Skip to content


Umedmull Mangalchand Vs. Mani Ram Agarwalla and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1929Cal399
AppellantUmedmull Mangalchand
RespondentMani Ram Agarwalla and anr.
Cases Referred and Karunakaran v. Krishna Menon
Excerpt:
- .....the plaintiff has this option conferred upon him by the contract between the? parties, and by that agreement payment of the instalments has been postponed to-certain dates. i do not think it is open to the defendant to force upon the plaintiff an acceleration of his remedy in respect of those subsequent instalments by committing a breach in respect of one of the earlier instalments. in the present case what has happened is that, as i read the facts the plaintiff has elected not to proceed upon his remedy for the recovery of the full amount immediately upon the-breach. when he filed his plaint in this suit he had a subsisting right of action upon the agreement to pay by instalments and was entitled to sue for such instalments as were at that time within the period of three years. i think.....
Judgment:

Pearson, J.

1. The only question is that of limitation. The suit is on an adjustment of accounts on a commission agency Which took place on 15th April 1921 The effect of the adjustment was that Rs. 4,000 Was found due by the defendant firm to the plaintiff firm. The document signed by the defendant firm embodied an undertaking to pay the amount by instalments of Rs. 500 and Rs. 200 alternatively, eleven in all, running from 13th Aswin Sudhi 1978 until 13th Aswin Sudhi 1983. The first named date corresponds with 14th October 1921. There was also a provision in the document which, as translated, is as follows:

If we fail to pay the instalments we shall pay interest on all the instalments at 12 annas (twelve annas) percent per month. If we fail to pay one instalment you will be competent to realize all the instalments in a lump sum by filing a suit.

2. In these circumstances it is argued on behalf of the first defendant that the suit is barred by limitation on the ground that the very first instalment of all payable on 14th October 1921 was never paid and that there was therefore a breach of the agreement enabling the plaintiff then and there to bring his suit for the recovery of the full amount and the period of limitation commenced to run from that date. It is admitted that at the time of the filing of this suit the first six instalments were in fact barred by limitation and the suit only covers the amount of the last five which are within the period of three years before the institution of the suit.

3. The difficulty upon the point which is raised arises mainly from the conflict of authorities in this Court and from the fact that the trend of the later authorities in this Court differs from that of some of the other High Courts. The most recent case to which I have been referred is Basanta Kumar v. Nabin Chand a A.I.R. 1926 Cal. 789 which proceeds on the same lines as two previous Jadav Chandra v. Bhairab Chandra [1904] 31 Cal. 297and Hurry Pershad v. Nasib Singh [1894] 21 Cal. 542. The effect of that decision is that no distinction can be drawn between a case where the proviso is that on non-payment of an instalment the whole amount shall become due and one in which it is provided that on non-payment of an instalment the whole amount may be sued for. The cases to which I have been referred which take the opposite view, favouring the plaintiff in this case, are Rupnarain v. Gopinath [1907] 11 C.W.N. 903 and Chunder Komal Das v. Bisassurree Dassia [1882] 13 C.L.R. 243 the decisions in Ajudhia v. Kunjal [1908] 30 All 123 Mohanlal v. Tika Ram [1919] 41 All. 104 and Karunakaran v. Krishna Menon [1913] 36 Mad. 66 which take the same line.

4. The question is I think really dependent upon the construction of the document and the contract between the parties. Upon the language which has been employed in the present case it appears to me to be clear that what is conferred upon the plaintiff is an option which he may or may not exercise upon default in payment of one instalment. I do not think it can be said as has been argued that the only evidence of definite election not to treat the default as enabling, the plaintiff to sue for the whole amount is to be found in a subsequent acceptance of payment of the instalment in default. The plaintiff has this option conferred upon him by the contract between the? parties, and by that agreement payment of the instalments has been postponed to-certain dates. I do not think it is open to the defendant to force upon the plaintiff an acceleration of his remedy in respect of those subsequent instalments by committing a breach in respect of one of the earlier instalments. In the present case what has happened is that, as I read the facts the plaintiff has elected not to proceed upon his remedy for the recovery of the full amount immediately upon the-breach. When he filed his plaint in this suit he had a subsisting right of action upon the agreement to pay by instalments and was entitled to sue for such instalments as were at that time within the period of three years. I think a point relevant to the consideration of this matter is that pointed out by Mr. Das. that if Article 75, Lim. Act applies to the present case, then it is material to notice that the language in Clause 3 has been altered from ' when the first default is made' to ' when the defaults made:' and I think also the language in the first column may be material when it refers to a provision that if default be made in payment of one or more instalments the whole shall be due. In my view the option which the plaintiff had in this case was on default to say whether the whole shall be due or whether only the instalment shall be due. If he likes to treat the instalment as being due and not the whole that is his concern.

5. I think, therefore, there should be a decree for the amount claimed viz., Rs. 2136-2-0 with costs of the suit on scale No. 2 against defendant 1 and on scale No. 1 against defendant 2. Interest on decree at 6 percent.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //