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Abdul Aziz Mia and ors. Vs. Amanmal Bathra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal276
AppellantAbdul Aziz Mia and ors.
RespondentAmanmal Bathra and ors.
Cases Referred and Nadia Chand Saha v. Birendra Chandra Dutt
Excerpt:
- .....was realised. even if this were so, this would not entitle the defendants to a variation of the written contract.3. our attention has been drawn to the cases of partap chunder ghose v. mahendra nath purkait (1890) 17 cal. 291, a decision of the judicial committee of the privy council, and nadia chand saha v. birendra chandra dutt (1917) 20 c.w.n. 1067, a decision of a divisional bench of this court. both these cases are clearly distinguishable. in the former it was held that there was misrepresentation of the existing law which was sufficient to support the finding that the contract had been obtained fraudulently. in the second of these cases the question was not as to the effect of a written contract but as to the terms on which the defendant was holding the land after the.....
Judgment:

1. This is an appeal by the defendants against the decree in a suit on a mortgage bond. The execution of the bond was admitted. The defences raised by the defondants were that the stipulation for compound interest was not enforcible, that it was penal and that certain payments made by them had not been credited.

2. The learned Subordinate Judge held that it was not necessary to take any evidence except as to the alleged payments. As these were small amounts the plaintiff raised no objection to these being credited against their claim. It is contended that the defendants should have been allowed to adduce evidence on the other issues. Referring to the defendants' written statement it is clear that no evidence would have been admissible in support of their pleas. The allegations amount to a contention that there was a contemporaneous oral agreement that compound interest should be mentioned in the bond but that interest would never be claimed according to it and that simple interest only would be realised. This, Section 92 of the Evidence Act bars the defendants from proving. There is, further, an allegation in the plaint that, as a matter of fact, only simple interest was realised. Even if this were so, this would not entitle the defendants to a variation of the written contract.

3. Our attention has been drawn to the cases of Partap Chunder Ghose v. Mahendra Nath Purkait (1890) 17 Cal. 291, a decision of the Judicial Committee of the Privy Council, and Nadia Chand Saha v. Birendra Chandra Dutt (1917) 20 C.W.N. 1067, a decision of a Divisional Bench of this Court. Both these cases are clearly distinguishable. In the former it was held that there was misrepresentation of the existing law which was sufficient to support the finding that the contract had been obtained fraudulently. In the second of these cases the question was not as to the effect of a written contract but as to the terms on which the defendant was holding the land after the termination of the period of the lease. We see no ground whatever the holding that the stipulation for compound interest which is in the ordinary terms was of a penal nature.

4. The appeal is dismissed with costs. We assess the hearing fee at ten gold mohurs. Appeal rejected.


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