1. This appeal arises rut of a suit open a mortgage-bond and the oily question relates to the rate of interest.
2. The rate stipulated in the bond was Rs. 28, annas 2 per cent, per annum with year]; rests. The Courts below have allowed simple interest at 12 per cent.
3. The principal amount was Rs. 60 and it swelled up to Rs. 1,770,annas ll, with interest at the bond-rate, The plaintiff laid his claim at Rs. 599, after giving up Rs. 1,770, annas 11.
4. The learned Subordinate Judge disallowed interest at the bold rate, because there was ample security for the loan and the stipulation as to interest was harsh and unconscionable.
5. But, as pointed out in the recent Privy Council decision in Aziz Khan v. Luni Chand 48 Ind. Cas. 933 : 23 C.W.N. 130 : 101 P.R. 1918 : 165 P.W.R. 1918 (P.C.) 'it is difficult for a Court of Justine to give relief on grounds of simple hardship in the cadence of ary evidence to show that the money lender bad unduly taken advantage of his position even when the trai section appeared to be undoubtedly improvident.'
6. In the case of Batta Mal v. Ahad Shali 48 Ind. Cas. 1 ; 23 C.W.n. 233 : 35 M.L.J. 614 : 16 A.L.J. 905 : 124 P.R. 1918 ; 25 M.L.T. 55 : 180 P.W.R. 1918 : 29 C.L.J. 165 : 1 U.P.L.R. (P.C.) 25 ; 21 Bom. L.R. 558 (P.C.), in considering the question of compound interest and unconscionable able contracts, their Lordships, in the course of their judgment, observed: 'Rs. 2 per mensem is by no mean an mutual rate of interest in cases from India coming before this Board.' (See also judgment of this Court in Second Appeal No. 2986 of 1916, decided by the present Bench on 26th August 1919), Harendra Kumar Ray Choudhury v. Debendra Kumar Das 54 Ind. Cas. 558.
7. It has, however, been pressed before us that the Court of first instance found that the defendant was a servant at the shop of the plaintiff at the time of the execution of the bond, and that the defendant was forced to take the loan on usurious interest. It is contended that the plaintiff was in a position to dominate the will of the defendant as he was a servant at his shop and took advantage of his position at the time of the execution of the bond, and that the lower Appellate Court has not considered these questions.
8. We think, therefore, that the case should go back to the lower Appellate Court in order that the Court may consider whether the plaintiff had taken advantage of his position at the time of the execution of the bond and dispose of the case according to law,
9. Costs to abide the result.