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Kunjal Vs. Ajudhia and ors. and Gauri Shankar and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All123
AppellantKunjal
RespondentAjudhia and ors. and Gauri Shankar and anr.
Excerpt:
bond - instalments--power to sue for whole amount on default of payment--limitation--act no. xv of 1877 (indian limitation act), schedule ii, article 75. - - 371. these rulings are distinctly against the appellants here......by the provisions of article 75 of schedule ii to the indian limitation act, and dismissed the suit. the suit, we may here observe, was not for the enforcement of the option given by the bond, whereby the creditor could claim the whole amount unpaid. the plaintiff appealed. the learned subordinate judge in a very able judgment held that the claim was not barred. the defendants come here in second appeal and again contend that the plaintiff's cause of action arose upon the default made in the payment of the first instalment, and that the suit is therefore barred by limitation. there might have been some force in this contention if the suit had been to enforce the penalty and to recover the whole amount left unpaid by the bond. but the suit was only for the instalments unpaid at the.....
Judgment:

George Knox and Aikman, JJ.

1. On the 3rd of August 1891 the father of the first four defendants executed a bond payable by instalments in favour of one Kashi Prasad, father of the remaining defendants. The bond contained a provision that in default of the payment of any one instalment it would be within the power of the creditor (mahajan mazkurko ikhtyar hogo) to sue for the whole amount due under the bond without waiting for the period provided for the payment of other instalments. The present suit is for the recovery of three instalments due under the bond. The Munsif held that the suit was barred by the provisions of Article 75 of Schedule II to the Indian Limitation Act, and dismissed the suit. The suit, we may here observe, was not for the enforcement of the option given by the bond, whereby the creditor could claim the whole amount unpaid. The plaintiff appealed. The learned Subordinate Judge in a very able judgment held that the claim was not barred. The defendants come here in second appeal and again contend that the plaintiff's cause of action arose upon the default made in the payment of the first instalment, and that the suit is therefore barred by limitation. There might have been some force in this contention if the suit had been to enforce the penalty and to recover the whole amount left unpaid by the bond. But the suit was only for the instalments unpaid at the time of the suit. In support of his argument the learned Counsel referred us to decisions of the Calcutta High Court, namely, Jadab Chandra Bakshi v. Bhairab Chandra Chuckerbutty (1904) I.L.R. 31 Calc. 297 and to the case, upon which that decision is based, viz., Hurri Pershad Chowdhry v. Nasib Singh (1894) I.L.R. 21. Calc. 542. The latter case has been expressly dissented from in Letters Patent, Appeal No. 81 of 1893, decided on the 10th of June 1894 in which the learned Judges held that the true rule of construction in cases of decrees for payment by instalments is to be found in the decision of this Court in Shankar Prasad v. Jalpa Prasad (1894) I.L.R. 16 All. 371. These rulings are distinctly against the appellants here. We may also refer to what was said in Maharaja of Benares v. Nand Ram (1888) I.L.R. 11 All. 244. We agree with the remarks of the learned Judges who held in the last mentioned case that it would be very unfortunate if the view contended for by the appellant is sustained, as it would be to punish the creditor for forbearance shown to his debtor and compel him to press his demands at the earliest opportunity. It is conceivable that a bond might be so worded as to compel a creditor to sue for the whole amount immediately if any default occurred. The bond with which we have to deal is not so worded. It merely gives the creditor an option. We follow the law as laid down by this Court, and, with all deference to the learned Judges of the Calcutta High Court who have taken the opposite view, we are unable to agree with them. This disposes of the first ground of appeal. The only other ground was not argued. We dismiss the appeal with costs.


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