NARAYAN SINGH Vs. KESHOSA

JUDGEMENT

(1.) JACKSON , A.J.C. 1. The only question raised in this appeal relates to interest. The plaintiff has claimed and been decreed interest according to the terms of the mortgage-deed. This deed was executed on 23rd March 1920 for a Bum of Rs. 2,000 payable with interest at 1 1/4 per cent per mensem on 15th April 1921 and liable in case of default to carry interest at 2 per cent per mensem. On 24th March 1923 a payment of Rs. 1,390 was made, Rs. 400 of which was taken towards the payment of principal. It is the defendants' case that at the time when that payment was made, the plaintiff agreed to accept interest at 1 1/2 per cant per mensem. This agreement cannot be proved having regard to proviso (4) to Section 92, Evidence Act, but defendant 2 relies on Section 58, urging that the plaintiff has admitted the agreement and to no proof is necessary. The plaintiff, however, has not admitted the agreement as alleged by the defendant; he admitted a different agreement, namely, to accept 1 1/2 per cent if the balance due was paid off within eight days. It is said that in his evidence the plaintiff admits an unconditional agreement, but that is not the case. In his deposition he repeats the condition.

(2.) IT is urged that the agreement in ?spite of proviso (4), Section 92 should be held proved because of the conduct of the plaintiff in calculating interest in his books subsequent to the payment of Rs. 1390 on 24th March 1923 at the rate of 1 1/2 per cent per mensem. Reference in this connexion has been made to Mahomed Musa v. Aghore Kumar Ganguli A.I.R. 1914 P.C. 27 and R.B. Indraraj Singh v. Chaitram ; but in the present case there is no room for the application of any doctrine analogous to that of part performance. The calculation of interest in the plaintiff's books cannot bind him to accept no more than 1 1/4 per cent per mensem. The appeal fails and is dismissed with costs.