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Probhat Chandra Deb Sarkar Vs. Mohesh Chandra Barma and ors. - Court Judgment

LegalCrystal Citation
Subject Limitation
CourtKolkata
Decided On
Reported inAIR1931Cal157
AppellantProbhat Chandra Deb Sarkar
RespondentMohesh Chandra Barma and ors.
Cases ReferredNand Lal v. Akki A.I.R.
Excerpt:
- .....specially had to the fact that the plaintiff in the suit had waived his right to sue on the first default in payment of instalments as mentioned in the bond, it appears to us that the view taken by the learned subordinate judge on the question of limitation is correct. our attention has been drawn by the learned advocate appearing for the appellant to the case of jawand lal v. sharf din [1912] 35 p.r. 1913 decided by the chief court of the punjab, where the chief court held that the proviso to section 20, lim. act, applied to payments of instalments fixed by and payable under a bond, which provided that, on default in payment of one or more 'instalments, the whole sum secured would be recoverable, and the fact that any instalments were paid could not be proved except by the production.....
Judgment:

Guha, J.

1. This is an appeal by the defendant in a suit brought upon an instalment mortgage bond which provided -for the payment of principal sum according to certain instalments and the 'bond also provided that in default in the payment of two successive instalments the entire amount would fall due. The plaintiff stated in the plaint that the mortgagor had paid Rs. 150 in Bhadra 1321 B. S. on account of the first three kists specified in the bond and as the balance of the instalment mentioned in the bond was not paid the plaintiff was obliged to bring the present suit. It has been found as a fact that the payment of Rs. 150, though made on one date was in respect of the three kists due at the time when the payment was made. The story of the payment thus made has been accepted by both the Courts below, and it has been held that the payment amounted to a part payment of the principal sum. As the payment was not endorsed at the back of the bond in the handwriting of the debtor, as required by Section 20, Lim. Act, the trial Court held that the payment could not have the effect of extending the period of limitation; and the plaintiff's suit was accordingly dismissed by the Court of first instance. On appeal by the plaintiff the learned Subordinate Judge in the Court below has reversed the decision arrived at by the Court of first instance.

2. On the facts of the case as stated with sufficient clearness in the judgment of the Court of appeal below, and regard being specially had to the fact that the plaintiff in the suit had waived his right to sue on the first default in payment of instalments as mentioned in the bond, it appears to us that the view taken by the learned Subordinate Judge on the question of limitation is correct. Our attention has been drawn by the learned advocate appearing for the appellant to the case of Jawand Lal v. Sharf Din [1912] 35 P.R. 1913 decided by the Chief Court of the Punjab, where the Chief Court held that the proviso to Section 20, Lim. Act, applied to payments of instalments fixed by and payable under a bond, which provided that, on default in payment of one or more 'instalments, the whole sum secured would be recoverable, and the fact that any instalments were paid could not be proved except by the production of entries signed by the debtor and reciting the fact of such payment. The Chief Court further held that the payment of each instalment was a part payment of the principal amount due on the bond. If this position as indicated by the judgment of the Chief. Court is acceptable the defendant-appellant before us ought to succeed; but this decision of the Chief Court was subsequently considered by the Lahore High Court in the case of Nand Lal v. Akki A.I.R. 1925 Lah. 394 a case where the plaintiff sued to recover money on a bond payable by instalments with the proviso that default in payment of one or more instalments should render the whole debt due forthwith; the plaint recited the payment of the first two instalments and a default on the third; the suit was within time, if the first two instalments had actually been paid.

3. On this state of facts it was held by the Lahore High Court that Section 20, Lim. Act, had no concern with the suit which was governed by Article 75, according to which the terminus a quo was the date of the default, in other words, not the date of payment, but the date of non-payment in accordance with the stipulations of the contract, and that the suit was therefore within time. The learned Judges expressly observed that the plaintiff did not invoke the aid of Section 20, Lim. Act, and he could prove the payment of the earlier instalments by oral evidence. It is to be noticed that the case of Jawand Lal v. Sharf Din [1912] 35 P.R. 1913 to which reference has already been made, was not followed by the learned Judges of the Lahore High Court in the case of Nand Lal v. Akki A.I.R. 1925 Lah. 394. On the facts of the case out of which the present appeal has arisen the view indicated by the Lahore High Court in the case referred to above seems to us to be a correct view of the law. Furthermore, on the facts of the case, regard being had to the definite findings arrived at by the Court below, that the mortgagee had accepted overdue instalments and thereby waived the benefit of the provisions which gave him the right of the entire claim as to the default, Section 20, Lim. Act, would appear to have no application to the present case.

4. In the above view of the case the appeal fails and must be dismissed with costs.

M.C. Ghose, J.

5. I agree.


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