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Maruthappa Maistriar and ors. Vs. Soosai Anthonimuthu Mudaliar and ors. - Court Judgment

LegalCrystal Citation
Subject limitation; civil
CourtChennai
Decided On
Reported inAIR1944Mad172
AppellantMaruthappa Maistriar and ors.
RespondentSoosai Anthonimuthu Mudaliar and ors.
Cases ReferredLasa Din v. Gulab Kunwar
Excerpt:
- .....could have filed the suit if no default had occurred. even where a notice has been issued by the creditor demanding the entire amount which would be putting into force the clause inserted in the document for his benefit, the question would still arise whether, when later on payments have been made in respect of those instalments the non-payment of which gave rise to the default and accepted by the creditor, the courts ought not to infer a waiver.2. it is argued by mr. ramchandra rao, the learned advocate for the appellants, that there is no question of waiver once the creditor makes a demand for the entire amount, but this position is not quite clear. if after a default occurred, the creditor makes a demand for the entire amount and the debtor immediately approaches the creditor and.....
Judgment:

Somayya, J.

1. The suit is upon a mortgage. The only question in this second appeal is whether the suit is barred by limitation. The mortgage was one directing the payment of the amount in instalments. On the point whether the right to sue for the whole amount accrued on the date of the first default there is no room for controversy. It has been decided by the Judicial Committee in Lasa Din v. Gulab Kunwar .that where the wording of the document is as in this case one giving an option to the mortgagee to insist upon the whole amount being paid in case of the default mentioned in the document, time does not begin to run immediately' on the default and that the mortgagee can waive the benefit which is reserved for him under the document. This position is not controverted but the appellant seeks to file a notice said to have been issued by the uncle of respondents 1 and 2 in which it is stated that there was a demand for the entire amount soon after the first default occurred. This notice is said to have been issued on 12th January 1925 by registered post. The argument is that the creditor exercised his option of insisting upon the payment of the entire amount and that under those circumstances the decision of the Judicial Committee in Lasa Din v. Gulab Kunwar above referred to does not apply. But this is a case in which admittedly after the notice of 12th January 1925, assuming it to be true, there have been payments made for the instalments prior to and after that date and accepted as such by the creditor. In a case where the facts are not complicated by the demand upon the creditor for the entire amount, the authorities are clear that the provision in the document is to the benefit of the mortgagee who may either enforce it or may not. In the latter case he may sue within the time within which he could have filed the suit if no default had occurred. Even where a notice has been issued by the creditor demanding the entire amount which would be putting into force the clause inserted in the document for his benefit, the question would still arise whether, when later on payments have been made in respect of those instalments the non-payment of which gave rise to the default and accepted by the creditor, the Courts ought not to infer a waiver.

2. It is argued by Mr. Ramchandra Rao, the learned advocate for the appellants, that there is no question of waiver once the creditor makes a demand for the entire amount, but this position is not quite clear. If after a default occurred, the creditor makes a demand for the entire amount and the debtor immediately approaches the creditor and offers payment of the overdue instalments and requests him to receive the further amounts in instalments as provided in the document and the creditor consents, it seems to me that in such a case limitation does not begin to run against the creditor. That is, after the demand by the creditor for payment of the full amount both parties agree that the creditor should accept payment of the overdue instalments and also receive the further instalments according to the terms of the bond, it appears to me that this arrangement would restore the old state of things and that thereafter the creditor on the one side cannot take advantage of the default and ask for the entire amount and that on the other side limitation does not run as against the creditor by virtue of the default which had been condoned by consent of parties. It appears to me therefore that even if I admit this new document in second appeal the result will be the same and I accordingly decline to allow C. M. P. No. 484 of 1943 and dismiss the same. In the result the second appeal fails and is dismissed with costs of respondents 1 and 2. Leave to appeal is refused.


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