1928 (7) TMI 5 - HC - Indian Laws

Summary

Issues Involved:
1. Limitation period for the suit.
2. Payments made by the defendant.
3. Waiver of the right to sue for the entire amount upon default.
4. Applicability of legal precedents and principles.

Issue-wise Detailed Analysis:

1. Limitation Period for the Suit:
The primary issue in the case was whether the suit brought by the plaintiff was barred by limitation. The plaintiff sought recovery of Rs. 1,442-8-0 based on a simple instalment bond executed by the defendant. The bond stipulated payment in six instalments, with a proviso allowing the creditor to recover the entire amount upon default of any instalment. The plaintiff alleged that payments of interest saved the limitation. However, both lower courts found that no payment was made by the defendant after Bhadra 1326 B.S., leading to the dismissal of the suit as time-barred. The court held that time began to run against the plaintiff from the date of the first default, i.e., Aswin 1325 B.S.

2. Payments Made by the Defendant:
The plaintiff claimed receipt of Rs. 82 on different dates as interest payments, with the last payment on 9th Kartik 1328 B.S., to save the limitation period. The defendant, however, admitted only to paying Rs. 110, with the last payment made in Bhadra 1326 B.S. Both lower courts found that no payments were made after Bhadra 1326 B.S., thus dismissing the plaintiff's claim of payments extending the limitation period.

3. Waiver of the Right to Sue for the Entire Amount Upon Default:
The plaintiff argued that the proviso in the bond, which allowed the creditor to sue for the entire amount upon default, was for the creditor's benefit and could be waived. The court noted that the plaintiff did not waive this right, as she claimed the entire amount in the suit and stated that her cause of action arose on the date of the first default. The court emphasized that waiver must depend on some definite act or forbearance by the plaintiff, which was inconsistent with her plea of payment to save limitation. The court concluded that the plaintiff could not set up a plea of waiver when her plea of payment was found to be false.

4. Applicability of Legal Precedents and Principles:
The court referred to several precedents to support its decision. In Shib Chand Nahar v. Hyder Molla, it was held that limitation ran from the date of the first default when there was an optional right to enforce payment. Similarly, in Jadab Chandra v. Bhairab Chandra and other cases, it was established that mere omission to sue did not constitute a waiver. The court also discussed the principle from Hemp v. Garland, which was adopted in Indian law, stating that if the plaintiff chose to wait until all instalments became due, it would not affect the defendant's right to consider the action as accruing from the time the plaintiff had the right to maintain it. The court concluded that the suit was barred by limitation, as the plaintiff failed to prove the alleged payments of interest.

Conclusion:
The court dismissed the appeal, affirming the lower courts' judgments that the suit was barred by limitation. The plaintiff's claim of payments extending the limitation period was not substantiated, and her plea of waiver was inconsistent with her allegations of payment. The court relied on established legal principles and precedents to reach its decision.