MATI BISWAS Vs. HARIPADA PAL

JUDGEMENT

(1.) THE facts of this Rule are these; THE plaintiff opposite party sued the petitioner to recover Rs. 374-2-8 due on a hand-note with interest Rs. 56-2-4 pies. THE defence was that the defendant did not execute the hand-note. THE learned Small Cause Court Judge found that the defendant had executed, the hand-note as alleged by the plaintiff; and he also found that there was no stipulation for interest in the hand-note. But, he allowed the plaintiff to have a contemporaneous oral agreement to pay interest, at the rate of 12 per cent, per annum and gave a decree for Rs. 374-2-8 with interest and costs. THE defendant-petitioner has obtained this Rule and he contends, that, in view of the provisions of Section 92 of the Indian Evidence Act, it was not open to the plaintiff to give evidence of a Contemporaneous oral agreement to pay interest; and in support of his contention he relies upon the case of Lachmi Chand Jhowar V/s. Hemendra Prasad Ghosh 26 Ind. Cas. 736, 935 : 18 C.W.N. 1260. That case is no doubt on all fours with the facts of the present care. THE opposite party relies on the rulings reported as Umesh Chunder Baneya V/s. Mohini Mohun Das 9 C.L.R. 301 where the Court h4d that in a suit upon a hathchitta the Court, having regard to the informal nature of the document sued upon, allowed, evidence to be given of a verbal agreement to re-pay the amount acknowledged with interest, no mention having been made as to interest in the hathchitta itself. He also places reliance on the case of Sowdamonee Debya V/s. A. Spalding 12 C.L.R. 163 in which, it was held that where a promissory-note is silent as to interest a verbal agreement made subsequent to the execution of the note to pay interest may be proved under Clause (2) of Section 9, 2 of the Evidence Act. I think that the decision upon this point will depend upon the formal nature of the document or otherwise. If the document is formally drawn up, in such a case, it would not be open to the parties to adduce evidence in proof of a contemporaneous oral agreement. That seems to be the ratio decidendi in Lachmi Chand Jhowar V/s. Hemendra Prasad Ghosh 26 Ind. Cas. 736; 935 : 18 C.W.N. 1260. In the present case the hand-note was apparently drawn up by a legal practitioner. It was duly stamped and details also were given of the notes which were taken by the debtor. I am of opinion that it is a document formally drawn up and that, following the case above-mentioned, it is not open to the plaintiff opposite party to adduce contemporaneous oral agreement to pay interest.

(2.) THE Rule is, therefore, made absolute and the order of the Small Cause Court Judge varied, namely, the interest allowed by him to the extent of Rs. 56-2-4 disallowed. THE petitioner is entitled to the costs of this Rule which I assess at one gold mohur.