1. This appeal raises a question which is not covered directly by authorities of this Court. It appears that the defendant borrowed Rs. 350 from the plaintiff on a note of hand dated the 4th April 1916. The present suit was brought by the plaintiffs for recovery of principal with interest at the stipulated rate of 36 per cent per annum. The defendant admitted execution of the note of hand but pleaded tender of the amount due on the 13th July 1916. It is found by the lower Appellate Court that the plaintiff unlawfully refused to accept the money that was tendered to him. It was first sent by the defendant through his servant and on the refusal of the plaintiff to accept it, it was sent by money order on the 15th July 1916. The lower Appellate Court, therefore, held that the tender was good and that the defendants' plea was substantiated. But as the defendant did not deposit the' money in Court either before or after filing of the written statement, the learned Judge thought that he should allow interest to the plaintiff on the sum tendered from July 1916 to the date of institution of the suit at the rate of 6 per cent, per annum and he decreed accordingly.
2. The plaintiff appeals and it is argued on his behalf that the defendant not having deposited the money tendered in Court the tender was not kept alive and, therefore, he is entitled to full interest at the stipulated rate till the date of the institution of the suit. In support of this position he has relied on the case of Haji Abdul Rahman v. Haji Noor Mohammed 16 B. 141 : 8 Ind. Dec. (N.S.) 570 which is a decision of a Single Judge sitting on the Original Side of the Bombay High Court. The learned Judge in that case relied upon Order XXII, Rule 3 of the English Judicature Acts and on the law founded upon that provision of the English Procedure Act as laid down in Leake on Contract and other text-books on the Law of Contract, and accordingly held that a plea of tender before action must be accompanied by a payment into Court, otherwise, the tender is ineffectual. I am unable to follow this dictum in view of the absence of a provision in the C.P.C. corresponding to Order XXII, Rule 3 of the English Judicature Acts. The only mention of the defendant's right to deposit is to be found in Appendix A of the First Schedule under the heading Forms of Pleadings. In giving the different defences that may be taken in an action, with regard to payment in Court it is stated that the defendant may aver that he has paid into Court the sum of Rs. and that this sum is enough to satisfy the plaintiff's claim. This provision is apparently made to enable the defendant to avoid costs and possibly some further liability, but it does not lay down any substantive law. In the absence of any express provision either in the law of contract or in the law of procedure which is applicable to Indian Courts I do not see how it can be laid down as a binding rule of law that if a tender is not followed by a deposit in Court, it is an ineffectual tender. The view taken in the Bombay case is reiterated without examination in the case of Sabapathi Pillay v. Vanmahalinga Pillai 23 Ind. Cas. 581 : 38 M. 959 : 15 M.L.T. 203 : 26 M L.J. 331 : (1914) M.W.N. 256. But it was not necessary for the decision of that case to adopt the view laid down in the Bombay case because the fact found in that case was that 'though the plaintiff failed to pay the money into Court, as the defendants failed to fulfil their part of the agreement or to make a valid unconditional offer to perform the same, the defendants were not entitled to enforce the other terms included in the compromise decree'. The question has not directly arisen in this Court in any case but a similar objection was considered by Mookerjee and Holmwood, JJ., in the case of Jugat Tarini Dasi v. Naba Gopal Chaki 34 C. 305 : 5 C.L.J. 270. That was a case in which tender was made by the tenant of the rent due to the landlord. The tenant sometime after deposited the rent under Section 61, Bengal Tenancy Act but did not deposit it forthwith in Court or in the suit by the landlord for recovery of arrears of rent. In dealing with the objection that the deposit was not made in Court the learned Judges observed as follows: 'It appears to us to be extremely unjust to hold that a tenant who has made a valid tender, which has been improperly refused, should be driven to make a deposit under Section 61 (Bengal Tenancy Act) in order to protect himself from further liability to pay interest. We ought not 1o place a construction upon the Statute, the effect of which would be to throw upon a tenant, who has made a valid tender, which has been improperly refused, the burden of additional interest, which must accrue between the date of tender and the date of deposit, and the costs of an application under Section 61, which may in some instances, as in the case before us, amount to a substantial sum. We must hold, consequently, that as there was a valid tender in this case, which was improperly refused, interest ceased to run from the date of tender. It was suggested, however, that, as the amount tendered was not deposited in Court, the tender was not kept good. In our opinion, there is no foundation for this argument. It is well settled that the debtor, whose tender has been refused, may retain the money in his own possession. The identical money need not be kept in hand, since the money tendered does not become the property of the creditor; the debtor may use it as his own without destroying the effect of the tender, if he is ready at all times to pay the debt' in current money, when requested'. I fully agree with the above observation made in this connection. There being no provision in the Statute law as to make it obligatory upon a debtor in order to keep the tender alive to make deposit in Court, I am unable to lay down as a rule of general applicability in the muffussil that where the defendant fails to make the deposit in Court the tender must be ineffectual though it was validly made and unlawfully refused by the creditor. The deposit by the defendant of the amount admitted to be due by him in Court generally exempts him from the liability for costs and that is all the benefit that he can expect from such deposit under the provisions of the C.P.C. The learned Judge, however, has taken this omission of the defendant into account and has allowed interest to the plaintiff upon the sum tendered at the rate of 6 per cent, per annum from the date of the tender down to the date of the suit. In my opinion substantial justice has been done in this case and the decree of the learned Judge is accordingly upheld.
3. This appeal is dismissed with costs.
4. In this appeal the findings of fact, are that the tender was duly made by money order sent on the 15th July 1916 and that three years and a-half-after on the 8th January 1920 the present suit was brought. It is clear that just after the suit was brought the plaintiff applied for attachment of defendant's moveables before the judgment and that the attachment order was issued in February 1920 when the defendant filed his written statement he admittedly pleaded tender in July 1916. He did not, however, deposit the amount which he had tendered in that year. The question, therefore, arises and it appears to be the only point that can arise is whether in this suit the defendant can now plead tender in view of the fact that he did not deposit the money in Court. In support of the argument that he cannot now plead tender, we have the English rule made under the Rules of the Supreme Court, and applied to County Courts under which the plea of tender is not available if tender, is made before action unless the amount is paid, into Court after the action. Has this rule of pleading been imported into the Indian Law? So far as I can see it has not been. No doubt in the forms of written statement in Appendix A to the C.P.C. a form is given to which my learned brother has referred and the words of which I need not repeat. But there is nothing that I can find either in the substantive law or in the orders dealing with pleadings generally and written statements which makes it compulsory where tender is pleaded to deposit the money in Court. In my opinion, therefore, this rule of English Law is not yet in force in this country and in this view the appeal must be dismissed with costs.