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Documents citing Rani Sundar Koer vs Rai Sham Krishen on 14 December, 1906

Jagannath Prosad Singh Chowdhury vs Surajmul Jalal on 19 October, 1926

8. This part of the decision does not apparently square with either the order or the language of this Board in the case of Sunday Koer v. Sham, Krishen. The explanation must be that, for some reason or other, their Lordships thought that the respondents, who were doing very well, were prepared to leave this particular matter in their Lordships' hands. If the respondents, when their counsel received the print of the judgment, had been so minded as to come to the Board and say that this had passed per incuriam they would have been heard and the matter would have been fully discussed.
Bombay High Court Cites 5 - Cited by 24 - Full Document

Managi Singh And Ors. vs Saheb Ram Singh And Ors. on 2 March, 1909

This view is also supported by the provisions of Section 209 of the Civil Procedure Code, which is regarded by their Lordships of the Judicial Committee in Rani Sunder Koer v. Rai Sham Krishen 34 C. 150 : 5 C.L.J. 106 : 11 C.W.N. 249 : 4 A.L.J. 109 : 17 M.L.J. 43 : 9 Bom. L.R. 304 : 2 M.L.T. 75 as a possible source of the power of this Court to allow interest after the date fixed for re-payment. But although we hold that the Subordinate Judge ought to have allowed interest, if any, upon the aggregate sum due on the date fixed for re-payment, the respondents are not necessarily benefited, because, as was conceded by the learned Vakil for the respondents, it is open to the Court not to allow interest at all upon the aggregate sum and that in any event it is open to the Court to determine the rate at which interest should be allowed. No doubt, according to the usual practice (upon which the rules framed by this Court under Section 104 of the Transfer of Property Act for cases on the original side are based), interest is allowed at 6 per cent. The rules in question, however, do not of their own force, apply to the mofussil. But although the Court would hesitate in any ordinary case to depart from what has been the well-settled practice as to the rate of interest in mortgage suits after the date fixed in the decree for re-payment, there can be no question that in any special case where the circumstances justify a reduction in the rate of interest, the Court would be prepared to make the necessary order in the interests of justice. In the case before us, the rate of interest agreed upon by the parties in the mortgage contract was sixteen and a half per cent, compound interest with annual rests. In the course of six years, inspite of the payment of a considerable amount by the mortgagors, the amount decreed to mortgagees exceeds double the amount of principal advanced under the mortgage security. Under these circumstances, we are of opinion that this is a case in which interest after the date fixed in the decree for payment should not be allowed at the rate of six per cent. We, therefore, direct that the decree of the Court below be modified to this extent, namely, that the interest after the date fixed for payment, be calculated upon the aggregate sum payable on that date under the decree, but at the rate of three per cent, per annum.
Calcutta High Court Cites 2 - Cited by 4 - Full Document

Ganesh Narayan vs Vishnu Ramchandra on 5 September, 1907

Both were at arm's length. The defendant was free to borrow money for his immediate necessities from any other person. It is not even suggested that the plaintiff tricked the defendant into approaching him for a loan to relieve his pressing difficulties or that the defendant reposed any confidence in the plaintiff, which the latter betrayed and by such betrayal led the defendant into the contract. The finding of the District Judge amounts to no more than that when the defendant sought the plaintiff's help, the plaintiff, taking advantage of the defendant's urgent need of money and his impecunious position, agreed to lend only on certain terms; but, as has been pointed out by the Judicial Committee of the Privy Council in Sunder Koer v. Sham Krishen (1906) L.R. 34 I.A. 9 at p. 16, "urgent need on the part of a borrower will not of itself place him in a position to be dominated by his lender, unless there are special circumstances from which an inference of undue influence can be legitimately drawn." There are no special circumstances found proved, according to the finding of the District Judge here, unless they be that the defendant, being heavily indebted, was harassed by his creditors and was anxious to conceal his pecuniary embarrassments from his official superiors. Those special circumstances coupled with what the District Judge describes as "the inadequacy of the consideration for the khata" (Exhibit 27) would indeed be evidence of undue influence, if as the result of his poverty and necessity the defendant's mind was so incapacitated by mental distress that he was practically at the mercy of his lender and the latter was on that account able to impose upon the defendant whatever terms he chose to exact. Such a case might fall both under Clause I and Clause (2) (b) of Section 16. It might fall under the former, because, the parties being on unequal terms on account of the mental incompetence of the borrower, there was a relation brought about between the two which gave the lender an opportunity of bringing improper pressure to bear upon the weakness of mind of the borrower and thereby dominating his will. And, as the District Judge has rightly observed in his judgment, Clause (2)(b) is only illustrative of Clause (1). But he has declined to draw any such inference of fact from the evidence. Concurring with the Subordinate Judge in that respect, he holds that "there is nothing to justify the inference that the defendant's mental capacity was affected by reason of mental distress so as to bring the case within Sub-section (2)(b) of Section 16 of the Indian Contract Act. I agree that there is no sufficient evidence to show this. The defendant 1 was a Government servant of an highly intelligent class and his mental capacity would probably remain quite unaffected by his financial embarrassments." If, then, there was no mental incompetence on the part of the defendant, it follows that what the defendant did was done deliberately and voluntarily. What relation could in that case subsist between him and the plaintiff at the time of the contract to enable the latter to dominate the will of the former so as to obtain an unfair advantage over him, unless it be that of a man, heavily indebted indeed, but intelligent and suffering from no mental or physical disability, seeking a loan from a money-lender to relieve his pressing liabilities ? When a man who is in urgent need of money on account of his poverty and pecuniary difficulties asks for a loan from another, that other is in one sense in a position to dominate the will of the former by proposing his own terms and getting the borrower to agree to them. The borrower's necessity is in such cases the measure of the terms agreed to. That is a feature of every contract of money-lending, where the borrower is a man without credit and the lender is exposing his money to considerable risk. But that is not the vague kind of relation and domination contemplated by the plain terms of Clause 1 of Section 16. If it were, every borrower able to judge for himself and take care of his interests, who has urgent need of money, might deliberately and voluntarily agree to any terms proposed by the lender and afterwards successfully repudiate the contract on the mere ground of folly, imprudence or want of foresight.
Bombay High Court Cites 2 - Cited by 7 - Full Document

Lala Balla Mal vs Ahad Shah on 8 July, 1918

6. It has been decided by this Board in two cases, namely, Dhanipal Das v. Raja Maneshar Bakhsh Singh (1906) L.R. 33 I.A. 118, 127 and Rani Sundar Koer v. Rai Sham Krishen (1906) L.R. 34 I.A. 9; 9 Bom. L.R. 304, that questions such as those raised by this written statement must be decided on the provisions of the Indian Contract Act of 1872, as amended by the Indian Contract Amendment Act of 1899, and on those alone*. The principles upon which English Courts of Equity deal with similar questions are therefore entirely inapplicable.
Bombay High Court Cites 3 - Cited by 31 - Full Document

Hatimbhai Hassanally vs Framroz Eduljee Dinshaw on 31 January, 1927

The system of registration still continues Under the existing Registration Act of 1908 in regard to all mortgages of the value of Rs. 100 or over. The Transfer of Property Act, 1882, is now based upon the English law of mortgage; but at the same time Section 58 of the Act, in defining what is a mortgage, undoubtedly lays more stress upon the security-side of the mortgage than on its debt-aide. It definitely says that a mortgage is "a transfer of interest in immoveable property." Further in this connection I may refer to the remarks of the Privy Council in Sundar Koer v. Rai Sham Kishen (1906) I.L.R. 34 Cal. 150, s.c. 9 Bom. L.R. 304, p.c.. Their Lordships there say that the scheme and intention of the Transfer of Property Act was (p. 161)-
Bombay High Court Cites 120 - Cited by 38 - Full Document

Mahammad Raja Mia vs Naderajjama Mia on 8 July, 1931

The Indian Courts have invariably held that where as in the present case the stipulation is retrospective and the increased rent runs from the date of the bond and not merely from the , date of default, it is always to be considered a penalty, because an additional money payment in that case becomes immediately payable by the mortgagor. Their Lordships accept that view of the statute and it is unnecessary to discuss under what circumstances increased interest running only from default should or should not be considered a stipulation by way of penalty.
Calcutta High Court Cites 10 - Cited by 2 - Full Document

Chatring Moolchand vs Lieut. R.H. Whitchurch on 5 September, 1907

On the other hand in Hari v. Ramji (1904) I.L.R. 28 Bom; 371 Jenkins C.J. says : "If it is argued that Section 16 is not exhaustive and that it does not displace the principle of justice, equity and good conscience, then accepting but without admitting the argument as correct we still think defendant's: position no stronger," The judgment of the Privy Council in Sundar Koer v. Sham Krishen (1906) L. R. 34 I.A. 9 the latest authority on the point, appears to show that Section 16 is exhaustive. Their Lordships say at p. 16: ' There is no evidence of any actual exercise of undue influence by the mortgagees or of any special circumstances from which an inference of undue influence could be legitimately drawn, except that the mortgagor was in urgent need of money."
Bombay High Court Cites 6 - Cited by 1 - Full Document
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