judgement:
Civil Appeal No. 2047 of 1969.
A Appeal by Special Leave from the Judgment and Order dated 25 6 1969 of the Andhra Pradesh High Court in Civil Revision Petition No. 346/67.
Y. section Chitaley, section K. Mehta, P. N. Puri and E. M. Sarul Anam for the Appellant.
A. T. M. Sampath and P. N. Ramalingam for the Respondent.
The Judgment of the Court was delivered by CHlNNAPPA REDDY, J.
The short question for consideration in this appeal is whether the practice of the legal profession is 'business ' within the meaning of Section 10(3) (a) (iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
The question arises this way.
The respondent, an Advocate filed an application before the Rent Controller seeking eviction of the appellant, his tenant, from the premises in question on the ground that he required the premises for the purpose of carrying on his profession as an Advocate.
The application was contested by the appellant who was carrying on the business of manufacturing art jewellery in the premises.
We are not concerned in this appeal with the several defences which were raised by the appellant.
Nor are we concerned with the vicissitudes which the case underwent.
For the purposes of this appeal it is sufficient to say that the final Court of fact, namely the Chief Judge of the Court of Small causes, Hyderabad, found that the respondent bona fide required the premises for the purpose of carrying on his profession as an Advocate and that the tenancy was not such as could be split up.
The Appellate authorities passed an order of eviction against the appellant.
Before the High Court, in revision, it was contended by the appellant that the practice of the profession of an Advocate was not business within the meaning of Section 10(3) (a) (iii) and, therefore, the respondent could not seek the eviction of the appellant on the ground that he required the premises for the purpose of carrying on his profession as an Advocate.
It was contended that Section 10(3) (a) (iii) used the expression 'business ' only and not the expression 'profession. ' The contention was negatived by a Division Bench of the High Court of Andhra Pradesh consisting of Gopalrao Ekbote and Ramachandra Rao, JJ.
The tenant has appealed by special leave to this Court.
Dr. Chitaley learned counsel for the appellant argued that there was a clear distinction between 'business ' and 'profession ' and that the practice of a liberal profession like that of an Advocate or a Doctor which 14 had nothing commercial about it was not business within the meaning of Section 10 (3) (a) (iii) of the Andhra Pradesh Buildings ( Lease, Rent and Eviction) control Act 1960.
He argued that though the Andhra Pradesh Act broadly classified buildings into residential and non residential buildings, the landlord of a non residential building could not seek to evict his tenant on the ground of his requirement unless it was for the purpose of carrying on a business.
According to the learned Counsel this indicated that the expression business was to be given a narrow meaning and was to be confined to activities of a commercial nature.
The learned Counsel also urged that the Court should favour a construction which would be beneficient to the tenant.
Dr. Chitaley relied on M. P. Sethurama Menon vs Thaiparambath Kunhukutty Amma 's daughter, Meenakshi Amma and Ors.
(1) Bangalore Water Supply & Sewerage Board etc.
vs R. Rajappa & Ors.
(2) and Stuchbery & Ors.
vs General Accident Fire and Life Insurance Corporation Ltd.(3) The expression business has not been defined in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
It is a common expression which is sometimes used by itself and sometimes in a collocation of words as in "business, trade or profession".
It is a word of large and wide import,, capable of a variety of meanings.
It is needless to refer to the meanings given to that term in the various Dictionaries except to say that everyone of them notices a large number of meanings of the word.
In a broad sense it is taken to mean everything that occupies the time attention and labour of men for the purpose of livlihood or profit '.
In a narrow sense it is confined to commercial activity.
It is obvious that the meaning of the word must be gleaned from the context in which it is used.
Reference to the provisions of the Constitution or other statutes where! the expression is used cannot be of any assistance in determining its meaning in Section 10(3) (a) (iii) of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960.
It is not a sound principle of construction tn interpret expressions used in one Act with reference to their use in another Act; more so, if the two Acts in which the same word is used are not cognate Acts.
Neither the meaning, nor the definition of the term in one statute affords a guide to the construction of the same term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally.
On the other hand it is a (1) A.I.R. 1967 Kerala 88.
(2) ; (3) [1949] 2 K. B. D. 256.
15 sound, and, indeed, a well known principle of construction that meaning of words and expressions used in an Act must take their colour from the content in which they appear.
Dr. Chitaley very frankly and fairly conceded as much.
Now the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, is an 'Act to consolidate, and amend the law relating to the regulation of leasing of buildings, the control of rent thereof an(l the prevention of unreasonable eviction of tenants therefrom in the State of Andhra Pradesh.
It applies to the cities of Hyderabad and Secunderabad and to all municipalities in the State of Andhra Pradesh.
The provisions of the Act, however, do not apply to buildings owned by the Government and to buildings constructed on or after 26th August, 1957.
Building is broadly defined as meaning any house or hut or a part of a house or hut, let or to be let separately for residential or nonresidential purposes.
Landlord is defined as the owner of a building, including a person who is receiving or is entitled to receive the rent of a building, on his own account or on behalf of another person etc.
Tenant is defined as a person by whom or on whose account rent is payable for a building.
Section 4 provides for the determination of a fair rent of a building on the application of the tenant or landlord.
Section 10(1) provides that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of Sections 10, 12 and 13.
Section 10(2) mentions several grounds on which a landlord may seek to evict a tenant.
The grounds are default of payment of rent, sub letting of premises, used for a purpose other than that for which it was leased, commission of acts of waste, conduct amounting to nuisance to the occupiers of the other portions in the same building, securing of alternative accommodation by the tenant and denial of the title of the landlord.
The grounds mentioned in Section 10(2) apply both to residential and non residential buildings.
Section 10(3) (a) (i) provides for the eviction of a tenant where the landlord of a residential building requires it for his own occupation.
Section 10(3)(a)(iii) provides for the eviction of a tenant from a non residential building where "the landlord is not occupying a non residential building in a city town or village concerned which is his own or to the possession of which he is entitled whether under the Act or otherwise (a) for the purpose of a business which he is carrying on on the date of the application, or (b) for the purpose of a business which in the opinion of the Controller, the landlord bona fide proposes to commence".
Section 12 and 13 contain special provisions relating to recovery of buildings by landlord for the purpose of effecting repairs, alterations or additions or for reconstruction.
The scheme of the Act is to prevent unreasonable eviction of 16 tenants by landlords and to provide for eviction on specified grounds.
The Act is of general application and its protection not confined to any classes of tenants nor is the right to evict under the Act limited to any class of landlords.
There is no reason why a landlord who is a member of the legal or medical professions and who requires the premises for carrying on the practice of his profession should be wholly debarred from obtaining possession of the premises.
It is impossible to discover any reason for so making a discrimination against the liberal professions.
But, that would be the result if the expression 'business ' is given a narrow meaning which the appellant wants us to give to that expression.
It would indeed be anamolous to hold that all the provisions of the Act including Section 4 which provides for the determination of fair rent and Section 10(1) which bars the eviction of tenants apply to nonresidential buildings owned by an Advocate but not Section 10 (3) (a) (iii) only.
In our view the expression business occurring in Section 10(3)(a)(iii) is used in a wide sense so as to include the practice of the profession of an Advocate.
The Kerala High Court in M.P. Sethurama Menon vs Meenakshi Amma & Ors.
, (supra) construed the expression 'trade or business ' as connoting commercial activity and as not including the practice of the legal profession.
The learned Judges referred to Article 19(1)(g) of the Constitution, Section 49 of the , the Madras Shops and Establishments Act, 1947 and drew a distinction between the words 'business ' and 'profession. ' As mentioned by us earlier, we do not think that it is right to ascribe to the word 'business ' occurring in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the same meaning that the word may have when it occurs in other statutory provisions.
The word must be interpreted in the context of the statute in which it occurs and not in the context of other statutes or in a manner alien to the context of the statute concerned.
In Bangalore Water Supply & Sewerage Board etc.
vs R. Rajappa Ors., (supra) Chandrachud, J. (as he then was) observed ".
I find myself unable to accept the broad formulation that a Solicitor 's establishment cannot be an industry.
A Solicitor, undoubtedly, does not carry on trade or business when he acts for his client or advises him or pleads for him, if and when pleading is permissible to him.
He pursues a profession which is variously and justifiably described as learned, liberal or noble.
" The observations of the Learned Judge were made in the context of the question whether a Solicitor 's establishment would fall within the definition of 'industry ' under the 17 Industrial Disputes Act.
It would be most unwise to apply this A observation to determine whether the practice of the liberal professions is within the meaning of the expression 'business ' in Rent Control legislation.
In Stuchbery & Ors.
vs General Accident Fire and Life Assurance Corporation Ltd., (supra) it was observed that the carrying on of a Solicitor 's business was the carrying on of a profession and was not the carrying on of a trade or business within the meaning of that phrase in the Landlord and Tenant Act, 1927.
The observation was made in the context of that Act which made a distinction between 'trade or business ' and 'profession '.
In fact sub section 3(a) of Section 17 of the Act expressly said: "for the purposes of this Section premises shall not be deemed to be premises used for carrying on there at a trade or business by reason of their being used for the purpose of carrying on there at any profession".
The question in that case was about the right to compensation for the goodwill attached to the premises where the "business" or "profession" was being carried on.
We do not think 1 that the case is of any help to the appellant.
We may refer here to the decision of Danckwerts, J., in Re Williams ' Will Trusts, Chartered Bank of India, Australia and China and Another vs Williams and Others.(1) where the question was whether the bequest to a son for the purpose of starting him in 'business ' was affective to start the son in medical practice.
The learned Judge held that it did, observing that the word 'business ' was capable of including the practice of a profession and that it plainly included the profession of a Doctor.
We may refer to just one more case i.e. Taramal vs Laxman Sewak Surey Ors(2) where this very question whether the practice of law was a 'business ' within the meaning of the Madhya Pradesh Accommodation Control Act came for consideration before A. P. Sen, J.
The learned Judge held that in the context of the Madhya Pradesh Act, the word 'business ' had to be given a wide meaning so as to include any profession.
We, therefore, agree with the High Court that the practice of law is 'business ' within the meaning of that expression in Section 10(3) (a) (iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 196().
The appeal is, therefore, dismissed with costs.
M. R. Appeal dismissed.

summary:
The respondent, an advocate, sought to evict his tenant, the appellant, under section 10(3) (a) (iii) of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960, on the ground that he required the disputed premises for carrying on his profession.
The court of small causes, Hyderabad, finding that the requirement was bona fide, passed an eviction order against the appellant.
In revision, the High Court negatived the contention that the expression "business" used in section 10(3)(a)(iii), did not include the 'profession ' of an advocate.
Dismissing the appeal, the Court, ^ HELD: 1.
"Business" is a word of large and wide import, capable of a variety of meanings.
In a broad sense it is taken to mean 'everything that occupies the time, attention and labour of men, for the purpose of livlihood or profit '.
The practice of law is 'business ' within the meaning of that expression in section 10(3)(a)(iii).
The Act is of general application, and its protection is not confined to any classes of tenants, nor is the right to evict under the Act, limited to any class of landlords.
There is no reason why a landlord who is a member of the legal or medical professions and who requires the premises for carrying on the practice of his profession, should be wholly debarred from obtaining possession of the premises.
It would be anamolous to hold that all the provisions of the Act apply to non residential buildings owned by an Advocate, excepting section 10(3)(a)(iii).
[14D, E, 16A B, C D] Williams ' Will Trusts, Chartered Bank of India, Australia and China and Anr.
vs Williams and Ors.
, [1953] 1 All.
ELR 536; Taramal vs Laxman Sewak Surey & Ors. , approved.
M. P. Sethurama Menon vs Thaiparambath Kunhukutty Amma 's daughter, Meenakshi Amma & Ors., AIR 1967 Kerala 88; Bangalore Water Supply Sewerage Board, etc.
vs R. Rajappa & Ors., ; ; Stuchbery & Ors.
vs General Accident Fire and Life Assurance Corp. Ltd., [1949] 2 KBD 256; distinguished.
It is a sound principle of construction that, meaning of words and expressions used in an Act, must take their colour from the context in which they appear.
Neither the meaning, nor the definition of a term in one statute, affords a guide to the construction of the same term in another statute, more so, if the two Acts in which the same word is used, are not cognate Acts and the sense in which a term has been understood in several statutes, does not necessarily throw any light on the manner in which it should be under stood generally.
[14G H & 15A] 13


judgement:
minal Appeal No. 24 of 1956.
On appeal by special leave from the judgment and order dated the, 26th September 1955 of the Allahabad High Court (Lucknow Bench) in Criminal Appeal No. 195 of 1955 and Capital Sentence No. 17 of 1955 arising out of the judgment and order dated the 11th April 1955 of the Court of the Sessions Judge at Bahraich in Criminal S.T. No. 9 of 1955.
D. R. Prem, for the appellant.
K. B. Asthana and C. P. Lal, for the respondent.
March 12.
The Judgment of the Court was delivered by IMAM J.
The appellant 'was sentenced to death for the murder of one Ram Dularey.
He was also sentenced to seven years ' rigorous imprisonment for having robbed the murdered man of his goods.
He was tried along with two other persons, who were ' acquitted, by the Sessions Judge of Bahraich.
All the four assessors,, who attended the trial, were of the opinion that the appellant was guilty.
The High Court of Allahabad affirmed the conviction and the sentence and this appeal is by special leave, 193 Certain facts have been proved beyond all doubt.
Indeed, the most important of them are admitted by the appellant in his statement under section 342 of the Code of Criminal Procedure when examined in the Court of Sessions.
It has been established by the evidence in the case that the deceased Ram Dularey, a shop keeper of Jarwal, had gone to Lucknow to purchase goods for his shop.
On his return journey, he got down from the train at Jarwal Road Station on the 2nd of July, 1954, at about 9 30 p.m.
He had with him articles consisting of a box, a balti, a gunny bag, jholas and other things.
Shortly thereafter, he engaged the appellant 's cart to take him and his goods to his village.
Two other persons also got on to the cart.
The appellant was driving the cart.
Neither the deceased nor the articles, which were with him, nor the cart ever reached Jarwal.
In the morning, Ram Dularey 's body was found near a bridge in close vicinity of Jarwal. 'Information was sent to the police who commenced investigation and their enquiriesed them to the appellant, who was arrested on the 6th of July, 1954.
The appellant gave the key of his kothri to the police with which it was opened.
From the kothri numerous articles were recovered, including a big knife exhibit 20 with blood stains, a dhoti exhibit 3, a box exhibit 9, a balti exhibit I,, a chadar exhibit 2, a gunny bag exhibit 13 and a jhola exhibit 24.
It is not necessary to give the details of the other articles recovered.
The knife was sent to the Chemical Examiner along with the dhoti.
Although minute blood stains were detected on the knife, they were not sufficient to enable a comparison in a blood group test.
No blood was discovered on the dhoti.
The dhoti exhibit 3, the box exhibit 9, the balti exhibit 1, the chadar exhibit 2, the gunny bag exhibit 13 and the jhola exhibit 24 have been identified as belonging to the deceased Ram Dularey.
When examined under section 342 of the Code of Criminal Procedure by the Sessions Judge, the appellant stated that the deceased Ram Dularey bad asked him to take his goods in his cart and it was agreed that Rs. 2 would be paid as the fare.
The appellant 194 took the deceased on his cart with his goods including the box exhibit 9.
Two other men were also in the cart who got down at the Sugar Mill gate at the Railway Station.
At the Raduayan Bridge three men enquired if Ram Dularey was in the cart.
Ram Dularey responded and got down from the cart asking the appellant to halt his cart at Jarwal Bazar Bridge, where he waited for the deceased until 4 a.m., but the deceased did not turn up.
As the appellant did not know the house of the deceased in Jarwal Bazar, he took the dead man 's goods in his cart to his own house as his buffaloes were very hungry.
To the question as to whether any article of the deceased was recovered from his house by the police, the appellant stated that he handed over to the police all the property of the deceased which be had looked in the kothri.
He asserted that he had told the people in his village as well as the Mukhia that he would hand over the property to its owner when he came to take it.
Concerning the knife, he disowned its ownership and could not say how it came to be found in his house.
So far as the dhoti exhibit 3 is concerned, the appellant claimed it as his.
On behalf of the appellant, it was urged that the evidence in the case was insufficient to establish any of the charges framed against him.
In the alternative, it was suggested, that as the co accused of the appellant had been acquitted the latter could not be convicted of the offence of murder by the application of the provisions of section 34 of the Indian Penal Code in the absence of proof that any act of his caused the death of Ram Dularey.
It was also submitted that no question was put by the Sessions Judge to the appellant when he was examined under section 342 of the Code of Criminal Procedure concerning the act of murder or robbery.
We have examined the statement of the appellant recorded under section 342 of the Code of Criminal Procedure by the Sessions Judge.
At the very commencemeilt of the record of that statement, the Sessions Judge readout the appellant 's statement under section 342 of the Code of Criminal Procedure before 195 the Committing Magistrate and enquired 'Whether it was correct.
, to which the 'appellant replied in the affirmative.
The statement of the appellant before the Magistrate is admissible under section 287 of the Code of Criminal Procedure.
The Magistrate pointedly asked the appellant as to whether he along with the other accused murdered Ram Dularey and had taken his property to which the appellant replied in the negative.
It was not necessary for the Sessions Judge to specifically repeat the same when the appellant admitted his statement before the Committing Magistrate as correct when read out to him.
Apart from this, when the statement of the appellant to the Sessions Judge is read as a whole, it clearly shows that the appellant knew what the accusation against him was and he offered an explanation for the disappearance of Ram Dularey from his cart and for his possession of the deceased 's goods.
There is no justification for supposing that there had been any prejudice caused to the appellant on account of improper or insufficient recording of his statement by the Sessions Judge under section 342 of the Code of Criminal Procedure.
On the facts proved beyond question it is clear that the last time the deceased was seen alive was in the company of the appellant and two other persons when the cart started for Jarwal and his goods were ' on that cart.
There is, however, no evidence as to what happened in the course of the journey.
Concerning that we have only the statement of the accused.
The evidence next establishes that after the cart started, next morning, the 3rd of July, the dead body of Ram Dularey was found not far from Jarwal.
His goods had disappeared and some of them at any rate were found in the possession of the appellant on the 6th of July.
The real question is whether the evidence in the case establishes that the appellant murdered and robbed Ram Dularey.
The evidence is circumstantial.
Before we deal with that evidence, it is necessary to consider how far recent possession of property of a deceased, in circumstances clearly indicating that he 196 had been murdered and robbed, would suggest that not only the possessor of the property was a thief or a receiver of stolen property, but that it also indicated that he was guilty of a more aggravated crime which had connection with the theft.
In the case of The Emperor vs Sheikh Neamatulla(1) Sir Lawrence Jenkins had the occasion to examine this question.
After referring to section 114 of the Evidence Act, be quoted the following passage from Wills on Circumstantial Evidence: "the possession of stolen goods recently after the loss of them, may be indicative not merely of the offence of larceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been connected with theft.
This particular fact of presumption commonly forms also a material element of evidence in cases of murder; which special application of it has often been emphatically recognized".
In the case of Queen Empress vs Sami and Another(2) at page 432, the learned Judges of the High Court observed, "Under these circumstances, and in the absence of any explanation, the presumption arises that any one who took part in the robbery also took part in the murder.
In cases in which murder and robbery have been shown to form parts of one transaction, it has been held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder.
All the facts which tell against the appellant, especially his conduct indicating a consciousness of guilt, point equally to the conclusion that he was guilty as well of the murder as of the robbery. . . . .
In the case of Emperor vs Chintamoni Shahu(3), the opinion was expressed that "the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge but of any other more aggravated Crime which has been (1) [1913]17 C.W.N. 1077.
(2) Mad.
(a) A.I.R. 1930 Cal.
379. 197 connected with the theft; this particular fact of pre sumption forms also a material element of evidence in the case of murder".
A similar view seems to have been taken in the case of In re Guli Venkataswamy(1) as well as in the case of Ramprashad Makundram Rajput vs The Crown(2).
In the present case it is established beyond doubt that the deceased travelled with his goods with the appellant on his bullock cart.
He should have reached his destination Jarwal in the course of the night.
He never got there.
Obviously, he was murdered on his way home.
On the appellant 's own statement, he and the deceased were alone in the cart after the other two persons had got off the cart at the Sugar Mill gate.
Thereafter the deceased was never seen alive by any one.
He was found murdered.
The appellant was found in possession of the deceased 's goods three days afterwards.
The appellant made no effort to trace the whereabouts of the deceased or lodge information of his disappearance from the bullock cart.
The appellant has told the court that some people called the deceased while the cart was on its journey and the deceased told him to wait for him at a certain place.
He waited until 4 a.m. but the deceased never turned up.
This should have aroused his suspicions and he should have informed the police or someone in authority about it.
He says he informed the Mukhia and all the people about it.
Neither the Mukhia nor anyone has been examined by the appellant to support his story.
Reliance was placed on the statement of Iftikhar Ahmad P.W. 7) who spoke of a rumour in the village that the appellant had brought the property of a man on his cart who had gone away and that this rumour had been spread by the appellant.
It is clear, however, that the witness was not speaking of this from his personal knowledge and his statement is not legal evidence.
On the other hand, if really the appellant had spread such a rumour there is no adequate explanation for his failure to inform the authorities.
He (1) A.I.R. 1950 Mad. 309.
(2) A.I.R. 1949 Nag.
26 198 knew he was in possession of a large number of articles belonging to the man who had hired his cart but had disappeared in very strange circumstances.
In addition, there is no explanation for his possession of a big blood stained knife, a weapon which if used against the deceased, could have caused the injuries found on him.
It is true that the blood stains were minute and have not been established to be of human blood.
The appellant, however, denied that the knife belonged to him, and has not explained as to how it came to be in his possession.
It is impossible to believe his story that he waited until 4 a.m. for the deceased to return.
The cart had started from Jarwal Road Station at about 10 p.m.
It could not have been more than a couple of hours later that the deceased left the cart.
To wait from that time until 4 a.m. at a place not far from Jarwal itself appears to be a fantastic story.
It is true that none of the clothes of the appellant were found to be bloodstained, as they should have been, if he bad parti cipated in the murder, having regard to the nature of the injuries on the deceased.
These clothes were not seized until the 6th July, some three days later, and the appellant could have removed all traces of blood stains from his clothing in that time.
The appellant was convicted of the offences of murder and robbery by the Sessions Judge by the application of section 34 of the Indian Penal Code.
The charge framed, however, was one of murder and robbery and there was no mention of these offences having been committed in the furtherance of a common intention.
The High Court, however, found that the appellant along with two others committed these offences and they shared in the goods robbed.
On this finding, even if the co accused of the appellant were acquitted, the appellant could be convicted by the application of the provisions of section 34 of the Indian Penal Code.
The charge framed against the appellant was for murder and robbery and the only question to be decided was whether the evidence was sufficient to support such a charge or did it merely establish offences less grave in nature.
We think it 199 was and are satisfied that it establishes the offences of murder and robbery against the appellant and not merely the minor offence of robbery or theft.
It is impossible to accept the submission that the evidence does not establish any offence having been committed by the appellant.
Having regard to what is established in the case and the principles deducible from the cases cited, we are satisfied that the appellant has been rightly convicted of the offences of murder and robbery.
The appeal is accordingly dismissed.

dataset_name: IN-Abs

summary:
The appellant was sentenced to death for the murder of one and also sentenced to seven years rigorous imprisonment for having robbed the murdered man of his goods, It was established by the evidence on the record that the deceased, a shop keeper of village Jarwal had gone to Lucknow to purchase goods for his shop.
On his return journey he got down from the train at about 10 p.m.
He had with him a box, a balti, a gunni bag and a jhola and other things.
He engaged the appellant 's cart to take him and his goods to his village.
Two other persons also got on to the cart.
Neither the deceased, nor the articles which were with him nor the cart reached Jarwal.
In the morning the body of the deceased was found near a bridge in the vicinity of Jarwal.
During investigation on the fourth day after the occurrence the appellant gave the key of his kothri to the police and from the kothri, a dhoti, a box, a balti, a chadar, a gunny bag and a jhola were recovered which were identified as belonging to the deceased.
A big knife was also recovered from the kothri which the appellant disowned but could not explain how it was found in his home.
The appellant on examination before the Sessions Judge under section 342 of the Code of Criminal Procedure stated that the deceased asked him to take his goods 'in the cart at about 10 p.m. when he got down at the Railway Station.
Two other men were also in the cart who got down at the Sugar Mill gate near the Railway Station.
At Raduayan Bridge three men enquired if the deceased was in the cart.
The deceased responded and got down from the cart asking the appellant to halt his cart near Jarwal Bazar Bridge where he waited for the deceased up to 192 4 a.m. but he did not turn up.
Not knowing the house of the deceased he took the dead man 's goods to his own house as his buffaloes were very hungry.
He stated further that he had handed over all the articles of the deceased person to the police which he had locked in the kothri.
Held, that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder.
All the facts which tell against the appellants especially his conduct indicating consciousness of guilt, point equally to the conclusion that he was guilty as well of the murder as of the robbery.
The Emperor vs Sheikh Neamatulla ([1913] , Queen Empress vs Sami and Another ([1890] I.L.R. 13 Mad. 426), Emperor vs Chintamoni Shahu (A.I.R. , In re Guli Venkataswami (A.I.R. 1950 Mad. 309), and Bamprashad Mukundram Rajput vs The Crown (A.I.R. , referred to.


judgement:
N: Criminal Appeal No. 166 Of 1976.
Appeal by Special Leave from the Judgment and Order dated 21 4 75 of the Allahabad High Court in Criminal Appeal No. 2776 74 and Referred No. 76/74.
D. P. Uniyal, and M. V. Goswami for the Appellant.
D. Mookherjee, O. P. Tewari, section section Srivastava and K. C. Jain, for Respondent No. 1.
R. K. Garg, V. J. Francis and D. K. Garg for Respondent No. 2.
The Judgment of the Court was delivered by FAZAL ALI J.
The respondents had been convicted by the Additional Sessions Judge, Banda under section 302 of Indian Penal Code and sentenced to imprisonment for life.
The respondents thereafter filed an appeal to the High Court of Allahabad which after a full and complete consideration of the evidence came to a finding of fact that the prosecution has not proved its case and accordingly acquitted the respondents.
The High Court rejected the prosecution case mainly on two grounds.
In the first place, it held that having regard to the circumstances and the distance from which the witnesses saw the accused, it was difficult for them to identify the accused.
Secondly, the High Court found that in view of the medical evidence which showed that the large intestines of the stomach were absolutely empty, the evidence of the eye witnesses could not be believed.
Against the order of acquittal passed by the High Court the State came up to this Court by special leave and after obtaining the same the case has been placed before us for hearing.
The facts of the case have been set out in the judgment of the High Court and it is not necessary for us to repeat them again.
It is well settled that this Court would not normally interfere with an order of acquittal in special leave unless there are cogent reasons for doing so or unless there is a gross violation of any procedure of law which results in serious miscarriage of justice.
We have heard 3 counsel for the parties and have gone through the judgment of the Sessions Judge and of the High Court.
It is true that High Court has not made an attempt to discuss the intrinsic merits of the evidence of the eye witnesses but having regard to the glaring defects appearing in the prosecution case we are in agreement with the ultimate view taken by the High Court.
According to the prosecution the deceased along with P.Ws. 1 & 2 had gone to Atarra to witness a drama in the Ramlila Grounds.
The party reached Atarra at about 9 o 'clock and the drama finished at about 12 o 'clock.
Baura and Chanada P.Ws. 2 and 5 were also with the deceased Budhi Bilas when he was returning from the Natak.
It is alleged that at about 12.30 a.m. the respondent Ashok Kumar fired a few shots which hit the deceased as a result of which he died instantaneously.
The two eye witnesses P.Ws. 1 and 2 admittedly saw the firing from a distance of about 150 yards, as would appear from an examination of the site plan Ka 23 and which is endorsed by P.W. 1 who stated in his evidence that he has given the detail of the place from where they saw the occurrence to the Investigating Officer at the spot.
The first question which falls for consideration is as to whether or not the witnesses would be in a position to identify the respondents from such a large distance at night.
It is true that it was a moon lit night but from a reference to the almanac it would appear that the moon had covered 3/4th distance on the night of occurrence and was to set at 3.23 a.m. Even though there may be some moon light at that night, it is difficult for the witnesses to identify the respondents or even if they did the possibility of mistake in identification cannot be completely excluded.
In this connection, we may refer with advantage to the following passage appearing in Dr. Hans Gross 's Criminal Investigation at page 185: "By moonlight one can recognise, when the moon is at the quarter, persons at a distance of from 21 feet, in bright moonlight at from 23 to 33 feet; and at the very brightest period of the full moon, at a distance of from 33 to 36 feet.
In tropical countries the distances for moonlight may be increased.
" The opinion of Gross referred to above fully fortifies our conclusions that it was not possible for the witnesses to have identified the respondents even in moonlight from a distance of about 150 yards.
In these circumstances, therefore, the High Court was fully justified in holding that it was not possible for the eye witnesses to identify the respondents from such a long distance on the night of the 4 occurrence.
The prosecution suggested that the witnesses had lighted their torches and it was in the light of torches coupled with moon light that identification was possible.
In the first place, we find it difficult to believe that after Ashok Kumar had given a call and fired, the witnesses would dare to flash the torch light and expose themselves to the risk of being shot themselves.
Secondly, even if torches were lighted, in view of the large distance, it would not be possible for the witnesses to identify the respondents with absolute certainty.
Another important circumstance which appears to clinch the issue is the medical evidence in the case.
It appears from the evidence of Dr. Pillay, P. W. 7 who performed the post mortem that the small intestines were distended with gas and in the end of the small intestines liquid faeces was present.
The doctor further says that large intestines were empty.
Doctor also found the stomach to be empty.
These facts are also mentioned in the post mortem report.
This clearly shows that the deceased must have been shot at a time when he had either not taken any food at all or the entire food if taken was fully digested and left the stomach.
P.W.1 had stated in his evidence that he along with his uncles and the deceased took tea and ate samosas.
The deceased had taken two samosas.
This meal was taken by the deceased and the witnesses after the Natak ended, that is to say, at about 12 O 'clock in the night, because the evidence of P.W.1 is that the Natak started at 9 p.m. and continued for three hours.
If the evidence of this witness is believed, then it is completely falsified by the medical evidence which shows that the stomach was empty.
In other words, if the witness is believed, the position would be that the deceased would have been shot only a few minutes after he had taken two samosas and a cup of tea.
In that case the stomach would not be empty.
Perhaps realising this difficulty the prosecution through the mouth of P. Ws. 2 and 3 tried to effect a deliberate embellishment in their evidence by making them depose that the deceased Budhi Bilas had taken only milk when he started.
P.W. 3 goes to the extent of saying that deceased Budhi Bilas was suffering from stomach ulcers and he never took any food at night.
The story of the deceased having taken samosas is given a complete go back by other eye witness, P.W. 2.
Indeed, if these witnesses were present at the time when the deceased has taken something we should not have expected any discrepancy of this kind on this important aspect of the matter.
Either deceased took food or he did not take any food.
This fact would be known to his son, P.W. 1 and also to P.W. 2.
We cannot understand what is the explanation for the two different versions given by P.Ws. 1 & 2 unless the idea 5 was to bring the evidence, at least, of P.W. 2 in tune with the medical evidence.
Until the deposition of P.W. 1 was complete, the prosecution did not realise the gravity of the statement made by P.W. 1 that the deceased has taken two samosas and a cup of tea shortly before the occurrence.
This deliberate attempt to introduce a change on a vital issue is by itself a very important circumstance which throws doubt on the prosecution case.
It is manifest that whereas witness may lie circumstances never lie.
The evidence of the doctor is based on conclusive circumstantial evidence which cannot be belied, and therefore an attempt has been made by the prosecution to introduce improvements in explaining the lacuna present in the case.
Apart from this we have gone through the evidence of P.Ws.
I & 2 and their evidence also is full of discrepancies as pointed out by the High Court.
Taking therefore an overall view of the picture, we hold that this is not a case in which we should interfere with the order of acquittal passed by the High Court.
For the reasons given above, we confirm the order of the High Court and dismiss this appeal.
The respondent No. 1 who is in jail is directed to be released forthwith and respondent No. 2 will be discharged from his bail bonds.
P.B.R. Appeal dismissed.

summary:
The respondents were charged with an offence under section 302, I.P.C. The prosecution case was that on the night of occurrence (which was a moonlight night) the deceased and the prosecution witnesses attended a drama in the Ramlila Grounds of the village and when the deceased, after taking two samosas and tea, was returning home some time past midnight, the respondents shot him dead and that this was seen by them from a distance of 150 yards from the scene of occurrence.
The trial court, believing the prosecution version, convicted the respondents.
On appeal the High Court rejected the prosecution story and acquitted both the respondents.
The State came in appeal to this Court by special leave.
Dismissing the appeal, ^ HELD: It is well settled that this Court, in special leave, would not normally interfere with an order of acquittal unless there are cogent reasons for doing so or unless there is a gross violation of any procedure of law which results in serious miscarriage of justice.
[2H] Having regard to the glaring defects in the prosecution story this is not a case in which this Court should interefere with the order of acquittal.
[3B] In the present case, though it was a moon lit night according to the almanac the moon would have covered three fourths distance on the night of occurrence.
Even in the moonlight it would have been difficult for the witnesses to identify the assailants; even if they did, the possibility of mistake in identification could not be completely excluded.
According to an authority, when the moon is at the quarter, it is possible to recognise persons at a distance of from 21 ft; in bright moonlight at from a distance of 23 to 33 ft. and at the very brightest period of the full moon at a distance of from 33 to 36 ft.
In tropical countries the distance for moonlight may be increased.
Therefore, it would not have been possible for the eye witnesses to identify the assailants from a distance of 150 yards.
[3E G] After the assailants had given a call and fired at the deceased the witnesses would not have flashed the torch light, as suggested by the prosecution, and exposed themselves to the risk of being shot at.
Even if the torches were lighted, in view of the distance, it would not have been possible for the witnesses to identify the assailants with certainty.
[4B] Secondly, the medical evidence had shown that the stomach of the deceased was empty and the large intestines too were empty.
Therefore, the evidence 2 of the witnesses that the deceased took two samosas after the drama at midnight and before the attack is completely falsified by medical evidence.
Another prosecution witness stated that the deceased having had stomach ulcers never took any food at night.
Apparently until the deposition of the first witness was complete the prosecution did not realise the gravity of the statement made by him and deliberately introduced a change on a vital issue which by itself is an important circumstance throwing doubt on the prosecution case.
While witnesses may lie, circumstances would never.
Tho evidence of the doctor, based on conclusive evidence cannot be belied.
[4F H]


judgement:
Civil Appeal Nos.
1992 1997 and 2219 of 1969.
Appeals by Special Leave from order dated 16 1 69 and 19 3 69 of the Govt.
of India, Min. of Finance Dept. of Revenue in Orders Nos. 8637 8642/68 and 1408/69.
Y. section Chitale, J. B. Dadachanji and D. N. Misra for the Appellant in all appeals.
section Markandeya and Girish Chandra for the Respondents in all the appeals.
The Judgment of the Court was delivered by SHINGHAL J.
These appeals by special leave arise out of an order of the Central Government dated January 16, 1969 by which six revisional applications of the appellants were dismissed, and a similar order dated March 19, 1969, in the remaining case.
As the basic facts and the law governing them are quite similar, it will be sufficient to deal with the common point in controversy before us on the basis of the admitted facts, and to dispose of the appeals together.
The appellants obtainted licences for the import of 102 cases of 3,000 Kgs.
of nylon yarn.
The yarn was shipped to Bombay on the basis of a letter of credit in favour of the foreign suppliers.
When the shipment arrived, the appellants received the bill of lading and other documents of title from the bankers on or about August 23, 1965, and paid for the same.
They lodged the bill of entry the same day, and it has been claimed that the goods were assessed for duty by the customs authorities at a certain figure.
The appellants stored the goods in the warehouse on December 22, 1965.
They cleared 32 cases for "home" consumption on May 10, 1966, and there is no controversy in regard to it.
The currency was devalued on June 6, 1966, and the Customs (Amendment) Ordinance, 1966, was promulgated on July 7, 1966, by which sections 14 and 15 of the , hereinafter referred to as the Act, were amended.
The Ordinance was replaced by the Customs (Amendment) Act, 1966.
The appellants cleared 12 cases of the aforesaid consignment on or about September 1, 1966.
Another 12 cases were cleared on October 10, 1966, and 46 cases were cleared in two lots on or about December 30, 1966 and February 20, 1967.
Their grievance was that the cases were allowed to be cleared on payment of "enchanced" duty 1144 according to the amended provisions of the Act.
They paid the duty under protest and applied for refund of the excess payment on the ground that the amended law was not applicable as the consignments had been received, stored and assessed to duty before the promulgation of the Ordinance.
The applications of the appellants for refund were rejected by the customs authorities, and their appeals were dismissed by the Appellate Collector of Customs on the ground that the amended sections 14 and 15 of the Act were applicable to the consignments in question.
The appellants filed revision applications before the Central Government, but they were dismissed by the aforesaid common impugned order dated January 16, 1969.
They have therefore approached this Court for a redress of their grievance.
The facts relating to Civil Appeal No. 2219 of 1969, are quite similar, except that the consignment in that case was of 63 cases of nylon yarn, which were stored in the warehouse on December 14, 1965, and were cleared on May 25, 1967.
In that case also the appellants paid the duty under the provisions of the amended sections under protest, and unsuccessfully applied for refund of the socalled excess duty.
They failed in their appeals to the Appellate Collector of Customs and their application for revision was rejected by the Central Government on March 19, 1969.
It will thus appear that the controversy in these two sets of cases relates to the short question whether the customs authorities were justified in applying the rate of duty (to the imported goods in question) according to the rate prevalent on the date of their actual removal from the warehouse.
It will be recalled that the Customs (Amendment) Ordinance, 1966, was promulgated and came into force on July 7, 1966, and was replaced by the Customs (Amendment) Act, 1966.
The amendments in question were by way of substitution of sections 14 and 15 of the Act by the new sections.
It has been argued by Mr. Chitale for the appellants that the material change was that made in subsection (1) of section 15 of the Act by substituting the words "The rate of duty, rate of exchange" for the words "The rate of duty".
He has therefore argued that the customs authorities were not entitled to take the new "rate of exchange", at the depreciated value of the currency, into consideration in respect of the consignments in question as they had been shipped to Bombay and stored in the warehouse before the amended section 15 came into force.
The learned counsel tried to argue that the orders of assessment of the customs duty were also made before the amendment Ordinance 1145 was promulgated on July 7, 1966, but he did not pursue that line of argument because he was not in a position to produce the so called assessment orders.
But, as we shall show, even if it were assumed that any such order or orders had been made before July 7, 1966, that could not possibly affect the correct rate of duty applicable to the imported goods.
A reference to sections 14 and 15 of the Act will show that while section 14 deals with the valuation of goods for purposes of assessment, it is section 15 which specifies the date for determination of the rate of duty and tariff valuation of imported goods.
The amended section reads as follows, "15(1) The rate of duty, rate of exchange and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards.
(2) The provisions of this section shall not apply to baggage and goods imported by post.
(3) For the purposes of section 14 and this section (a) "rate of exchange" means the rate of exchange determined by the Central Government for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (b) "foreign currency" and "Indian currency" have the meanings respectively assigned to them in the Foreign Exchange Regulation Act, 1947.
" It is thus the clear requirement of clause (b) of sub section (1) of section 15 of the Act that the rate of duty, rate of exchange and tariff 1146 valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse.
A cross reference to section 49 of the Act shows that an importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he may be permitted to do so.
The other relevant provision is that contained in section 68 of the Act which provides that the importer of any warehoused goods may clear them for "home consumption" if, inter alia, the import duty leviable on them has been paid.
That is why clause (b) of sub section (1) of section 15 of the Act makes a reference to section 68.
It is therefore quite clear that the rate of duty, rate of exchange and tariff valuation shall be those in force on the date of actual removal of the warehoused goods from the warehouse.
As it is not in dispute before us that the goods, which are the subject matter of the appeals before us, were removed from the warehouse after the amending Ordinance had come into force on July 7, 1966, the customs authorities and the Central Government were quite right in taking the view that the rate of duty applicable to the imported goods had to be determined according to the law which was prevalent on the date they were actually removed from the warehouse, namely, the amended sections 14 and 15 of the Act.
There is therefore no force in the argument that the requirement of the amended section 15 should have been ignored simply because the goods were imported before it came into force, or that their bills of lading or bills of entry were lodged before that date.
As we find no force in these appeals, they are dismissed with costs.
N.V.K. Appeals dismissed.

summary:
As a result of devaluation of Indian Currency in June, 1966, Ss. 14 & 15 of the were amended by the Customs (Amendment) Ordinance, 1966 which was later replaced by an Act with effect from July 7, 1966.
Section 15(1) provides that the rate of duty, rate of exchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force. . (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods were actually removed from the warehouse.
The appellant stored on December 22, 1965 in the Customs warehouse, goods imported by him under a licence, and cleared them on various dates between September 1, 1966 and February 20, 1967.
Under protest, they paid customs duty at the enhanced rates in accordance with the amended provisions.
Later, they claimed rebate alleging that since the consignments had been received, stored and assessed to duty much before the promulgation of the Ordinance, they were liable to pay duty at the rate prevailing on the date of ware housing.
Their appeals and revision were unsuccessful.
In appeal to this Court it was contended that the material change in section 15 being only the substitution of the words "the rate of duty, rate of exchange" for the words "the rate of duty" the customs authorities were not entitled to take into account the new rate of exchange at the appreciated value of currency in respect of the consignments stored in the warehouse prior to the coming into force of the Ordinance.
Dismissing the appeal, ^ HELD: The customs authorities were right in taking the view that the rate of duty applicable to the imported goods should be determined according to the law prevalent on the date they were actually removed from the warehouse.
Section 15(1)(b) clearly requires that the rate of duty, rate of exchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which goods are actually removed from the warehouse.
Under section 49 an importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance and he may be permitted to do so; and section 68 provides that an importer of any warehoused goods may clear them if the import duty leviable on them has been paid.
That is why clause (b) of sub section (1) of section 15 makes a reference to section 68.
[1146D, 1145H 1146C] 1143 In the instant case the goods were removed from the warehouse after the Ordinance came into force on July 7, 1966.
[1146D]


judgement:
Civil Appeal No. 2008 of 1969.
From the Judgment and Order dated 7 4 1965 of the Rajasthan High Court in D. B. Civil Regular Appeal No. 67/53.
section M. Jain for the Appellant.
B. D. Sharma, Ramesh Chandra and B. P. Maheshwari for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The State of Rajasthan, defendant in Civil Suit No. 9 of 1963 in the Court of the Senior Civil Judge, Udaipur, is the appellant in this appeal filed pursuant to a certificate granted under Article 133(1) (a) of the Constitution of India (as it stood prior to the 30th amendment).
The plaintiff respondent took a building work on contract from the erstwhile Government of the State of Udaipur.
He completed the work on 6th June, 1950.
Despite demands and notices issued by the plaintiff a considerable amount due to him remained unpaid.
He, therefore, filed the suit out of which the appeal arises to recover a sum of Rs. 3,19,458/11/ together with interest at the rate of 12%.
The suit was contested by the State of Rajasthan.
An interim decree for a sum of Rs. 66,517/ was passed on 7th November, 1955.
After full trial a decree for Rs. 1,67,619/ (including the sum of Rs. 66,517/ for which a preliminary decree had already been passed) was passed on 11 6 1958/30 6 1958.
The decree also awarded interest at the rate of 4 1/2% on the amount decreed from the date of suit till the date of realisation.
The plaintiff and the defendant preferred appeals to the High Court of Rajasthan.
The High Court reduced the decreetal amount by a sum of Rs. 9,991/ .
The High Court, however, held that the plaintiff was entitled to interest from 1st January, 1951, and not merely from the date of suit.
The High Court also enhanced the rate of interest pendente lite from 4 1/2 to 6%.
The High Court having varied the decree of the Trial Court, the State of Rajasthan 8 sought and obtained a certificate under Article 133(1)(a) of the Constitution and has filed this appeal.
The controversy in the High Court related primarily to (i) conveyance and lift charges; (ii) alleged double benefit in regard to bond stones, lintels and sills; (iii) use of Jodhpur slabs and their high cost; (iv) charge for C. P. Teak wood at the same rates as for Burma Teak.
In regard to conveyance and lift charges the High Court pointed out that no question was raised in the Memorandum of grounds of appeal and there was, therefore, no justification for permitting the learned Counsel for the State to assail the finding of the Trial Court relating to those charges.
We do not see any reason either why the learned Counsel should be permitted to agitate this question in this appeal.
Regarding double charge for bond stone, lintels and sills, the complaint of the appellant was that while separate payment was being made for them, they had also been included in the measurements of the walls in which they happened to be fixed.
From the office circular issued by the Chief Engineer of the Public Works Department of the United State of Rajasthan on 12th July, 1948, it appears that it was the practice uptill then to allow payment for bond stones, lintels and sills separately without deducting their cubic contents from the general wall masonry.
This had always been the practice and this was never objected to by the Accountant General.
In view of the practice obtaining till then it could not be said that the contractor had wrongfully claimed double payment for bond stones, lintels and sills.
The use of Jodhpur slabs was not questioned in the written statement.
All that was said was that the rate was high but at the trial there was no evidence worth the name, as observed by the High Court to show that the charge was excessive.
Again there was no objection to the use of C.P.Teak wood instead of Burma teak wood as the latter was not available.
According to the letter of the Superintending Engineer dated 6th February, 1950, where Burma teak wood was not available and C. P. Teak wood was used, the rates specified for Burma teak wood should be taken for C.P. Teak wood.
It could not, therefore, be said that the contractor had charged more than what he should for C.P. Teak wood.
The last question which was argued before us by Shri Jain, learned Counsel for the State of Rajasthan was that no interest should have been awarded for the period before the filing of the suit and that the rate of interest should not have been enhanced by the High Court for the period subsequent to the filing of the suit.
It was 9 submitted that the Interest Act, 1839, was not applicable as no sum A certain was payable and there was no demand for payment of interest.
It was argued that what was demanded by the plaintiff was damages and not interest.
It was also contended that the Trial Court having, in exercise of its discretion, awarded interest at the rate of 4 1/2 % pendente lite, the High Court ought not to have interfered with the discretion of the Trial Court.
Reliance was placed upon the decision in Mahabir Prasad Rungta vs Durga Datt(1) and Union of India vs A. L. Rallia Ram(2).
We are unable to agree with the submission of the learned Counsel for the appellant.
Under the Interest Act, 1839, "upon all debts or sums certain payable at a certain time or otherwise, the Court before which such debts or sums may be recovered may, if it shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then D from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment: provided that interest shall be payable in all cases in which it is now payable by law".
The claim of the present plaintiff was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate or contingent obligation.
It was for the payment of a sum which was ascertainable on a calculation made in accordance with the terms of the agreement.
It was clearly a "sum certain" within the meaning of the Interest Act.
In any case it would be a debt, i.e., "a sum of money which is now payable or will become payable in the future by reason of a present obligation".
The further question for consideration is whether the plaintiff had made a demand of payment, "so as such demand shall give notice that interest will be claimed from the date of such demand until the term of payment".
The plaintiff issued two notices to the defendant demanding payment.
The first was on 21st December, 1950, and the second was on 5th April, 1953.
There is no dispute that in the second notice of demand of payment of definite claim for interest had been made.
In the first notice it was said "by with holding payment of his bills absolutely, the Government has put my client to enormous loss by way of interest also .
I intimate to you (1)[1961] 3 S.C.R. 639.
(2)[1964] 3 S.C.R. 164.
2 196SCI/79 10 through this notice that the said Shri Ramsingh claims a sum of Rs. 2,50,519/ from the Rajasthan State as under: 1.
Unpaid bills for work done: Rs. 1,37,177/ 2.
lnterest on the above.
11,511/ 3. . . . 4. . . 5. . . . 6. . .
Total: Rs. 2,50,519/ The learned counsel submitted that what was claimed by the plaintiff in this notice was damages and not interest and that too for the past, without any indication that future interest was also being claimed.
It is true that the plaintiff mentioned "loss by way of interest", suggesting that what he was claiming was compensation for the damage suffered by him.
We are, however, not prepared to construe the notice so literally or technically.
The mention of loss was only explanatory.
The plaintiff was, without any manner of doubt claiming interest as such.
Nor are we impressed with the argument that there was no claim for future interest.
In our opinion a claim for past interest would necessarily imply a claim for future interest, vide Kuppuswami Pillai vs Madras Electric Tramway Co. Ltd.(1) and Sita Ram & Ors.
vs Mrs. section Sullivan(2).
In Mahabir Prasad Rungta vs Durga Datt(3) interest was disallow ed on the ground that the notice which was given did not specify the sum which was demanded and therefore, the Interest Act did not apply.
On the question whether interest could be awarded on grounds of equity it was held that what was claimed by Durga Datt was interest as damages and that it could not, therefore, be awarded.
The suit itself was one for damages for breach of contract.
We do not think that this case is of any assistance to the appellant.
In Union of India vs A. L. Rallia Ram, (supra) the Arbitrator had awarded interest by way of compensation since the party had to borrow a large amount of money from its banker to meet its obligation under the contract.
The Supreme Court pointed out that interest could not be awarded by way of damages.
The Supreme Court also noticed that an Arbitrator was not a Court within the meaning of the Interest Act.
No question arose before the Supreme Court whether interest could not be awarded under the Interest Act merely because the notice demanding payment (1) I.L.R. (2) (3) ; 11 mentioned that the plaintiff had suffered loss of interest also.
In our view the condition prescribed by the Interest Act that such demand shall give notice to the debtor that interest shall be claimed is fulfilled if interest is claimed, notwithstanding the fact that the notice of demand explains that loss by way of loss of interest has been suffered.
Ta take any other view would be to be over technical in the construction of pleadings, including notices preceeding the action.
We must notice here an argument advanced by the learned counsel for the appellant that the contract prohibited the award of interest.
He relied upon the following sentence occurring in paragraph 16 of the Contract dated 11th May, 1947: "Neither the earnest money deposit nor the with held amount shall bear any interest".
This sentence far from supporting the case of the appellant appears to support the case of the plaintiff.
The reference to "the with held amounts" is to the amounts represening five per cent of the running bills which are required to be with held at the time of payment of the running bills.
The provision that the contractor is not entitled to interest on these with held amounts appears to imply that interest is claimable on other amounts due to the contractor.
While awarding interest pendente lite the Trial Court adopted the rate of 4 ' % but the Trial Court gave no reasons for so doing.
The High Court considered the matter in some detail and having regard to the various continuous defaults committed by the defendant and its Officers, the High Court enhanced the rate of interest to 6%.
The High Court was justified in doing sol and we see no reason to interfere with the discretion exercised by the High Court.
In the result the appeal is dismissed with costs.
N.V.K. Appeal dismissed.

summary:
The Interest Act, 1839 (32 of 1839) empowers the Court to allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument at la rate not exceeding the current rate of interest from the time when such amounts were payable and if the amount is payable otherwise, then from the time when the demand of payment shall have been made in writing.
As the amounts due in respect of a building works contract remained unpaid despite demands and notices, the respondent (plaintiff) filed a suit for its recovery together with interest.
Decreeing the suit, the trial court award ed interest at 4 1/2 per cent.
But in appeal, the High Court enhanced the rate of interest pendente life from 4 1/2 per cent to 6 per cent.
In the further appeal to this Court it was contended that the Interest Act 1839, was not applicable as no sum certain was payable and there was no demand for payment of interest.
Dismissing the appeal, ^ HELD: 1.
The claim was for a "sum certain" within the meaning of the Act.
[9F] The claim was ascertainable on a calculation made in terms of the agreement and was therefore a sum certain within the meaning of the Act.
It is "a sum of money which is now playable or will become payable in the future by reason of a present obligation" and in any case it was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate obligation.
[9E F] 2.
The respondent issued two notices.
In the second notice a definite claim of interest had been made by them.
The term "loss by way of interest" mentioned in the first notice suggested that what was being claimed was compensation for the damages suffered by them.
The notice should not be construed literally or technically.
The mention of loss was only explanatory.
Without any manner of doubt the respondents were claiming interest as such.
[9G 10D] 3.
Nor again can it be said that there was no claim for future interest.
A claim for past interest would necessarily imply a claim for future interest.
[10E] 7 Kuppusami Pillai vs Madras Electric Tramway Co. Ltd., ILR ; Sita Ram & Ors.
vs Mrs. section Sullivan, [1901] 2 Punjab Law Reporter 464; referred to.
Mahabir Prashad Rungta vs Durga Datt, ; and Union of India vs A. L. Rallia Ram, ; ; distinguished.
Having regard to the various continuous defaults committed by the appellant and its officers the High court was justified in enhancing the rate of interest to 6 per cent.