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Ladha Singh Vs. Munshiram Agarwalla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal605
AppellantLadha Singh
RespondentMunshiram Agarwalla
Cases ReferredBisseser Singh v. Bhagaban Das
Excerpt:
- .....on the promissory note, dated 1st april 1924, and it is stated in para. 1 of the plaint that this promissory note was executed on 1st april 1924 in favour of the plaintiff for the sum of rs. 18,700 to be paid on demand with interest thereon 'at the rate of 1 per cent. per mensem, by inadvertence wrongly stated in the promissory note as '1 per cent, per annum.' it appears that the promissory note was in fact to all intents and purposes given in renewal of a previous promissory note which was for the sum i think of something like rs. 15,000 and the promissory note now sued on represents the amount of the plaintiff under the original promissory note together with the accrued interest thereon as provided in that note.2. it is stated on the face of the document now sued on that the rate of.....
Judgment:

Costello, J.

1. In this undefended action the plaintiff is suing the defendant firm for the recovery of the sum of Rs. 24,598, being the amount of principal and interest due on the promissory note, dated 1st April 1924, and it is stated in para. 1 of the plaint that this promissory note was executed on 1st April 1924 in favour of the plaintiff for the sum of Rs. 18,700 to be paid on demand with interest thereon 'at the rate of 1 per cent. per mensem, by inadvertence wrongly stated in the promissory note as '1 per cent, per annum.' It appears that the promissory note was in fact to all intents and purposes given in renewal of a previous promissory note which was for the sum I think of something like Rs. 15,000 and the promissory note now sued on represents the amount of the plaintiff under the original promissory note together with the accrued interest thereon as provided in that note.

2. It is stated on the face of the document now sued on that the rate of interest payable on the sum of Rs. 18.700 is to be at the rate of Rs. 1 per cent, per annum from the date of the note to the date of the demand in full. The question 1 have to determine is whether tha.fr in fact represented the real bargain between the parties and, if it did not, whether I ought in the circumstances of the case to make such a rectification of the document as will enable the plaintiff to-recover the full amount which he is claiming in the suit. (The judgment here quoted Sections 91 and 92 of the Evidence Act 1872, and proceeded.) The principle on which the Courts act in correcting instruments is that the parties are to be placed in the same position as that in which they would have stood if No error had been committed, and there is no doubt to my mind that the law on the point is quite well settled, viz., that the Court can correct the terms of the document if it is proved to the satisfaction of the Court that any of such terms are inaccurate-owing to a mutual mistake. The present case is in my opinion covered by the decision in Druieff v. Lord Parker [1868] 5 Eq. 131 where it was held that it was competent for the Court to correct a misstatement even in a negotiable instrument such as a bill of exchange or a promissory note if in fact one of the terms had been placed in that document without really representing the true bargain between the parties. There is a similar decision in an old case decided in 1885 Bisseser Singh v. Bhagaban Das [1885] A.W.N. 42. I am not at all sure that in the circumstances of that particular case the decision was correct, but it is sufficient for my purpose to say that if it appears that there is a prima facie mistake in the document it is open to the Court to rectify it. The real question therefore which I have to decide is whether there was a mutual mistake or not. With regard to that there is the evidence of the plaintiff that what was really agreed between the parties was that the rate of interest should be the same as under the previous promissory note viz., at the rate of 12 per cent, per annum, and the plaintiff further says that he was unware when the defendant wrote out the promissory note sued upon, that he had in fact inserted therein that the rate of interest would be only one per cent, per annum instead of one per cent, per mensem. I have some doubt as to whether this document was drawn up in the form in which it appears owing to any mistake at all on the part of the defendant. It seems to me having regard to the ordinary course of business amongst commercial people of the description of the plaintiff and the defendant it would be much more likely that inadvertently the defendant should have written 'per mensem' rather than per annum.'

3. It therefore appears to me that the words in the promissory note must have been inserted of design rather than of accident. At the same time, however, the defendant has not chosen to defend this suit and to come before the Court and give an explanation from his side of the matter. Therefore having regard to the fact that this is an undefended suit, I think on the whole that I am justified in accepting the evidence of the plaintiff and coming to the conclusion that what is expressed on the face of this document does not represent the real bargain arrived at between the parties. I am not at all sure that the plaintiff ought not to have brought appropriate proceedings tinder Section 31 of the Specific Relief Act to have this document rectified but looking at the matter broadly and having regard to the form in which the plaint is framed, as I have already said, equally having regard to the fact that there is no other explanation from the side of the defendant, I will act in the matter upon the basis that it was a mutual mistake and therefore it is open to the Court to ascertain what the real contract between the parties was.

4. In the circumstances therefore without attempting to give a definite judgment with regard to the principles of law applicable to cases of the kind because ordinarily it is not competent for a plaintiff to recover interest at a higher rate than what appears on the face of the instrument itself, I find that the plaintiff is entitled to recover the full amount asked in the prayer of the plaint. The plaintiff will also be entitled to interest on decree at 6 per cent, and costs on Scale No. 1.


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