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Shri Shailapa Hadlapa Vs. Balapa Lokanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom446
AppellantShri Shailapa Hadlapa
RespondentBalapa Lokanna and ors.
Excerpt:
the code of civil procedure, section 43 - bond with alternative conditions for repayment of loan--decree for interest--second suit for further interest. - - and here an alternative being provided, the intention in framing it would plainly be defeated if it were held that, in seeking a remedy on the partial contracts constituted by that alternative, the creditor lost his further remedy altogether......suing for the principal then long overdue, he conclusively elected to take advantage of the second alternative engagement, and he could then no longer sue,--i., e., he, had no longer a cause of action--on the first alternative. he had made a conclusive election of one out of the two contracts embraced in the bond. he got a decree, which implied that the obligation was reduced to this, that the interest should be paid periodically, while the principal and any interest in arrears stood as a charge against the mortgaged property. it is a sound principle of construction to give effect to every part of an instrument; and here an alternative being provided, the intention in framing it would plainly be defeated if it were held that, in seeking a remedy on the partial contracts constituted by.....
Judgment:

West, J.

1. When the bond in this case fell due, the creditor might either have sued for the whole sum due within six years (it being a registered instrument), or, as the bond provided that, in, default of payment, the principal sum should be added to an existing mortgage-debt, the creditor might prefer that it should be thus secured, and forego his right to immediate repayment. All that could be said was that he could not take advantage of both alternatives. Now, when he sued for three-years' arrears of interest, as provided in the second branch of the engagement, without suing for the principal then long overdue, he conclusively elected to take advantage of the second alternative engagement, and he could then no longer sue,--i., e., he, had no longer a cause of action--on the first alternative. He had made a conclusive election of one out of the two contracts embraced in the bond. He got a decree, which implied that the obligation was reduced to this, that the interest should be paid periodically, while the principal and any interest in arrears stood as a charge against the mortgaged property. It is a sound principle of construction to give effect to every part of an instrument; and here an alternative being provided, the intention in framing it would plainly be defeated if it were held that, in seeking a remedy on the partial contracts constituted by that alternative, the creditor lost his further remedy altogether. As the interest fell due under the second alternative, it might be separately sued for, that showing only an adoption of the second alternative instead of the first.

2. The point of limitation depends really on the one just considered. We set aside the decrees below, and direct that the suit be disposed of on the merits, with an award of costs.


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