Roy Musal Naidu vs Thandalam Virasami Reddi and Another

Odgers, J.—This is a suit on a promissory note. The plaint sets out a lending of Rs. 550 to the 1st defendant and also that a sum of Rs. 99

for interest and Rs. 83 for principal, in all Rs. 182, was paid on 17-3-1917, Rs. 39-8-0 towards interest on 1-3-20, etc; and in his account at the

end of the plaint he shows Rs. 99 credited towards interest on 17-8-1917. The defence was that the whole amount had been paid and that the

plaintiff''s suit was barred. This was so held by the District Munsif. There the contest turned on whether a certain endorsement evidencing the

payment of this Rs. 182 on the back of the pro-note was genuine or not and he came to the conclusion that it was genuine.

On appeal to the District Judge this endorsement was found to be a forgery, but before the District Judge and before me in second appeal it has

been argued that a part at least of this Rs. 182 must be taken to have been paid towards interest. There is no oral evidence on the point that has

been placed before me, but the learned vakil appellant relies on what he says is an admission in paragraphs 11 and 13 of the written statement. In

paragraphs 11 and 13, as I read them, the defendant admits that Rs. 182 was paid on 17-3-1917, but he says Rs. 159 of it should go towards the

principal as the interest stipulated for was only at the rate of 12 per cent. per annum which could only absorb Rs. 33. He is, I think, taking

objection to the appropriation of Rs. 99 for interest at the end of the plaint which has been set out above. The question is Can this be taken as an

admission that the defendant paid Rs. 33 out of Rs. 182 towards interest ? It is no objection that he paid towards principal and interest at the same

time.

This has been decided in Ramakrishna Annayi v. Pichandi Chetiar AIR 1924 Mad. 128 though there it ''must; be noted that the learned Judge,

held that the evidence of the plaintiff''s witnesses showed that payment was made towards principal and interest, and it has been of course

established in Muthu Pillai v. Maria Sundaram Pillai [1914] M.W.N. 910 that there need be no writing for the payment of interest. But it must be

pointed out that the words of Section 20 are mandatory and interest must be paid us such by the person liable to pay the debt or by his agent. The

question is then whether any sum in this case was paid as interest and as such. An appropriation by the creditor, to interest has been held in

Muhammad Abdulla Khan v. Bank Instalment Co., Ltd. in liquidation [1909] 31 All 495, not to be such an indication as would enable a Court to

hold that the payments were made towards interest I do not think there is here any evidence from which I can say that any portion of Rs. 182 was

paid as interest by the person liable to pay the debt and that therefore the lower appellate Court was right and the appeal must be dismissed with

costs.