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Maharaja of Benares Vs. Nand Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All431
AppellantMaharaja of Benares
RespondentNand Ram and anr.
Excerpt:
act no. xv of 1877 (indian limitation act) schedule ii, article 75 - bond--instalments--waiver of right to recover whole amount on non-payment of instalment--limitation. - - in the bond sued on there is a provision enabling the creditor on failure on the part of the defendants to pay any instalments on the appointed date, to sue for and recover the entire amount of instalments then remaining unpaid. the article of the limitation act which is applicable to the cage is clearly article 75. that article prescribes a period of three years for the institution of a suit upon a bond payable by instalments from the time when the first default is made;.....article 75. that article prescribes a period of three years for the institution of a suit upon a bond payable by instalments from the time when the first default is made; but there is this important qualification, namely, unless where the payee or obligee waives the benefit of the provision; in that case limitation, runs from the time when a fresh default is made in respect of which there is no such waiver.3. the question then is whether or not the plaintiff in this case waived the benefit of the provision to which we have referred. there was no express waiver, but waiver may be implied, and it is implied when a person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitled;for instance, a landlord by acceptance of rent after.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. This appeal arises out of a suit brought by the plaintiff for recovery of arrears of instalments payable under a bond given to him by the defendants. The plaintiff gave a lease to the defendants of certain property for a term of 14 years, namely, from 1305 to 1319 Fasli. At the date of the deed there wore arrears of rent due by the tenants, and the defendants agreed to pay the amount of these arrears, and executed a bond for the same, payable in instalments. The instalments payable for the years 1305 and 1306 were paid, but not upon the dates fixed for payment, but thereafter. The suit which has given rise to this appeal was then instituted by the plaintiff for the instalments for the years 1307--1309 Fasli. His claim was met by the defence that the first instalment was not paid when it fell due, namely, on the 4th of June 1898, and that consequently under the provisions of the bond all the instalments became forthwith due and payable, and this being so the claim is barred by limitation. The Court of first instance decreed the plaintiff's claim, but upon appeal the learned District Judge upheld the contention that the suit was barred and dismissed the plaintiff's claim. An appeal from this decree is now before us.

2. A number of authorities have been quoted, including the case of Basant Lal v. Gopal Parshad Weekly Notes, 1906, p. 193, in which the question as to the rights of a creditor in respect of bonds payable by instalments was considered. It appears to us that a case of this kind must be decided in view of the language of the particular bond which is the subject of litigation. In the bond sued on there is a provision enabling the creditor on failure on the part of the defendants to pay any instalments on the appointed date, to sue for and recover the entire amount of instalments then remaining unpaid. This option is given to him in very clear terms. The words are 'har guna ikhtiar hoga,' that is, it will be in his power to sue for the entire amount. When the first instalment became due on the 4th of June 1898, the plaintiff did not take advantage of the provision in the bond inserted for his benefit and sue for the entire debt, but accepted payment of the instalment for that year, as also the instalment payable for the succeeding year in various sums and at various dates. His forbearance to exercise the power given. to him in the bond, is now set up as a defence to his suit for the recovery of the balance still remaining unpaid. The article of the Limitation Act which is applicable to the cage is clearly Article 75. That article prescribes a period of three years for the institution of a suit upon a bond payable by instalments from the time when the first default is made; but there is this important qualification, namely, unless where the payee or obligee waives the benefit of the provision; in that case limitation, runs from the time when a fresh default is made in respect of which there is no such waiver.

3. The question then is whether or not the plaintiff in this case waived the benefit of the provision to which we have referred. There was no express waiver, but waiver may be implied, and it is implied when a person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitled;for instance, a landlord by acceptance of rent after a forfeiture of the tenancy is deemed to have waived his right to insist on a forfeiture. Here, it appears to us, the plaintiff impliedly waived his right to insist upon payment in a bulk sum of all the instalments remaining due when the first instalment was not paid on the 4th of June 1898, and he accepted payment of the instalments for two years in various sums at various dates. It would be very unfortunate if it were otherwise. It would be to punish a creditor for forbearance shown to his debtor, and compel him to press his demands at the earliest opportunity and insist upon speedy and full satisfaction of his claim. We cannot in this case take this stringent view of the law, which we are asked to do by Mr. Agarwala. We think that Article 75 provides for this case and that under that article limitation starts from the time when the instalment for 1900 became payable. The suit was not therefore barred by limitation. We allow the appeal, set aside the decree of the lower appellate Court, and, as that Court has decided this case upon a preliminary question, namely, that the suit is barred by limitation, and we have reversed its decision on that question, and other issues have been left undetermined, we remand the appeal under the provisions of Section 562 of the Code of Civil Procedure with directions that it be reinstated in the file of pending appeals and be decided on the merits. Costs here and hitherto will abide the event.


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