TULSI MAHATO Vs. CHETHREE LAL ROY

JUDGEMENT

(1.) This is an appeal on be-half of the defendants in a suit to enforce a mortgage security. The mortgage was executed on-the 23rd July 1897 by the first defendant and his four sons one of whom was an infant at the time. The sum secured Rs. 4,775, was re-payable on the 6th February 1898, and carried interest at the rate of nine per cent, per annum with annual rests. No payment appears to have been made, and on the 28th January 1910, a few days before the expiry of the period of limitation, the mortgagees commenced this suit to recover the mortgage-money with interest and costs The claim was resisted not by the executants of the bond but by six grandsons of the first defendant who had been made defendants as interested in the equity of redemption. They put the plaintiffs to the proof of the mortgage, and appear to have suggested that the debt, if any, was incurred under circumstances which did not make it binding upon them as grandsons of the first defendant and sons of the other three defendants. They finally contended that the provision for payment of interest Was in the nature of a penalty and consequently unenforceable. The Court below has overruled these objections and made the usual mortgage decree which is attempted to be challenged in this appeal.

(2.) It has been contended, in the first place, that the bond has not been duly proved. There is no substance in this contention, because one of the attesting witnesses proves the execution, as also attestation by himself and by some of the other attesting witnesses who are dead. It has been faintly suggested that it was necessary to call two attesting witnesses. This plainly is not required by Section 68 of the Indian Evidence Act.

(3.) It has been argued, in the second place, that the provision for payment of interest is in the nature of a penalty. This objection is wholly groundless. As already stated, the rate of interest is nine per cent, per annum With annual rests. No doubt, the plaintiffs claim as. interest a sum of Rs. 9,269 upon the principal sum of Rs. 4,775. But it must be remembered that more than twelve years had Japsed before the suit was brought, and the sum claimed as interest would have been due if simple interest had been calculated at 15 per cent, per annum, upon the principal sum. As was pointed out by this Court in the cases of Surya Narain Singh v. Jogendra Narain Roy Chowdhury 20 C. 360 and Prayag Kapri v. Shyam Lal 31 C. 138 the mortgagee is prima facie entitled to interest at the rate mentioned in the contract. The defendants have wholly failed to prove that the bond was taken under circumstances which made the provision as to the payment of interest not enforceable against them.