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Allahabad High Court · body

1946 DIGILAW 216 (ALL)

Ram Kumar v. Baqridi

1946-09-06

KIDWAI

body1946
JUDGMENT Kidwai, J. - On the 11th October, 1932, Baqridi, opposite-party, executed a bond in favor of Lala Shiam Lal for a sum of Rs. 200 payable in installments entered at the foot of the bond and extending from the year 1990 Sambat to 1994 Sambat. The last of these installments fell due on the 25th May 1937. The bond provided that in case of default in payment of any installment interest would run on the whole amount at the rate of 18 per cent per annum from the date of the bond till the date of realization and that the creditor would be entitled to the amount of money either on the expiry of one; installment or on the expiry of all the installments. On the 26th May, 1943, Lala Shiam Lal brought the suit out of which this application has arisen in the Court of mail Causes ut Barabanki claiming a sum of Rs. 250 incisures of interest on the ground that the debtor had not paid anything in spite of repeated demands although all the installments had fallen due. He claimed that limitation began to run on the 25th May, 1937, the date of the last installment, and that he was entitled to exclude the three years during which Act X of 1937 was in force. 2. Baqridi pleaded that he had not borrowed the entire money due under the bond and that he had already paid the entire sum that was in fact due. He also took the plea that the suit was barred by limitation. It seems to have been admitted that Baqridi was an agriculturist within the meaning of Act X of 1937 and that, therefore, the creditor was entitled to the benefit of Section 5 of Act X of 1937. 3. The trial Court dismissed the suit holding that limitation began to ran from the date of the first default and it relied upon the cases reported in AIR 1925 34 (Oudh) , Pherai v. Pudai Ram (1924) 1 O.W.N. 647 : 27 O.C. 3 and Suhh Lal v. Bhoora AIR 1934 All. 1939. 4. Shiam Lal applied u/s 25 of the Small Causes Courts Act to this Court. He died during the pendancy of the application and his hairs have been brought on the record. It is on their behalf that the application has been argued. 5. 1939. 4. Shiam Lal applied u/s 25 of the Small Causes Courts Act to this Court. He died during the pendancy of the application and his hairs have been brought on the record. It is on their behalf that the application has been argued. 5. The sole point involved in his revision application is one of limitation. It has been argued on behalf of the applicants that the decision of the Court below is wrong and that in view of the clause of the bond enabling the creditor to wait till the expiry of all the installments before he brought the suit for his money, the suit is within time. The Learned Counsel relied upon a decision of their Lordships of the Judicial Committee in that lease of Lasa Din v. Gulab Kunwar (1932) 7 Luck 442 in which it was laid down that if a period is fixed in a mortgage deed for payment of the mortgage money but it is also provided that interest shall be paid yearly and in case of default in payment of interest the mortgagee will be entitled to bring a suit at once for the whole of his money, it will be open to the mortgagee either to bring a suit on default or to wait for the expiry of the period originally fixed in the mortgage deed. Their Lordships were concerned with Article 132 of the Indian Limitation Act and they held that by interpreting it in such a way as to hold that the whole money became due on default of interest they would be conferring a benefit upon the debtor by reason of his own default in as much as he would be entitled to redeem even before the period laid down in the mortgage deed merely by making a default. They accordingly held that such a clause in the mortgage deed was meant only for the benefit of the mortgagee and that it could not be held that the money had "become due" within the meaning of Article 132 of the Indian Limitation Act until both the mortgagor's right to redeem and the mortgagee's right to enforce his Security had accrued (vide page 458 of the report). 6. 6. In Raghunandan Tewari v. Sbeoraji 1941 O.A. 265 : A.W.R. (C.C.) 108 : 1941 O.W.N. 361 a Full Beach of this Court has extended the principle to cases to which Articles 66 and 80 of the Indian Limitation Act apply. The Bench in a that case was referred to a decision the Full Bench of the Allahabad High Court in the case of Jawahar Lal v. Mathura Prasaa (1135) 57 All. 108 : (1934) 3 A.W.R 845 and to some remarks of Suialman C.J. in the Allahabad case and they say that that case (in which the question of interpretation of Article 75 of the Limitation Act was involved) was clearly distinguishable from cases of the type of the case before them in a number of different ways. This case too, therefore, is of no assistance in interpreting Article 75, of Schedule 1 of the Indian Limitation Act 7. The matter, however, is very carefully and fully discussed in the judgment of Sulaiman, C.J. in the case reported in Jawahar Lal v. Mathura Prasad (1135) 57 All. l08 : (1934) 3 A.W.R 845 to which reference was made before the Full Bench of this Court in Raghunandan Tewari v. Sheoraji 1941 O.A. 265 : A.W.R. (C.C.) 108 : 1941 O.W.N. 361. There the Full Bench held after a consideration of all the authorities including Lasa Din's case as well as previous Full Bench decisions of the Allahabad High Court which seemed to lay down a different law, that, in a case governed by Article 75, Limitation Act, limitation for the whole amount of the bond begins to run when the first default is made unless the obligee waives the benefit of the provision. It is also held by King J. in his judgment in that case that the mere fact that a suit was not brought within the time allowed did not amount to waiver. Mukerji, J. differed from the other two Judges in that case but he also held that, with regard to the installment in respect of which default had been made limitation began to run from the date of the default. This Full Bench case was considered by another Bench of the Allahabad High Court in Sukh Lal Vs. Bhoora, AIR 1934 All 1039 . This Full Bench case was considered by another Bench of the Allahabad High Court in Sukh Lal Vs. Bhoora, AIR 1934 All 1039 . In that case the Full Bench decision was followed and it was made clear In the judgment of Rachhpal Singh J. that the mere tact that the suit was not brought within the period of three years from default did not amount to a waiver of the right within the meaning of the words contained in the third column of Article 75. The principle deducible from those authorities seems to be that when once limitation has begun to run, the period can only be extended in the manner laid down in the Limitation Act and not by mere agreement of the parties which does not come in within any of the extending sections of the Limitation Act. On the other hand, when the date fixed for the commencement of limitation has not yet arrived limitation may begin to run by reason of the breach of a condition, In the present case the bond is undoubtedly one in which there is a provision that when default is made in payment of one or more installments, the whole sum shall become due. No doubt it further provides that the creditor will have the option to sue on the default of one installment or when the time fixed for payment of all the installments has expired but this condition does not take it out of the purview of Article 75. The bond in the case of Jawahar Lal v. Mathura Prasad (1135) 57 All 108 : (1934) 3 A.W.R 845, was of a similar nature and it was specifically held that Article 75 applied. With all respects to the learned Judges who decided that Full Bench case, I would say that I am in entire agreement with the reasoning upon which they proceeded and it is unnecessary for me to repeat this reasoning. I think that that case is fully applicable to the facts of the case before me. 8. In the present case it was possible for the creditor to plead and to show that he had waived the benefit of the provision. He made no such allegation in the plaint; rather he alleged that he had made repeated demands and had not been paid in spite of them. 8. In the present case it was possible for the creditor to plead and to show that he had waived the benefit of the provision. He made no such allegation in the plaint; rather he alleged that he had made repeated demands and had not been paid in spite of them. No question of waiver, therefore, arose and the suit should have been brought within three years of the default in payment of the first installment, that is to say some time in 1936. It was brought much later and was clearly barred by limitation. 9. I, therefore, uphold the decree of the lower Court and dismiss this revision with costs.