid and endorsements made on the document. On the 18th June, 1918, a sum of Ra. 859 was paid as compound interest but the compound interest paid there was with monthly rests at 14 annas percent, and not as stipulated in the document. Then nothing was paid and on the 21st November, 1921, plaintiff sent a notice demanding payment but by the time the notice was sent all the instalments had become due and there was no question of exercising any option. On the facts of the case the Subordinate Judge relying upon Lachakkammal v. Sokkayya Naik 48 Ind. Cas. 191; (1918) M.W.N. 586. held that he was entitled to simple interest at 14-annas per cent. and not enhanced interest, or compound interest. It appears that no demand was made when the breach was committed stating that the mortgagee would claim enhanced interest provided for in the document. The decision in Lachakkammal v. Sokkayya Naik 48 Ind. Cas. 191; (1918) M.W.N. 586. covers the facts of this case. The notice was sent after the instalments had become due and there was no case of exercising any option. It may be if the plaintiff had properly framed the suit he may be entitled to some damages for not paying the money after the due date, but such a, claim is not made in the plaint. The fact that he got compound interest in a manner not provided for by the terms of the document would not show that there was any promise to pay compound interest for future default at the game rate as was paid on the 19th of June, 1918. Such a promise would be in variance of the registered document and could not be enforced as a contract varying the penal clause [provided for in the bond. There can be no variance of the terms of any registered document by oral arrangement and so the plaintiff cannot enforce any oral arrangement and get compound interest at 14-annas per cent. We do not think the Subordinate Judge was wrong in not allowing compound interest or enhanced interest.

2. The appeal fails and is dismissed with costs.


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