JUDGMENT

Holmwood and Chapman, JJ. - This appeal arises out, of a suit brought by the plaintiff to recover Rs. 1,300, being principal Rs. 80 and interest Rs. 1,220 on a mortgage bond executed by three defendants on 1st Jaishta 1312.

2. The transaction was an unusual one, and the facts found require to be carefully stated as well as the circumstances which are admitted in connection with the giving of the mortgage bond and recited in the bond itself.

3. It appears that Abdul Majeed, defendant No. 1, mortgaged 6 annas of a raiyati jote in which his brother, defendant No. 2, was also interested, while defendant No. 3, a relative, mortgaged three six-annas shares of jotes and an eight-annas share of n howla belonging exclusively to him.

4. The three defendants had bid successfully at a sale of the land of one Nagorbashi Kundu and had deposited the earnest money. They were in immediate need of Rs. 80 to complete the purchase and applied to the former creditor of defendant No. 3, one Harish Chandra Pal, who had a mortgage on properties 1 to 4, on which he has, according to the plaint, recently got a decree for a heavy claim, and by him they were introduced to the plaintiff, another money-lender. The Rs. 80 was obviously only required as a temporary accommodation, and the security given was worth over Rs. 3,000 for the property No. 5 was sold under Harish Chandra Pal's decree for Rs. 650, and there are three similar jotes and a larger taluki interest also mortgaged, yet interest at 60 per cent, with compound interest was agreed to. The defendants' story is that the land they had purchased was released from sale by deposit of the decretal money by the original owner, and they therefore tendered the principal Rs. 80 and Rs. 8 interest to the plaintiff, who took the Rs. 8 and persuaded defendant No. 1 to let the principal sum stand over on promising to forego compound interest and to reduce the simple interest by half. This story has been disbelieved by the lower Courts as far as the payment of Rs. 8 and the oral agreement is concerned, but no finding has been come to as to the probability of the defendants having desired to pay off the debt when they had the money.

5. The lower Court has also held that no fraud was practised on the defendants, because defendant No. 1 is a very clever man and able to take care of himself and entered into the bond with his eyes open. But here the lower Court has, fallen into the error of not considering the position of defendant No. 3, who had a far larger interest in the property mortgaged than anybody else and who is an ordinary cultivator.

6. Every presumption mast be made in his favour, and the lower Court appears to have erred in not applying the doctrines of undue influence and penalty very strictly to his case. The trend oil modern decisions is to hold that the Courts have ample powers under the amended Contract Act to go behind hard and unconscionable bargains on the ground that where there is ample security the exaction of excessive and usurious interest in itself raises a presumption of undue influence which it requires very little evidence to substantiate. Further, it has been held that the attempt to conceal the real rate of interest by describing it as 1 pice in the rupee per mensem, or as in the present case Rs. 5 per mensem, is evidence of an intention to get the better of the debtor, and the law seems to be that there mast be a footing of complete equality between debtor and creditor and they must be, so to speak, at arm's length to make a bargain which is in itself harsh and unconscionable, enforceable at law. We may refer to the case of Carringtons, Limited v. Smith [1906] 1 K. B. 70 and the discussion at page 87 of the meaning of the terms "harsh and unconscionable." It is pointed out that in In re A Debtor [1903] 1. K. B. 705 the M. R. and Cozens Hardy L. J. each say that under the section of the Money Lenders Act, which deals with harsh and unconscionable bargains, the interest charged mig