John Woodroffe, J.
1. The only paint in this appeal is as regards the question of interest. The interest in the kabuliyat is at the high rate of 300 per cent per annum. The first Court found that rate to be extortionate and unconscionable, and gave a decree for the interest at the rate of 12 per sent, per annum. Under the terms of Section 21 of Act VIII of 1869, which is applicable to the present case, the interest is to be at the rate of 12 per cent, per annum, unless otherwise provided for by a written agreement.
2. The Appellate Court concurred with the first Court in holding that the interest was extortionate and unconscionable and awarded interest, 75 per cent., apparently by way of compensation under the provisions of Section 74 of the Contract Act. The Additional District Judge has, however, held that the rates were exorbitant and high rates 'and from their nature it seems that they were not intended to be realised but were put in by way of penalty to ensure punctual payment of the kists;' and further on in his judgment the Judge says: I find that the terms were so extremely bard that although the parties cannot he said to have stood in a fiduciary relation to each other there must have Been some sort of imposition practised on defendants by giving them to understand that they would not have to pay the rates. This is by no means, as it is suggested, a new case; for there was an issue as to whether or not the kabuliyats were executed under misrepresentation and fraud; and the written statement says that the kabuliyats were taken from the tenants by various inducements and threats even, and by adopting various stratagems' and the tenants were got to execute them without properly reading them out and by misleading them with hopeful assurances.'
3. I think that these findings come to this, that there was no contract which, so far as the interest was concerned, was capable of being enforced, and, therefore, it cannot be said that this was a matter provided for by a written agreement in the terms of the provisions of Section 21. In my opinion, therefore, the judgment and decree of the first Court awarding interest at the Rule of 12 per cent, per annum are correct and should be restored and affirmed and the judgment and decree of the Additional District Judge on this point should be reversed.
4. The appellant is entitled to his costs in this appeal.
Shamsul Huda, J.
5. I agree.