1942 (2) TMI 31

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..... time unless the plaintiffs can claim a right of waiver. It is also argued that Order 2, Rule 2 applies. The lower Court holds that a default clause in a bond is always for the benefit of the creditor, but though this is so in the case of a mortgage, it is not so in the case of a bond. In the latter case the matter is governed by the terms of Article 75, Limitation Act. This has been set at rest so far as this province is concerned by the Full Bench in Vishwanath v. Sadasheo A.I.R. 1932 Nag. 1 and Shamrao v. Moreshwar The only question here is whether the plaintiffs were entitled to exercise the privilege of waiver and whether they did exercise it when they sued for the defaulted instalments in the present suit. That they must be deemed to h .....

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..... hether it can be assumed to exist unless and until it is specially taken away. In my opinion, it is not taken away in this bond. 3. I think the general trend of the law is that these provisions are primarily for the benefit of the creditor. That that is so in mortgage cases is indisputable. Their Lordships of the Privy Council have settled that in Lasa Din v. Mt. Gulab Kunwar and Article 75 apart, I think their reasoning applies with equal force to bonds and promissory notes. As their Lordships say there is no reason in principle why the person in default should be allowed to take advantage of his own wrong. Of course, considerations of this kind cannot override the plain provisions of a statute, and their Lordships say so at page 453 wh .....

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..... ion is given to the creditor in express terms. If the first instalment is defaulted on say 1st January 1940, the right to sue for it arises on that date, and if the second is defaulted on, say 1st January 1942, the right to sue for the whole immediately accrues, assuming that two defaults cause exigibility. Unless, therefore, it is assumed that the option to waive must always be exercised before the default occurs or be lost (and I do not think anybody has ever contended that) there will always be a double cause of action as soon as the exigibility arises, namely the right to waive the benefit of the clause and to sue for the defaulted instalments and the right not to waive and to sue to the whole. It the position contended for is correct, .....

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