GOKHULA Vs. N RAMASWAMI NAICKER

JUDGEMENT

(1.) THIS appeal relates to the interest disallowed by the learned Subordinate Judge dindigul in O. S. 43 of 1961 on the file of the Subordinate Court for the period prior to the date of demand for interest made by notice Ex. A. 2 dated 26-10-1960. Defendant Ramaswami Naicker executed a registered lease deed, original of Ex. A1, dated 22-3-1954, in favour of Thirumulu Subbu Chettiar for a period of five years. The lessor Thirumulu Subbu Chettiar filed O. S. 37 of 1955 for first year's rent and another suit O. S. No. 47 of 1957 for the succeeding two years' rent. He filed the present suit, O. S. No. 43 of 1961, for recovery of rent for the last two years of the lease and the period upto 28-11-1959 when the defendant surrendered possession of the leasehold lands. There is no dispute about the actual amount payable by the defendant to the lessor Thirumulu Subbu Chettiar and in fact the amount was fixed by a joint memo dated 24-10-1962 filed by the parties in the lower Court. The defendant did not also dispute his liability to pay interest from the date of demand made for the first time by notice Ex. A-2 dated 26-10-1960. The plaintiff Thirmulu Sabbu Chettiar died subsequent to the filing of the suit and his legal representatives are plaintiffs 2 to 14, who are the appellants in this appeal.

(2.) THE learned Advocate for the appellants admitted in his opening argument that there was no agreement, express or implied, to pay interest and that there was no usage or custom under which the defendant is bound to pay interest on arrears of rent. He lays his claim for interest under Section 1 of the Interest Act 1839 which runs as follows:-

(3.) IN B. N. Rly. Co. Ltd. v. Ruttanji Ramji, 1938-1 Mad LJ G40 at pp. 644 and 645 = (AIR 1938 PC 67 at p. 70) the Privy Council has considered the principles of law regarding the award of interest with reference to the provisions of the Interest Act. The following passage in the judgment is relevant:-