1. This rule was granted by myself and by my learned brother Mr. Justice Mukherji to show cause why that portion of the order of the learned Small Cause Court Judge by which he ordered the defendant to pay Rs. 2-14-0 as damages should not be set aside. The facts would appear to be these--the opposite party, the landlord, sued the present petitioner, the tenant, for rent. The rent was decreed and the tenant was further ordered to pay Rs. 2-14-0 by was of damages.
2. In support of this rule the learned vakil contends that he is not liable to pay damages for his failure to pay the rent in due time. He contends that this case does not fall under the Interest Act because there was no written agreement under which the money was payable and secondly, that there was no demand in writing to pay the money. He further contends that when it does not fall under Section 73 of the Contract Act, there is no law under which he could be made to pay this Rs. 2-14-0.
3. Dr. Kanjilal has appeared to show cause and has referred me to two cases First, to the case of Khetra Mohan Poddar v. Aswini Kumar Saka 22. C.W.N. 488. In that case the learned Judges held that the plaintiff, because there had been no time faxed for the payment, nor any notice given that any interest would be claimed was not entitled to the benefit of the Interest Act. The learned Judges, however, held that it was open to the Court to award damages for wrongful detention of money even though the claim of the plaintiff was limited to interest which was not recoverable either under the Contract Act or under the provisions of the Interest Act. The learned Judges referred to the case of Mohamaya Prosad v. Ram Khelawan Singh  15 Cri.L.J. 684, as to whether the defendant in that case was liable to pay interest on the arrears of certain malikana due. In dealing with this point the learned Judges pointed out that no doubt the plaintiff was not entitled to the benefit of Section 1 of Act. 32 of 1839, the Interest Act. But they proceeded to hold that it did not, therefore, follow that the plaintiff was entitled to claim any sum by way of damages for the detention of the money due to him. The petitioner has referred to the case of Kallar Roy v. Ganga Pershad Singh  33 Cal. 998, where the learned Judges in disposing of the case remarked that having regard to the Interest Act, they were of opinion that the learned Subordinate Judge was not justified in awarding interest by way of damages. Taking all the decisions into consideration, I am not prepared to say that the learned Judge was wrong in allowing Rs. 2-14-0 by way of damages in the present case.
4. The rule is, therefore, discharged with costs. Hearing fee, one gold mohur.