Namburi Ghantiah vs Saladi Papiah and Another

Subrahmania Aiyar, J.—The provisions of Exibit A, whereby the mortgagor undertook to pay interest on the mortgage amount, do not in

express terms lay down that post diem interest was to be paid. On the other hand, there is absolutely nothing in the other provisions of the

instrument which points to the view that past diem interest was not intended to be paid.

The contention on behalf of the respondent that in such circumstances no post diem interest should be taken to be due implies that the dates

fixed for the payment of the several instalments, specified in the instrument, were fixed not only for preventing the mortgagee from demanding

payment before the arrival of those dates but also for marking the limit of time up to which alone interest was payable. It is obvious, however, that

the object of fixing the dates referred'' to was merely the former and that there was no necessary connection between the dates and the question of

liability for interest, the determination of that question being entirely dependent upon the language of the provisions properly relating to it. Now to

hold that a promise to pay interest in the general words contained in the instrument before us is a promise to pay up to the due date only, would be

to say that a default in the due performance of the contract was to result in an advantage to the party making the default and a disadvantage to him

who was not in fault. This is, of course, not what parties contemplate when they contract with each other. Certainly it is more reasonable to hold

that a promise to pay interest in circumstances like the present is a promise to pay interest as long as the principal sum is improperly withheld. This

is not, as urged for the respondent, tantamount to raising a legal presumption in the matter. It would be more correctly described as the adoption of

a rule of construction, i.e., a rule as Professor Thayer expresses it, ""designed to aid in interpreting words find conduct."" Now, as tersely put by

Hawkins, in a passage quoted by the learned author just referred to ""a rule of construction may always be reduced to the following form: certain

words and expressions which may mean either x or y shall prima facie be taken to mean x, a rule of construction always containing the saving

clause unless a contrary intention appears .. though some rules are much stronger than others and require a greater force of intention in the context

to control them,"" (Preliminary Treatise on Evidence at the Common Law, 316. (n) see also Pollock on Contracts, 6th edn., 242 and 243) and

assuming that an undertaking expressed in general words as in this case, were capable of being taken in more senses than one, still having regard to

the ordinary intentions of persons entering into such transactions on which the Judicial Committee lay. stress in Mathura Das v. Raja Narindar

Bahadur Pal L.R. 23, IndAp 145 the prima facie meaning of the words should be held to be that interest shall be payable until the actual liquidation

of the principal. With reference to Mothi Singh v. Bamohari Singh I.L.R.(1897) C. 699 cited for the respondents, I prefer the view taken by

Trevelyan and Banerjee, JJ., which is substantially the same as that adopted in Pedda Subbaraya Chetti v. Ganga Razulam Garu I.L.R.(1896) M.

See also Sarala Dasi v. Jogendra Narayan Basu I.L.R(1898) . 25 where Maclean, G.J., with the concurrence of Banerjee, J., observes: ""and

in a simple mortgage transaction it is not an unusual intention that if the principal money be not paid by the stipulated time, interest should continue

to run and run at the stipulated rate.

I would, therefore, allow the appeal and modify the decree of the Lower Courts by the award of interest at the contract rate up to the expiry of

the time granted to the mortgagor for the payment of the amount due by him. As the Lower Courts followed rulings of this Court which proceeded

on an erroneous view of the matter, there will be no order as to costs of this appeal.

Moore, J.

I concur.