Ghulam Abbas v. Govindrao

1. The applicants, Ghulam Abbas, Fida Hussain and Ashgar Ali, apply for leave to appeal to His Majesty in Council against the decision of Baker, J.C, in First Appeal No. 78 of 1924, dated the 15th of January 1924.

2. The first point which arises in connexion with this application is whether the subject-matter in dispute on appeal amounts to Rs. 10,000 or upwards.

3. We find that the amount on which the present applicants appealed to this Court was for a relief of Rs. 9,385-11-0, while the plaintiff-respondent filed a cross-Objection which included, amongst other reliefs, a claim that compound interest at 12 annas per cent, per mensem ought to have been allowed, and on this part of the cross-objection the respondents succeeded. The amount of the subject-matter in dispute, therefore, in the case of an appeal to His Majesty in Council being allowed undoubtedly exceeds Rs. 10,000. The first condition laid down in Section 110 of the CPC is thus, in our opinion, fulfilled.

4. We have now to consider whether the third clause of S. 110 is or is not satisfied in the circumstances of the present case. In this connexion the first point requiring notice is whether the decree passed by this Court can be described as one affirming the decision of the Court immediately below. It is true that some variation in the decree was effected as a result of the findings arrived at by Baker, J.C, but in reality, what the present applicants desire to appeal against is the decision of Baker, J.C, in so far as he affirmed the decision of the Court below, with the further addition that be gave more relief to the plaintiff-non-applicants in the matter of interest. Looking, therefore, to the substance of the case before us, we, from the point of view of the consideration of the present application regard the decision of Baker, J.C, as one affirming the decision of the Court below, and we find ourselves in agreement with the view expressed by Maclean, C.J, and Hill and Stevens, JJ., in Raja Shree Nath Roy Bahadur v. Secretary of State [1904] 8 C.W.N 294.

5. It remains to be decided, therefore, whether in the present case any substantial question of law arises. The first point urged in this connexion on behalf of the applicants is that the lower appellate Court erred in passing a personal decree for money in the circumstances of the present case. We cannot see that any substantial question of law arises in this connexion and we agree with the view of Baser, J.C, that in the mortgage in suit there was a personal covenant which the plaintiffs had a right to enforce on the failure of the deed to operate as a mortgage owing to the lack of attestation. In this connexion we may refer to the decision of Mears, C.J, and Piggott, J., in Bishambhar Nath v. Muhammad Ubaid-Ullah Khan A.I.R 1924 All. 559 where, in dealing with a similar application, the learned Judges laid down the principle that the question of the proper construction of the particular words and clauses, to be found in a particular document, cannot be said to be one involving a substantial question of law within the meaning of Section 110 of the CPC. The question of the personal liability of the applicants in the present case is purely one of the construction of the terms of the document in question. We are, therefore, of opinion that no substantial question of law arises in this connexion.

6. The second point urged is that Baker, J.C, erred in his finding that the payments made by the applicants must be considered as payments made towards interest as such. We have been referred to the copies of accounts: cf., for example, Exhibits P. 27, P. 28, P. 29 and others, in which the actual payments made were simply noted against the amount of the mortgage and a balance was struck. Very clearly, however, as found by Baker, J.C, no full and comprehensive account was kept of interest and the obvious intention must have been to make up the account at a future date. Baker, J.C's finding in this connexion was, in reality, a pure finding of fact, and no question of law seems to us to arise in this connexion.

7. The third point urged is that a question of law arises with reference to the allowance by this Court of interest at the compound rate of 12 annas per cent, per mensem instead of simple interest at the rate of Be. 1 per cent, per mensem. We do not think that the rate allowed can, from any point of view, be described as a penal or ad terrorem one. Even the so-called penal rate is a very moderate and usual one, and amounts to nothing more than reasonable compensation for the breach of contract. It is utterly impossible to affirm that Baker, J.C's decision on this point gives rise to any substantial question of law.

8. For the above reasons we are of opinion that no sufficient case has been made for granting leave to His Majesty in Council, and the present application is dismissed. The applicants must bear the non-applicants' costs. We fix Rs. 50 as pleader's fees.

9. Application dismissed.