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TMI Blog1947 (3) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... d on defaulted instalments and the entire amount would become payable on default of any three instalments. 2. The defendant paid the following amounts: ₹ 25 on 27-4-1936. ₹ 25 on 23 8-1937. ₹ 25 on 7-6.1938. ₹ 25 on 8-2-1940. ₹ 10 on 28-4-1942. 3. The pleadings in the case are, as usual, not clear and much is left merely to inferences. The plaintiff put down the cause of action for the suit on 15-4-1942, i.e., on default of the 7th instalment and pleaded that the first four instalments were satisfied. Waiver is not pleaded expressly. What was however implied was that the defaults in payment of the second, third and fourth instalments on due dates were waived when the debtor paid the amounts on 28-8-1987, 7-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary to be pleaded and proved when the clause in the bond sued upon itself left an option to the creditor to take or not to take the benefit of the exigibility clause. It was also thought that the plaintiff was in any case entitled to recover such instalments as were within limitation on the basis of the primary term regarding the payment of instalments. Both these contentions are now set at rest. 6. It was pointed out by the Full Bench of the Judicial Commissioner's Court in Vishwanath v. Sadashiva A.I.R. 1932 Nag. 1 following Basanta Kumar Singh v. Nabin Chandra A.I.R. 1926 Cal. 789 that the wording of the clause was immaterial. It was observed that the question is not what the creditor should do but what the debtor was lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not amount to a waiver of the defaulted instalment. On this point, the decisions are not unanimous and the Calcutta. High Court has consistently held that the acceptance of an overdue instalment amounts to a, waiver of the default. 10. The latter view has found, favour with Manohar Lall, J. in Gokhul Mahton v. Sheo Prasad Lal A.I.R. 1939 Pat. 433 and I respectfully agree with that view. The learned Judge has pointed out and if I may say so with respect, quite correctly that where the creditor has accepted an overdue instalment it must be held that he has waived his right which accrued to him on that default and that the starting point of limitation would be from the next default, if not waived. 11. The conflict of view as stated above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve law of contract and in my opinion it has no application to the 'waiver of benefit' within Article 75, Limitation Act, which is a procedural law. It is apparent from Article 75, Limitation Act, that the default clause is for the benefit of the creditor. 14. This was accepted by Bose, J. in Gulabrao v. Ganpati A.I.R. 1942 Nag. 138 It follows, therefore, that one for whose benefit the clause is meant may waive the benefit of that clause without the consent of the other party. The choice is exclusively of the creditors. As Pry J. (as he then was) correctly observed in Keene v. Biscol (1878) 8 Ch. D. 201 Where a right has accrued it can be waived but to amount to waiver there must be something done whish is inconsistent with the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ton v. Sheo Prasad Lal A.I.R. 1939 Pat. 433 Manohar Lall, J., one of the Judges constituting the Full Bench, observed: The weighty observations of Lord Deman and Fry, J. quoted in the order of reference, correctly indicate how this question should be determined. It is there laid down that mere failure to sue or inaction by the creditor is not a waiver of the default, something else must be established to show that the promisee has waived his right. For instance, his acceptance of an overdue instalment or his communicating to the promisor for a consideration that he will not insist upon his rights which have already accrued to him on the default which has taken place, or, it may be that the promisor himself approaches the promisee or write ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself is inconsequential. In the absence of proof of waiver, the creditor cannot fall back on the primary terms of the bond regarding repayment and claim to recover on that basis instalments which are still within limitation. 18. Now keeping these principles in view the plaintiff must plead in every case based on an instilment bond if he waived the benefit of the exigibility clause when it accrued on the first occasion and on subsequent occasions and when according to him that benefit again accrued and which he has not waived. As said above, the plaintiff vaguely pleaded that the first four instalments have been recovered and he subsequently disclosed the dates of repayment which were other than due date of instalments. His suit is spe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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