NABAKUMAR CHAKRABURTTY Vs. SYED ABDUL JABBAR MIAN

JUDGEMENT

(1.) This appeal arises out of a suit for arrears of rent, based upon a kabuliyat which provided for the payment of interest at the rate of 75 per cent, on arrears of rent besides "full damages". The Court of Appeal below held in appeal that the stipulation was in the nature of a penalty and awarded damages only at 25 per cent.

(2.) The plaintiff has appealed to this Court, and it is contended on his behalf that as the lease is a permanent mokarari lease, he is entitled to the interest at 75 per cent, as well as the damages stipulated for.

(3.) It is true Section 67 of the Bengal Tenancy Act does not control the provisions of Section 179, and it has been held with reference to the provisions of Section 179 that a contract for the payment of interest on arrears of rent, at a vale higher than that provided for by Section 67, entered into by a landlord and a permanent tenure-holder under him is enforceable by law see Matangini Debi v. Mokrura Bibi 29 C. 671 : 5 C.W.N. 433 (F.B.). But all that Section 179 lays down is that nothing in the Bengal Tenancy Act shall be deemed to prevent a proprietor or permanent tenure-holder from granting a permanent mokarari lease on any terms agreed on between him and his tenant. That section dons not exclude the consideration of the question whether the contract is affected by the provisions of law other than the Bengal Tenancy Act.