JUDGMENT

1. This is the defendant's appeal against the judgment and decree dated 31st August 1929, passed by the Subordinate Judge of Partabgarh. It arises out of a suit brought by the plaintiff mortgagee on foot of a mortgage-deed dated 11th August 1914 executed by the defendant's father Babu Ranbir Singh in favour of the plaintiff for Rs. 18,000. The stipulation as regards interest was that the mortgage money would carry interest at annas 4 per cent per mensem, that the interest would be paid annually and that if there was default in the payment of interest for any year then the interest for that year would be paid at the rate of 2 per cent per month.

2. The plaintiff's case was that he had been paid interest regularly for the first eight years of the mortgage but that no payment was made thereafter. He therefore claimed interest at 2 per cent per mensem since 11th August 1922. The defendant disputed the plaintiff's claim only as regards the enhanced rate -of interest. He pleaded that four days before 11th August 1923 he offered to pay the full interest at the rate of annas 4 per cent per mensem to the plaintiff but the plaintiff did not accept the said interest. He thereupon deposited the amount of Rs. 540 in the Court of the Subordinate Judge of Partabgarh under Section 83, T.P. Act. Even then the plaintiff refused to accept the payment. The defendant further pleaded that he made similar offers for payment of full interest at the rate of annas4 per cent, per mensem in August 1924 and August 1925 but the plaintiff refused to accept the payments. On these facts the defendant claimed that there had been no default on his part and that he was not liable to interest at the, enhanced rate. He further pleaded that in any case interest at the enhanced rate of 2 per cent per mensem was penal and that he was entitled to be relieved of it.

3. The learned Subordinate Judge found the defendant's allegation as regards his having offered to pay the interest due on 11th August 1923 proved. He therefore held that the plaintiff was entitled to interest at annas 4 per cent per mensem only in respect of the interest for 1923. But in respect of subsequent years his finding was that the defendant had failed to prove that he ever offered interest to, the plaintiff. He therefore held the plaintiff entitled to enhanced interest according to the agreement after 1923. On the question of interest being penal he expressed the opinion that it was so but did not consider the defendant entitled to any relief on that ground as he held that the rate of interest at 2 per cent per mensem was quite reasonable.

4. The learned Counsel for the defendant-appellant has repeated before us the two contentions set forth above. As regards the first, namely the offers in 1924 and 1925, the learned Counsel admits that his client has failed to give any evidence to prove the alleged offers. He has however argued that the plaintiff's refusal to accept the payment of Rs. 540 offered by the defendant for interest in respect of the year ending 11th August 1923 was sufficient to absolve him from the necessity of making any offers in subsequent years. We find ourselves unable to accede to this argument. The plaintiff's statement as P.W. 1 shows that he had refused to accept the interest for 1923 on the ground that the interest in respect of another debt of Rs. 7,000 was not paid along with it. His statement further shows that he got Rs. 6,000 out of Rs. 7,000 just mentioned about six years before his examination in Court. This would show that he realized the bulk of this debt shortly after his refusal to accept interest in 1923 in respect of the mortgage-deed in suit. Under the circumstance there was hardly any justification for the defendant not to have offered payment of interest due for the subsequent years. Further we find from the statement to this refusal the plaintiff served the defendant with a notice through the pleader just mentioned expressing his willingness to take