CHANDI CHARAN LAHA Vs. JIBAN KUMAR MAJUMDAR

JUDGEMENT

(1.) In the suit out of which this appeal has arisen the plaintiff sued the defendants for rent for a certain area of land and he further asked for interest at the rate of 2 per cent per mensem and damages at the rate of 25 per cent in accordance with the terms of a contract entered into between the parties. The trial Court decreed the plaintiff's suit and allowed him interest at the rate of 2 per cent per mensem and damages at the rate of 12-1/2 per cent in addition to the interest. Both the parties appealed to the District Court. The learned District Judge allowed the interest and allowed damages at the rate of 25 per cent per annum. It will be seen that the learned Judge's judgment proceeded on a misapprehension as to what are really the terms of the kabuliyat. The learned Judge says that the terms of the kabuliyat are as follows: If we make default in paying any kist, we shall pay interest at the rate of 2 per cent per month; if we make default in paying rent, you will be entitled to compensation at the rate of 25 per cent per annum etc.

(2.) The learned Judge then says: I think this is a case therefore which contains as it were a stipulation in case of default and also a penalty, and under Section 74, Contract Act, either would be enforceable.

(3.) A reference to the kabuliyat itself will show what is provided for in the kabuliyat is damages at the rate of 25 per cent and not at the rate of 25 per cent per annum. The learned Judge made the inference without understanding what the terms of the kabuliyat were. The plaintiff has appealed to this Court.