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Badri Prasad and anr. Vs. Bhartu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All119
AppellantBadri Prasad and anr.
RespondentBhartu
Excerpt:
- - on that ground he held that the suit was barred by limitation as well as by order 2, rule 2, civil p......paid up to 15th february 1937. the plaint of that suit is before me and it does not mention the default clause at all. the plaintiff stated in the plaint that the amount was payable in sixteen half yearly instalments and barring the first instalment the defendant had not paid any other instalment. the cause of action in the plaint was given as the various dates when each instalment fell due. the suit was not contested and it was decided ex parte. the defendant continued to make default and did not pay the instalments from 15th june 1937 to 15th june 1941. this suit was filed on 8th august 1911, for these instalments. the plaintiff claimed interest at the rate of 1 per cent, per mensem. plaintiff's suit was dismissed by the learned small cause court judge of muzaffarnagar on the ground.....
Judgment:
ORDER

Malik, J.

1. This is a plaintiff's revision under Section 25, Small Cause Courts Act. On 25th November 1932 an instalment bond for Rs. 480 was executed by the defendant in favour of the plaintiffs' father Mathura Prasad. It was pro. vided in the bond that the amount would be repayable in half yearly instalments of Rs. 30 each beginning from 15th February 1934 and that in default of payment of any instalment it would be open to the creditor to file a suit for the realisation of the whole of the amount then remaining due with interest at He. 1 per cent, per mensem. The defendant paid the first instalment and after that he committed a default and did not pay any other instalment. On 11th May 1937 the plaintiff filed a suit for recovery of the instalments that had, fallen due and had not been paid up to 15th February 1937. The plaint of that suit is before me and it does not mention the default clause at all. The plaintiff stated in the plaint that the amount was payable in sixteen half yearly instalments and barring the first instalment the defendant had not paid any other instalment. The cause of action in the plaint was given as the various dates when each instalment fell due. The suit was not contested and it was decided ex parte. The defendant continued to make default and did not pay the instalments from 15th June 1937 to 15th June 1941. This suit was filed on 8th August 1911, for these instalments. The plaintiff claimed interest at the rate of 1 per cent, per mensem. Plaintiff's suit was dismissed by the learned Small Cause Court Judge of Muzaffarnagar on the ground that the whole amount became due on the first default committed on 15th June 1934 and when the plaintiff filed his suit on 11th May 1937 for a sum of Rs. 208 he should have brought a claim for the entire amount and the mere fact that he had claimed the instalments that were payable prior to that date would not amount to a waiver of his right to claim the entire amount. On that ground he held that the suit was barred by limitation as well as by Order 2, Rule 2, Civil P.C. and dismissed the same. It is against that order that this revision has been filed in this Court.

2. After the decision of Lasa Din v. Mt. Gulab Kunwar by their Lordships of the Privy Council there were a crop of cases in this Court on the inter, pretation of Article 75, Limitation Act. The matter was fully considered by a Full Bench of this Court, the decision being reported in Jawahar Lal v. Mathura Prasad : AIR1934All661 . In that case it was held that when an amount was borrowed on the basis of an instalment bond which gave the creditor a right to sue for the whole amount on the default of payment of any instalment the whole sum became due on the date of the first default unless it could be shown that the default had been waived by the creditor. Their Lordships were of opinion that there was an option given to the creditor either to sue for the whole amount relying on the default clause or to waive the default and claim the right to recover each instalment as it fell due, and on the facts of that case their Lordships were of opinion that the creditor having claimed the whole amount on default, he could not be said to have waived the default. Very soon after the decision of the Full Bench the point again arose before a Division Bench of this Court in a case reported in Sukh Lal v. Bhoora : AIR1934All1039 . The learned Sir Shah Muhammad Sulaiman C.J., who had delivered the main judgment in the Full Bench case was also a member of the Division Bench and he explained the rule as to waiver in these terms:.for a waiver it is not necessary that there should be either a fresh contract between the parties or a fresh consideration proceeding from the debtor in order to bind the creditor by his choice. It seems to me that the words 'waives the benefit' in Article 75 do not mean the same thing as availing oneself of the equitable doctrine of waiver for which either fresh consideration, a fresh agreement or something amounting to an estoppel is necessary. That doctrine is invoked against a creditor, whereas the waiver of the benefit spoken of in Article 75 is something exercised for the benefit of the creditor and not against him. The waiver, therefore, may be a purely one sided act and need not be for consideration proceeding from the debtor.

In a later case in Eamsarup v. Peare Lal : AIR1935All461 the question again came up for consideration. The learned Sir Shah Muhammad Sulaiman C. J. was a party to this case also. From all these cases it is clear that in an instalment bond where on a default it is provided that the creditor has the right to claim the whole amount, there is an option either to bring a suit for the whole amount relying on the default clause or to waive the default clause and claim each instalment as it falls due. In the plaint in Eamsarup v. Peare Lal : AIR1935All461 the creditor had mentioned that he was waiving the default clause and reserving the right to bring a suit for the recovery of the other instalments. It is on this ground that the learned Small Cause Court Judge has distinguished this ease. To my mind, it is not necessary that a creditor, when he waives the default clause, should expressly say so in his plaint. If it is clear from the plaint that the suit was not based on the default clause but on the agreement to pay each instalment on a specified date, no question of any bar of Order 2, Rule 2, Civil P.C. arises. The plaint of the previous suit makes it absolutely clear that that suit was not based on the basis of the default clause. As a matter of fact, as I have already said, the default clause was not even mentioned in the plaint and the causes of action were given as the dates on which each instalment fell due. To my mind, this case is fully covered by the decision in Eamsarup v. Peare Lal : AIR1935All461 , and the plaintiff's suit should, therefore, have been decreed.

3. Learned Counsel for the opposite party has submitted that the suit having been filed on 8th August 1941 instalments before 15th February 1939 must be deemed to have become time-barred. It is admitted, however, that the defendant is an agriculturist and therefore under Section 3, Stay of Execution Act (10 of 1937), suits against agriculturists were stayed during the pendency of that Act. If that period is excluded, all the instalments that fell due from 15th June 1937 up to 15th February 1939 also will be within time. In the bond, however, no interest is provided for on the various instalments. Interest is only payable on the basis of the default clause. It is argued by learned Counsel for the opposite party that the plaintiffs did not send proper accounts under Section 32, Agriculturists' Relief Act, and therefore are not entitled to either interest or costs. The plaintiffs will not be entitled to any interest on the ground that the bond does not provide for interest on each instalment. As regards costs, I do not propose to send the case back to find out whether proper accounts were sent. Such of the accounts as are on the record were shown to me and I found that they were not correct. I, therefore, allow this revision for the principal sum claimed and disallow all interest and costs.


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