BRAHMAMOYI DEBYA Vs. SOMARALI SHEIKH

JUDGEMENT

(1.) This appeal arises oat of a suit for arrears of rent, and the only point to be decided is the rate of interest to be given to the plaintiffs on the arrears.

(2.) The tenancy commenced with the execution of a registered kabuliyat for a term of three years on the 25 May 1880 and the defendants in this suit are the sons and son-in-law of the executants of the kabuliyat and they or their predecessor have been holding over since the first term of the kabuliyat expired. The kabuliyat provides for payment of 24 rupees in cash and 3 aras of paddy, or in lien of the paddy 12 rupees per annum. The condition as to interest contained in the kabuliyat is that the tenant should pay interest at 6 pies per rapes per menses on the cash rent and one cotta per rupee per month on the rent payable in paddy. Both the lower Courts have held that the plaintiffs cannot get interest at higher rate then 12 per cent, per annum. This finding is base on two grounds, firstly, that the contract for interest was a hard and unconscionable bargain, and, secondly, that the provisions of Section 67 of the Bengal Tenancy Act are a bar to the plaintiff's getting any higher rate of interest then that provided in that section.

(3.) On appeal both these grounds were attacked. But the learned Vakil for the respondent was content to rely on the application of Section 67 and the question of the effect of the finding that the bargain was hard and unconscionable was not argued. As regards the effect of Section67 the point has recently been considered by a Division Bench of this Court in the cage of Chindra Nath Sharma V/s. Sheikh Inamdi (7). In that sage it is pointed out that there has been divergence of judicial opinion as to the effect of holding over and the more important eases dealing with this point are there discussed. On behalf of the appellants it is strenuously urged that when a tenant holds over there is no new contrast entered into which would make the provisions of Section 178 of the Bengal Tenancy Act applicable and that consequently there is no bar to recovery of interest under the terms of the original contract if that is made before the passing of that Act. This contention is overruled by the decision above cited. That decision has been attacked, We do not think that we should be justified in referring the matter to a Foil Bench. On beta f of the appellant cur attention has been drawn to another resent decision in the case of Srimati Pramada Sundari Sarkar V/s. Ledu Mattxbir (5), Second Appeal. Nos. 167 and 2269of 1918, decided on the 3 June 192C. A short note of this case appears in 24 Calcutta Weekly Notes, (.Votes Portion) Clii. On examination of the judgment we find that it is of no assistance to the present case. The judgment itself does not state the facts. Prom the paper-book it appears that no question of the applicability of Section Q7 was ever raised. The lower Appellate Court in-that case reduced the interest arbitrarily on the ground that the bargain was hard and unconscionable. The tenancy held by the defendant was Cast Him hcwli or permanent tenure and, therefore, that case would be covered by the Full Bench case in Lal Gopal Butt Chowdhry V/s. Monmathe Lai Butt (4). The facts of the present case cannot be distinguished from the facts of the case of Chandra Hath Sharma V/s. Sheikh Inamdi (7) already referred to and we follow that decision.