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AjimuddIn Sircar Vs. Rafatulla Mandal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in50Ind.Cas.383
AppellantAjimuddIn Sircar
RespondentRafatulla Mandal and ors.
Cases ReferredAziz Khan v. Duni Chand
Excerpt:
contract act (ix of 1872), section 74 - mortgage--interest in arrears to be capitalised--penalty. - .....arid the plaintiff was also a moneylender, as it is in the present case. following that decision we set aside the judgment and decree of the learned judge of the lower appellate court and in lieu thereof we direct that a self-contained mortgage decree be drawn up in this court, fixing three months' time for redemption. the costs of the plaintiff in this litigation will he added to his claim.walmsley, j.2. i agree.
Judgment:

1. This appeal is preferred by the plaintiff against the decision of the learned District Judge of Rangpore, dated the 10th February 1917, confirming a decision of the Subordinate Judge of the same place. The plaintiff sued to recover money due on a mortgage security. The contract between the parties was that the mortgage money should carry interest at the rate of 24 per cent. per annum, and there is a provision for capitalising the interest in arrears after the due date of payment. It is contended that this provision is penal and cannot be enforced. There is no doubt that there are cases which take that view as judicial opinion is divided in this matter; but the matter has been set at rest by the decision of the Judicial Committee in the case of Aziz Khan v. Duni Chand 48 Ind. Cas. 933 : 23 C.W.N. 130 : 101 P.R. 1918 : 165 P.L.R. 1918(P.C). In that case interest was claimed at the rate of 25 per cent. per annum with annual rests arid the plaintiff was also a moneylender, as it is in the present case. Following that decision we set aside the judgment and decree of the learned Judge of the lower Appellate Court and in lieu thereof we direct that a self-contained mortgage decree be drawn up in this Court, fixing three months' time for redemption. The costs of the plaintiff in this litigation will he added to his claim.

Walmsley, J.

2. I agree.


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