1939 (3) TMI 15 - HC - Indian Laws

Summary

Issues Involved:
1. Waiver within the meaning of Article 75, Limitation Act.
2. Applicability of Article 74 versus Article 75, Limitation Act.
3. Whether acceptance of part payment constitutes waiver.
4. Whether the suit is barred by limitation under Article 75, Limitation Act.
5. Distinction between mortgage instalment bonds and ordinary instalment bonds concerning limitation.

Detailed Analysis:

1. Waiver within the meaning of Article 75, Limitation Act:
The first issue was whether there had been a waiver within the meaning of the third column of Article 75, Limitation Act. The waiver alleged was the payment of Rs. 25 as a part payment of the instalment or instalments then due. The judgment referenced Try J. in Keene v. Biscoe (1878) 8 Ch. D 201, stating, "Where a right has accrued it can be waived, but to amount to waiver there must be something done which is inconsistent with the continuance of that right." The acceptance of Rs. 25 was not inconsistent with the demand for the remaining amount, thus no waiver occurred.

2. Applicability of Article 74 versus Article 75, Limitation Act:
Mr. Bose argued that Article 74, Limitation Act, was an omnibus Article for promissory notes or bonds payable by instalments, and that Article 75 only applied if the creditor chose to sue on the default clause for the full amount. The court rejected this argument, stating that if Mr. Bose's contention were correct, Article 75 would be redundant. The judgment emphasized that Article 75 "is in very special terms" and must be construed accordingly.

3. Whether acceptance of part payment constitutes waiver:
The judgment referred to Rup Narain Bhattacharya v. Gopi Nath Mandol 11 C.W.N. 903, where the learned Chief Justice stated that it was open to the creditor to sue for the whole amount or to waive the benefit of the proviso. However, the court concluded that in this case, there was no waiver as the acceptance of Rs. 25 was not inconsistent with the demand for the remaining amount.

4. Whether the suit is barred by limitation under Article 75, Limitation Act:
The court held that the action of the plaintiff was barred by limitation. The judgment stated, "In my judgment on the plain reading of the Article and having regard to the fact that there was no waiver, the action of the plaintiff was barred by limitation and the appeal therefore should be allowed and the action of the plaintiff dismissed with costs throughout."

5. Distinction between mortgage instalment bonds and ordinary instalment bonds concerning limitation:
The judgment highlighted the distinction between mortgage instalment bonds and ordinary instalment bonds. It referenced the Privy Council decision in Lasa Din v. Gulab Kunwar, which established that for mortgage bonds, limitation runs from the due date of the principal amount, not from the date of each default. However, for ordinary instalment bonds with a default clause, Article 75 applies, and limitation runs from the date of the first default unless waived.

Separate Judgments:

Yarma, J.:
Yarma, J. agreed with the previous judgment, emphasizing that the suit was barred by limitation under Article 75, Limitation Act. The judgment clarified that mere acceptance of part payment does not amount to waiver and that the suit was filed beyond the limitation period.

Manohar Lall, J.:
Manohar Lall, J. provided a detailed analysis, agreeing that the suit was barred by limitation. The judgment emphasized the distinction between Articles 74 and 75, Limitation Act, and concluded that the defaults committed were not waived. The judgment also highlighted that the acceptance of a portion of an overdue instalment does not constitute a waiver.

Conclusion:
The appeal was allowed, and the suit of the plaintiff was dismissed with costs throughout. The court held that the action was barred by limitation under Article 75, Limitation Act, and that there was no waiver of the default.