1. This is a suit on an unregistered instalment bond executed by the defendant on the 6th November 1908. It is for a sum of Rs. 10,000 payable in annual instalments of Rs. 400, commencing from the 3Cth September 1909 (not 1899 as appears by mistake in the bond), it being agreed between the parties that in case of default of payment of the instalments, there was to be 'immediate payment of the sum of Rs. 10,000, or the unpaid part thereof or the unpaid instalment with interest from the date of default.' After reciting the agreement aforesaid, the third Clause of the bond runs thus: 'in case the said yearly payments of principal shall from any cause whatever not be paid upon the day hereinbefore mentioned for such payment, the said Rawatmull, his heirs, executors, administrators or assigns shall forthwith pay to Golab Roy, Bhuramull and Ghanesham Dass, their heirs, executors, administrators or assigns the whole balance then remaining unpaid of the said sum of Rs. 10,000 or at the option of the said Golab Roy, Bhuramull and Ghanesham Dass, their heirs, executor, administrators or assigns the unpaid instalment with interest thereof at the rate of nine annas per cent, per annum.'
2. The plaintiff states in the third paragraph of the plaint that 'the defendant failed and neglected to nay any of the said instalments. The plaintiff firm did not claim with the knowledge and consent of the defendant the whole of the said sum of Rs. 10,000 on failure to pay the first and second instalments in respect thereof, and they submit that they are entitled to recover the said sum of Rs. 10,000 with interest thereon at the rate aforesaid on the failure on the part of the defendant to pay the third instalment in respect thereof under this bond.'
3. The defendant in his written statement denies the agreement, and says that he signed the bond under mental and bodily distress and under the coercion or influence of the plaintiff firm without understanding its purport or contents. 'In answer to the third paragraph of the plaint, the defendant denies that he consented that the plaintiff firm should not claim the whole of the sum of Rs. 10,000 on his failure to pay the first and second instalments.' He alleges that no demand was ever made from him and submits that under the circumstances, the plaintiff's claim should be held barred by the Statute of Limitations. The only issue raised by him at the hearing was as regards limitation, the suit being filed on 12th November 1913 after the re-opening of the Court after the long vacation. It was argued on his behalf that under Article 75, Schedule I, of the Limitation Act, the period of three years ran from the date of the first default, namely, the 30th September 1909. It was argued that this was not a case of waiver at all as no payment of any overdue instalment had been alleged, and that according to the rulings of this Court in Hurri Pershad Chowdhry v. Nasib Singh 21 C. 542 and Jadab Chandra Bakshi v. Bhairab Chandra Chuckerbutty 31 C. 297 amongst others, there could be no waiver so as to affect limitation save by payment and acceptance of an overdue instalment. A large number of other cases was referred to. It is only necessary to refer to some of them. Mon Mohun Roy v. Durga Churn Gooee 15 C. 502 sums up the current of decisions up to that date. Wilson, J., in discussing the case of Cheni Bash Shaha v. Kadum Mundul 5 C. 97 : 4 Ind. Jur. 517 held 'it was unnecessary and unprofitable to enquire how he might decide a question of the kind if it were a new question, as it was a question which had arisen many times in the course of a number of years; that it was all-important in a matter of this kind that the current of decisions should be uniform and consistent and should be strictly adhered to.' Then he discussed various cases and held that under Article 179 of the old Limitation Act, limitation ran from the time when default in payment of the first instalment was made, in consequence of which, the whole amount became due basing his decision on the Full Bench ruling in Hurronath Roy v. Maheroollah Mollah B.L.R. Sup. Vol. 618 : 7 W.R. 21 (F.B.). The learned Judge further said there has, however, been engrafted upon that general rule an exception in certain cases. That exception I understand to be this, that if the right to enforce payment of the whole sum due upon default being made in the payment of an instalment, has been waived by subsequent payment of the overdue instalment on the one hand and receipt on the other, then, the penalty having been waived, the parties are remitted to the same position as they would have been in if no default had occurred.' The next case I shall deal with is that of Girindra Mohun Roy Chowdhury v. Bocha Das 1 Ind. Cas. 49 : 9 C.L.J.226 : 13 C.W.N. 1004 : 36 C. 394 which discusses all the earlier cases including the case above referred to. The learned Judges sum up the discussion in these words: The preponderance of the authorities supported by the decision of the Full Bench quoted above, Hurronath Roy v. Maheroollah Mollah B.L.R. Sup. Vol. 618 : 7 W.R. 21 (F.B.), is to the effect, that in the case of instalment bonds with the stipulation of the whole debt becoming due on the failure of payment of a certain instalment, limitation would begin to run from the date of the non-payment of that instalment, unless there has been a waiver by the decree-holder by the acceptance of the overdue instalment. In view of the conflicting rulings on the subject of waiver, we feel bound to follow the decision of the Full Bench in Hurronath Roy v. Maheroollah Mollah B.L.R. Sup. Vol. 618 : 7 W.R. 21 (F.B.). We hold that mere abstinence on the part of the plaintiff in this case from bringing a suit for the recovery of the whole amount due on the failure of the payment of the first two instalments, did not amount to waiver.' That sums up the state of the law on the subject to far as our Court is concerned. In Hurri Pershad Chowdhry v. Nasib Singh 21 C. 542 and in Jadab Chandra Bakshi v. Bhairab Chandra Chuckerbutty 31 C. 297 the learned Judges have, however, held that 'there cannot be any waiver so as to affect limitation save by payment and acceptance of an overdue instalment.' This seems to me to unduly restrict the meaning of the term 'waiver.' It is an expression of wide application and significance, therefore, difficult to define. It is quite clear, however, upon the authorities that mere abstinence from suing is not waiver; but that there may not be any other means of waiving, except by acceptance of an overdue instalment, I am not prepared to accept until there is such uniformity in the decisions on that point as to compel adherence. In dealing with the question of the waiver of a notice under a covenant in a mortgage-deed in Selwyn v. Garfit (1888) 38 Ch. D. 273 : 57 L.J. Ch. 609 : 59 L.T. 233 : 36 W.R. 513, Bowen, L.J., defined waiver in this way: 'What is waiver? Delay is not waiver. Inaction is not waiver, though it may be evidence of waiver. Waiver is consent to dispense with the notice.' This may be paraphrased thus Waiver is consent to dispense with or forego something to which a person is entitled. It seems to me that such consent may be by express agreement between the parties or implied from the receipt of an overdue instalment. See also Kankuchand Shiv Chand v. Rustomji Hormusji 20 B. 109 at p. 113. In Abinash Chandra Bose v. Bama Bewa 4 Ind. Cas. 17 : 13 C.W.N. 1010, Chitty and Carnduff, JJ., did not 'concur in the opinion which had been expressed in one or two of the cases cited before them' refer ring to Hurri Pershad Chowdhry v. Nasib Singh 21 C. 542 and Jadab Chandra Bakshi v. Bhaerab Chandra Chuckerbutty 31 C 297, that waiver can be effected only by acceptance of subsequent instalments. Waiver of such condition may be effected in a variety of ways and may be inferred from various circumstances. It must) however, always depend on some definite act or forbearance on the plaintiff's part.' I respectfully agree with that opinion. Here the plaintiff has examined three witnesses as to what happened when demand was made from the defendant on three occasions. The plaintiff firm consented to waive their benefit under the instalment bond, namely, consented not to sue for the whole sum on default on the part of the defendant of the first two instalments. They did so in two successive years, but that on the third occasion, the firm refused to consent any further. The defendant has sworn to the contrary, but I am unable to accept his evidence. Waiver of this character ought no doubt to be proved by satisfactory evidence. I hold that there is such satisfactory evidence in this case, but having regard to the fact that the payment of the first two instalments was waived, I give a decree in favour of the defendant for the sum of Rs. 9,200 with interest at 9 per cent, from 1st October 1911 to date of suit and with costs on scale No. 11.