TMI Blog1928 (7) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by limitation. 4. The instalment bond in question stipulated for payment of the money covered by it in six instalments falling due on the dates mentioned in the bond, the first instalment falling due on the last day of Aswin 1325 B.S. There was a further stipulation in the bond to the effect that in the event of default of payment of any one instalment, the creditors would be entitled to recover the entire amount of principal and interest due on the bond. The default was made in the payment of the first instalment. It has been urged on behalf of the appellant that the proviso in the bond having been inserted for the advantage of the creditor it was optional with the creditor to sue for the whole amount, i.e., she could sue for the whole, or if ehe chose might waive her right to sue and so the claim for the last three instalments, viz., Aswin of 1328, Aswin of 1329 and Aswin of 1330 is not barred by limitation. In the present case the plaintiff claimed the entire amount under the bond with interest from the date of its execution. This goes to show that she did not waive the benefit of the proviso. She stated in the plaint that her cause of action arose on the date the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finite act or forbearance. In the case plaintiff brought the suit on 8th February 1909, alleging that the first two instalments had been duly paid and that the remaining fourteen instalments fell due in April 1903, on which date default was made. The defence was that the allegation of payment of the first two instalments was false, and that the suit having been brought after the expiry of 6 years from the first default, it was barred by limitation. It has been proved as a fact that the first two instalments were not paid. The learned Judges remarked: hare they distinctly pleaded payment of the first two instalments. The fact of waiver would be absolutely inconsistent with such a plea, and they could not be allowed to set it up, when their plea of payment had been found to be false. 6. On the side of the appellant reference has been made to Mohan Lal v. Tika Ram [1419] 41 All. 104 There was a proviso in the instalment bond that if there was any default in payment of any of the instalments, then the creditor would have the power to claim the entire amount in a lump sum. The bond was executed on 23rd February 1909. The first instalment would be payable at the end of February 191 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest was paid. Their Lordships observe: further the allegation now is that the suit which would otherwise have been out of time is exempted from limitation only by the payment of interest specified. That henceforth was the plaintiffs' case, and it would have succeeded if these payments had been proved. But the plaintiffs' attempt to prove them, as has been stated, entirely failed....Having made a finding of fact in the same sense the trial Judge by his judgment of 31st May 1919, dismissed the suit with costs. That was, their Lordships think, his proper course. No other issue was, or is, on the pleadings open to the plaintiffs and their conduct in this matter is not such as to entitle them to claim any more then strict treatment. On their chosen issue they fought: to that issue they directed evidence which was not believed: on it, they therefore failed. And by that failure they must abide. 8. In the present case, as I have already said, the plaintiff recited in the plaint that the cause of action arose on the date of first default, i.e., Aswin 1325 and that the limitation was saved by payments of interest on subsequent dates. Plaintiff failed to prove those payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l apply and limitation will run from the default unless there has been waiver. The stipulation in question may, favourably to the creditor, be regarded as giving him an option to treat the whole amount as due on the date of the first default. A long series of decisions of this Court have laid it down that where there is an optional right given to enforce payment of money, such right may be waived, but when it is not waived, or when there is nothing to show that it has been waived, limitation would run from the date when the right accrues. These decisions have engrafted into the Act the principle of Hemp v. Garland [1848] 4 Q.B. 519, in which Lord Denman, C.J. observed that: if the plaintiff chose to wait until all the instalments became due no doubt he might do so, but that which was optional upon plaintiff's part would not affect the right of the defendant, who might well consider the action as accruing from the time when the plaintiff had the right to maintain it. 14. The principle of Hemp v. Garland [1848] 4 Q.B. 519 was adopted in this country so far back as during the days of Act 14 of 1859: see the Full Bench case of Hurronath Roy v. Maheroollah Moolla [1867] 7 W.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nealy, JJ., thus recapitulated the law on the subject: First, it is a general rule that whore a decree or order makes a sum of money payable by instalments on certain date, and provides that on default of payment of one of the instalments, the whole of the money shall then become due aud payable and be recoverable under execution then under Article 179, Lim. Act, 15 of 1877 and under corresponding articles in earlier Acts, limitation commences to run when the first default is made.... 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 if no default had occurred. 19. A current of decisions followed on the same line. Most of them have been discussed in detail in a comparatively recent judgment of this Court in the case of Girindra Mohan Roy v. Khir Narayan Das [1909] 36 Cal. 394 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Shib Dayal v. Meherban A.I.R. 1923 All. 1 as appears from the report of the case, provided that: the money with interest at the rate of eight annas par cent. per month was repayable within a period of 12 years and would carry interest from year to year, that in case of interest not being paid from year to year the creditor would have the option to add the interest due to the principal and charge interest thereon at that rate and would be able to recover the amount within the stipulated period, and that in case of non-payment the creditor shall have the power to recover the money, principal, interest and compound interest from the debtor, the mortgaged property or from his other moveable or immovable property. It further stipulated that if the debtor was not able to pay the money within the stipulated period, and with the consent of the creditor the money remained unpaid, the interest and compound interet would continue to run at the stipulated rate until the date at realization. 22. The bond in the case of Gyadin v. Jhumman Lal [1915] 37 All. 400 coutained a stipulation that: If the mortgagee, in order to get interest, does not bring a suit in default of payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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