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Durga Dyal Tewari and ors. Vs. Bikramjit Tewari and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal274
AppellantDurga Dyal Tewari and ors.
RespondentBikramjit Tewari and anr.
Cases ReferredGolam Abas v. Mahomed Jaffer I.L.R.
Excerpt:
interest - interest act xxxii of 1839--interest on mortgage money--transfer of property act (iv of 1882), section 88--charge on mortgaged property--interest where none is stipulated for after due date of mortgage. - .....which is act xxxii of 1839, the court has power to give interest upon mortgage money, as it is money payable at a certain time and under a written instrument. that act, as we have said, was not referred to in either of the judgments in the allahabad cases; and there being that power in the court under that act to give interest upon mortgage money, we think that the terms of section 88 of the transfer of property act make the interest recoverable or payable out of the property. that section says: 'in a suit for sale if the plaintiff succeeds, the court shall pass a decree to the effect mentioned in the first and second paragraphs of section 86,' that is to say, 'ordering that an account be taken of what will be due to the plaintiff for principal and interest on the mortgage, and for.....
Judgment:

Trevelyan and Banerjee, JJ.

1. The second point is a question of interest. The appellants are the assignees of the mortgagors, and they complain that the interest from the due date of the bond up to the date of suit has been charged on the property. They say that, inasmuch as under the terms of the bond no such interest is payable, it can only be treated as damages, and cannot be charged on the property, and we have been referred to two judgments of the Allahabad High Court I.L.R. 2 All. 617, and I.L.R. 8 All. 486, in which, relying upon certain English decisions, what is called damages are given in respect of the loss after the time when the money was stipulated to be paid. It really seems to us that it makes very little difference what we call it. In the ordinary acceptation of the term, money of this class is generally known as interest. But apart from other questions, we feel a difficulty in making any use of the Allahabad decisions, because it does not appear that the Interest Act was in the contemplation of the learned Judges who gave those decisions. The Interest Act is not mentioned by them, and as happens, we are sorry to say, very frequently in reports of cases tried in Indian Courts, there is no reference at all to the arguments of pleaders or other legal representatives of the parties, and no statement of the statutes or cases cited. We have frequently had to point out that, in the absence of a detail of the arguments and of the Acts cited in respect of a decision, that decision is of very much less value than it would otherwise be. In our opinion, under the Interest Act, which is Act XXXII of 1839, the Court has power to give interest upon mortgage money, as it is money payable at a certain time and under a written instrument. That Act, as we have said, was not referred to in either of the judgments in the Allahabad cases; and there being that power in the Court under that Act to give interest upon mortgage money, we think that the terms of Section 88 of the Transfer of Property Act make the interest recoverable or payable out of the property. That section says: 'In a suit for sale if the plaintiff succeeds, the Court shall pass a decree to the effect mentioned in the first and second paragraphs of Section 86,' that is to say, 'ordering that an account be taken of what will be due to the plaintiff for principal and interest on the mortgage, and for his costs of the suit, if any, awarded to him, on the day next hereinafter referred to.' We think the interest on the mortgage is not necessarily only the interest which the parties by the mortgage stipulated should be paid, but would also include interest which under the law is payable. The words are wide enough to bear such a construction, and in our opinion it is reasonable, and as far as we know it has been the practice of the Courts to allow in the account taken under a mortgage a reasonable rate of interest after the time stipulated for payment until the date of the final order for sale. At any rate, whether it has been the practice of the Courts or not, the construction of the section which the learned District Judge has accepted and acted upon is in our opinion reasonable.

2. We are obliged to the learned pleader for the appellants for citing to us a recent decision of this Court in Gudri Koer v. Bhoobaneswari Coomar Singh I.L.R. 19 Cal. 19, and also another case of this Court, Golam Abas v. Mahomed Jaffer I.L.R. 19 Cal. 23, note. In the first place we find the learned Judges have expressly, at page 24 of volume 19, I.L.R. Calcutta Series, declined to decide the question which we are now deciding; and in the second-place, the only question in those cases was the question of limitation--a question which is entirely different from that which is now before us. In our opinion, in this case the interest is recoverable from the property in the same way as the mortgage money and the costs of the suit, as well as the interest which the law allows to be charged; and therefore we bold that the Lower Appellate Court is right.

3. The third question was barely argued by the learned pleader. It was with reference to the power of the mortgagor to mortgage the property. As his clients were the assignees of the mortgagor, we do not see how he could have argued it on their behalf.

4. The result is that the appeal must be dismissed with costs.


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