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Chandan Singh Vs. Bidhya Dhar and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.856
AppellantChandan Singh
RespondentBidhya Dhar and anr.
Cases ReferredRadha Bai v. Kamod Singh
Excerpt:
limitation act (ix of 1908), schedule i, article 75 - instalment-bond--default of payment--waiver--limitation. - .....in this court, it was suggested that the institution of the present suit was a waiver of the benefit of the provision in the bond. i cannot accept this contention, for when this suit was instituted, the whole amount of the bond had been due for over ten years. a creditor cannot avoid the effect of article 75 by bringing a suit for instalments many years after the whole amount of the bond has become payable. in my opinion, the court below was right in holding that this suit was barred by limitation. the case appears to be covered by the decision of this court in radha bai v. kamod singh 30 a. 38 : a.w.n. (1907), 276 : 4 a.l.j. 696. this application is dismissed with costs.
Judgment:

Chamier, J.

1. This was a suit by the applicant on an instalment-bond, dated October 28th, 1895, for the recovery of instalments said to be due for the Sambat years 1965, 1966, 1967 and 1968. The applicant alleged that the instalments had been regularly paid from the date of the bond up to and including 1964 Sambat, that is to say, from 1952 to 1964 Sambat. It has been found, however, by the Court below that no instalments have ever been paid. The question is whether the suit is barred by limitation. The Court below has held that it is barred relying on the decisions in Radha Bai v. Kamod Singh 30 A. 38 : A.W.N. (1907), 276 : 4 A.L.J. 69630 A. 38 : A.W.N. (1907), 276 : 4 A.L.J. 696 and Jadab Chandra Bakshi v. Bhairab Chandar Chuckerbutty 31 C. 297. On behalf of the applicant, it is contended that the case is not governed by the decision of this Court just mentioned, and that the decision of the Calcutta High Court is inconsistent with the decision of this Court in Ajudhiya v. Kunjal 30 A. 123 : A.W.N. (1908) 36 : 5 A.L.J. 72. In the last mentioned case, a bond payable by instalments contained a provision that in default of payment of any one instalment, it would be in the power of the creditors to sue for the whole amount due under the bond (Mahajan mazkur ko akhtiyar ho ga). It was held that this provision did not mean that the creditor was bound to sue for the whole in case of default of one instalment and that he was at liberty, notwithstanding that provision, to sue for the instalments as they fell due. The bond in the present case provides that in case of default in payment of any instalment, the debtor will pay the whole amount of bond at once. In the course of the judgment in the case last mentioned, Knox and Aikman, JJ., observed: 'It is conceivable that a bond might be so worded as to compel a creditor to sue for the whole amount immediately if any default occurred. The bond with which we have to deal is not so worded.' The decision appears to me to amount to this; that Article 75 of the first Schedule to the Limitation Act does not apply to a case where only an option is left to the creditor to sue for the whole amount of the bond. The Calcutta High Court, in the case above-mentioned, has held that Article 75 does apply even where the creditor is not bound to sue for the whole amount of the bond but is entitled to do so if he pleases. The bond in the present case appears to me to fall within Article 75, for it provides that if default be made in payment of any instalment, the whole amount of the bond shall be paid. It does not merely give the creditor an option to sue.' It seems to me that when a bond is found to fall within Article 75, that Article must be applied subject, of course, to the provision as to waiver in the third column of the Schedule. In the Court below, it was not suggested that there had been any waiver in this case. In this Court, it was suggested that the institution of the present suit was a waiver of the benefit of the provision in the bond. I cannot accept this contention, for when this suit was instituted, the whole amount of the bond had been due for over ten years. A creditor cannot avoid the effect of Article 75 by bringing a suit for instalments many years after the whole amount of the bond has become payable. In my opinion, the Court below was right in holding that this suit was barred by limitation. The case appears to be covered by the decision of this Court in Radha Bai v. Kamod Singh 30 A. 38 : A.W.N. (1907), 276 : 4 A.L.J. 696. This application is dismissed with costs.


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