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Babu Ram Vs. Jodha Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.690
AppellantBabu Ram
RespondentJodha Singh and ors.
Excerpt:
limitation act (ix of 1908), schedule i, articles 75 and 116 - instalment bond registered--default--waiver. - - the article applicable is article 116 of the limitation act, which has to be read in the present instance with article 75. article 75 distinctly states that where a bond is payable by instalments, which provides that, if default is made in payment of one or more instalment, the whole shall become due, then the period of limitation shall begin to run when the default is made unless the payee waives the benefit of the provision, and then, when a fresh default is made, in respect of which there is no such waiver......200 plus interest at 12 per cent. per annum on a bond of the 3rd of october 1903. the bond was an instalment bond and the money was payable in four equal instalments of rs. 50 each without interest on the four following dates: 29th of april 1904, 13th of may 1905, 8th of may 1906 and 27th of may 1907. there is a condition in the bond that if any instalment is not paid on the date, then it was open to the plaintiff to put on one side the condition of payment by instalments and to recover the whole of the money with interest at 12 per cent. per annum within the period fixed by the bond or the period fixed by the law. the defence to the suit was that the bond was without consideration, and secondly, that the suit was barred by time. the court below has dismissed the suit holding that it is.....
Judgment:

Tudball, J.

1. This application arises out of a suit brought by the plaintiff-applicant in the Court of Small Causes at Cawnpore to recover a principal sum of Rs. 200 plus interest at 12 per cent. per annum on a bond of the 3rd of October 1903. The bond was an instalment bond and the money was payable in four equal instalments of Rs. 50 each without interest on the four following dates: 29th of April 1904, 13th of May 1905, 8th of May 1906 and 27th of May 1907. There is a condition in the bond that if any instalment is not paid on the date, then it was open to the plaintiff to put on one side the condition of payment by instalments and to recover the whole of the money with interest at 12 per cent. per annum within the period fixed by the bond or the period fixed by the law. The defence to the suit was that the bond was without consideration, and secondly, that the suit was barred by time. The Court below has dismissed the suit holding that it is barred by time. The Article applicable is Article 116 of the Limitation Act, which has to be read in the present instance with Article 75. Article 75 distinctly states that where a bond is payable by instalments, which provides that, if default is made in payment of one or more instalment, the whole shall become due, then the period of limitation shall begin to run when the default is made unless the payee waives the benefit of the provision, and then, when a fresh default is made, in respect of which there is no such waiver. It is, therefore, clear that unless there was a waiver, the plaintiff was bound to bring his suit within six years of the date of the first default, namely, on the 29th of April 1904. Under the terms of the bond, it was open to the plaintiff to waive his right and to recover the money simply by instalments. My attention has been called to several rulings of this Court, but it seems to me that there is no conflict of opinion. The question is whether there was a waiver when one or more of the instalments became due. In the present case, no waiver was alleged and the only possible evidence of waiver is the bare fact that the plaintiff waited so long before he brought the suit, i.e., so long after the last instalment fell due. There being no allegation of waiver in the plaint, the question of waiver seems to have been overlooked by the parties in the Court below. The plaintiff did not go into the witness box and no fact is alleged in the plaint from which a waiver may be implied. There is only the fact that the present suit was not brought till the 21st of May 1911. I find it impossible to hold that there is any real indication of waiver in the case and in the absence of waiver, the plaintiff ought to have brought his suit within six years of the 29th of April 1904. The suit is, therefore, barred by time and it was rightly dismissed by the Court below. The application is rejected with costs.


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