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Shyam Lal Bose Vs. Kalim Shaikh and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1931Cal111
AppellantShyam Lal Bose
RespondentKalim Shaikh and ors.
Excerpt:
- .....by the lower appellate court.4. the third question is the question of the stipulation that, if the paddy rent is not paid by the month of falgun then in the next year half as much again of the paddy would be required to discharge the arrear. it appears to me that that stipulation is a stipulation by way of penalty and comes under section 74, contract act. if it comes under section 74, then the law says that the plaintiff is entitled to get reasonable compensation. it is perfectly easy to assess reasonable compensation. for example, paddy of a certain value should have been given to the plaintiff on a given date. it is not so paid, it is quite easy to think that 5 per cent, 10 per cent or 25 per cent per annum should be added to that figure as compensation for the paddy not being paid at.....
Judgment:

Rankin, C.J.

1. I think this appeal should be allowed and the case should be sent back to the lower appellate Court to be disposed of in respect of the following three matters.

2. First of all, it is alleged by the appellant that there is a slip of some Rs. 200 in drawing up the decree in that the decree has been drawn up so as not to give him Rs. 200 which has really been awarded to him by the judgment. We cannot in this Court tell whether this sum of Rs. 200 has been omitted by design or whether it has been omitted by miscalculation or whether it has been omitted for good reasons. So, this matter must go back to the lower appellate Court to be put right.

3. The next thing is that the appellant complains that the lower appellate Court has refused to give him any interest at all on the money rent in spite of the fact that in the kabuliyat there is a rate mentioned which amounts, as I understand, to some 37 1/2 per cent per annum. It appears to me that the defendants have no defence at all to a claim for interest on the arrears of rent at the kabuliyat rate. It appears to me also that it is no sound reason to say that, considering the conduct of the defendants, the Subordinate Judge could disallow any interest on the rent in arrears. The plaintiff has a contractual right to interest. It does not appear necessary in order to obtain a decree for interest to show that the defendants have acted unreasonably at all. The point is that, if the defendants have not paid their rent in time, the plaintiff is entitled to interest. The Court below seems to think that to allow contractual interest rests on their discretion. That is not so. That matter must be put right by the lower appellate Court.

4. The third question is the question of the stipulation that, if the paddy rent is not paid by the month of Falgun then in the next year half as much again of the paddy would be required to discharge the arrear. It appears to me that that stipulation is a stipulation by way of penalty and comes under Section 74, Contract Act. If it comes under Section 74, then the law says that the plaintiff is entitled to get reasonable compensation. It is perfectly easy to assess reasonable compensation. For example, paddy of a certain value should have been given to the plaintiff on a given date. It is not so paid, it is quite easy to think that 5 per cent, 10 per cent or 25 per cent per annum should be added to that figure as compensation for the paddy not being paid at the time when it was due. But the amount which is to be added in this way will be in the discretion of the Court.

5. For these reasons, the appeal succeeds and the case must be sent back to the lower appellate Court to work out the decree properly on those lines. The appellant is entitled to his costs of this appeal.

C.C. Ghose, J.

6. I agree.


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