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Jogendra Nath Banerjee Vs. Khoda Buksha Biswas and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal380,72Ind.Cas.554
AppellantJogendra Nath Banerjee
RespondentKhoda Buksha Biswas and ors.
Cases ReferredBanku Chandra Bose v. Marium Begum
Excerpt:
estoppel - order of court--acceptance of benefit under order--appeal, if rendered incompetent--principle applicable. - .....and that he had accepted rs. 65-10 as one of the instalments, after the decree. he accordingly upheld the decree of the court of first instance and dismissed the appeal.4. the plaintiff has appealed to this court.5. the first ground upon which the learned judge proceeds is erroneous for two reasons. in the first place there was no defence taken that the plaintiff had agreed not to charge compound interest. in the next place, evidence of subsequent oral agreement not to charge compound interest was inadmissible to vary the original contract which was a registered one.6. the next ground upon which the court below proceeded was that the plaintiff accepted rs. 65-10 in payment of one of the instalments (the instalments for costs) after the decree; but we do not think that the plaintiff was.....
Judgment:

1. This appeal arises out of a suit upon a registered bond for a money debt bearing compound interest at 18 per cent, per annum.

2. The Court of first instance was of opinion that the stipulation as to the payment of compound interest was a hard and unconscionable bargain, though not penal. It allowed simple interest at 18 per cent, and directed the decretal amount to be paid in three instalments with costs of the suit, costs to be paid by Jaista 1326, and the principal and interest in two equal instalments in Aswin and Chait 1326.

3. On appeal by the plaintiff, the learned District Judge held that there was no plea of undue influence or fraud, and that the plaintiff would, under ordinary circumstances, have been entitled to get the stipulated rates of compound interest, having regard to the decisions of the Judicial Committee in certain cases referred to in the judgment, but he disallowed the compound interest on the grounds that the plaintiff had subsequently agreed not to charge compound interest and that he had accepted Rs. 65-10 as one of the instalments, after the decree. He accordingly upheld the decree of the Court of first instance and dismissed the appeal.

4. The plaintiff has appealed to this Court.

5. The first ground upon which the learned Judge proceeds is erroneous for two reasons. In the first place there was no defence taken that the plaintiff had agreed not to charge compound interest. In the next place, evidence of subsequent oral agreement not to charge compound interest was inadmissible to vary the original contract which was a registered one.

6. The next ground upon which the Court below proceeded was that the plaintiff accepted Rs. 65-10 in payment of one of the instalments (the instalments for costs) after the decree; but we do not think that the plaintiff was precluded, by reason of that, from maintaining his appeal with regard to the compound interest. Our attention has been drawn to the cases of Mani Lal Guzrati v. Harendra Lal Roy (1910) 12 C.L.J. 556 and Banku Chandra Bose v. Marium Begum (1917) 21 C.W.N. 232.

7. In the first case the learned Judges referred to the cases of Tinkler v. Hilder (1840) 4 Ex. 187, Kennard v. Harris (1824) 2 B. & C. 801, King v. Simmonds (1845) 7 Q.B. 289 and Pearce v. Chaplin (1846) 9 Q.B. 802, and observed that the principle is that a party who has adopted an order of the Court and acted under it, cannot, after he has enjoyed a benefit under the order, contend that it is valid for one purpose and invalid for another. We do not think, however, that that principle applies to the present case.

8. In Tinkler v. Hilder (1840) 4 Ex. 187 it was held that where a party accepts costs under a Judge's order which, but for the order would not at that time be payable, he cannot afterwards object that the order was made without jurisdiction.

9. In Kennard v. Harris (1824) 2 B. & C. 801, it was observed that 'the plaintiff, after accepting the costs of the reference and award, is precluded from moving to set it aside. If no award had been made, no costs would have been due : by accepting the costs of the award he admits the award to be valid, and cannot now say that it is bad.' In King v. Simmonds (1845) 7 Q.B. 289 the plaintiff was allowed to amend the record on payment of the costs, occasioned by the amendment, to the defendant, and it was held that the defendant cannot, after taxing and receiving such costs, apply to set aside the order for amendment as made without jurisdiction.

10. In Pearce v. Chaplin (1846) 9 Q.B. 802, on motion to-set aside judgment and execution for irregularity, the Court made an order setting them aside without costs, but not embodying any decision as to the irregularity and adding a direction that the defendant, should bring no action. The defendant, while protesting against the direction, availed himself of the order, and it was held that he could not apply to the Court to rescind that part of it which forbade bringing an action.

11. In the case of Mani Lal Guzrati v. Harendra Lal Roy (1910) 12 C.L.J. 556 an order for amendment of a plaint was made on payment of costs to the defendants; the costs were received under protest. The learned Judge held that the principle of the English decisions did not apply, as the costs had been accepted by the defendants under protest and the defendants had no choice in the matter Shaving regard to the form of the order of the Court. The principle referred to in the above case was followed in Banku Chandra Bose v. Marium Begum (1917) 21 C.W.N. 232. In that case, a suit which was dismissed for non-prosecution was restored on an application on behalf of the plaintiff, and the Court made certain orders in respect of the payment of defendant's costs incidental to the application, and the defendants got their costs taxed, and obtained an allocatur. It was held that having taken this benefit under the order the defendants were precluded from appealing against it.

12. It will appear that in the English cases as also in the case in Banku Chandra Bose v. Marium Begum (1917) 21 C.W.N. 232 cited above, the opposite party, having accepted the benefit which he would not have obtained otherwise than under such order, was held to be precluded from challenging the validity of the order.

13. In the case before us, there was no such thing. The plaintiff appealed against the, decree in so far as it disallowed compound interest. After the appeal had been filed against that part of the decree which disallowed compound interest he accepted the costs (deposited by the respondent) and which was decreed by the lower Court on the basis of simple interest as to which there was no dispute and which the plaintiff would have got in any event whether the appeal succeeded or failed. In these circumstances, the principle of the cases referred to above does not apply to the present case.

14. The appeal must accordingly be allowed. The plaintiff will get a decree for interest at the rate stipulated in the bond and with costs in all Courts.


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