SRI RAJAH RAVU VENKATA KUMARAMAHIPATI SURYA RAO BAHADUR GARU, RAJAH OF PITTAPUR Vs. BALLAPRAGADA PALLAMRAJU

JUDGEMENT

(1.) This is an appeal by the 1st defendant from a decree of the Temporary Subordinate Judge of Cocanada in a suit brought by the plaintiff to recover from the 1st defendant money payable for work and labour done under a building contract. One of the points argued before us relates to the price with which the plaintiff has been charged in account with the 1st defendant for timber supplied by the latter for the building. The 1st defendant claimed an allowance for the timber supplied by. him at the rate of Rs. 3 a cubic foot. The evidence is not very strong on either side and we are not prepared to interfere with the finding of the subordinate Judge in paragraph 35 of his judgment in favour of the lower figure.

(2.) The next objection is to the disallowance of the 1st defendant s claim for Rs. 1081-11-10 for stone and sand supplied by the 1st defendant for the purpose of the building. The 1st defendant admittedly stored stone and sand on the premises for the purposes of the building when he intended to have the building erected without employing a contractor. The interested evidence of the plaintiff that he made no use of these materials which had been collected for this very building seems highly improbable. The evidence of the 1st defendant s overseer whom the subordinate Judge gives no good reason for discrediting that he himself measured the stone and sand supplied to the plaintiff seems much more in accordance with the probabilities of the case. We accept the case for the 1st defendant on this point and allow him Rs. 1081-11-10 on this account.

(3.) The 1st defendant next objects to so much of the decree as directs him to pay interest on the sum found due to the plaintiff from the date when the building was handed over to him on completion. There is no provision for payment of interest in the contract nor is there any proof of demand, but the sub-Judge has held that the money claimed by the plaintiff under the contract was " a debt or sum certain payable at a certain time " within the meaning of the Interest Act, XXXII of 1839 and that therefore the court had a discretion to allow interest under the Act from the time when the money became payable. The contract provides that " all work done by the contractor shall be paid for by the Rajah according to the rates herein specified within a reasonable time after it has been inspected and finally approved and passed." I do not think that is a provision for the payment of a sum certain or for the payment of such sum on a certain day. If authority be wanted reference may be made to Hill v. South Staffordshire Railway Co." (1874) L.R.18 Eq. 154 and to the observations of the Judicial Corammittee in Jaggan Mohun Ghose v. Manick Chund (1859) 7 M.I.A. 263 at 280. The respondent has therefore endeavoured to support the decree on the ground that it was open to the court to award interest in this case independently of the Interest Act under the proviso to the act that interest shall be payable in all cases in which it is now payable by law . This contention is opposed to the settled course of decisions of the Court in Kisara Rukkumma Rao v. Cripathi Viyanna Dikshatulu (1863) 1 M.H.C.R. 369. Kamalammal v. Peeru Meera Levvai Rowthen (1897) I.L.R. 20 M. 481 and to the earlier decision of the Privy Council, Jugganmohan Ghose v. Manick Chand (1859) 7 M.I.A. 263 at 280 which proceeded on the view that interest not payable under the terms of the contract could only be awarded under the Act or as being in accordance with usage as to the particular class of instruments. In that case the claim founded on the act was rejected, and the claim founded on usage was upheld. The English decisions on Section 28 of Lord Tenderden s Act 3 and 4 Will 4 c 42 are to the same effect, and are entirely applicable because the Interest Act 1839 was passed, as recited in the preamble, to extend this section to India and re-enacted it in substance. The English Act as pointed out by Lord Watson in London Chatham, and Dover Railway Co. v. South Eastern Railway Co. (1893) A.C. 429 at 441, was passed upon the assumption that Lord Tenderden had correctly laid down the Law in Page v. Newman (1829) 9 B. & C. 381 where he said " interest is not due on money secured by a written instrument, unless it appears on the face of the instrument that interest was intended to be paid or unless it be implied from the usage of trade, as is the case of mercantile instruments."