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Amullya Charan Dawn Vs. Askari Kazi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.554
AppellantAmullya Charan Dawn
RespondentAskari Kazi and ors.
Excerpt:
mortgage - interest, high rate of--mortgagee, whether entitled to contractual rate of interest. - fletcher, j.1. the only question involved in this appeal is this: is a mortgagor entitled to the contractual rate of interest where it is not shown that he dominated the will of the borrower and where it is not shown that there was any undue influence or coercion? i am clearly of opinion that he is. the recent decisions of the privy council show quite clearly that if facts are established to bring the case within the provisions of the indian contract act, then the mortgagee is entitled to the contractual rate of interest. the fact that the interest would run up to a large sum owing to the borrower having failed for a period of 4 years to repay the principal or to keep down the interest, does not seem to be any sufficient ground for holding that the lender had dominated the will of the.....
Judgment:

Fletcher, J.

1. The only question involved in this appeal is this: Is a mortgagor entitled to the contractual rate of interest where it is not shown that he dominated the will of the borrower and where it is not shown that there was any undue influence or coercion? I am clearly of opinion that he is. The recent decisions of the Privy Council show quite clearly that if facts are established to bring the case within the provisions of the Indian Contract Act, then the mortgagee is entitled to the contractual rate of interest. The fact that the interest would run up to a large sum owing to the borrower having failed for a period of 4 years to repay the principal or to keep down the interest, does not seem to be any sufficient ground for holding that the lender had dominated the will of the borrower. We must allow this appeal and direct that, in calculating the amount due upon the mortgage, interest be calculated and allowed at the rate provided for by the contract between the parties in the mortgage-deed. The respondent must pay the costs of the appellant in all Courts.

Cuming, J.

2. I agree,


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