Prem Lall Sein V.

Radha Bullav Kankra

High Court Of Judicature At Calcutta

CALCUTTA HIGH COURT

Judgment Date:
28-04-1930

Prem Lall Sein ..Petitioner

Radha Bullav Kankra ..Respondent

Bench:
{HON'BLE JUSTICE Williams, J ; }

Citation:

(1931) ILR 58 Cal 290 ; 130 Ind. Cas. 134 ; AIR 1931 Cal 140 ;

Williams, J.—The point which I have to decide in this case is, whether a promissory note payable
on demand, in which there is no mention of interest, cornea within the provisions of S. 80,
Negotiable Instruments Act, 1881, and if so, from what date is interest payable where no place is
specified for' payment, and no demand was made prior to suit.

2. Sections 79 and 80 are as follows:

3. Section 79:---When interest at a specified rate is expressly made payable on a promissory note,
interest shall be calculated at the rate specified, on the amount of the principal money due
thereon, from the date of the instrument, until tender or realization of such amount or until such
date after the institution of a suit to recover such amount as the Court directs.

Section 80:--When no rate of interest is specified in the instrument, interest on the amount due
thereon shall, (notwithstanding any agreement relating to interest between any parties to the
instrument) be calculated at the rate of 6 per centum per annum, from the date at which the
same ought to have been paid by the party charged, until tender or realization of the amount due
thereon, or until such date after the institution of a suit to recover such amount as the Court
directs.

4. It will be observed that S. 80 refers to cases in which no "rate" of interest is specified in the
instrument, and the first question which arises is, whether this includes cases in which the

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 Prem Lall Sein V. Radha Bullav Kankra

instrument is silent altogether upon the subject of interest. This has been the subject of decision
by the Courts on several occasions and in Best v. Haji Muhammad Sait [1898] 23 Mad. 18
Framroz Eduljee Dinshaw Vs. Mahomed Essa, Ganpat Tukaram Mali Vs. Sopana Tukaram Mali,
Bishun Chand v. Audh Beharilal [ 1917] 2 Pat. L.J. 451 and Ghanshiam Lalji v. Ram Narain [1906]
29 All. 33 (a decision of the Privy Council) the Judges all held, though for different reasons, that
the provisions of the section did apply. I see no reason to differ from these decisions, though the
section is not happily worded. I agree with Marten, C. J , in Ganpat Tukaram Mali Vs. Sopana
Tukaram Mali, that if the subject of interest is not mentioned at all in the instrument, then it is
possible to argue that "no rate of interest" is specified therein and consequently the section
applies.

5. With regard to the second question it was decided in 23 Mad. at p. 22 that

interest should be calculated from the dates at which the several notes ought to have been paid

and

the notes being payable on demand, it is not, the date of making, but the date of demand, that
must be taken as the point from which to calculate interest.

6. In my opinion the learned Judges in. this case arrived at a correct decision by accident,
because the grounds upon which, they based it were erroneous.

7. This error was pointed out in Framroz Edulji Dinshaw v. Mahommad Essa in which Macleod,
C.J., pointed out that the liability on a promissory note payable on demand arises from the date
of. the note and not from the date on which a demand is made for payment. But he. concluded,
in my opinion erroneously, that interest under the sections runs therefore from the date of the
note, and disagreed with the decision in Best v. Haji Muhammad Sait. A similar conclusion was
arrived at in Bishun Chand v. Audh Beharilal [1917] 2 Pat. L.J. 451 in which the Judges pointed
out that the law in England and India was the same, and quoted Lord Blackburn's statement:

In general where money is payable on demand, the law holds that the debtor is bound to find oat
the creditor and pay him and this the debtor is liable to do at once. Therefore a promissory note
"payable on demand" is payable at the instant the note is made. No demand is necessary prior to
an action.

8. Accordingly they found that interest was payable from the date on which the note was
executed, because this was the "data on which the amount secured by the handnote ought to have
been paid", within the words of the section.

9. The same reasoning was adopted in the case of Ganpat Tukaram Mali Vs. Sopana Tukaram
Mali, . This was a Full Bench case in which the points were fully argued, and a carefully
considered judgment delivered by Marten, C. J.

10. The learned Judge pointed out, quite rightly, that the crux of the question depends upon the

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meaning to be given to the words:

be calculated .... from the date at which the game ought to have been paid by the party charged.

11. Thereupon he jumped to the conclusion, without further consideration, that this refers to the
date when the amount secured by the note ought to have been paid, and proceeded to consider
when such amount on a note payable on demand becomes due. I agree with the learned Judge,
and I do not think that there can be a shadow of doubt about it, that according to both English
and Indian law it is due at once without any demand and may be sued for without notice.

12. That this is the law is made quite clear by reference to such cases as Norton v. Ellam [1837]
2 M. & W. 461 In re George [1890] 44 Ch. D. 627 Rowe v. Young [1820] 2 Brod & Bing 165
Maltby v. Murrells [1860] 5 H. & N. 813 and Edwards v. Walters [1896] 2 Ch. 157.

13. In re Brown J's. Estate [1893] 2 Ch. 300 and a number of Indian cases cited by Marten ( 52
Bom.C. J. . 103) et seq.

14. In the result the learned Judge held that a promissory note payable on demand becomes
payable on its execution, that that is the date at which it ought to have been paid within the
meaning of S. 80, and that accordingly, as against the maker, the promisee is entitled to interest
at 6 per cent from the date of the note.

15. In my opinion this conclusion, and the conclusions reached in the other cases to which I have
referred other than that in Best v. Haji Muhammad Sait [1998] 23 Mad. 18 are due to a
misconception of the plain meaning of S. 80, and with all respect to those learned Judges such
misconception has been due to a disregard of those salutary rules for the construction of statutes
laid down by Lord Herschell in Bank of England v. Vagliano Bros. [1891] A.C. 107 and actually
referred to with approval by Marten, C.J.

16. This misconception is surprising because the correct interpretation of the section was placed
clearly before the Court in Ganpat Tukaram v. Sopana Tukaram, by Mr. B. J. Wadia, appearing as
amicus curiae, in a most lucid argument, and the learned Chief Justice himself considered carefully
the distinction in law, so far as regards the question of the necessity for demand, between a claim
for the amount due on a note payable on demand and a claim for interest thereon.

17. Now what is the natural meaning of S. 80 if we examine the language uninfluenced by any
considerations derived from the previous state of the law, as advised by Lord Herschell.

18. In my opinion, the phrase "date at which the same ought to have been paid" has no reference
to the "amount due" on the note as has been assumed, by all the Judges to whose judgment I
have referred, but relates to the "interest" due thereon.

19. This is the plain meaning of the words and sentences.

20. The word "same" creates the confusion. The noun to which it relates is the word "interest"

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and not the word "amount" Eliminating unnecessary words, the sentence runs "interest on the
amount due... shall... be calculated... from the date at which the same ought to have been paid...
until tender or realization of the amount due...." If the word "same" is replaced by the word '
interest" the sentence is just as good and as grammatical. but if it is replaced by the words
"amount due" the sentence becomes clumsy and tautologous.

21. If it had been intended that the word "same" should relate to the words "amount due," it is
inconceivable that any draughtsman would have repeated the words ''amount due" in the line
following the word "same." He would have repeated the word "same" or he would have omitted
the words "of the amount due thereon."

22. The latter words have been contrasted by the draughtsman with the word same," and
distinguished therefrom.

23. By their difference combined with their juxtaposition he desired to make clear that they did
not refer to the same thing.

24. Instead of which he has succeeded only in making everything as obscure as possible.

25. Such is the inevitable consequence of employing jargon to express (or obscure) one's meaning.
It is not a lawyer's mode of expression. If the word " interest " had been used instead of the
word same " it would have obviated even the possibility of confusion or obscurity arising. The only
alternative to the reading which I have suggested is to hold that " same " relates to " instrument.
" But an instrument cannot be " paid, " except ungrammatically.

26. The view which I have formed of the meaning of the sections seems to me to be confirmed by
the fact that there is a contrast in the wording of Sections 79 and 80.

27. If the word " same " was intended to relate to the " amount due thereon, " there does not
seem to be any adequate reason for the distinction. The date at which the ' amount due thereon "
' ought to have been paid " would have been better and more conveniently expressed as " the
date of the instrument " as in Section 79 or " the date of maturity " or "on presentation " or
some such definite date upon which the amount due on the instrument becomes payable.

28. But if the word " same " relates to " interest, " as I have suggested, the necessity for the
distinction immediately becomes apparent, to anyone conversant with the Law Merchant and the
English law upon which the Act is based.

29. And reference to such previous law for the purpose of construction is perfectly legitimate, if,
as Lord Herschell said, a provision is of doubtful import.

30. According to such law interest is payable on all negotiable instruments, but is calculated from
different dates in different circumstances.

31. Thus in In re East of England Banking Co. [1868] 6 Eq. 368 Vice-Chancellor Malins said at p.

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375:

The law is perfectly well known and distinct that with regard to all negotiable instruments by the
Law Merchant, every bill of exchange and promissory note carries interest from the date of its
maturity. Where a note on demand, having no period of payment, is intended to bear interest, the
usual course is to say. " I promise to pay on demand so much money with interest at a certain
rate, " otherwise it will carry no interest until the demand is made. But where a note is payable
on demand which on the face of it does not carry interest, it is perfectly well known that it
carries interest only from the time when the demand is made.

32. In re Hertfordshire Banking Co. [1367] 36 L. J. Ch. 806 Lord Romilly, M. R, held that no
interest could be allowed on the notes of a banking company payable on demand where no
demand for payment had been made before the company was ordered to be wound up.

33. And in Pierce v. Fothergill [1837] 2 Bin (N. C.) 167 the head-note runs:

On a promissory note payable on demand where there is no proof of any agreement for interest,
the plaintiff is only entitled to interest from the day of issuing the writ of summons.

34. In In re the East of England Banking Co. [1868] 4 Ch. A. 14 Lord Cairns, L. C, said at p. 18:

I am not aware that any particular form of demand is required by the law of merchants

and Sir W. Page Wood, L. J., dealing with the same point at p. 19 said:

if the holder had brought an action that would have been sufficient.

35. In Webster v. British Empire Mutual Life Assurance Co. [1880] 15 Ch. D. 169 Cotton, L. J.,
states that where the instrument sued upon contains no agreement to pay interest, and there is no
proof of any such agreement aliunde, interest is no part of the debt or of the sum stipulated by
the contract to be paid, and if it can be recovered, it must be in the nature of damages.

36. The only damages, as a rule, given for the improper detention or refusal to pay money are
interest, loss of interest being the damage which the law supposes a man usually suffers for non-
payment of money to him. And he quotes Bayley, J. in Cameron v. Smith 2 B. & All. 305 which
was an action on. a promissory note, in which there was no stipulation for interest, but where
nevertheless the jury gave interest by way of damages or gave damages calculated according to
the rate of interest. He said at p. 308:

Although by the usage of trade, interest is allowed on a bill, yet it constitutes no part of the debt,
but is in the nature of damages.

37. In another case, which was referred to in the course of the argument, damages were said to
be given for the wrongful detention of the money.

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38. In Lowndes, v. Collins [1810] 17 Ves. 28 Sir William Grant said that

wherever there is a written contract for a sum payable upon demand, or upon a day certain
interest is payable from the time of the demand made or from the fixed period of payment, and
there is no difference whether that contract is contained in a promissory note or any other
instrument.

39. It is clear from the above eases that interest is only payable as damages, that is, in case of
default, and it follows 'that where there is no specific agreement to pay interest, it cannot be
claimed until after demand, or from the fixed period of payment, as the case might be.

40. It may be noted also that in all oases of detenue or trover damages cannot be claimed until
demand has been made: see Clayton v. LeRoy [1911] 2. K.B. 1031.

41. Incidentally, but nevertheless of some importance to the mercantile community, is the fact that
this interpretation of the section avoids the possibility of difference between the English and
Indian law as to a particular class of negotiable instruments which was deprecated by Marten, C.
J., in Ganpat Tukaram v. Sonapa Tukaram.

42. The principles embodied in the above decisions are concisely stated in Laws of England, Vol.
2. paras. 895 and 896, thus:

In the event of dishonour damages may be recovered....and they may include the amount of the
instrument, (2) interest thereon from the time of presentment for payment if the instrument is
payable on demand, and from its maturity in any other case.

43. In notes to these paras. it is stated, on the authority of Pierce v. Fothergill, that where no
demand had been made interest will run from the service of the writ, and that in the absence of
an agreement to the contrary the rate of interest will be 5 per cent per annum.

44. For these reasons, the necessity for the distinction between the two sections, becomes clear.
Interest on those instruments to which S. 80 applies, is payable from the date of execution, or
from maturity, or from presentation, or from demand, or from service of summons, according to
the circumstances of each case, and in consequence the date of necessity was left indefinite. This
was not so with regard to instruments to which Section 79 applies.

45. In the present case, there was no agreement to pay interest and no demand was made prior
to suit. Therefore interest at 6 per cent will be calculated from the date of service of the
summons.

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