BAHORE MAHTON Vs. JURO SAHU

JUDGEMENT

(1.) This appeal by the defendant arises out of an action on a bond dated 20th September 1916. The consideration for the bond was Rs. 190 which was made up of Rs. 55 then borrowed and a sum of Rs. 135 borrowed on an earlier bond dated 22 September, 1912 The interest under the later bond was at the rate of Rs. 2- 5-6 pre mensem with yearly rests. The plaintiffs however limited their claim to a sum of Rs. 2,100 whereas in fact the amount due under the bond, principal and interest at the date of the suit amounted to Rs. 3,600 The trial Court reduced the interest to Rs. 24 per annum, simple; but on appeal before the learned Additional District Judge the plaintiffs were given interest at the contract rate as the learned Judge was of the opinion that the Usurious Loans Act did not apply and as the necessary facts entitling him to exercise his jurisdiction under Section 19a, Contract Act, had not been established. Section 19a gives. Court power to void a contract obtained by undue influence defined in Section 16, Contract Act, which imposes such terms and conditions as to a Court may seem just. The only substantial argument raised in this case is that as the contract on the face of it appears to be unconscionable, it must be deemed to have been obtained by undue influence, in exercise of our jurisdiction under Section 19a, Contract Act. Unfortunately for the defendant, although he set up certain substantial, defences such as that there was no necessity for the loan (the loan having been obtained by the father of the present defendant), he omitted entirely to raise this question of undue influence. Had the question been raised and had the Court come to the conclusion that the necessary facts were, existing to establish that prima facie the contract was obtained by undue influence, the onus would have been on the plaintiffs under Sub-section (3) of Section 16 to establish that it had not been obtained by undue influence. But it was necessary first of all for the plaintiffs to plead it and then, as has been pointed by their Lordships of the Judicial Committee of the Privy Council in Ragunath Prasad Sahu V/s. Sarju Prasad 1924 PC 60, to establish that the parties were in a position of the one dominating then will of another. That, if I may be permitted to say so with respect, is clear from a reading of section itself which provides: A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other

(2.) Sub-section (3) to which I have already made reference provides inter alia: The burden of proving that such contract was not induced by undue influence shall lie upon the person to dominate the will of the other.

(3.) The learned Judge in the Court below has held that there is no evidence in this case, and neither is there any finding of the learned Judge of the lower Court, that the creditors were in a position to dominate the will of the other.