PURNA CHANDRA DE Vs. MUHAMMAD TUKA MIA

JUDGEMENT

(1.) This appeal is directed against a preliminary decree passed by the learned Subordinate Judge of Noakhali in a suit for ejectment of a mortgage (?) and for for other incidental reliefs. The mortgage-bond, on the basis of which the suit was instituted by the plaintiff-appellant in this Court, was executed on April 24, 1916; and it contained stipulations for payment of simple interest as well as for payment of compound interest at the rate specified, in certain events. An issue was specifically directed on this part of the case to the effect following: Issue No. 2. What is the rate of interest agreed upon by the parties? Did the executants contract to pay compound interest? Can the plaintiff get compound interest as claimed on tae strength of the bond?

(2.) The stipulations contained in the mortgage bond, so far as the payment of interest was concerned, were these: "We shall pay interest on it at the rate of Rs.1-12-0 percent, per month. We shall re-pay the entire amount of principal and interest(which will be) due to you within the month of Magh of the current year, which is the due date. Failing to repay within the said due date, we shall pay interest at the said rate up till the date of realization on the entire amount, either amicably or by suit and shall pay every year the annual interest calculated upon the said money. In default, the outstanding interest shall be added to the principal on the expiry of each year and we shall pay interest (thereon) at the said rate of Rs. 1-12 by way of compound interest. The Judge in the Court below, on a construction of these stipulations, gave effect to the defence in the suit, and held that the plaintiff was not entitled to get compound interest as claimed by him in the suit. A decree was passed in favour of the plaintiff, allowing his claim in part, in the form of a preliminary decree, as contemplated by law. The plaintiff has appealed to this Court.

(3.) The question for consideration in the appeal is one of construction of the mortgage-bond, on which the claim in suit was based, so far as the stipulations for payment of interest were concerned, which have been set out above. On a consideration of these stipulations, we are unable to hold, as has been held by the Judge in the Court below, that the bond is silent whether the compound interest at the rate of Rs. 1-12 is to run monthly or yearly or whether it is for each hundred rupees or otherwise; or that under Section 93 of the Indian Evidence Act evidence is not admissible to supply the defect and that the plaintiff, therefore, was not entitled to get compound interest. As has been indicated above, we are unable to accept this view of the mortgage-bond, having regard to the clear stipulations contained therein as to payment of interest and compound interest-In our judgment, the decision of the Court below is erroneous, on a proper construction of the mortgage-bond in suit, having regard to the clear stipulations as to payment of compound interest in certain events, which have undoubtedly happened. The plaintiff was entitled on the mortgage bond, to get compound interest as claimed by him in the suit; and a decree should have been passed in his favour for the realisation of the entire amount claimed in the suit by enforcement of the mortgage security evidenced by the mortgage bond, dated April 24, 1916, on the materials before the Court.