CHINNASWAMI CHETTIAR Vs. CHERU

JUDGEMENT

(1.) THE only question that arises in this appeal is whether the recovery of any sum beyond Rs. 4,000/ - and interest on the defaulted instalments in pursuance of the compromise decree in O.S. No. 75 of 1125 of the District Court of Trichur is unenforceable by virtue of the provisions of Section 74, Contraccopntract Act, 1872. Under Section 74:

(2.) THE English Common Law has never admitted that a greater sum of money can ever be due for the breach of an obligation to pay a smaller one and it can be taken as established that if the obligation of the promisor is to pay a curtain sum of money and it is agreed that if he fails to do so, he Shall pay a larger sum that larger Sum will not normally be a "reasonable compensation". It follows that what has to be done in cases like this is to find out what is he primary contract between the parties and to enforce that primary contract arid nothing beyond it -subject to any concession granted in the agreement and surviving at the time of enforcement.

(3.) THE suit which ended in the compromise was for a sum of Rs. 10,000 made up as follows: (After stating how the amount was made up and after quoting the relevant portion of the petition as it appeared in the compromise decree, his Lordship proceeded). A number of decisions were cited before us and -21 Cochin 153 (B); -23 Cochin 880 (C); -25 Cochin 552 (D); -33 Cochin 569 (E); -51 Trav. L.R. 188 (F) are some of the more important of them. We have carefully perused those decisions but have come to the conclusion that it is quite unnecessary to discuss them as the question as to what can or cannot be recovered under an agreement will always be a pure question of construction dependent upon the terms and inherent circumstances of the particular contract that comes up for review.