JUDGMENT 1. The Appellants before us are the Plaintiffs in the suit. They sued on a bond for Rs. 50 which provided that if this sum was not repaid in two instalments on the dates fixed, interest was to run at 75 per cent, from the date of the bond. The District Judge has held that this stipulation is a penalty and should not be enforced and further that the Plaintiffs have by usufruct of the mortgaged property secured repayment of the debt Nothing is therefore, due to them, he says, on the instalment bond. The Appellants' pleader urges (1) that the stipulation in question is not a penalty and (2) that in any case the Judge should have allowed the Appellants reasonable compensation. 2. The Respondents' pleader replies (1) that, penalty or no penalty, the debt and the penalty have been held by the Judge to have been paid, (2) that the stipulation is a penalty and (3) that the Judge has found that the Plaintiffs have obtained from the usufruct of the property such reasonable compensation as they are entitled to. 3. We do not think that the Judge has meant to find that the debt and the interest at 75 per cent, stipulated for, have both been paid from the usufruct of the property. 4. As to the question whether the stipulation in question is a penalty, the Appellants pleader relies on the cases of Arjan Bibi v. Asgar Ali ILR 13 Cal. 200 (1886), in which a stipulation for the payment of interest at the rate of 150 per cent, from the date of the bond was held not to be a penalty, Sankara Narayana v. Sanhara Narayana ILR 25 Mad. 343 (1901), in which the interest payable was 180 per cent, and Chinan Venkata Sami v. Pedda Kondiah ILR 26 Mad. 445 (1902), in which, however, the rate of interest was only 12 per cent. On the other hand, the pleader for the Respondents relies on the case of Mackintosh v. Crow ILR 9 Cal. 343 (1901), in which the interest payable was 180 per cent, and Chinan Venkata Sami v. Pedda Kondiah ILR 26 Mad. 445 (1902), in which, however, the rate of interest was only 12 per cent. On the other hand, the pleader for the Respondents relies on the case of Mackintosh v. Crow ILR 9 Cal. 689 (1883) in which, it is argued, the rule to be adopted in deciding whether a stipulation for the payment of interest is a penalty or rot is laid down as being as follows :- Whenever by the terms of the contract a sum made payable by reason of the breach is capable of calculation at the time of the breach and payable in all events, then such a sum is a penalty. He also cites the case of Ramendra Roy v. Serajuddin Ahamed 2 C.W.N. 234 (1898), in which case provision had been made for the payment of a lump sum of Rs. 500 as interest, and interest at 15 per cent, was payable from the date of bond on failure to repay the total sum due, viz., Rs. 1,000, and this stipulation was held to be a penalty. But the pleader for the Appellants points out that in this case there was the lump sum of Rs. 500 payable for interest and an increased rate of 75 per cent, payable on default, so there were two rates of interest payable. But the bond executed in the present case was executed in payment of an antecedent debt, so that the sum of Rs. 50 may have included interest, though this is not certain. 5. The object of dispute in this case is discussed at pages 278-282 of Sir F. Pollock and Mr. Mulla's work on the Indian Contract Act. At page 281 it is pointed out that in Motoji v. Shekh Husen 6 B.H.C.A.C. 8 (1869), Pava v. Govind 10 B.H.C.R. 382 (1873), Bansidhar v. Buali Khan ILR 3 All. 260 (1880) and Vythilinga v. Ravana ILR 6 Mad. 167 (1882), the exorbitant rate of interest was of itself regarded as penal as also that the effect of the decisions in Arjan Bibi v. Asgar Ali ILR 13 Cal. 200 (1886), Sankara Narayana v. Sankara Narayana ILR 25 Mad. 343 (1901), as well as of that in Prayag v. Shym Lal ILR 31 Cal. 167 (1882), the exorbitant rate of interest was of itself regarded as penal as also that the effect of the decisions in Arjan Bibi v. Asgar Ali ILR 13 Cal. 200 (1886), Sankara Narayana v. Sankara Narayana ILR 25 Mad. 343 (1901), as well as of that in Prayag v. Shym Lal ILR 31 Cal. 138 (1903), in which it was ruled that simple or compound interest at a high rate (75 per cent.) is not in itself a penalty is that the rate of interest, having been agreed upon between the parties, it should be allowed under the provisions of Act XXVIII of 1855 and the mere fact that the rate of interest is exorbitant is no ground of relief unless the transaction amounts to an unconscionable bargain. "The principle of these decisions" it is said, "it is submitted, is not sound, for following it to its logical consequences any rate of interest however exorbitant, would not be regarded as penal. The correct principle it is conceived is that relief should be granted whenever the rate of interest appears to be penal." We are inclined to adopt this principle in this case. Without in any way dissenting from the decision in Prayag v. Shym Lall ILR 31 Cal. 138 (1903) which is not directly in point, we are unable to follow the rule laid down in Arjun Bibi v. Asgar Alt ILR 13 Cal. 200 (1886) and in Sankara Narayana v. Sankara Narayana ILR 25 Mad. 343 (1901), and we would hold that the stipulation for the payment of interest at the rate of 75 per cent, from the date of the bond as found by the District Judge is in the circumstances of this case a penalty. There appears to be nothing to justify the stipulation for such a high rate of interest. 6. In coming to this conclusion we consider we are following the principle underlying the decision of this Court in Pardhan Bhukhan Lal v. Narsingh Dyal ILR 26 Cal. 300 (1898) approved of in Abdul Guni v. Nund Lal ILR 30 Cal. 19 (1902), viz., that it is open to a Court to consider the facts and circumstances of each case and determine whether a stipulation for a high rate of interest is or not a penalty-its finding on this question being rather a finding of fact than of law. 19 (1902), viz., that it is open to a Court to consider the facts and circumstances of each case and determine whether a stipulation for a high rate of interest is or not a penalty-its finding on this question being rather a finding of fact than of law. The case of Chinan Venkata Sami v. Pedda Kondiah ILR 26 Mad. 145 (1902) in no way conflicts with this view, for the rate of interest in that case was the very moderate rate of 12 per cent. For these reasons we see no reason to interfere with the finding of the District Judge that the stipulation for the payment of 75 per cent, interest from the date of the bond was a penalty. 7. It is however, unnecessary for us to remand the case to the lower Appellate Court for the awarding of reasonable compensation to the Plaintiffs. We consider that the Judge has found that the Plaintiffs have already received all the reasonable compensation they are entitled to. He says:-"The Plaintiffs admittedly enjoyed the usufruct of the land for eight years and the lower Court has found that it was worth Rs. 9843 annas. This is a very low estimate. The Plaintiffs have by the usufruct of the mortgaged debt secured repayment of the debt. Nothing is therefore due to them on the instalment bond." The Judge evidently means that the Plaintiffs have secured much more than payment of the debt. He means that by the usufruct, which the Munsif has under-estimated at Rs. 98-13, the Plaintiffs have repaid themselves both the debt and all reasonable compensation they are entitled to for breach of the stipulation to repay the debt of Rs. 50 in two instalments. We accordingly dismiss this appeal with costs.