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Issues: Limitation and Order 2, Rule 2, Civil P.C. regarding a suit on an instalment bond with an exigibility clause, waiver of benefit provision, and interpretation of Article 75 of the Limitation Act.
Analysis: 1. The case involves a suit on an instalment bond with an exigibility clause triggering full payment upon two defaults. The plaintiffs initially sued for defaulted instalments but now seek the whole amount due. The lower court held that the matter is governed by the terms of Article 75 of the Limitation Act, as clarified by previous Full Bench decisions. The key issue is whether the plaintiffs effectively waived the exigibility clause by choosing to sue for the defaulted instalments, indicating a waiver of the benefit provision. 2. Article 75 of the Limitation Act states that the benefit provision can be waived by the payee or obligee. The judgment discusses the nature of waiver as requiring consent from both parties or being precluded by the terms of the bond. It emphasizes that the right to waive must exist under ordinary law unless specifically taken away. The judgment suggests that the provision in Article 75 recognizes the creditor's right to waive, assuming it exists, without imposing additional restrictions beyond the ordinary law. 3. The judgment highlights that provisions like the exigibility clause are typically for the creditor's benefit, as seen in mortgage cases. It argues that the creditor should not be allowed to benefit from their default. The judgment interprets Article 75 as acknowledging the creditor's right to waive, irrespective of the bond terms, without imposing restrictions. It emphasizes that unless the bond explicitly removes the privilege, it should be assumed to exist for the creditor's benefit. 4. Addressing the application of Order 2, Rule 2, Civil P.C., the judgment clarifies that the right to waive exists in certain cases, such as when the option is expressly given to the creditor. It discusses the concept of double cause of action upon default and the creditor's right to choose between suing for defaulted instalments or the full amount. The judgment explains that the act of waiver extinguishes the alternative cause of action, emphasizing the essence of waiver in such situations. 5. The judgment concludes that the lower court's decision aligns with the legal principles discussed, affirming the validity of the waiver of the exigibility clause by the plaintiffs. It emphasizes the necessity to assess the reasonableness of the lower court's conclusion in a Small Cause Court revision. The revision is dismissed, upholding the lower court's decision, and costs are awarded to the respondents.
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