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E. Karunakaran Nair Vs. M. Krishna Menon and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1913)ILR36Mad66
AppellantE. Karunakaran Nair
RespondentM. Krishna Menon and anr.
Cases ReferredJadab Chandra Bakshi v. Bhairab Chandra Chuckerbutty I.L.R.
Excerpt:
.....act (ix of 1908), section 75 - bond repayable by instalments; the whole to become payable 'on demand' on default in paying one instalment--meaning of 'on demand'--waiver. - - and the bond provides that on failure of payment of one instalment the entire amount would become due. ' 2. apart from this it seems to me that under article 75 it might well be said that the plaintiff not having thought fit to enforce the proviso in question waived the benefit of it and if this view be correct then time will run only from the date of each fresh default. with great deference to the learned judges i fail to see any reason for such construction. whether there was waiver or not is a question of fact the proof of which cannot be confined to any particular kind of evidence and it seems to me that..........is the one which became due in december 1906, i.e., within three years of the institution of the suit. the question is admittedly governed by article 75 of the limitation act and it is contended that the suit is barred because there was a default to pay one instalment more than three years before the date of the suit. and the bond provides that on failure of payment of one instalment the entire amount would become due. the stipulation in question is in these words: 'and that in default of our making such payment also, the amount that may be found due for all future drawings from the date of default at rs. 5 per drawing shall be paid in a lump on your demand in accordance with the stipulations in the kurivari,' i think the subordinate judge is right in holding that this case is.....
Judgment:

Abdur Rahim, J.

1. This suit was to enforce payment of Rs. 54-7-10 due on a simple money bond and the question is whether it is barred. The bond provided for the payment of certain instalments and the earliest instalment included in the suit is the one which became due in December 1906, i.e., within three years of the institution of the suit. The question is admittedly governed by Article 75 of the Limitation Act and it is contended that the suit is barred because there was a default to pay one instalment more than three years before the date of the suit. And the bond provides that on failure of payment of one instalment the entire amount would become due. The stipulation in question is in these words: 'and that in default of our making such payment also, the amount that may be found due for all future drawings from the date of default at Rs. 5 per drawing shall be paid in a lump on your demand in accordance with the stipulations in the Kurivari,' I think the Subordinate Judge is right in holding that this case is analogous to that reported in Hanmantram Sadhuram v. Arthur Bowles I.L.R. (1884) Bom., 561 and that the cause of action for recovery of all the instalments would not arise until demand is made by the obligee in terms of the stipulation. I do not agree with the learned vakil for the petitioner that the words 'on your demand,' etc. should be understood only to mean that the payment was to be made immediately or forthwith. He relies on Perumal Ayyan v. Alagirisami Bhagavathar I.L.R. (1897) Mad., 245 in support of his contention. But the learned Judges there had only to construe the document then before them and they do not lay down any general proposition which can be said to apply to this case. I may mention that in Nettakaruppa Goundan v. Kumarasami Goundan I.L.R., (1899) Mad., 20 an unreported case is referred to where the words 'on demand' were given the same meaning as 'when you require.'

2. Apart from this it seems to me that under Article 75 it might well be said that the plaintiff not having thought fit to enforce the proviso in question waived the benefit of it and if this view be correct then time will run only from the date of each fresh default. I however find that in Hurri Pershad Chowdhry v. Nasib Singh I.L.R., (1894) Calc., 542 which is followed in Jadab Chandra Bakshi v. Bhairab Chandra Chuckerbutty I.L.R. (1904) Calc., 297, it is laid down that there can be no waiver within the meaning of the third clause of Article 75 save by payment of and acceptance of an overdue instalment. With great deference to the learned Judges I fail to see any reason for such construction. Whether there was waiver or not is a question of fact the proof of which cannot be confined to any particular kind of evidence and it seems to me that when a man abstains to take advantage of a stipulation in his favour that is at least a very strong evidence of waiver. This petition is therefore dismissed with costs.


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