Skip to content


Gudri Koer Vs. Bhubaneswari Coomar Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal19
AppellantGudri Koer
RespondentBhubaneswari Coomar Singh and anr.
Cases Referred and Golam Abas v. Mahomed Jaffer
Excerpt:
dead of conditional sale - interest after the date fixed for payment of principal and interest--absence of agreement to pay such interest--compensation for breach of contract--limitation act (xv of 1877), schedule ii, article 116. - .....is whether he is entitled to get interest for such period at the stipulated rate or at any lower rate. the deed of conditional sale was executed on the 15th september 1881. the principal money, with interest at the rate of one per cent. per mensem, was payable on the 15th august 1882, and the suit was brought on the 30th november 1888. there is no stipulation in the deed to pay interest after the due date, and certainly no agreement to that effect can be implied from the terms of the deed. the subordinate judge has held that, under these circumstances, the suit having been brought more than six years from the date on winch the money became due, the claim for interest from that time is barred by limitation.2. it is argued that, under act xxxii of 1839, the plaintiff is entitled to get.....
Judgment:

Macpherson and Ameer Ali, JJ.

1. In this suit, which is for foreclosure, the plaintiff claims interest at the rate stipulated in the deed from the date on which the money became payable up to the date on which the suit was brought: and the question is whether he is entitled to get interest for such period at the stipulated rate or at any lower rate. The deed of conditional sale was executed on the 15th September 1881. The principal money, with interest at the rate of one per cent. per mensem, was payable on the 15th August 1882, and the suit was brought on the 30th November 1888. There is no stipulation in the deed to pay interest after the due date, and certainly no agreement to that effect can be implied from the terms of the deed. The Subordinate Judge has held that, under these circumstances, the suit having been brought more than six years from the date on winch the money became due, the claim for interest from that time is barred by limitation.

2. It is argued that, under Act XXXII of 1839, the plaintiff is entitled to get interest from the due date at such rate as the Court may think fit to allow, and that under Section 86 of the Transfer of Property Act such interest is part of the mortgage money and becomes a charge on the property hypothecated. It certainly does not become a charge on the property hypothecated by the terms of the deed itself, and we think it is unnecessary to consider whether, if the plaintiff's claim was allowed, wholly or in part, it would be necessary to treat it as such a charge, because it has first to be determined whether the claim is in any way sustainable. The question whether it is sustainable depends upon the nature of the claim. If it is a claim for compensation for the breach of a contract, then the contract being in writing and registered would fall under Article 116, schedule II of the Limitation Act, and unless there was a recurring cause of action, the time would run from the date on which the money became due. Great stress has been laid on the use of the word 'interest' in the Act of 1839 and in the Transfer of Property Act, but we think that nothing much turns on this. In the case of Juggomohun Ghose v. Manickchund 7 Moo. I.A. 279 their Lordships of the Privy Council, speaking of Act XXXII of 1839, say this: 'It seems to have been framed not simply on the principle of compensation to the creditor, but also on that of penalty to the debtor for not paying punctually at a time when he must have known the debt or sum, specific in amount, was to be paid'. And again: 'The Act supposes a party to have been sued for breach of a contract for the payment, by virtue of a written instrument, of a sum certain at a certain time.' This is a very clear indication that such a claim as this is one for compensation for the breach of a contract, and it has been held specifically to be so by the Allahabad High Court in the cases of Mansab Ali v. Gulab Chand I.L.R. 10 All. 85 and Bhagwant Singh v. Daryao Singh I.L.R. 11 All. 416. These decisions have been followed by this Court in two unreported cases viz. Bhugwan Lal v. Mohip Narain Singh Second Appeal No. 1292 of 1887 of 21st May 1888 and Golam Abas v. Mahomed Jaffer see note, pp. 23-24. The matter is, therefore, concluded by authority, and we are certainly not prepared to take a different view from that expressed in those cases. It was also held in all those cases that there was no recurring cause of action, that the breach took place when the defendant failed to pay the money due in accordance with the terms of his contract, and that the time began to run from that date. The Subordinate Judge was, therefore, in our opinion, right in holding that the claim in the present suit was barred by limitation.

3. It was further urged that the Subordinate Judge ought to have allowed the amendment of the plaint, and should have permitted the plaintiff to give evidence to show that the time granted was at the request of the defendant, and that there was an agreement to pay interest subsequent to the due date. This is a matter on which the plaint is entirely silent. The plaintiff's pleader, when examined subsequent to the presentation of that petition, stated that there was no subsequent agreement in any way affecting the terms of the loan. Having regard to these circumstances, and to the great delay in making the application for amendment of the plaint, we are not prepared to say that the Subordinate Judge was wrong. The appeal is therefore dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //