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MUDIYANSE v. VANDERPOORTEN
NLR23V342
Present : Bertram C. J. and
Schneider J.
MUDIYANSE v. VANDERPOORTEN.
379-D. C. Kurunegala, 8,119.
Compound interest-Money paid
when not due-When it may be recovered.
The. Roman-Dutch law does not allow compound interest even though expressly
stipulated for.
Money paid, but not due, can only be recovered back if it is paid under a
mistake, or if an unequivocal protest or objection was lodged at the time of
payment.
THE
facts appear from the judgment.
M. W. H. de Silva, for the
appellant.
Hayley, for the respondent.
March 27, 1922. BERTRAM C.J.-
This is an action for the recovery of sums paid in respect of certain mortgage
debts which are alleged by the plaintiff not to be due. The District Court has
rejected the claim, and the plaintiff has appealed. There are two items in
question. The first is an item of Rs. 700. It is alleged by the defendant that
this sum was paid with respect to the current account of the plaintiff, and that
it had been arranged between the plaintiff and the defendant that certain
deductions should be made from the sum so paid in respect of certain items due
on the current account, and that the balance only should be paid in liquidation
of the mortgage debt. The plaintiff who sues for the recovery of this sum says
that no such items were due, and that no such arrangement was made. The
loomed Judge finds as a fact that
the sum paid was properly accounted for. I take this finding to be a finding of
fact in the defendant's favour. Moreover, I cannot believe that the claim for
the refund of this money is honest at all. If the plaintiff really paid so large
a sum in respect of the mortgage debt, he would never have settled the account
as he afterwards settled it. I see no reason to disturb the learned
Judge's conclusion on this point.
With regard to the second amount claimed, the facto are these: At a certain
stage in the accounts the defendant charge compound interest. He says that
this was done with the consent of the plaintiff. I have some difficulty in
understanding this, as so late as about a month before the final settlement an
account was rendered in which no compound interest was claimed. At any rate, in
the final account compound interest was charged. Now, there can be no question
that this was an overcharge. The Roman-Dutch law does not allow compound
interest to be claimed even though expressly stipulated for (see the oases D, C.
Kalutara. No. 22,393[1] Ramasamy Pulle v. Tamby Candoo[2] and The National Bank
of India v. Stevenson).[3] But the question is whether this sum, having been
paid, can be recovered back. It is clear law that money paid, but not due, can
only be recovered back if it is mid under a mistake (see the discussion of
Arnold Vinnias on this subject: " Select Questions of Law," chapter 47, which
will be found translated in Potkier, vol. II., page 437). It may also be
recovered if, at the time when the payment was made, an unequivocal protest or
objection has been lodged. See the law as stated and supported by the South
African authorities in Maasdorp, vol. HI., page 396. But in this case there is
no mistake. The plaintiff expressly says in his evidence: " When I made the
final payment I knew that interest had been overcharged, but in order to get
final discharge I consented to pay." Further, there was no protest. So far from
being a protest there was a friendly settlement, and the defendant, as an act of
grace, deducted the sum of Rs. 100 ; and though the settlement was made in March
no action was brought to recover the sum alleged to be overpaid until the
following October. It seems to me that the appeal fails with regard to both the
items discussed, and in my opinion, should be dismissed, with costs.
SCHNEIDER J.-I agree.
Appeal dismissed.
Foot Notes:
1 Van.57.
2 (1875-76) Ram. 189.
3 (1913)16 N .L R. 496.
