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Jawahar Lal Vs. Mathura Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1934All661
AppellantJawahar Lal
RespondentMathura Prasad and anr.
Excerpt:
- - if therefore on the default of the mortgagor, that is, by breach of contract by the mortgagor money becomes immediately due then the intention of the parties would be defeated and what was agreed to by them as an option in the mortgagee would, in effect, be converted into an option in the mortgagor, for if the latter finds subsequently that he can make a better bargain elsewhere he has only to break his contract by refusing to pay the interest and so eo instanti entitle himself to redeem. their lordships also took care to point out that it would be dangerous to apply english authorities to decisions in the construction of an indian act, but even if the authority of such decisions were applied the question for decision in india would fail not under article 132, limitation act, but.....sulaiman, c.j.1. this case came up for disposal before a single judge of this court who referred it to a division bench which baa referred it to a larger bench on account of some apparent conflict of opinion on the interpretation of articles 75 and 80, lim. act.2. on 5th september 1927 the defendants executed an unregistered instalment bond for rs. 540 stipulating to pay the amount with interest at the rate of 1 per cent, per mensem by instalments of rs. 25 a month within one year and nine months. it was further provided that in case the fixed instalments or the interest thereon were not paid for any two successive months then in either case the creditor would be authorized to realize the entire amount of principal and interest together with costs in a lump sum either within the.....
Judgment:

Sulaiman, C.J.

1. This case came up for disposal before a Single Judge of this Court who referred it to a Division Bench which baa referred it to a larger Bench on account of some apparent conflict of opinion on the interpretation of Articles 75 and 80, Lim. Act.

2. On 5th September 1927 the defendants executed an unregistered instalment bond for Rs. 540 stipulating to pay the amount with interest at the rate of 1 per cent, per mensem by instalments of Rs. 25 a month within one year and nine months. It was further provided that in case the fixed instalments or the interest thereon were not paid for any two successive months then in either case the creditor would be authorized to realize the entire amount of principal and interest together with costs in a lump sum either within the stipulated period or after it from the person and property of the debtors. The 20 instalments of Rs. 25 together with the last instalment of Rs. 40, would, if paid, have sufficed to discharge the entire amount due on the bond. The period of 21 months would have expired on 5th June 1929. Before the expiry of that date the creditor served a registered notice on the defendants dated 21st May 1928 claiming that on account of more than two successive defaults the whole amount of principal and interest had become due and was payable (wajibulada) and should be paid within a week of the receipt of the notice. Later on, after 5th June 1929, when the period of 21 months had expired a fresh notice was served by the creditor on the defendants on 11th April 1930 demanding payment of the whole amount with interest. This was a brief notice in which there was no further reference to the defaults made by them. On 25th July 1931 the present suit was instituted for recovery of the entire amount of principal and interest due on the bond. In the body of the plaint there was a reference to the previous notice sent to the defendants after repeated demands and to the plaintiff having 'waived' the condition of payment in a lump sum in the deed, and there was allegation that the defendants contracted subsequently that they would not make payments by instalments but would pay the entire amount within the stipulated period. The cause of action was alleged to have arisen on 5th June 1929 which would be both the date of the expiry of the 21 months originally fixed as also the date within which the defendants were said to have orally agreed to make the payment in a lump sum. The actual relief claimed by the plaintiff was a decree for Rs. 737-13-0 with costs and interest pendents lite and future against the defendants.

3. The Court below has come to the conclusion that the alleged oral agreement between the parties was not proved. It has further held that there was no waiver of the benefit of the default clause by the plaintiff so as to give him a fresh start for the purposes of limitation, and has accordingly held that the claim was barred by time, having been brought more than three years after two successive defaults. The question for consideration before the Full Bench is whether the whole or any part of the claim of the plaintiff is barred by time. It seems to me that prior to 1932 there would have been hardly any question that time began to run against the plaintiff from the date of the second default within the meaning of, Article 75, Lim. Act, unless he proved a waiver which would give him a fresh start. There are numerous cases of this Court to some of which reference will be made shortly in which Article 75 has been applied to instalment bonds containing such default clauses. Even in the case of mortgage-deeds which contained such default clauses there were two Full Bench cases of this Court in which it was held that when under the terms of the agreement the whole amount becomes payable by the defendant on account of default, then even though the plaintiff may have an option to wait and not sue or to sue immediately for the whole amount, time begins to run against the plaintiff under Article 132, Lim. Act. See : Gaya Din v. Jhaman Lal A.I.R. 1915 All. 189 and Shib Dayal v. Meharban A.I.R. 1923 All. 1. In the case of Pancham v. Ansar Husain A.I.R. 1926 P.C. 85, Lord Blanesburgh in delivering the judgment of their Lordships of the Privy Council first threw considerable doubt on the soundness of the decision in Gaya Din's case A.I.R. 1915 All. 189 which had been followed in Shib Dayal's case A.I.R. 1915 All. 189. His Lordship remarked at p. 463 (of 48 All) that the Full Bench had held that:

Under a default clause a single default on the part of the mortgagors, without any act of election, cancellation or other form of response or acceptance on the part of the mortgagees, and even it would appear against their desire operates eo instanti to make the money secured by the mortgage 'become due' so that all right of action in respect of the security is a final bar 12 years later.

4. In that case however it was not considered necessary to decide the question finally as the case could be disposed of on another ground. It may however be point. ad out that the suit in that case was brought just on the last day of the period of 24 years from the execution of the bond, which had fixed 12 years for payment, the last instalment falling due just on the expiry of the 12th year. It would therefore seem that the claim for the recovery of the 12th instalment by way of 'enforcing the security was just within 12 years of the date when that instalment fell due. Their Lordships however pinned down the plaintiff to the date of the cause of action given in the plaint, namely, the date of the first default, and dismissed the whole suit on that ground. Their Lordships did not award the plaintiff a decree for the recovery of the last instalment which was apparently within 12 years of the date when it had fallen due.

5. The view of this Court as expressed in the Full Bench decision quoted above was definitely overruled by their Lordships of the case of Lasa Din v. Gulab Kunwar . That was an appeal from a case decided by the Oudh Court Bench where pparently it had been held that a mortgagor can, by making default in the payment of an instalment, accelerate the period fixed for payment and even redeem before the expiry of that period. Their Lordships pointed out the difficulty in holding that money can become due merely by an act of the mortgagor so as to give him a right to redeem before the period fixed. Their Lordships also pointed out that an option given to the mortgagee to call in the entire money was exclusively for the benefit of the mortgagee and it was in the nature of an option to enforce the security at once or if the security be ample to stand by his investment for the full term of the mortgage. If therefore on the default of the mortgagor, that is, by breach of contract by the mortgagor money becomes immediately due then the intention of the parties would be defeated and what was agreed to by them as an option in the mortgagee would, in effect, be converted into an option in the mortgagor, for if the latter finds subsequently that he can make a better bargain elsewhere he has only to break his contract by refusing to pay the interest and so eo instanti entitle himself to redeem. In their Lordships' opinion this was an impossible result. Their Lordships were not prepared to hold that the mortgagor could in that way take advantage of his own default and their Lordships did not think that upon such default he would have the right to redeem and therefore in their Lordships' opinion the mortgage money did not become due within the meaning of Article 132, Lim. Act, until both the mortgagor's right to redeem and the mortgagee's right to enforce the security had accrued. Their Lordships added that this would of course, also be the position if the mortgagee exercised the option reserved to him. Their Lordships also took care to point out that it would be dangerous to apply English authorities to decisions in the construction of an Indian Act, but even if the authority of such decisions were applied the question for decision in India would fail not under Article 132, Limitation Act, but under Article 75, Limitation Act, which is in very special terms. Their Lordships pointed out that if in the Indian case the question were, when did the mortgagee's cause of action arise, i.e., when he first became entitled to sue for the relief claimed by the suit, there would be much to be said in support of the Allahabad decision.

6. It is therefore clear to my mind that their Lordships of the Privy Council were considering the applicability of Article 132 to the case under consideration. Their Lordships did not mean to lay down any general principle of law which would apply to Article 75 or for the matter of that to all other Articles of the Limitation Act, no matter what the language used there may be. The case of a mortgagor and a mortgagee is certainly very peculiar. Where there is a period fixed for payment it is ordinarily for the benefit of both parties. The mortgagee cannot insist upon payment before the expiry of that period nor can the mortgagor insist on redemption before that term has expired. The mortgagor therefore cannot be allowed to commit a breach of the agreement and then accelerate his right to redeem against the will of the mortgagee. In order that money should become due there is to be a mutuality between the mortgagee and the mortgagor and both should have reciprocal rights at the time when the money has become due. This would also follow from the use of a similar word 'payable' in Section 60, T.P. Act, which has now been converted into the word 'due'. The case of a mortgage therefore is a special case and does stand on a peculiar footing. The principle laid down by their Lordships of the Privy Council in Lasa Din's case has been recently applied by a Full Bench of this Court in Muhammad Husain v. Sanwal Das : AIR1934All397 . In that case there was an application under Order 34, Rule 6 for a money decree on the basis of a mortgage deed which contained a similar default clause. The Bench had to interpret Article 80 read with Article 116, Limitation Act, where the starting point of limitation is the date when 'the bond becomes payable.' The words were not identical with the words 'money becomes due' occurring in Article 132 but the Bench came to the conclusion that the same consideration applied. As there would have been a considerable anomaly in giving different starting points for the right of the mortgagee to recover the amount by enforcement of the security and the right of the mortgagee to recover the amount by proceeding against the person of the mortgagor, the Bench felt constrained to hold that the starting points of limitation for both claims arose on the same date. It would have been difficult to bold that the claim for the recovery of the money as a simple money debt bad become barred by time, while limitation had not even commenced to run for recovering the same amount by enforcing the security. Apart from the fact that the words 'become due' find a place in Col. 1 of Article 75, whereas the words 'becomes due' or 'becomes payable' are in Col. 3 of Articles 132 and 80 respectively, there was in that Full Bench case the circumstances that the mortgagee had not, either by express words or by implication done any act of election, cancellation or other form of acceptance' which would make the money become due. It was in this view that applying Article 80 to that case the Bench.-held that the money had not become payable and time did not begin to run against the mortgagee from the date of the first default when he had an option to wait and not to sue immediately.

7. No doubt the principle laid down in Lasa Din's case was to a slight degree extended in the last mentioned Full Bench, case. But there too the question was as between a mortgagor and a mortgagee as the money was recoverable under a mortgage deed and the starting point for recovering the same amount as a simple money debt had to be identical. The question before us is whether that principle should now be extended further to cases falling even under Article 75. Limitation Act. The Limitation Act is in a sense a purely arbitrary enactment and the various starting points for purposes of limitation laid down in Col. 3 of Schedule 1 are equally arbitrary. It is not absolutely necessary that there should be a consistency or a uniformity of any definite principle in fixing the various starting points. It is a mere matter of choice, dependent on public policy. In some cases the starting point is fixed as the date of the execution of the bond. In other cases the starting point is the date fixed for payment. In some other cases it is the date of the first default. Each article has therefore to be interpreted according to the particular language employed in that article and ordinarily irrespective of somewhat similar language employed in other Articles. When we compare Col. 3 of Article 132 where the words are 'when the money sued for becomes due' or of Article 80, where the words are 'when the bond becomes payable' with the words in column 3 of Article 75, there is an obvious contrast. The starting point in the last mentioned article is 'when the default is made' and in case the oblige waives the benefit of the position from the date of the fresh default. It is neither the date when the right to sue accrues, nor the date when the cause of action arises, nor the date fixed for the payment of the bond nor even the date of the bond, but it is the date of the first default and, in the case of waiver, further default. It therefore seems to me that if Article 75 were applicable, we have no option but to hold that the starting point of limitation is the date of the first default or in case of waiver of its benefit, the next default no matter whether the creditor is given by a private contract an option to wait or not to wait. If the article applies, the starting point of limitation is fixed by column 3 irrespective of any private contract that the parties might have entered into. The important question however is whether Article 75 at all applies.

8. Now Article 74 is the article applicable to simple bonds payable by instalments, in which case time begins to run from the expiration of the term of payment. Article 75 applies to suits on a bond payable by instalments which provides that if default be made in payment of one or more instalments the whole shall be due. It is obviously intended to apply to the particular case of instalment bonds where there is a default clause of the nature afore-mentioned. If there were no such default clause, the earlier article would apply. The first point which has been urged before us by the learned Counsel for the applicant is that Article 75 can never apply to a case where it is not obligatory or compulsory on the creditor to accept that the whole amount has become due. In other words, it is contended that where there is an option given to the creditor either to sue immediately or to wait. Article 75 is inapplicable. Stress is laid on the use of the word 'shall' which, it is urged has an imperative significance. Now it has to be conceded that there is no authority in support of this contention. On the other hand, in all the cases which have been cited before us by learned Counsel on both sides Article 75 has been invariably applied although the bond contained a default clause with an option to the creditor to sue or to wait. In Ball v. Stowell (1879) 2 All. 322 the bond contained the stipulation that it would be optional with the obligee to claim and if necessary, to sue or the full amount of the bond for any one or more of the stipulated payments or on full expiry of the period of three years. But the default clause related to the payment of interest and not to the principal sum due. Article 75 was therefore not directly applicable. In Mumford v. Peal (1879) 2 All. 857 the bond provided that on failure of anyone or more of the instalments the whole amount would become payable and it gave authority to the creditor to recover the amount. Article 75 was applied though the suit was brought for the recovery of the unpaid balance of the loan. The learned Judges cited some cases and remarked that decisions without end to that effect could be found.

9. In the Maharajah of Benares v. Nand Ram (1907) 29 All. 431 the money secured by a bond was payable in instalments and there was a provision enabling the creditor on failure of the debtor, to pay any instalments on the appointed date, to sue for and recover the entire amount of instalments then remaining unpaid. This option was given to him in very express terms (harguna ikhtiyar hoga), i.e., it will be in his power to sue for the entire amount. The learned Judges remarked that the Article of the Limitation Act which was applicable to the case was clearly Article 75 and that the only question was whether the benefit of the provision had been waived by the creditor, The suit was actually brought for some of the instalments although the entire period fixed had not then expired, The learned Judges came to the conclusion that Article 75 provided for that case and that under that Article limitation started from the time when the first instalment became payable. They however held that in that case there had been a waiver by the plaintiff and on that ground the suit was not dismissed.

10. In Ajudhia v. Kunjal (1908) 30 All. 123 the bond contained a provision that in default of payment of any one instalment it will be within the power of the creditor (mahajan mazkur ko ikhtiyar hoga) to sue for the whole amount due under the bond without waiting for the expiry of the period of the instalment. The first Court had applied Article 75, Lim. Act, and held that the claim was barred the lower appellate Court came to the contrary conclusion. The learned Judges no doubt pointed out that that suit was not to enforce the penalty and to recover the whole amount left unpaid by the bond but was only for the instalment unpaid it the time of the suit. This view I shall consider separately. But they went on to hold that the bond gave the creditor an option to sue and that it would be to punish the creditor for forbearance shown to his debtor to compel him to prove his demands at the earliest opportunity.

11. In Chandan Singh v. Bidhya Dhar (1912) 15 I.C. 856 there was an instalment bond which provided that in case of default in payment of any instalment the whole amount of the bond should be paid at once. The learned Judge held that Article 75 applied ;o the case and a creditor cannot avoid the effect of the article by bringing a suit for instalments many years after the whole amount of the bond as become payable. The contention, that he should be allowed to sue under Article 74 for instalments (although that article was not specifically mentioned) was repelled and it was held that the claim was barred by time. It was further held that no waiver had been proved in that case within the meaning of Article 75. In Amolak Chand v. Baijnath (1913) 35 Al. 455 there was a bond payable by instalments which gave to the creditor the option of suing for the whole amount due on default of payment of any instalment or for suing for the instalment separately. Two instalments were paid and the third was not paid and more than six years after the first default the creditor sued to recover the amount remaining due stating that the cause of action had arisen on the date when the third instalment fell due. The Bench held that though the creditor was entitled to recover the whole amount at once or to sue for each instalment as it fell due, nevertheless Article 75, Limitation Act, distinctly applied and unless the payee waived his right based on the provision as to default his claim would be barred by time. The learned Judges then went en to hold that it was perfectly clear from the plaint itself that the plaintiff had not waived that right which entitled him to recover the whole of the balance. In particular, the Bench distinguished the previous case of Ajudhia v. Kunjal (1908) 30 All. 123 on the ground that there the suit had been brought to recover the last three of the instalments due on the bond and not the whole amount due by reason of a default in any instalment and that in that case it had been either proved or assumed that the plaintiffs had forborne to sue; in other words, that they had waived their right based on the special provision of the bond and were enforcing their right in respect of instalments that were due and had not been paid.

12. In Mohan Lal v. Tilea Ram A.I.R. 1918 All. 55 also there was a bond payable by instalments which provided that the creditor would have the power (ikhtiyar) to recover the whole amount in case of default. A learned Judge of this Court held that inasmuch as the suit was for recovery of the last three instalments and not the whole amount by reason of the default the principle laid down in Ajudhia's case applied and should be followed. The judgment does not indicate the exact article which was applied. In Kanhaiya v. Amrit : AIR1925All499 there was a bond payable in instalments which provided that in case of any default in the payment of an instalment, the obligor would pay the entire amount due on the bond irrespective of the instalments. The plaintiff did not sue to recover three of the instalments which, according to him were barred by time nor did he want to sue for the entire amount due, but he sued for three instalments which according to him fell due within three years of the institution of the suit. The case of Ajudhia v. Kunjal (1908) 30 All. 123 was distinguished and it was held that in that case on the terms of the bond the creditor was bound to sue for the whole amount immediately after the default occurred. The Article of the Limitation Act that was applied was Article 75 and then the learned Judge considered the question whether there had been waiver on the part of the plaintiff and holding that there had no such waiver dismissed the claim.

13. In Shyam Lal v. Jotia : AIR1926All142 there was an instalment bond under which, on the expiry of the term for payment of half of the sum with interest, the creditor had a right to recover that sum and had the option of recovering the entire sum after the expiry of the last term. It was held by me that on the occurence of the first default as only half the sum had become payable the whole amount had not become due under Article 75, Lim. Act, and therefore there was no bar of limitation. But Article 75 was held to be applicable to the claim after the whole amount had become due, even though there was a default clause in that deed with an option to the creditor. In Kaunsilla v. Dip Singh : AIR1929All812 there was an instalment bond which also gave an option to the creditor to recover the whole amount in case of default. A learned Judge of this Court, following the ruling in Amolah Ghand v. Baij Nath (1913) 35 All. 455 held that Article 75 was applicable and the opinion of the Court below that Article 80 was applicable was definitely overruled. There was however a finding that there had been a waiver and accordingly the claim for certain instalments was allowed. The case of Lalta Prasad v. Gajadhar Shukul : AIR1933All235 is distinguishable. It was not a case of an instalment bond but of payment of only interest by instalments. Article 75 therefore could not apply to it. Similarly the case of Muhammad Husain v. Sanaval Das : AIR1934All397 is not in point, for there the question was of the applicability of Article 181 to a compromise decree and the time when the right to apply accrued, and not by any article like Article 75. Apart from the authority of these numerous cases it seems to me that there is a clear distinction between an imperative word like shall' used in an enactment which directs something to be done and the same word when used in a private document. The expression in column 1 of Article 75 'the whole shall be due' refers to the provisions in the bond sued upon. To my mind it implies nothing more than a mere sense of futurity and Article 75 would snot be inapplicable merely because the bond goes on to provide further that the creditor would have an option to wait. The use of the word 'shall' in this article does not imply that it shall be obligatory on the creditor to sue for the whole amount without waiting for the fall term before Article 75 can apply.

14. At the same time, I must concede that the mere fact that a bond contains a default clause of that nature would not necessarily make Article 75 applicable if the mature of the claim or the character of the suit be different for instance, where some other covenant in the document is being sought to be enforced, I can conceive of other cases also where, although there is a bond with a default clause, the appropriate article applicable would be Article 74. Such an instance would be where the suit is brought for the recovery of the instalment that has fallen due and before there is such a default as makes the whole amount become due. In such a case, although the bond is a bond payable by instalments and there is a default clause, Article 74 would nevertheless be applicable. But I am clearly of opinion that where column 1 of Article 75 is in terms applicable, then Article 74 cannot be relied upon. If the whole sum has become due and the suit is to recover either the whole of that sum or any fraction of that amount, Article 75 would be applicable to that suit. If however the whole sum has not become due either on account of there having been no default at all or on account of some special language of the document, then Article 75 would not be applicable. If a case is directly covered by the language of column 1 of Article 75, namely, it is a case of a suit brought on a bond payable by instalments which bond provides that if default be made the whole shall be due and the suit is brought after the whole has become due then in my opinion there is no escape from Article 75. The creditor cannot, by merely saying that he chooses to give up a part of the whole amount due, fall back on the provisions of Article 74 and say that he will now claim only instalments and take advantage of a different starting point of limitation.

15. The main question is whether the amount had become due which entitled the plaintiff to sue for the whole amount. It is immaterial whether he is suing for the whole of that amount or only a part of it. Now, I do not think that their Lordships of the Privy Council in Lasa Din's case intended to lay down any general principle of law that no matter what the language employed in the document and no matter what the nature of the suit and the article of the Limitation Act, applicable, an option to the creditor would always arrest the running of limitation, and he can always claim a start for purposes of limitation from the date fixed for payment even though a different point of time has been prescribed in column 3 of the Article that is appropriate. I have already pointed out that cases of mortgages are entirely distinct and similar considerations do not arise in cases of ordinary bonds. It cannot be suggested for a moment that in the case of this bond the debtor had not the right to pay up the whole amount even before the expiry of the period of 21 months; his right to pay up was certainly in existence all the time. The first provision for payment of the amount in instalments was for the benefit of the mortgagor which prevented the creditor from suing for the amount before the expiry of that period. There was also a special provision put in for the benefit of the mortgagee to give him the right to recover the amount before the expiry of 21 months in case of two successive defaults. When two successive defaults took place the position was that the debtor who had always had the right was entitled to pay up the bond immediately and the creditor also acquired the right to sue for it at once. The second provision came automatically into effect. If he had sued for a part of the amount and then sued again for the balance, his claim would have been barred by Order 2, Rule 2 Civil P.C.

16. In this particular case the creditor went a step further. Even if he had the choice of either demanding the money forthwith or waiting for the full term, he preferred to demand the whole money and in that way exercised his option and made the choice of the two alternatives which were open to him. On 21st May 1928 he served a notice on the defendant to pay up the whole amount on the ground that a default had been made and the clause had come into operation. In my opinion time began to run against the creditor from the moment when the whole amount became due; and if he chose to wait till after the expiry of the period prescribed by Article 75, his remedy is barred and he cannot now turn round and say that he had made a wrong choice and would prefer to bring a suit for recovery of a few instalments only, unless of course he can establish waiver. As a matter of fact, in the present case this was not the position taken up by the creditor in his plaint. He insisted that there had been a default made and that in spite of repeated demands, both oral and written calling upon the defendants to pay the whole amount with interest they had failed to do so; but he tried to save the period of limitation by putting forward an oral agreement between himself and the defendants alleging that there was an arrangement under which the parties agreed that the debtors instead of paying the amount in instalments would pay the whole in a lump sum at the expiry of 21 months and he based his cause of action not on the successive dates of the instalments but on the date of the expiry of this period, on the ground that the defendants had failed to fulfil that contract. This part of the case has broken down because he failed to prove any such oral agreement.

17. The learned advocate for the applicant has urged before us that Article 75 should be applied to only such cases where it is absolutely necessary for the plaintiff to enforce the default clause and that where-the plaintiff need not enforce the default clause at all then even though in his plaint he seeks to enforce it that should be ignored and he should be given a decree for the instalments that are still within time. I must concede that in order to decide what article is applicable the nature of the suit and the relief claimed are important. At the same time one has to see what is in substance the nature of the claim, and if the language of a statutory enactment is imperative, the evasion of that law cannot be tolerated simply because the phraselogy of the plaint has been carefully selected.

18. The point for consideration is whether there is any good authority for holding; that even if the whole amount has become due on a bond payable in instalments with a default clause time has not begun to run against the creditor for part of that-amount. With the exception of the remark in Ajudhia's case (1908) 30 All. 123 quoted by me above there is no direct authority which would support such a contention. To hold that, although limitation has run out under Article 75 which applied to the facts of the case the creditor can still fall back on Article 74 would be tantamount to holding that the starting points of limitation for purposes of recovering one and the same amount are different when the claim is to recover the whole or when it is to recover a part of it.

19. To my mind, when there is an option either to sue for the whole or to wait and the creditor exercises the option the whole amount becomes due, and the question of a right to recover the instalments only does no longer arise. Cases where the whole amount has not become due, are, of course, different, but where there is no question that the whole amount has become due by reason of the exercise of the option of the creditor, I am of opinion that the creditor cannot fall back on the alternative right of recovering instalments only after their successive dates.

20. It seems to me that 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. He had the option of either claiming the whole amount or not claiming it. If he chooses to claim it, then the whole amount becomes immediately due, and once the whole amount has become due limitation begins to run against him even though he may not like it. Even in the case of a mortgagee, Lord Blanesburgh seems to have implied that the case might be different if the mortgagee were to do any act of election, cancellation or other form of response or acceptance.' I am therefore of opinion that the only question is whether the money had become due within the meaning of column 1 of Article 75. If it had been in fact become due then time began to run and the claim is now barred by time and it is no longer open to the creditor to fall back on Article 74.

21. I would guard myself against holding that in the case of every bond with a default clause the whole amount would necessarily become due. The answer would depend on the particular language of the document employed. But I would certainly hold that even if it be held that money does not become due immediately on the occurrence of a default, it would certainly become due if the creditor exercises his option by demanding the amount and by serving notice on the defendant to pay the whole sum. My learned brother, King, J., in the Full Bench case of Muhammad Husain v. Sanwal Das : AIR1934All397 remarked:

I take this (an option either to enforce the security at once or to stand by his investment for the full term) to mean that the mortgagee has an option of treating the money as having become due by demanding or suing for it, and that it does not become due unless he exercises his option even though the mortgagor may already have a right to redeem in accordance with the terms of the mortgage contract.

22. If Article 70 applies then there can be no question of the applicability of Article 74, which to my mind applies to cases of simple instalment bonds only. Nor can there be any question as to the date from which the period of limitation would begin to run. That date must be the date of the first default which makes the money become due and if waiver is proved, the date of a fresh default. The question what would constitute waiver need not be gone into in this case. Two views have been expressed. One is that waiver is used in the technical sense in which it is used when a defendant is allowed to set up the equitable defence of waiver. Another view is that the expression 'waives the benefit of the provision' is used in a more general sense and is capable of a liberal interpretation; and that a clear intention of the creditor making the choice and communicating that choice to the debtor would be enough even though there is no contract between the creditor and the debtor and no fresh consideration passes from the debtor to the creditor. I do not think it necessary to decide this question in this case because in my opinion there can be no question that the creditor has waived the benefit of the provision, when his conduct throughout has been contrary to any such assumption. He served a notice demanding payment of the whole amount on the basis of the default, and that notice, was repeated. In the plaint also be did not put forward the case that the money had not become due, but set up the case that there was an oral contract between the parties under which he had waived his benefit and therefore limitation was saved. This part of the case has not been established. I would therefore hold that in this case no waiver within the meaning of column 3 of Article 75 has been shown which would save the claim from being barred by limitation.

23. If Article 74 had applied I would have had no hesitation in holding that the plaintiff's claim for recovery of 11 instalments which were within 3 years of the suit should be decreed. Even under that Article the claim for the recovery of the previous instalments would be barred by time.

24. If neither Article 74 nor Article 75 applied but Article 80 applied, then the time would begin to run from the date when the money became payable. In the case of a simple money bond where the debtor has from the very start the right to pay up the whole amount and on the occurrence of a default the creditor also has the right to insist on the payment of the whole amount and does so insist, I would hold that the money becomes payable at that time within the meaning of Article 80. I would distinguish cases of simple bonds from mortgage deeds for which there is a different starting point. In the present case I would still hold that by serving the notice of demand on the defendant, the creditor exercised his option and made the amount become payable on that date. When once the amount became payable within the meaning of Article 80, limitation began to run, and it cannot be stopped merely because the creditor sues for a part of that amount and bases his claim on another Article which would have bean applicable if the amount had not become payable and limitation had not already run out. I would accordingly dismiss this application in revision.

Mukerji, J.

25. This is a revision under Section 25 of the Small Cause Courts Act and arises under the following circumstances : The plaintiff who is the applicant before us brought the suit out of which this revision has arisen for recovery of a certain sum of money, principal and interest, on foot of a bond which contains certain stipulations to be mentioned forthwith. The bond was executed on the 5th September 1927 and was in respect of certain arrears of rent. It said that the money due would be paid in course of one year and 9 months by instalments of Rs. 25 a month except the last one when the instalment was to be Rs. 40; that with each instalment the interest due on the total amount then due would be paid and that in case two instalments and the interest due and payable at the due dates of these instalments remain unpaid, the creditor would be entitled to recover the entire money without waiting for the stipulated period of one year and 9 months. In the concluding stipulation the debtors said that the creditor would thus be entitled either to sue within the stipulated period or after the expiry of that period. The plaintiff gave a notice on the 21st May 1928 to the defendants into intimating that they had made a default in payment of the instalments, and that they should, therefore, pay up the entire amount of the bond. No suit, however, was filed in accordance with that notice. After the expiry of 21st months on the 11th April 1930 a fresh notice was given, demanding the whole amount due. These proceedings have arisen out of the suit instituted on the 25th July 1931. In the plaint the plaintiff said that two sums of Rs. 10 each were paid, that the defendants had told him that they would not be able to pay the money by instalment as agreed upon, but would pay by instalment the entire amount within 1 year and 9 months the stipulated period, that the plaintiff had waived his right to sue for the entire sum under the penalty clause and that the defendants failed to pay the amount due and interest thereon. The defence was that the defendants never paid anything and the suit was time barred.

26. The learned Judge of the Small Cause Court found that, as a matter of fact no payments had been made and, as a matters of law, held that Article 75 of the Limitation Act governed the suit. He dismissed the suit as barred by time as in his opinion limitation started from the first default. We have heard in this Court the arguments for the parties at great length and, numerous oases have been cited before us. Most of the cases have been noticed by my Lord the Chief Justice in his judgments, and I do not propose to go over the same, ground again, I propose to examine the language of the Statute and see what it leads us to. To start with, I would like to mention that as a matter of principles, what is given to a man for his advantage should not be turned into his disadvantage. That is a matter of simple justice. I will give an example : A lends money to B and takes 5 properties as securities. One of the securities may be bad and to insist on a sale of that security for realisation of the money may involve the mortgagee into a litigation. It has been held, therefore, in this Court, that the mortgagee is entitled to give up any security which he considers to be had, at his sweet will, and to proceed to realize other securities. This as I have said above, is a matter of principle and if authority were needed for this proposition, some dicta of their Lordships of the Privy Council may be quoted. For exampla in the recent case of Lasa Din v. Gulab Kunwar , their Lordships of Privy Couucil remarked with reference to a suit on a mortgage that a contract which had been entered into for the benefit of the mortgagee could not be converted into a contract as if it were for the benefit of the mortgagor. Similar remarks would be found in an earlier decision of their Lordships of the Privy Council in Pancham v. Ansar Husain A.I.R. 1926 P.C. 85. Now let us read the bond on which the suit has been brought. Some money was owing to the plaintiff by the defendants. The defendants being in impecunious circumstances could not pay in a lump sum and the plaintiff agreed to take the sum in one year and 9 months and agreed to take it in driblets. This contract was, no doubt entirely in favour of the debtor. He could not be called upon to pay at once. He was allowed easy instalments and a period of 21 months. Having given the debtor such easy terms, the plaintiff was entitled to say that the debtor should carry out his promise to pay the instalments regularly and to ensure this, he stipulated with the debtor that in the case of default in payment of any two instalments, the whole amount would be payable to the creditor. This stipulation was entirely for the benefit of the creditor and was not for the benefit of the debtors. As I read the document, it can be split up into two portions. One of the stipulations is that the debtors would pay in monthly instalments of Rs. 25 and the whole amount in course of one year and 9 months and the second stipulation is that the whole amount would be payable by the debtors in a lump sum in case of default in 2 instalments.

27. Now if there are two convenants it must be left to the plaintiff to decide whether he would enforce one or the other or if possible, both. Let us consider at once what the plaintiff's case, is. Is he asking for the enforcement of the 'penalty clause' to use a short expression for the stipulation which entitles the creditor to sue, on default of payment of two instalments, or whether he is suing for his money with, out any attempt to enforce the penalty clause. I have already read the plaint. The plaintiff distinctly says that he gives up the benefit of the penalty clause but he has assigned some reason for that. His reason is that he was paid Rs. 20 and the defendants told him that the former could not pay the entire amount instalment by instalment. This allegation has no doubt been found to be not established. But the fact remains that the plaintiff distinctly says that he is not enforcing the penalty clause by the suit. The penalty clause could be usefully enforced only before the 5th June 1929, that is to say while any portion of the stipulated period of 21 months yet remained unexpired. After the expiry of 21 months the penalty clause spent itself and is of no use to the plaintiff because the other stipulation, namely, payment of the whole amount by instalments within 21 months holds good. The object of the penalty clause was to insure immediate payment but that object could not be served because of the lapse of time. It is argued on behalf of the defendants that Article 75 of the Limitation Act applied. I have to see whether this argument is sound. In the Limitation Act Schedule 1 is divided into three columns. The first column relates to the description of the suit to which the rule of limitation is to be applied. The second relates to the period of limitation and the third column states the date from which limitation is to be started. In Article 75 the description of the suit is as follows:

On a promissory note or bond payable by instalments, which provides that, if default be made in payment of one or more instalments, the whole shall be due.

28. Is this a description of the suit in which relief is being claimed for the recovery o the whole amount of the bond or is it merely a description of the bond on which the suit is based? In my opinion the description is not merely of the bond on which the suit is based but is also a description of the nature of the relief which is sought in the suit. A bond may be described briefly as a bond payable by instalments and yet the suit may not relate to enforcement of those instalments at all. Suppose A manufactures sugar. He lends money to the cultivators and the cultivators agree that in consideration of the money received by them they would supply sugar-cane juice to A. Now let us further take that B, who is one of the cultivators, falls into arrears in respect of the money received by him. B comes to A and agrees to pay the arrears by instalments and, further, that he would supply A with sugar-cane juice at Re. 1 per maund. B makes default in the supply of sugar-cane juice and A goes to market and purchases sugar-cane juice at the rate of Re. 1-2-0 per maund. A is entitled to recover, as damages, from B As. 0-2-0 per maund. Now if A brings a suit for damages will it be said that Article 75 applies because the suit is based on a bond payable by instalments which provides that if default be made in payment of one or more instalments, the whole shall be due I suppose nobody would argue that the suit for damages would be based on Article 75. If this be conceded, as it must be that mere description of the bond upon which the suit is based will not determine the period of limitation, regard must be had to the nature of the suit itself, that is to say to the reliefs asked for. In other words Article 75 would apply to a suit where the bond stipulates for the payment of the money by instalments and provides in case of default the whole shall be due and the suit is one where attempt is made to enforce this covenant.

29. If we are to hold otherwise, a position may occur which cannot be tolerated Let as again proceed by an example. B is indebted to A in the sum of Rs. 2,000. He agrees to pay Rs. 1,000 by instalments at the rate of Rs 100 a year and agrees that in case of default in payment of one instalment the whole shall be due; as regards the remaining Rs. 1,000 he agrees to repay she sum at the end of 5 years. The installments will run up to 10 years and the sum of Rupees 1,000 is to be paid in the course of 5 years. Now if the suit be for recovery if the Rs. 1,000 repayable at the end, of 5 years, nobody would say, because of the default in one instalment, that the sum of Rs. 1,000 also became payable, although An independent period of time has been fixed for its payment Again with the game illustration before us, let us consider this position. After the expiry of 4 years from the execution of the bond a brings a suit for recovery of Rs. 1,000 on the ground that there was default in the payment of the 1st instalment and the whole sum became payable. A pleads that the first instalment has not been paid. It is held that the first instalment has not been paid. The result would be that the suit would be dismissed as barred by time. Now A is entitled to recover the 10 instalments year by year. If A institutes, thereaftar, a suit for recovery of, say, the 8th, 9th and 10th instalments, will it be said that his suit is not maintainable? I suppose nobody would be bold enough to make an assertion like that. The reason is that the penalty clause to recover in a lump sum, the sum of Rs. 1,000 payable in 10 years could not be enforced on the ground of limitation. A has another stipulation in his favour, namely, payment of several instalments year by year. If he cannot enforce the penalty clause, surely there is nothing that would prevent him from enforcing the other stipulation in the bond.

30. In answer to this the argument is made that the law of limitation is arbitrary and that Article 75 applies. I do not think this is correct.

31. I am prepared to concede that to some extent the law of limitation must be arbitrary, but we have no right to assume that it is absolutely a mad law with no method in its madness, and the Legislature were out to take away all his rights from the creditor simply because he had one among them which could not be enforced. If we can read the rules as to limitation as consistent with our notions of justice, we ought to read them accordingly and should not read them as an invincible force compelling us to take away the other rights of the creditor.

32. Article. 74 deals with a suit for recovery of money on a bond payable by instalments and the period of limitation is the expiration of the respective term of each instalment. In the bond before us, 21 instalments are payable month by month and ordinarily therefore, Article 74 would apply. But we find over and above the stipulation as regards payment of the instalments month by month that the plaintiff took an additional covenant for his own benefit, namely, that he shall not wait for one year and 9 months, if the defendants did not abide by their part of the contract, namely, if they did not pay the instalments month by month as agreed upon. This additional covenant is for the benefit of the creditor. Now we have no reason to hold that the Limitation Act regards with disfavour an additional stipulation like this and lays down that where an additional stipulation like that of the 'penalty clause' is made, the period of limitation granted to the plaintiff under Article 74 will be taken away from him and that the period must be curtailed and the plaintiff must sue as soon as there is a default.

33. I suppose I have made myself clear but in order to make myself more clear I would take the risk of reiterating what I have already said above.

34. Under Article 74 the plaintiff-creditor is authorized to institute 21 suits each for one instalment and he could sue for the recovery of such of the 1 instalments as would be within three years of his suit. Now this is his primary I right. But he has taken an additional 1 covenant from the debtors and that is that if the debtors did not abide by their part of the contract, they would have to pay up sooner. This stipulation being in addition to the other stipulations unless we find that a man who takes this additional stipulation is to be punished for taking his additional covenant, we must hold that Article 75 applies only to penalty clause and nothing else.

35. A recent Full Bench of this Court in the case of Muhammad Hussain v. Sawal Das : AIR1934All397 had to consider an application for making a. personal decree under Order 84, Rule 6 made after the sale of the mortgaged property. The position was such as attracted the application of Article 80 of the Limitation Act. The limitation was to run from the date when the money became payable. It was argued before the Full Bench that although for the purposes of a suit the starting point for limitation would be the due date (Article 132), yet for the purposes of a suit for obtaining a personal decree the starting point for limitation may be different. I need not enter into all the points raised before the Pull Bench, but it seems to me to be clear that their Lordships applied the principle of the case on which the Privy Council decision of Lana Din v. Gulab Kunwar was based. There are certain observations in Full Bench decision which would limit the application of that principle to a mortgage and mortgage alone; but with all respect I would say that that principle should be applied not only to cases of mortgage but to all cases where a creditor has an option of saying when he would recall his money. Before the Full Bench decision was given a bench of this Court had the following case for its consideration. The question was whether a certain mortgage deed was for legal necessity or not. One of the items, which went to make up the entire amount of the mortgage money was a simple bond for Rs. 4,000 which was payable in four years. That simple bond contained a further stipulation that interest would be paid every six months and in case of non-payment of interest the whole sum must be paid by the debtor. It was argued before the bench that the date on which the mortgagee took credit for this bond, the bond was time-barred, inasmuch as limitation began to run when the first default was made in payment of the six-monthly interest. It was held by the learned Judges that the stipulation as to enforcement of the bond was given for the benefit of the creditor, that it was open to the creditor either to take advantage of the stipulation or not and, therefore, limitation would not begin to run before the expiry of the stipulated period of four years. I may add respectfully that I entirely agree with this view : see Lalta Prasad v. Gajadhar : AIR1933All235 .

36. I need hardly quote any authority for the proposition that where a bond gives two or more rights, the right to enforce one or more of the stipulations may be entirely different because the causes of action may arise on different dates and reliefs claimed may be entirely different. By way of illustration, I may mention the case of Ram Prasad Ram v. Jadunandan : AIR1934All534 by a bench of which two of the members of the present bench were members. There a compromise decree had been passed. The amount was payable by instalments and there was a stipulation that in case of default in payment of any instalment, the whole decratial amount might be realized at once. It was held that the right to enforcement in a lump sum was barred by time but that fact did not prevent the decree-holder from recovering such instalments as were within the period of limitation. I have quoted this case by way of illustration that the same document may contain various clauses and various stipulations, and from the mere fact that it happens to be an instalment bond, it does not follow that every stipulation must be brought within the purview of Article 75, Lim. Act.

37. On the remarks set forth above, I am of opinion that the suit should succeed in respect of 11 instalments which are within three years of the institution of the suit. Before I finish I may mention a case, Kanhai v. Amrit : AIR1925All499 . It was a case in which the only point urged before me was what was the meaning of the word 'waive' or 'waiver' as used in Article 75, column 3, of the Limitation Act. It was taken for granted that Article 75 applied. No mention was made of Article 74 or any other Article. That case is, therefore, no authority for any proposition which we have to consider in this case. Now the next question is the effect of the notice to pay up. That was given by the plaintiff to the defendant on 21st, May 1928. That notice clearly stated that there was a default in payment of the first two instalments and that the defendants must pay up in accordance with the penal clause. The notice had been given within 9 months of the execution of the bond and, therefore, there was ample time within which to enforce the penalty clause. It has been argued that the plaintiff, having decided to claim the entire amount on the ground of default, is now precluded from maintaining that his suit is not governed by Article 75. It is further urged that the whole amount became due within the meaning of Article 75 and, therefore, Article 75 must apply. In my opinion the argument is not sound. It was not a suit, as I read the plaint, for the enforcement of the penalty clause. I must take it that when notice was given, it was the intention of the plaintiff to enforce the penalty clause. But he never brought a suit to enforce the penalty clause and there is nothing in the law to prevent him from not enforcing the penalty clause, if he so chooses. The plaintiff is certainly entitled to say:

When I gave that notice, I did want to enforce the penalty clause, but for some reason, for example, owing to the poverty of the defendants, decided not to enforce that clause.

38. In my opinion the notice does not adversely affect the present suit which is based on a stipulation other than the penalty clause. In the result, I would allow this application in revision in part and decree the claim for recovery of 11 instalments with proportionate interest and proportionate costs in both Courts.

King, J.

39. The main question for consideration is whether Article 75, Lim. Act, is applicable to the facts of this case. The language of this Article seems prima facie to be applicable. The suit is 'on a bond payable by instalments. The bond also provides that if default be made in payment of one or more instalments, the whole shall be 3 no.

40. The terms of the bond are that the debtors shall pay the sum of Rs. 540 by 21 monthly instalments together with interest at Re. 1 per cent, per mensem, 20 instalments being at the rate of Rs. 25 each and the last instalment being Rs. 40. Then we come to the default clause which is important and may be quoted in full:

In case the fixed instalmentary amount, of interest thereof, is not paid for any two months, then in every case the said Lala Saheb, the creditor, will be authorized to realize the entire' amount of principal and interest together with costs in a lump sum either within the stipulated period or afterwards....

41. It is clear that in case of a default in the payment of 2 successive monthly instalments the creditor was entitled to sue at once for the recovery of the wholes amount together with interest. As the creditor was given authority to sue for the whole amount upon default being made in the payment of two successive instalments, it appears to me that this is equivalent to saying that if such default were made, then the whole amount should be 'due.' If the whole amount were not due, I fail to understand how the creditor could sue to recover it. The language of Article 75 seems, therefore, to apply precisely to the facts of this case. It was; found, and was indeed admitted, that default was made in the payment of the first two instalments. Prima facie, there fore, the creditor was entitled to sue for the whole amount on 5th November 19'27 when the second instalment was payable and I think it must be held that the -whole amount became 'due', within the meaning of Article 75 upon that same date, and that the period of limitation for a suit to recover the whole amount began, to run from that date.

42. It has been argued that the creditor was given an option of suing as soon as the default was made, or of waiting to sue until the expiry of the stipulated period, and that the whole amount did not. become due' until he had exercised his option. This argument is founded upon the ruling of their Lordships of the Privy Council in the case of Lasa Din v. Gulab Kunwar . That was a case where a mortgage-deed provided that the principal sum would be payable within a certain number of years, and the stipulated interest should be paid annually, and that in default of the payment of the annual interest the mortgagees would be empowered, before the expiry of the stipulated period, to realize the entire mortgage money and interest in a lump sum. Their Lordships pointed out that this clause in the mortgage-deed was inserted exclusively for the benefit of the mortgagees and that it gave them an option either to enforce their security at once, or if the security were ample to stand by their investment for the full term. They further observed that it could not have been the intention of the parties to convert a covenant inserted for the benefit of the mortgagee into one for the benefit of the mortgagor. If it were held that the mortgagor, by merely making default in payment of interest, could render the whole of the mortgage money 'due', then he would be entitled to redeem the mortgage and thus to take advantage of his own default. For these reasons their Lordships held that the mortgage money did not 'become due' within the meaning of Article 132, Lim. Act until the rights of the mortgagor to redeem and of the mortgagee to enforce his security have accrued. They further observed that this would also be the position if the mortgagee exercised the option reserved to him, that is, if the mortgagee chose to institute his suit for the whole mortgage money when default was made in the payment of the annual interest. It has been contended for the applicant that this principle should be extended to the interpretation of Article 75, Lim. Act. On the strength of this ruling it is argued that the whole of the money payable on the bond did not become 'due' unless and until the creditor chose to sue for it by taking advantage of the default clause. The argument is that as the creditor did not sue for the whole sum payable on the bond before the expiry of the stipulated period as he might have done in accordance with the default clause, therefore, the whole amount was not 'due' within the meaning of Article 75 until the expiry of the stipulated period. I am not prepared to accept this contention. It appears to me that the reasoning of their Lordships in Lasa Din's case applies only to the case of a mortgage. In the present case the creditor has no option to stand by his investment if the security is ample because there is no security at all. Moreover the debtor by making a default in the payment of the instalments does not obtain any benefit, such as a mortgagor might obtain by making default and thereby acquiring a right' to redeem. If the debtor in the present case makes a default, he renders himself liable to be sued at once for the whole of the money payable on the bond. He does not gain any benefit by his default as it was, I think, open to him to pay up the whole amount payable on the bond before the expiry of the stipulated period without making any default. The provision for paying the amount by instalments was inserted for the benefit or the debtor and not for the benefit of the creditor. The whole of the reasoning, therefore, in Lasa Din's case appears to me to be inapplicable to the facts of this case and I see no reason why the principle laid down in Lasa Din's case should be extended to suits which do not arise out of mortgages. It should also be noted that their Lordships themselves have been careful to indicate that their judgment must not be taken to apply to Article 75 which (as they stated) is 'in very special terms.'

43. I think, that too much has been made of the so-called 'option' given to the creditor in the present case. The only option given is to sue for the whole sum either within the stipulated period or after it. It appears to me that this practically amounts to no option at all. I think it only amounts to this, that the creditor was to be entitled to sue for the whole sum even within the stipulated period as soon as default was made in the payment of two successive monthly instalments. As the creditor was given bylaw a period of 3 years from the time when the default was made for instituting his suit, it would follow necessarily that he might institute his suit either within the stipulated period or afterwards. The stipulated period would expire long before the expiry of the period of 3 years allowed by law. It seems to me, therefore, that there was practically no option given to the creditor. If the parties had covenanted that, if default were made, then the creditor might sue to recover the whole amount only before the expiry of the stipulated period and not 'afterwards,' such a covenant would clearly have been void. Parties cannot by contract alter the statutory period of limitation. Nor can they alter the statutory starting point of limitation. When the statute lays down that in certain circumstances, time will begin to run from the date 'when the default is made' it is not open to the parties to agree that the creditor may simply ignore the default and, if he does so that will not begin to run until the expiry of the stipulated period. If the creditor waives the benefit of the default clause then in accordance with Article 75 time does not begin to run until a fresh default is made in respect of which there is no waiver. In this case the trial Court found that there was no waiver and this revision has been argued upon the assumption that the finding is correct. As there was no waiver I think it is clear that time began to run from the date when the default was made. I do not think that the parties even meant the words 'or afterwards' to give the creditor a fresh starting point for limitation upon the expiry of the stipulated period, but if such an agreement is read into the bond then the agreement is clearly void as being contrary to the law of limitation.

44. It has been suggested that Article 75 applies only to the case of a suit which is for the purpose of enforcing the default clause, and therefore Article 75 is not applicable to the present case which is not for the purpose of enforcing the default clause before the expiry of the stipulated period but for recovery of the whole amount due upon the bond after the expiry of the stipulated period. I very much doubt whether this interpretation of Article 75 is correct. It seems to me that the language of the Article governs the case of a suit for any money due upon an instalment bond as soon as default is made in the payment of two successive instalments, when the bond provides that if default is made in the payment of two successive instalments, the whole shall be due or the whole shall be recover, able by suit. In the present case it seems to me that the provisions of Article 75 are precisely applicable. If the creditor has a right to sue for the whole of the amount payable under the bond upon the occasion of a default made by the debtor, then it seems to me that limitation for a suit upon the bond begins to run against him as soon as the default is made. The suggested interpretation of Article 75 involves the view that although the instalment bond contains a default clause which entitled the creditor to sue for the whole amount as soon as the default was made, nevertheless it is open to the creditor to ignore the default clause and to treat the bond as if its were a simple instalment bond governed by Article 74. With all due respect I am unable to accept the suggestion as it seems to me that it conflicts with the provisions of Article 75. If Article 75 applies to the facts of this case as I think it clearly does then we are bound to give effect to it even though it may result in hardship to the creditor.

45. There is another aspect of the question of exercising an option. If it be assumed for the sake of argument that the money did not become due until the creditor exercised his option (in the sense in which that expression is used in Lasa Din's case even so I think the creditor must be held to have exercised his option by making a written demand on the 21st May 1928 for the whole of the money due on the bond. I do not think it could be held necessary for the exercise of his option that the creditor should actually institute a suit for the amount. If the creditor makes a formal written demand for the whole amount, threatening to institute a suit for recovering it if it is not paid within a stated time, then it seems to me that the creditor has clearly signified his intention and thus has exercised his option. This point is not of much importance in the view that I take of the case. I think that Article 75 is clearly applicable. This means that limitation began to run from the time when the default was made unless the creditor is proved to have waived the benefit of the default clause. No waiver is proved. I therefore find it impossible to resist the conclusion that the suit is barred by limitation as it was instituted more than three years after the date of the default. No other conclusion seems possible if the words of the statute are given their plain and ordinary meaning. In my opinion the decision of the trial Court is correct.


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