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Sayrat Saha Vs. Sader Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in61Ind.Cas.241
AppellantSayrat Saha
RespondentSader Saha and ors.
Excerpt:
evidence act (i of 1872), section 92 - mortgage suit--adjustment, defendant, right of, to prove--civil procedure code (act v of 1908) order xxxiv, rule 2, 4,--interest, mortgagee's right to recover, at contract rate. - .....as alleged but that the appellant had left rs. 375 unpaid, and that court gave the plaintiff a mortgage decree with interest at 12 per cent. per annum from the date of suit to the date of the decree.2. two points have been taken on behalf of the plaintiff appellant. the first is, that the proof of this raja or adjustment was inadmissible under section 92 of the evidence act, and, secondly, that the plaintiff was entitled to interest at the contract rate up to the date fixed for payment in the mortgage decree.3. as regards the first point, we think that the defendant was entitled to prove the re as an adjustment of account. the finding is, that the plaintiff agreed to accept the sum of rs. 1,775 in full settlement of his claim if that sum was paid to him within the next few months......
Judgment:

1. This appeal arises out of a suit; on a mortgage. The mortgage was admitted, but the defence set up was that there had been an adjustment and a full payment of the amount found due after the adjustment. The lower Appellate Court has found that there was an adjustment as alleged but that the appellant had left Rs. 375 unpaid, and that Court gave the plaintiff a mortgage decree with interest at 12 per cent. per annum from the date of suit to the date of the decree.

2. Two points have been taken on behalf of the plaintiff appellant. The first is, that the proof of this raja or adjustment was inadmissible under Section 92 of the Evidence Act, and, secondly, that the plaintiff was entitled to interest at the contract rate up to the date fixed for payment in the mortgage decree.

3. As regards the first point, we think that the defendant was entitled to prove the re as an adjustment of account. The finding is, that the plaintiff agreed to accept the sum of Rs. 1,775 in full settlement of his claim if that sum was paid to him within the next few months. Rs. 1,400 was paid about six months after this adjustment and it is found that the payment was made within a reasonable time. We think that, on these finding, the plaintiff can recover from the defendant the balance of Rs. 375, with interest from the date on which the sum of Rs. 1,400 was paid. As regards the rate of interest, we think that the contention of the appellant is cereal. Under Rule 4, Order XXXIV, Civil. Procedure Code, read with Rule 2, the mortgages has a right to interest at the contract rate up to the date fixed for payment in the preliminary dearer. That is a statutory right and if, under the race, any other arrangement as to interest was arrived at, the latter arrangement would be a variation of the written contract which could not be proved under Section 92.

4. On these findings we decree this appeal. The plaintiff will get a mortgage decree in the usual form for Rs 375, with simple interest at 21 per cent. per annum from the 13th Joistha 1324 till six months from the date of this decree, and thereafter at six per cent. per annum.

5. The appellant will be entitled to proportionate costs in all Courts.


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