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Gumna Dambershet Vs. Bhiku Hariba and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom125
AppellantGumna Dambershet
RespondentBhiku Hariba and anr.
Excerpt:
.....october 1868--he waived his right to exact payment of the whole amount by subsequently accepting payment of that instalment; the note sued on, as already stated, distinctly stipulates that, on failure to pay any one instalment, the whole amount shall at once become due. his right to immediate payment thereof was not, under the note itself, subject to be defeated by any subsequent payment, nor was it superseded or suspended by any fresh agreement between the parties; , that, although the instalments were not paid by the defendants at the times fixed for payment, yet the defendants having paid the money on account of them, and the plaintiff having accepted it, the payments must be considered, as regards both parties, as if made at the times fixed, and the plaintiff cannot take advantage..........applicable to this case is act xiv of 1859, of which clause x, section 1, provides as follows:to suits brought to recover money lent or interest, or for the breach of any contract in which there is a written engagement or contract, and in which such engagement or contract could have been registered by virtue of any law or regulation in force at the time and place of the execution thereof, the period of three years from the time when the debt became due, or when the breach of contract in respect of which the action is brought first took place, unless such engagement or contract shall have been registered [within six months from the date thereof]4. the promissory note in this case is 'a written engagement or contract' within the meaning of that clause, which 'could have been registered'.....
Judgment:

Nanabhai Haridas, J.

1. This is a suit upon a promissory note dated the 2nd April 1868. The note, among other things, stipulates that the principal amount, with interest at 12 per cent. per annum, is to be repaid by half-yearly instalments of Rs. 150 each, and that, in the event of any one of those instalments not being punctually paid, the whole amount is to become payable at once.

2. The first instalment accordingly fell due on the 2nd October 1868, when it was not paid, and this suit was instituted on the 19th October 1871. The Subordinate Judge and the District Judge in appeal have both held it barred by the law of limitation; and the only question, therefore, which we have to determine now is, is it so barred

3. The law of limitation applicable to this case is Act XIV of 1859, of which Clause X, Section 1, provides as follows:

To suits brought to recover money lent or interest, or for the breach of any contract in which there is a written engagement or contract, and in which such engagement or contract could have been registered by virtue of any law or regulation in force at the time and place of the execution thereof, the period of three years from the time when the debt became due, or when the breach of contract in respect of which the action is brought first took place, unless such engagement or contract shall have been registered [within six months from the date thereof]

4. The promissory note in this case is 'a written engagement or contract' within the meaning of that clause, which 'could have been registered' under Act XX of 1866, Section 18, 'at the time and place of the execution thereof', but was not. The period of limitation, therefore, within which a suit may be brought upon it is 'three years from the time when the debt became due'. We are thus brought to the question, when did the debt for which this suit is brought become due?

5. The defendants (inter alia), contended that, upon their failure to pay the first instalment on the 2nd October 1868, the whole money became payable at once under the express stipulation to that effect in the promissory note, and that, therefore, this suit, which was not brought till the 19th October 1871, is barred.

6. The plaintiff, on the other hand, contends that, notwithstanding the defendants' failure to pay the first instalment at the time it fell due--namely, on the 2nd October 1868--he waived his right to exact payment of the whole amount by subsequently accepting payment of that instalment; that, therefore, until a second default was made in the payment of the next instalment six months after, no right would accrue to him to demand any payment; and that this suit, which is within three years from such second default, is consequently not barred.

7. Neither the Subordinate Judge nor the District Judge has found whether the plaintiff's allegation as to the subsequent payment to him of the amount of the first instalment by the defendants is proved; and if we thought such payment could make any difference, it would be necessary to have that expressly found by the Courts below. But it seems to us to be immaterial. The note sued on, as already stated, distinctly stipulates that, on failure to pay any one instalment, the whole amount shall at once become due. That contingency having happened on the 2nd October 1868, the plaintiff' became entitled to the whole of the money at once 7 Cal. W.R 21 Civ. Rul., 7 Bom. H.C. Rep., 125 A.C.J. 11 Idem. 155; 1 Mad. H.C. Rep., 209; 12 L.J.Q.B., 134. He might, accordingly, have sued for the whole amount any day after that date. His right to immediate payment thereof was not, under the note itself, subject to be defeated by any subsequent payment, nor was it superseded or suspended by any fresh agreement between the parties; and we do not see how, under the circumstances, any such payment, by the defendants, of part of that for which they had already become liable could, in the absence of any fresh agreement, supersede or suspend such right. There is not any fresh agreement alleged here. The suit is brought on the note itself.

8. In Ramkrishna v. Bayagi 5 Bom. H.C. Rep. 35, it was no doubt, held by a Division Bench of this Court, consisting of Couch, C.J., and Newton, J., 'that, although the instalments were not paid by the defendants at the times fixed for payment, yet the defendants having paid the money on account of them, and the plaintiff having accepted it, the payments must be considered, as regards both parties, as if made at the times fixed, and the plaintiff cannot take advantage of the stipulation that the sum should become due on failure to pay any instalment, or the defendants rely upon it as making the whole debt due and fixing the period from which the time of limitation ran'. But we are unable to accept that view. There is nothing in the Limitation Act (XIV of 1859) to give any such effect to an acceptance of part-payment after the whole debt has become due. The creditor is, no doubt, not bound immediately to sue for, or insist upon payment of the whole debt. He may, if he chooses, show forbearance towards his debtor, and accept a part of what is due. But, if he does so, he does not thereby prevent, or change in any way, the operation of the law of limitation, which, notwithstanding any such subsequent wish on his part, begins to run from the time of the first default rendering the whole amount due: see Hemp v. Garland 4 Q.B., 519; 12 S.C., L.J.Q.B., 134; 3 G. & D., 402; 7 Jur., 302; Hurronauth v. Maheroolah 7 Cal. W.R. (F.B.), 21; Karuppanna v. Nallamma 1 Mad. H.C. Rep., 209; Narayanappa v. Bhaskar 7 Bom. H.C. Rep. 125; Navalmal v. Dhondiba 11 Bom. H.C. Rep., 155p>

9. In equity it has been held that, a debt being presently due, an agreement to pay by instalments, with a stipulation that on default the creditor may demand immediate payment of the whole balance due with interest, is not to be relieved against: Sterne v. Beck 32 L.J. Ch., 682.

10. Assuming, therefore, that the alleged part-payment by the defendants really took place, if the plaintiff in this case had chosen the very next day after such payment to sue for the whole of the amount then remaining unpaid, he might have done so, and we do not think the defendants in that case could have successfully contended that no cause of action had accrued, or that the suit was premature because the second instalment had not fallen due.

11. We must, accordingly, hold that the right to bring this suit accrued to the plaintiff on the 2nd October 1868; that, having omitted to bring it for more than three years, he now comes too late; and that the decrees of the Lower Courts rejecting his claim on that ground are correct, and must be upheld.


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