094-NLR-NLR-V-23-MUDIYANSE-v.-VANDERPOORTEN.pdf
1922.
( 342 )
Present; Bertram C.J. and Schneider J.MUDIYANSE v< VANDEBPOORTEN.
379—D. C. Kvrunegala, 8,119.
Compound interest—Money paid when not due—When it may herecovered.
The. Roman-Dutch law does not allow compound interesteven though expressly stipulated for.
Money paid, but not due, can only be recovered back if it is paidunder a mistake, or if an unequivocal protest or objection waslodged at the time of payment.
^|^HE facts appear from the judgment.
M. W. H. de Silva, for the appellant.
Bayley, for the respondent.
March 27,1922. Bertram C.J.—
This is an action for the recovery of sums paidin respect of certainmortgage debts which are alleged by the plaintiff not to be due.The District Court has rejected the claim, and the plaintiff hasappealed. There are two items in question. The first is an itemof Rs. 700. It is alleged by the defendant that this sum was paidwith respect to the current account of the plaintiff, and that it hadbeen arranged between the plaintiff and the defendant that certaindeductions should be made from the sum so paid in respect ofcertain items due on the current account, and that the balanceonly should be paid in liquidation of the mortgage debt. Theplaintiff who sues for the recovery of this sum says that no suchitems were due, and that no such arrangement was made. The
( 343 )
ieamed Judge finds aa a fact that Hie sum paid was properly1922,
accounted for. I take this finding to be a finding of foot in the—
defendant’s favour. Moreover, I cannot believe that the claim Bxcj^amfor 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 wouldnever have settled the account as he afterwards settled it. I see poonen *no reason to disturb the learned Judge’s conclusion on this point.
With regard to the seoond amount claimed, the facts are these:
At a certain stage in the accounts the defendant chaiged compoundinterest. He says that this was done with the consent of the .plaintiff. I have some difficulty in understanding this, as so lateas about a month before the final settlement an account wasrendered in which no compound interest was claimed. At anyrate, in the final account compound interest was charged. Now,there oan be no question that this was an overcharge. The Roman-Dutch law does not allow compound interest to be claimed eventhough expressly stipulated for (see the cases D. C. Kalutara,
No. 22,39s,1 Ramasamy PuUe v. Tarnby Candoo,2 and TheNational Bank of India v. Stevenson)2 But the question iswhether this sum, having been paid, can be recovered back. It isclear law that money paid, but not due, can only be recovered backif it is paid under a mistake (see the discussion of Arnold Vinniuson this subject: “ Select Questions of Law,” chapter 47, whichwill be found translated in Pothier, vol. 17., page 437). It may alsobe recovered if, at the time when the payment was made, an unequi-vocal protest or objection has been lodged. See the law as statedand supported by the South African authorities in Maasdorp,vol. III., page $96. But in this case there is no mistake. Theplaintiff expressly says in his evidence: “ When I made the finalpayment I knew that interest had been overcharged, but in orderto get final discharge I consented to pay.” Further, there wasno protest. So far from being a protest there was a friendly settle-ment, ftJid the defendant, as an act of grace, deducted the sum ofRs. 100 ; and though the settlement was made in March no aotionwas brought to recover the sum alleged ter be overpaid until thefollowing October. It seems to me that the appeal fails withregard to both the items discussed, and in my opinion, should bedismissed, with costs.
Schnibidb& J.—I agree.
Appeal dismissed.
* Vend. 67.
*(1923) 26N.L.B. 496.
(1875-76) Ram. 289.