P.S. Kailasam, J.
1. The question that arises in this second appeal is whether the suit filed by the plaintiff is barred by time. The promissory note on which the suit was filed is Exhibit A-1, dated 3rd September, 1947, executed by the defendants in favour of the Tiruchirapalli Merchants' Chit and Investment Co., Ltd., for Rs. 2,400. The promissory note was executed as a security for the amount received by the defendants in chit auction held by the said company. The defendants were the successful bidders in one auction, and on receipt of the amount they executed a varthamanam. Exhibit A-2, along with the promissory note, Exhibit A-1, on the same date. According to the varthamanam, the sum of Rs. 2,400 was to be paid in eight monthly instalments of Rs. 300 each, the first instalment being payable on 2nd October, 1946 An endorsement of payment of Rs. 5 towards principal and interest was made by both the defendants on 2nd December, 1950, on the promissory note, Exhibit A-1. The promissory note was assigned on 20th April, 1951, by the Tiruchirapalli Merchants' Chit and Investment Co., Ltd., in favour of the plaintiff. The present suit was filed on 1st December, 1953. According to the plaintiff, by the varthamanam the defendants agreed to pay the amount mentioned in the promissory note in monthly instalments commencing from 2nd October, 1947 and paid two instalments on 2nd October, 1947 and 2nd November, 1947, and defaulted to pay the instalment due on 2nd December, 1947. As the varthamanam, Exhibit A-2,, contained a clause that in default of payment of any of the instalments due, the entire principal and interest became payable on the date of default, the plaintiff contended that the period of limitation started running form 2nd December 1947, and the endorsement of payment of Rs. 5 on 2nd December, 1950 was within time The defendants, though originally contended that all instalments had been paid subsequently denied that they paid the two instalments on 2nd October 1947 and 2nd November, 1947. According to them, the period of limitation started 'when the first instalment was not paid on 2nd October, 1947, and therefore the endorsement of payment of Rs. 5 by the defendants on 2nd December, 1950 was barred by
2. The suit was originally filed in the Court of the Subordinate Judge, Tiruchirapalli in 1955. The Sub-Court decreed the suit. The 2nd defendant preferred an appeal and the District Court allowed the appeal so far as the 2nd defendant was concerned and remanded the suit for trial regarding certain issues The 2nd defendant preferred an appeal and the High Court allowed the appeal in part confirming the order of remand by the District Court only regarding the question of limitation After remand the 2nd defendant filed an additional written statement contending that the suit was barred by limitation. No additional evidence was adduced after remand. The trial Court held that the suit was within time and decreed the suit On appeal by the 2nd defendant the learned District Judge confirmed the decree and dismissed the appeal. The aggrieved 2nd defendant has preferred this second a appeal.
3. The promissory note Exhibit A-1 was executed on 3rd September, 1947 in favour of the plaintiff's assignor, Tiruchirapalli Merchants' Chit and Investment Co Ltd., for a sum of Rs. 2,400. The interest provided was at 12 per cent. Along with the promissory note Exhibit A-1, the varthamanam letter Exhibit A-2 was executed on the same day. It is now admitted that the promissory note and the varthamanam letter were executed in order to secure repayment by the defendants of the auction chit, which was knocked in their favour. The amount of Rs. 2,400 was to be paid in monthly instalments of Rs. 300 each, the first instalment being payable on 2nd October, 1947. The varthamanam letter also provided that in case of default by the defendant of payment of any of the instalments the entire principal and interest would become payable on the date of default. It was contended on behalf of the and defendant--appellant by Mr. Ahmed Meeran, learned Counsel, that the burden is on the plaintiff to plead and prove that the suit is within time and that the plaintiff has failed in establishing that the suit is within time. He contended that the plaintiff has to prove that there was no default of payment of the instalments on 2nd October 1947, and 2nd November, 1947, and that the plaintiff apart from pleading has not substantiated his plea that there was payment of the monthly instalment on 2nd October, 1947 and November, 1957. He also submitted that an assignee of the promissory note cannot take advantage of the benefits under Exhibit A-2 the varthamanam letter.
4. Both the Courts have now found that the promissory note, Exhibit A-1 and the varthamanam letter Exhibit A-2, were executed as part of the same transaction for securing payment of the amount, which was drawn by the defendants in the chit fund. The payment is therefore, according to the terms of Exhibit A-2 by monthly instalments with a stipulation that in the event of default in payment of any of the instalments the entire amount became due. Mr. Ahmed Meeran relied on the deci-sions in Periakaruppa Chetti v. Mottaya Mudali : AIR1935Mad240 , Viraraghavalu Naidu v Rajalinga : AIR1939Mad846 , Maruthamuthu Naicker v. Kadir Badsha Rowther (1939) 1 M.L.J. 378 : I.L.R. (1938) Mad. 568, wherein it has been held that an assignee of the promissory note could only have a relief on the basis of the promissory note and that the assignee is not entitled to place himself in the position of the payee of the promissory note and claim relief against other persons also. It is true that the assignee of the promissory note does not always get all the rights of the payee of the promissory note. The payee can proceed against not only the executant of the promissory note but also the members of the joint family which the executant represents but the assignee will not be in a position to do so. But the cases cited do not lend any support to the proposition that when a promissory note is executed along with a varthamanam letter which regulates payment, the assignee will not be bound by or take advantage of the stipulations in the varthamanam letter. No authority for the proposition was cited, and therefore, this contention of the learned Counsel for the appellant fails.
5. The main question that has to be determined is as to which article of the Limitation Act is applicable to the facts of this case. The Articles to be considered in this connection are Articles 73, 74, 75, 80 and 132. Article 74 provides that the period of limitation for a promissory note or a bond payable by instalments shall be three years from the expiration of the first term of payment as to the part then payable, and for the other parts from the expiration of the respective terms of payment. Under Section 75 the period of limitation on a promissory note or a bond payable by instalments, which provides that, if default be made in payment of one or more instalments, the whole shall be due, in three years from the date when the default is made, unless where the payee or obligee waives the benefit of the provision, in which case the period to be computed is when fresh default is made, in respect of which there is no such waiver. Article 73 provides a period of three years from the date of the promissory note, when the promissory note is payable on demand and not accompanied by any writing restraining or postponing the right to sue. The effect of reading the promissory note, Exhibit A-1, and the varthamanam letter Exhibit A-2, is that the right to sue is postponed, if the promissory note is payable on demand and not accompanied by any writing postponing the right to sue the article applicable is Article 73. When the promissory note is accompanied, as in the present case, by writing postponing the right to sue, Article 73 is not applicable. It has to be considered whether Article 75 or Article 80 is applicable. Article 80 is a residuary article, and if Article 75 is not applicable, Article 80 would be applicable. Mr. Ahmed Meeran attempted to bring the case under Article 75. Mr. Narayanaswami Aiyar, learned Counsel for the respondent was equally anxious to steer clear of Article 75. It is the contention of Mr. Narayanaswami Iyer that Article 75, is applicable only to a promissory note, which itself provides for payment in instalments, and is not applicable to cases when the promissory note is accompanied by varthamanam letter, which stipulates payment in instalments. Article 73 is applicable to a promissory note not accompanied by any writing postponing the right to sue, as no article is specially provided for. It is the contention of the learned Counsel for the respondent that the residuary Article i.e., Article 80, is applicable, whereas it was contended by Mr. Ahmed Meran that for attracting Article 75 it is not necessary that payment by instalments should be provided for in the promissory note itself. Though Article 75, does not specifically provide that the payment by instalments should be provided in the promissory note itself, reading Articles 73, 75 and 80 together I am inclined to accept the contention of Mr. Narayanaswami Aiyar, learned Counsel for the respondent, that Article 80 is alone applicable. When Article 73 is made applicable to promissory notes payable on demand not accompanied by any writing postponing the right to sue, there is no article as such which provides for a promissory note accompanied by writing postponing the right to sue. On a reading of Article 73, it cannot be said that the article is applicable to promissory notes accompanied by writing postponing the right to sue, as it mentions only the promissory notes payable by instalments. In the cases cited by learned Counsel on both sides, Article 75 is made applicable only when the promissory note itself stipulates payment by instalments. As there is no article providing for a promissory note accompanied by writing postponing the right to sue, Article 80 will have to be held applicable.
6. The period of limitation available under Article 80 is three years from the date when the promissory note ' becomes payable 'whereas under Article 75 the period is from the date when default is made, unless the payee waives the benefit of the provision. The wording in Article 75 is very specific, in that when a default is made in payment of an instalment in a promissory note, which provides that in case of default of one or more instalments the whole amount shall be due, time begins to run from the date when the default is made, and the burden is on the payee to plead and prove that he had waived the benefit of the provision whereas under Article 80 the period of limitation provided for is three years from the date when the promissory note ' becomes payable.' In this connection Article 132 may be referred to. It provides a period of twelve years for enforcing payment of money charged upon immovable property from the date when the money sued for ' becomes due.' The question as to the period of limitation in mortgage bonds providing for payment by instalments with a stipulation that in default of payment of any of the instalments the entire amount becomes due has come for consideration in various decisions. A Bench of this Court in Narna v. Ammani Amma : (1916)31MLJ865 , held that the suits for money due on hypothecation bonds, though containing stipulations for payment in instalments are governed by Article 132 and not by Article 75. The Court agreeing with the view taken by Banerjee, J., in Gayadin v. Jhumanlal I.L.R. (1915) All. 400, held that the right to sue did not accrue on the date of the first default but only when the date provided for the payment of the principal arrived. The Court posing the question ' can it be said that the money sued for becomes due when the first default was made if the mortgagee wants only the principal and the original rate interest?' answered as follows:
If the claim is for the enhanced interest it can well be argued that that became due when the first default was committed. When the creditor chooses to exercise the option which limits his claim to ordinary interest it would be straining the language of Article 132, to hold that his right of action accrued when the benefit which he does not choose to avail himself of might have been enforced by him.
7. The Court also approved the principle of law that no one is obliged to take advantage of forfeiture and cited with approval the decisions in Ashtley v. Earl of Essex (1874) 18 Eq. 290, where it was held that the landlord should not be compelled to take advantage of the forfeiture clause, so as to make limitation run against him, if he does not choose to avail himself of it. Referring to Lord Danman, C.J.'s judgment in Hemp v. Garland (1843) 4 Q.B. 519, the Bench held that the language of Article 75 of the Limitation Act was borrowed from the above judgment. In the opinion of the Bench, whatever might be the view regarding the construction of Article 75, so far as Article 132 was concerned, it was clear that the period of limitation started from date originally fixed for payment of the principal and not from the date of default. This decision was referred to with approval by the Privy Council in Lasadin v. Gulab Kunwar (1932)L.R. 59 IndAp 376 : 1932 63 M.L.J. 187, The Privy Council observed:
There can be no doubt that, as pointed out by Lord Blanesburgh a proviso of this nature is inserted in a mortgage deed, ' exclusively for the benefit of the mortgagee' and that it purports to give them an option either to enforce their security at once or, if the security is ample, to stand by their investment for the full term of the mortgage. If on the default of the mortgagor--in other words, by the breach of his contract--mortgage money becomes immediately due, it is clear that the intention of the parties is defeated, and that what was agreed to by them as an option in the mortgages is, in effect, converted into an option in the mortgagor. For if the latter after the deed has been duly executed and registered, finds that he can make a better bargain elsewhere, he has only to break his contract by refusing to pay the interest, and eo instanti as Lord Blanesburgh says, he is entitled to redeem. If the principal money is ' due ' and the stipulated term has gone out of the contract, it follows, in their Lordships' opinion, that the mortgagor can claim to repay it, as was recognised by Wazir Hasan, J., in his judgment in the Chief Court. Their Lordships think that this is an impossible result. They are not prepared to hold that the mortgagor could in this way take advantage of his own default; they do not think that upon such default he would have the right to redeem, and in their opinion the mortgage money does not ' become due ' within the meaning of Article 132 of the Limitation Act until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued. This would, of course, also be the position if the mortgagee exercised the option reserved to him.
8. The Privy Council was of the opinion that the mortgage money does not 'become due' within the meaning of Article 132 of the Limitation Act, until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued. Characterising Article 75 as in very special terms the Privy Council observed that the time runs under the article not from the date when the money became due but from the date when the cause of action arose. Mr. Narayanaswami Aiyar, learned Counsel for the respondent, submitted that the words ' becomes payable ' in Article 80 are akin to the words ' becomes due ' in Article 132, and should be construed in the same manner in which the words in Article 132 had been construed in Narna v. Ammani Amma I.L.R. (1916) Mad. 981, and Lasadin v. Gulab Kunwar (1932) L.R. 59 IndAp 376 : 1932 63 M.L.J. 187. In Jawaharlal v. Mathura Prasad A.I.R. 1934 A.I. 661, a Full Bench of the Allahabad High Court had to consider the words ' becomes payable ' in Article 80 and ' becomes due ' in Article 132. Sulaiman, C.J. referring to the decisions of the Privy Council in Lasadin v. Gulab Kunwar (1932) L.R. 59 IndAp 376 : 1932 63 M.L.J. 187, and of the Full Bench of the Allahabad High Court in Mohamed Hussain v. Sanwal Das : AIR1934All397 observed:
The Bench had to interpret Article 80 read with Article 116, Limitation Act, where the starting point of limitation is the date when ' the bond becomes payable.' The words were not identical with the words ' money becomes due' occurring in Article 132, but the Bench came to the conclusion that the same consideration applied.
9. Again the learned Judge in comparing Article 132, where the words are 'when the money sued for becomes due,' with Article 80, where the words are 'when the 'bond becomes payable ' observes that there is an obvious contrast with the words in column 3 of Article 75 where the starting point is ' when the default is made.' For the purposes of limitation the same consideration is applied to the words 'becomes due' under Article 132 and the words becomes payable under Article 80.
10. In the absence of the special words used in Article 75 in Article 80, I do not see any impediment in applying the principle laid down in Annamalai Chettiar v. Velajudha Nadar I.L.R. (1916) Mad. 129, and Lasadin v. Gulab Kunwar (1932) L.R. 59 IndAp 376 : 63 M.L.J. 187. The clause regarding forfeiture is provided for the benefit of the payee and an option given to him to enforce the security in default or to stand by the terms of the document without enforcing the default clause. In the absence of very clear words the principle of law that no one is obliged to take advantage of forfeiture cannot be ignored, and the payee cannot be compelled to take advantage of the forfeiture clause so as to make limitation run against him. Though the wording in Article 80, as pointed out is slightly different, the rule laid down regarding Article 132 is equally applicable to Article 80.
11. In the result the suit is held to be within time and the judgments and decrees of the Courts below are confirmed and the second appeal is dismissed with costs. No leave.