1. Defendant 2 is the drawer, defendant 1 is the acceptor and the plaintiff is the payee. The hundi mentions nothing about interest but the lower appellate Court has decreed the rate of 12 per cent, per annum on the footing of an oral contemporaneous contract. The present second appeal is preferred by the two defendants on the ground that the plaintiff is not entitled to more than 6 per cent, interest under the provisions of Section 80 of the Negotiable Instruments Act. There can be no doubt, and it is in fact conceded, that the hundi is a negotiable instrument in this case. Therefore, unless there is a special rate of interest contracted for by some other contract contemporaneous with the hundi, S. 80 must apply. There is no such other contract in writing nor is oral evidence in support of any such contract admissible under Section 92 of the Evidence Act. The case of Luchmi Chand Jhowar v. Hemendra Prasad Ghosh(1) is authority for this. Therefore S. 80 must apply and the plaintiff is entitled only to 6 per cent, interest.
2. It was sought somewhat faintly to argue that if more than 6 per cent, interest was not allowable, the plaintiff was at least entitled to 12 per cent, as damages, but ??? the plaintiff does not show that any case I for damages was made in the Courts below. The appeal will, therefore, succeed and the decree of the lower appellate Court will be modified to the extent that interest will be calculated not at 12 pet cent, but at 6 per cent. No order will be made as to costs.
V.S/R.K
3. Decree modified.