S.N. Modi, J.
1. This is a second appeal by the plaintiffs against the appellate judgment of the Senior Civil Judge No. 2, Gangapur City, dated April 28, 1967, affirming the decree passed by the Munsiff, Karauli, dismissing the suit as time-barred.
2. The relevant facts giving rise to this appeal are that the plaintiff-appellants brought the suit for the recovery of Rs. 1,100/- as principal, and Rs. 484/-by way of interest, totalling to Rs. 1,584/- on March 28, 1962 on the basis of a 'khata' dated Asoj sud 6, Samwat year 2015, corresponding to October 18, 1958, which is marked as Ex. 1. It was averred in the plaint that the defendants borrowed Rs. 3,000,/- from the plaintiffs on October 18, 1958 with stipulation to repay the amount in 30 monthly instalments of Rs. 100/- each, and in default, it was agreed, that the amount shall be payable with interest at the rate of 24 per cent per annum in one lump sum. It was further averred by the plaintiffs that the defendants repaid on different dates Rs. 1,900/-towards the amount due to the plaintiffs and the plaintiffs waived their right to enforce the default clause mentioned in the 'khata' and accepted 19 instalments of Rs. 100/- each paid by the defendants up to Baisakh sud 6, Samwat year 2017. Since the defendants committed default in payment of remaining 11 instalments and they did not pay the amount due to the plaintiffs despite notice, the plaintiffs brought the suit for Rs. 1,584/- as stated above. The defendant Ram Bilas did not put in his appearance and ex parte proceedings were taken against him. The suit was contested by defendant Mangoo who denied having executed 'khata' Ex. 1 in favour of the plaintiffs. He also denied receipt of consideration. He also denied that the plaintiffs waived the default clause arising under 'khata' Ex. 1. According to him, the suit was barred by time. On the pleadings of the parties, the following issues were framed,--
(1) Whether the defendants on 18-10-58 took a loan of Rs. 3,000/- in cash and executed 'Rukka' in favour of the plaintiffs?
(2) Whether the plaintiffs got signatures on 'Rukka' of defendant No. 1 by telling him that defendant No. 2 has taken a loan and he should sign it as an attesting witness and as such defendant No. 1 is not liable?
(3) Whether non-payment of instalment of Magh Samwat 2015 gave rise to cause of action on the same day to the plaintiffs to realise the amount in lump sum. and, thus, the suit is time barred?
(4) Relief? The trial court held that the 'khata'
Ex. 1 was executed for consideration by both the defendants in favour of the plaintiffs. It accordingly decided issues Nos. 1 and 2 in favour of the plaintiffs. As regards issue No. 3, it found that since the instalments which became due in the months of Magh sud 6, and Falgun sud 6, Samwat 2015, were not paid on due dates, the whole amount became payable on Magh sud 7, Samwat 2015, corresponding to February 13, 1359. It was further held that since the suit was brought on March 28, 1962 after the expiry of three years from February 13, 1959, it was barred by time. On appeal by the plaintiffs, the lower appellate court affirmed the findings recorded by the trial court on issues Nos. 1 and 2. The findings of these issues have not been challenged before me.
3. Dealing with issue No. 3, the lower appellate court observed as under:
'According to the agreement instalment fell due of every month on sixth Sudi. Looking to the credit side, I find that there was a default when Rs. 100/-and Rs. 100/- were paid on Agahan Sudi 8 and Posh Sudi 7 respectively Similarly Rs. 200/- were paid on Phagun Sudi 13 A heavy burden laid on the shoulder of the plaintiff to show that he waived his right, but, unfortunately from the entries of credit side it cannot be said with certainty that the acceptance of instalment by delay relates to instalment of which month. Only acceptance of money with interest cannot be treated as a waiver of the right. Plaintiff was bound to prove something else that at the instance of the defendant he waived the right of forfeiture. The notice Ex. 1 in which plaintiff claimed remaining amount of Rs. 1,100/- and interest Rs. 1,000/- completely, shatters the case of the plaintiff that they waived their right of forfeiture clause when instalments were not paid in time. The claiming of interest Rs. 1,000/- which could only be figured out when the interest is claimed at Rs. 2% per month on the amount from date of defaults. Under these circumstances I am not prepared to agree with the learned counsel of the appellant that plaintiffs waived their right of forfeiture clause when instalments were fell due. In my opinion cause of action to claim the whole amount accrued to plaintiff on Agahan Sudi 6 St. 2015 when instalment was not paid in time. The learned Munsiff has dealt this point very elaborately and I am satisfied that he has come to a correct decision in not holding waiver proved.'
The learned lower appellate court, accordingly, dismissed the appeal. Dissatisfied with the said judgment and decree, the plaintiffs have preferred this second appeal.
4. The only point involved in this appeal is whether the suit is within time. It is common ground between the parties that the defendants were to repay the loan of Rs. 3,000/- in 30 monthly instalments of Rs. 100/- each instalment falling due on Sudi 6 of every month. The first instalment fell due on Kartik Sudi 6, 2015. It is further not in dispute that the defendants paid instalments on the following dates,--
SerialNo.AmountDate1.Rs.100/-Kartik sudi 2wat yearSam-20152.Rs.100/-Agahan Sudi 8'3.Rs.100/-Posh sudi 7'4.Rs.200/-Falgun sudi 13'5.Rs.100/-Baisakh sudi 620166.Rs.100/-Jeth sudi 6'7.Rs.100/-Jeth sudi 14'8.Rs.100/-Asadh sudi 12'9.Rs.100/-Asoj sudi 1'10.Hs.100/-Kartik sudi 13'11.Rs.100/-Agahan sudi 6'12.Rs.100/-Agahan sudi 7'13.Rs.100/-Magh sudi 2'14.Rs.100/-Chet sudi 4'15.Rs.200/-Chet sudi 2201716.Rs.100/-Jeth sudi 6201717.Rs.100/-Bhadon sudi 52017TotalRs.1.900/-
It is also not in dispute that besides other defaults, the defendants committed defaults in payment of 2nd, 3rd, 4th and 5th instalments, which fell due on Agahan sudi 6, Samvat year 2015, Posh sudi 6, Samwat year 2015, Magh sudi 6, Samwat year 2015, and Falgun sudi 6, Samwat year 2015 respectively. Again, it is not in dispute that if it is proved that the plaintiffs exercised their right of waiver in respect of the aforesaid four defaults, the suit is within time.
5. In view of the above admitted facts, the question that arises for consideration is whether the plaintiffs waived the default clause in respect of the aforesaid four defaults committed by the defendants It is contended that the payments made by the defendants of the 2nd, 3rd, 4th and 5th instalments speak for themselves that the plaintiffs waived the default clause. Elaborating his argument, the learned counsel for the plaintiff-appellants contended that the second instalment fell due on Agahan sudi 6, Samwat 2015, and the plaintiffs accepted its payment 2 days after on Agahan sudi 8, Samwat 2015. Again, the third instalment fell due on Posh sudi 6. Samwat 2015 and the plaintiffs accepted its payment on Posh sudi 7, Samwat 2015 i.e., one day after the due date. Similarly, 4th and 5th instalments fell due on Magh sudi 6, Samwat 2015 and Falgun sudi 6, Samwat 2015 respectively and the plaintiffs accepted their payments on Falgun sudi 13, Samwat 2015, i.e., after one month and seven days in case of due date of the 4th instalment and after seven days in case of due date of the 5th instalment The above facts, it is alleged, leave no room for any doubt that the plaintiffs waived their right in respect of all these four defaults committed by the defendants. In my opinion, the above contention is well founded.
6. The suit was instituted on March 28, 1962 and it was governed by the Limitation Act, 1908. It is also not in dispute that the Article which applied to the suit was Article 75, which reads as under,--
'75.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.
Three yearsWhen the default is made, unless where the payee or obligee waives the benefit of the provision, and, then when fresh default is made in respect of which there is no such 'waiver,'
This Article lays down that if the promissory note or bond payable by instalments provides that if default be made in payment of one or more instalments, the whole shall be due, then three years will be computed from the date when the default is made unless the payee or the obligee waives the benefit of the provision. Column 3 of Article 75 provides that the starting point of limitation, in the first instance, is the date of the default, but the starting point can be carried forward if the default is waived. In other words, if the payee waives the benefit accrued from the default clause, then in that case, the period would run from the date when fresh default, which has not been waived, is made. In the present case, the payments made by the defendants, which are incorporated in the 'khata' Ex. 1, clearly reveal that each payment made by the defendants was towards a particular instalment, whose amount had become, due. The default in payment of second instalment occurred on Agahan sudi 6, Samwat 2015, but its payment was accepted by the plaintiffs on Agahan Sudi 8, 2015. This payment cannot be in respect of any other instalment except the second instalment, inasmuch as the third instalment had not, by that time, become due. It, therefore, follows that the payment accepted by the plaintiffs on Agahan sudi 8, Samwat 2015, was in respect of the second instalment, which fell due on Falgun sudi 6, Samwat 2015. So is the case in respect of third, fourth and fifth instalments. Acceptance of the payment by the plaintiffs in respect of the said instalments, goes to show that the plaintiffs waived the benefit arising from the aforesaid defaults. If the payment by the debtor is made, specifically towards the satisfaction of a particular defaulted instalment, then such payment and its acceptance by the creditor amounts to a waiver of that default. I am supported in my view by a Division Bench decision of this Court in Shivdayal v. Ramrikh, AIR 1955 Raj 188. To the same effect is the Full Bench decision in Gokhul Mahton v. Sheoprasad Lal, AIR 1939 Pat 433 (FB). The relevant portion of the headnote (d) runs as follows,--
'Where the promisee has accepted an overdue instalment it must be held that he has waived his rights which accrued to him on that default and that the starting point of limitation would be from the next default if not waived .........'
7. The lower appellate court has relied upon the following passage contained in Raghunathdas Madangopal Bhangade Shop v. Warlu Bapu Maral AIR 1948 Nag 225:--
'On the aforesaid discussion and authorities the following points can be taken to be well-established.
(a) That the exigibility clause in an instalment is for the benefit of the creditor and he has a right to waive that benefit even in the absence of a fresh agreement, a fresh consideration or a fresh bilateral arrangement.
(b) That a mere inaction on the part of the creditor such as an abstinence to sue or a mere receipt of payment does not amount to a waiver. What is required is some overt act on the part of the creditor, communicated to the debtor, by which a Court of fact can conclude that the creditor has waived the benefit.
(c) The payment by the debtor and the acceptance by the creditor specifically made towards the satisfaction of a particular defaulted instalment would amount to a waiver of that default and of the benefit arising out of that default.
(d) A waiver is a mixed question of law and fact. It has to be properly pleaded and proved. A choice left to the creditor, in the default clause itself is inconsequential.
(e) In the absence of proof of waiver, the creditor cannot fall back on the primary terms of the bond regarding repayment and claim to recover on that basis instalments which are still within limitation.'
Now, keeping those principles in view, the case in hand squarely falls within the purview of Clause (c).
8. The lower appellate court has observed that the plaintiffs did not waive the default clause as they claimed Rupees 1,000/- as interest at the rate of 24 per cent. per annum. The plaintiffs claimed the amount of Rs. 1,000/- as interest on the unpaid instalments. Now, simply because the plaintiffs claimed interest at the rate of 24 per cent. per annum, it cannot be said that they did not exercise their right of waiver in respect of the defaults committed by the defendants in payment of instalments. The learned counsel for the respondents laid considerable stress on the default in payment of fourth and fifth instalments which fell due on Magh sudi 6, Samwat 2015 and Falgun sudi 6, Samwat 2015. Both these instalments were admittedly paid by the defendants on Falgun sudi 13, Samwat 2015. It may be mentioned that on Falgun sudi 13, Samwat 2015, the sixth instalment had not become due and therefore it is reasonable to presume that the sum of Rs. 200/- was paid in satisfaction of the fourth and fifth instalments which fell due on Magh sudi 6 and Falgun sudi 6 of Samwat 2015. Apart from that, it appears that the defendants not only paid Rs. 200/- on Falgun sudi 13, Samwat 2015, but they also paid Re. 1/- more as interest, because there was delay of one month in payment of 4th instalment, which fell due on Magh sudi 6, Samwat 2015. The acceptance of interest by the plaintiffs clearly shows that they waived the default clause.
9. For the reasons stated above, I allow the appeal, set aside the decrees passed by the courts below dismissing the suit as time barred and pass a decree in favour of the plaintiffs and against the defendants for a sum of Rs. 1,584/-. The plaintiffs shall get interest from the date of the suit till the date of realisation at the rate of 6 per cent. per annum on the principal sum of Rs. 1,100/-. Having regard to the circumstances of the case, the parties are left to bear their own costs throughout.
Leave to appeal to a Division Bench prayed for by the learned counsel for the respondents is refused.