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TMI Blog1939 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... question may be asked--could the acceptance of ₹ 25 in any way prevent or be an answer to the cause of action which the creditor might have had to the other amount? There can be only one answer to that question and that answer is in the negative. From one point of view the conclusion that there was no waiver disposes of the matter; but Mr. Bose who appears on behalf of the plaintiff-respondents developed his argument before us and that argument requires consideration. His contention was, although perhaps not expressed in these words, that Article 74, Limitation Act, was an omnibus Article providing a period of limitation for promissory notes or bonds payable by instalments both in those cases in which there was a default clause, and in those in which default clause was absent, and that if the creditor chose to sue on the default clause for the full amount, then and then only Article 75 came into operation. In my judgment that is an argument which cannot be accepted and if what Mr. Bose contends were correct in my opinion Article 75 would be redundant. Mr. Bose relies for his argument upon the decision of their Lordships of the Judicial Committee of the Privy Council in Lasa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been a waiver there can be no dispute that the plaintiff-respondent in this case would not be barred by the six years' period provided by col. 3 of Article 75 dating from the first default. I say there can be no doubt about that, but as I have already observed, it cannot be said in this case that there was a waiver. There is one observation I should have made at the time that I dealt with that point and that is this that even assuming that Mr. Bose is right in his contention that it is a question of fact, the plaintiff could not be heard in this case to say that there had been a waiver because the circumstance which he alleged, namely that all the instalments to date had been paid was inconsistent with that plea. But I do not accept the argument that it is purely a question of fact and the observation of Pry J. to which I made reference a moment ago is sufficiently conclusive on that point. 5. Now dealing with the two cases upon which Sir Francis Maclean relied, one was the decision in 6 Cal 94.16 The decision there was that the suit to recover money due on a registered bond is a suit for compensation and is governed by Article 116. Garth C.J. was there dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case in Lasa Din v. Gulab Kunwar, namely on a mortgage bond governed by Article 132. I need only add that Boss J. made no reference to the terms of the Article but came to the conclusion that the case was completely covered by the earlier decision to which I have referred. Now, it is perfectly clear, if I may be allowed to say so with respect to Ross J. that their Lordships of Judicial Committee of the Privy Council, whatever their decision might be, if the matter came before them, declined to consider that the provisions of Articles 132 and 75 are in any way similar. As I have already observed, the Judicial Committee have said that Article 75, Limitation Act, is in very special terms. 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. Yarma, J. 8. I agree. The facts are very simple and in order to make my meaning dear I shall just narrate shortly as to what the suit was about. There was a registered money bond executed on 6th February 1922 under which pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue for the whole amount due under the bond on default of payment of a single in stallment, there is no waiver of that right by acceptance of part of an overdue instalment, or by receipt of interest. As a matter of fact it is doubtful whether this question of waiver could be raised by the plaintiff in this suit in view of the statements made by him in the plaint. The plaint said that all the instalments for which the plaintiff was suing had already been paid. 10. The next point to be considered is whether the decision in Ram Chandra Nayek v. Gharbharan Ahir (1930) 132 I.C. 112 expresses the correct view of the law on this point. That decision refers, as has been pointed out by my learned brother in his previous judgment, to an earlier decision in Ramsekhar Prasad Singh v. Mathura Lal. In the case reported in Ram Chandra Nayek v. Gharbharan Ahir (1930) 132 I.C. 112 it has been simply held that the case was covered entirely by the previous decision reported in the same volume at p. 835. The decision ignores the basic difference between the two suits that this Court was dealing with; in the latter decision the learned Judges were dealing with a money instalment bond while in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, by the very terms of his bond, to sue only for such instalment as remains unpaid. No question of waiver of default can ever arise in such a case. But where the document provides that in the case of a default (which may be due to non-payment of one instalment or more than one instalment as provided in the bond) the obligee has the right to sue for the whole of the sum then remaining due, it is obvious that the promisor has a right eo instanti to pay the full amount and the obligee a corresponding right to receive and recover it. Article 75 provides in col. 3 how the starting point of limitation should be calculated in such a case; the starting point of limitation is in the first instance the date of the default but this starting point can be carried forward, only if the default is waived. Now waiver must obviously be a mixed question of law and fact in each case and therefore the Article of the Limitation Act under consideration cannot be looked into to decide when the default has been waived as was sought to be argued. 12. The weighty observations of Lord Denman and Pry J., quoted in the Order of Reference correctly indicate how this question should be determined. It is there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the observations of this Court in Mukhdeo Singh v. Harakh Narayan Singh where Pazl Ali J. observed as follows: Now there is a good deal of conflict in the decisions of the various High Courts in this country as to what would constitute a waiver and what would not. It has been held in several cases that mere abstaining from bringing a suit does not amount to a waiver and some of these cases were relied on by the learned advocate for the appellant. All those cases however were decided under Article 75, Limitation Act, and it is clear that if it is held in cases falling under that Article that mere abstention from suing amounts to a waiver that would nullify the main provision in that Article which is to the effect that the time would ordinarily begin to run from the date of the first default. 15. Now if these considerations are kept in view the whole scheme of the Act becomes quite clear and plain and Article 75 retains its place as a workable Article and is not rendered nugatory as has been held by some of the learned Judges of the Allahabad High Court; otherwise every instalment bond with or without a default clause would 'be covered by Article 74. Indeed it was so arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dissentient judgment of Mukherji J. at p. 129 but with great respect I am unable to agree with the reasoning which commended itself to that learned Judge. At p. 133 the learned Judge takes the view that the description in Article 75 is not merely of the bond on 'which the suit is based but is also a description of the nature of the relief which is sought in the suit and proceeds to fortify his conclusion by some examples. But the answer is that the wishes of the obligee under the bond with a default clause or the manner in which he frames his plaint are superseded by the fiat of the Legislature which 'has unmistakably laid it down that if you wish to recover money due or payable under an instalment bond with a default clause you must come within a prescribed period starting from the date of the first default unwaived. With the wisdom of this enactment this Court is in no way concerned. Again at p. 135 the learned Judge appears to lay down that it was open to the plaintiff to enforce or refuse to enforce the penalty clause provided for in the bond upon which he sues and therefore he could always get rid of the difficulty set up by Article 75. If this view of the learned Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th instalment was not paid in time but the default was waived by the acceptance of that overdue instalment on 16th March 1926, and therefore the period of limitation for the suit did not begin in March 1926. Inasmuch as the fifth instalment was not paid at all the default took place in March 1927 and the present suit having been instituted beyond six years of that default the suit is beyond time. 21. But it was argued that as the plaintiff accepted the sum of ₹ 25 against the sixth instalment in March 1928 he must be held to have waived the previous default of the fifth instalment as well as the default of the sixth instalment. I have already held that the acceptance of a portion of an overdue instalment cannot amount in law to a waiver of the default and therefore the acceptance of ₹ 25 against the fifth or the sixth instalment (there is no evidence as to which overdue instalment was being paid in part) cannot be taken to have established that the default which had already occurred in 1927 and which again occurred in 1928 was ever waived. Whichever view is taken as to this payment of ₹ 25 the plaintiff gets no help. If this payment is attributed to the fifth i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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