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R.M.P. Perianan Chetty Vs. Mariappan Asari and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad310
AppellantR.M.P. Perianan Chetty
RespondentMariappan Asari and ors.
Cases ReferredHemp v. Garland
Excerpt:
- .....munsifs court, madura town. the plaintiff brought the suit for rs. 90 due on an instalment bond, dated 11-9-1917 executed by the 1st defendant and the father of the defendants 2 and 3 for rs. 50 payable in ten monthly instalments of rs. 5. the district munsif dismissed the suit in respect of nine-tenths of the claim as being barred by the law of limitation and gave a decree only in respect of the last instalment.2. the respondents do not appear here. it is urged that time did not begin to run against the plaintiff till 11-7-18, the date on which the last instalment fell due by reason of the provision in the bond that the whole amount shall be payable on demand if any one of the instalments was not paid on the due date, and that article 75 of the limitation act is applicable to.....
Judgment:

Devadoss, J.

1. This is an application to revise the decree in S.C.S. No. 1420 of 1921 on the file of the District Munsifs Court, Madura Town. The plaintiff brought the suit for Rs. 90 due on an instalment bond, dated 11-9-1917 executed by the 1st defendant and the father of the defendants 2 and 3 for Rs. 50 payable in ten monthly instalments of Rs. 5. The District Munsif dismissed the suit in respect of nine-tenths of the claim as being barred by the law of limitation and gave a decree only in respect of the last instalment.

2. The respondents do not appear here. It is urged that time did not begin to run against the plaintiff till 11-7-18, the date on which the last instalment fell due by reason of the provision in the bond that the whole amount shall be payable on demand if any one of the instalments was not paid on the due date, and that article 75 of the Limitation Act is applicable to the case, and the suit filed on 4-7-21 is within time.

3. Reliance is placed on two decisions reported in Ramadh Bibi Ammal v. Kandaswamy Piliai (1919) M.W.N. 82, and T.V. Seetharama Iyer v. Munuswamy Mudaliar (1919) M.W.N. 185. In the first case the suit was upon a hypothecation bond in which there was a provision that interest should be paid every six months and the principal before a fixed date and in default 'we shall pay, whenever you require, the interest accruing due for the days overdue at the aforesaid rate, and the principal amount.' The mortgagor committed default in paying interest. Spencer and Krishnan, JJ., held that no demand was made for payment of the principal and therefore time did not begin to run from the date of the default of payment of interest. In the second base Seshagiri Aiyar, J., sitting as a single Judge made the following observation in regard to a provision in the bond that if there was a default in the payment of any instalment the whole money would be payable on demand: 'I think that the parties deliberately used the expression, because, although there was a liability to pay each of the instalments separately, they intended to make it a condition precedent that a demand should be made if the whole amount is to be asked to be paid at once. It is open to the obligee of a bond to waive his right to claim the whole amount in default of payment of an instalment. Where the provision is that the whole amount is payable on demand in case of default, time does not begin to run againsb him unless and until he exercises his option.'

4. In this case the suit was brought nearly three years after the last payment fell due. The plaintiff has an option till the last instalment falls due to claim the whole amount including the last instalment. But since the last instalment fell due the option was gone. To uphold the contention of the petitioner would be giving a longer period of limitation than that prescribed, in article 74 of the Limitation Act. Article 75 is quite clear in its terms. It gives an option to the promisee of a note or the obligee of a bond to waive the consequence of a default. Where no option of waiver is given, time begins to run from the date of default. My attention has been drawn to a recent decision of Phillips, J., in C.R.P. No. 139 of 1922 in which he held that 'It is open to plaintiff to waive the payment by instalments and in that case the principal would only be payable on 24-2-1918 and the suit is then within time.' With great respect I am unable to follow the decision. The provision in the bond here is 'In the course of such payment should there be any default of payment; on the due date in any month as aforesaid, interest at one pie per rupee per day shall be charged for the entire amount remaining due from the date of default without reference to the subsequent monthly instalments and the aggregate sum of principal and interest so accruing due shall in cash be paid in lump by me to you on demand without any apportionment of liability being pleaded by us.' The option is given here to the obligee to claim the whole amount on default of payment of an instalment without reference to subsequent instalments. Such a provision cannot be held to extend the period of limitation to three years from the date the last instalment fell due. The petitioner's vakil relied upon Hanmantram Sadhuram Pity v. Arthur Bowles (1884) 8 Bom. 561 as supporting his contention. But I do not think it helps him. Birdwood, J., observes at page 568: 'The plaintiff could under the bond have exercised the option of delaying his demand for payment of the whole sum remaining due under it at any time so long as any monthly instalment remained in respect of which default could be made; and it is not alleged that at the time when demand was made in January 1884 the last instalment had become already overdue for more than a month, and that the whole amount had therefore become payable irrespective of any demand; for the making of which, indeed, no opportunity would thereafter have remained. Assuming, therefore, that so late as in January 1884, an instalment was payable an assumption which can safely be made, without entering into an exact calculation of the time when the last instalment would become due, inasmuch as 50 monthly payments would be required to clear off the principal debt alone, I hold that it was only in January 1884 that cause of action was given. The plaint was admitted on the 28th April, 1884.' In the present case there is no evidence that any demand was made before the last instalment fell due. In paragraph 7 of the plaint the cause of action is said to have arisen on 11-7-18, the date on which the last instalment fell due. I think the observations of Lord Denman in Hemp v. Garland [1843] 4 Q.B. 519, are applicable to the present case. 'In this case there was default more than six years ago; and upon that the plaintiff might, if he pleased, have signed judgment and issued execution for all that remained due, or he might have maintained his action. If he chose to wait till all the instalments became due, no doubt he might do so. But that which was optional on the part of the plaintiff would not affect the right of the defendants. He might well consider the action as accruing from the time that the plaintiff had a right to maintain it. The Statute of Limitation runs from the time the plaintiff might have brought his action unless he was subject to any disabilities specified in the statute and as the plaintiff might have brought his action upon the first default if he did not enter up judgment, we think that the defendant is entitled to the verdict upon the plea of the statute of limitations.' According to the terms of the bond, on the making of a demand the whole amount becomes due, and time would begin to run from the date of the demand. If no demand is made the option given to the plaintiff is gone, and time begins to run in respect of each instalment as it becomes due. The District Munsif has rightly given a decree in respect of the last instalment which became due within three years of the data of plaint.

5. The petition is dismissed.


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