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Sethu Vs. Nayana and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai
Decided On
Judge
Reported in(1883)ILR7Mad577
AppellantSethu
RespondentNayana and ors.
Excerpt:
limitation act, schedule ii, article 75 - waiver--proof--abstention from suit. - charles a. turner, kt., c.j.1. the limitation act declares that, where an instrument is payable in instalments accompanied by the condition that in default of payment of one the whole shall be due, a suit on the instrument must be brought within three years from the date of the first default, unless when the payee waives the benefit of the provision, and then from the date when fresh default is made.2. this provision applies to all suits on the bond, whether for the recovery of a part or the whole sum due.3. if default has been made and a right to sue for the debt in full has accrued beyond the period of limitation, the creditor must prove a waiver, and to prove waiver it is not sufficient to show a mere abstinence from suit. the appeal fails and is dismissed with costs.
Judgment:

Charles A. Turner, Kt., C.J.

1. The Limitation Act declares that, where an instrument is payable in instalments accompanied by the condition that in default of payment of one the whole shall be due, a suit on the instrument must be brought within three years from the date of the first default, unless when the payee waives the benefit of the provision, and then from the date when fresh default is made.

2. This provision applies to all suits on the bond, whether for the recovery of a part or the whole sum due.

3. If default has been made and a right to sue for the debt in full has accrued beyond the period of limitation, the creditor must prove a waiver, and to prove waiver it is not sufficient to show a mere abstinence from suit. The appeal fails and is dismissed with costs.


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