1. The question in this case is whether the plaintiff, to whom a sum of money was payable under an oral contract, is entitled to interest prior to the date of the suit?
2. No agreement or usage, giving a right to the interest, was alleged. And it was admitted that no written demand, giving notice that interest would be claimed, was sent under Act XXXII of 1839.
3. In these circumstances, it must be held that the interest cannot be decreed.
4. It will be seen from the judgments delivered in the Court of Appeal and in the House of Lords in London Chatham and Dover Railway Company v. South Eastern Railway Company (1892) 1 Ch. 120 and 1893, App. C. 429, that in England at Common Law interest was not recoverable as damages in cases similar to the present. That the law of this country must be taken to be substantially the same was established by the decision of, the Judicial Committee in Jagga Mohun v. Kaisen Chand 9 M.I.A., 256, and in Kissara Rukhumana Row v. Sripathi Yinaya Dikshatalu 1. M.B.C.R., 369, Scotland, C.J., and Holloway, J"., laid down broadly that in the absence of a demand in writing, interest up to date of suit cannot be awarded upon sums which are not payable under a, written instrument and of which payment has been illegally delayed. The learned Judges arrived at that conclusion in spite of the practice which they admitted has for a long series of years prevailed in the mofussil courts of awarding interest upon all demands improperly withheld--a practice which, the learned Judges felt bound to declare, was unsupported by authority.
5. It was, however, contended for the plaintiff that the law on the point has been otherwise since the passing of the Contract Act, and Section 73 of the Act coupled with illustration n annexed thereto was relied on. No doubt the section applies to and includes the cases of breach of contract to pay money, But to construe the section as giving a right to interest even in those cases in which it could not be awarded according to the provisions of Act XXXII of 1839, would be to hold that the latter enactment was virtually repealed by the former. Now this is totally opposed to the maxim generalia specialibus non derogant. Referring to this Bovill, G.I., observed in Queen v. Champneys 2 J. and. at 54 and 55:
"It is a fundamental rule in the construction of statutes that a subsequent statute in general terms is not to be construed to repeal a previous particular statute unless there are express words to indicate that such was the intention, or unless such an intention appears by necessary implication, L.E. 6 C.P. at 394-5. The reason for the presumption against a repeal by implication in these cases as stated by Wood V.C. is"
in passing a special Act the Legislature had their attention directed to the special case which the Act was meant to meet and considered and provided for all the circumstances of that special case; and having done so, they are not to be considered by a general enactment passed subsequently and making no mention of any such intention to have intended to derogate from that which by their own special Act they had thus carefully supervised and regulated. Fitzgerald v. Champneys 2 J. and. at 54 and 55. In; the present case, Act XXXII of 1639 is not one of the enactments specified in the schedule to the Contract Act as repealed, and there are no express words in Section 73 indicating an intention to rescind the earlier Act. In fact, there is no real conflict between the two, since effect may well be given to Section 73 by 'holding that the award of interest as compensation, contemplated by that section, has reference to cases in which such award can be made without infringing the provisions of the other Act. Still less can that Act be held to be in any way affected by the illustration relied on; inasmuch as an illustration has not the same operation as the sections which really form the enactment.
Nanak Ram v. Mehin Lal I.L.R., 1 A. at 495 and
Koylash Ghunder Ghose v. Sonatan Chung Barooie I.L.R., 7C, 132. Even were it otherwise, it is obvious that the framers of the illustration were not considering under what conditions and limitations interest should be awardable in cases of breach of contract to pay money. They meant only to point out that if in consequence of a breach of that kind a man finds himself unable to pay his debts and is ruined, he cannot recover compensation for loss of that remote character; and the allusion to interest was made to show that that was the only legally recoverable compensation for the breach.