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Nathi and anr. Vs. Trusi and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.886
AppellantNathi and anr.
RespondentTrusi and anr.
Excerpt:
limitation act (ix of 1908), schedule i, article 132 - hand, fixing period for re-payment--lender, right of, to sue on occurrence of default--default--money, when becomes due--limitation, terminus a quo. - - in our view, therefore, the money became due when this default was made and the decision of the court below was clearly right......period is provided for re-payment if the borrower re pays regnlaily according to the terms of the bond. in our view it is impossible to hold, whether you call it an option or not, that a creditor lira a right to sue, and yet that the money is not due. it is merely c question of contract. the borrower has agreed that the creditor shall have the right to sue for the whole of the principal and interest 'become due.' turning to article 132 of the limitation act which is the only provision which applies, it is provided that the statute shall run from the date when 'the money becomes due.' the statute, therefore, in our view must run from the date of the first default. the liability to pay, or in other words, the test of whether money becomes due or not, is the obligation which the borrower.....
Judgment:

1. We have come to the conclusion that we might not to admit this appect on the point of law upon which it is sought to argue it. In our view the law is settled in this Court and ought not to be disturbed, Independently of any decided cases, the law is as clear and simple as it can be. The terms of the bond may be compendiously stated as providing that if the borrower makes default in the payment of any instalment of interest the lender can sue for the whole amount, although a period is provided for re-payment if the borrower re pays regnlaily according to the terms of the bond. In our view it is impossible to hold, whether you call it an option or not, that a creditor lira a right to sue, and yet that the money is not due. It is merely c question of contract. The borrower has agreed that the creditor shall have the right to sue for the whole of the principal and interest 'become due.' Turning to Article 132 of the Limitation Act which is the only provision which applies, it is provided that the Statute shall run from the date when 'the money becomes due.' The Statute, therefore, in our view must run from the date of the first default. The liability to pay, or in other words, the test of whether money becomes due or not, is the obligation which the borrower has taken upon himself by his signature to the written document. It cannot depend on the volition of the creditor. The volition of the creditor merely decides the remedy which he chooses, to seek. In our view, therefore, the money became due when this default was made and the decision of the Court below was clearly right. We are unable to follow Mata Tahal v. Bhagwan Singh 63 Ind. Cas. 477 : 19 A.L.J. 406. No mortgagee is 'bound to sue,' This case is quite in-distinguishable from the decision of the Full Bench in this Court in Gaya Din v. Jhurnan Lal 28 Ind. Cas. 910 : 37 A. 400 : 13 A.L.J. 510, and in our view we are also bound to follow that authority. The appeal must be dismissed.


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