Judgment :- 1. The plaintiff is the appellant. The suit was for recovering money due under a chitty conducted by the defendant. The plaintiff's case was there were three classes of chitties conducted by the defendant as foreman. They were earmarked A, B and C class chits. The plaintiff had subscribed to three tickets in A class (4 in B class and 3 in C class) chitties. He had obtained satisfaction in respect of these with the exception of two tickets in A class, 2 in B class and 3 in C class. There were altogether 26 instalments of subscription payable; but the chitty collapsed on the 20th instalment day. All subscriptions have been duly paid by the plaintiff till the 19th instalment day. He had made a successful bid in respect of one of his tickets in the A class chitty on the 19th instalment date. The total investment calculated on the basis of the subscriptions payable by the plaintiff would have been Rs. 1200, but the amount of his bid was only Rs. 989-14-4. This sum had to be paid to him as prize money according to the rules of the chit on the 20th instalment day. But it was not paid, because the chitty collapsed by that time. The point that was urged on behalf of the plaintiff at the trial in respect of this amount of the bid was that since the prize money was not paid to him on the 20th instalment day, he had the option of withdrawing the bid that he had made of Rs. 989-14-4 and he could insist upon the total subscriptions paid by him being refunded to him. This contention did not find favour with the trial court which held that there was authority in Travancore for the position that once there was a successful bid at a chit auction, it was not open to the subscriber who had made that bid to go back upon it and claim refund of the subscriptions paid by him. The correctness of this proposition is questioned on behalf of the appellant. 2. The correctness of this proposition is questioned on behalf of the appellant. 2. The point raised on behalf of the plaintiff was the subject matter of additional issue No. 6 framed at the trial which was worded as follows: "Whether in respect of one A class number prized on the date of the 19th drawing the plaintiff may be deemed to be a non-prized subscriber if it is found that the chitty collapsed on the 20th drawing." The trial court in paragraph 8 of its judgment says as follows about this issue: "Additional issue 6. This issue relates to the question whether in respect of one A number which the plaintiff prized on the date of the 19th drawing, he can treat himself as a non-prized subscriber. The prize for that ticket was due only on the date of the 20th drawing and according to my finding above the 20th drawing was not held, the chitty having collapsed on that date. It is contended on behalf of the plaintiff that the discount at which the number was bid in auction was in fact not distributed among the non-prized subscribers owing to the collapse of the chitty on the 20th drawing and that as such he should be treated as a non-prized subscriber. I do not accept this contention. Having prized the ticket, he cannot waive his right to claim the prize money and be allowed to go back to his right to claim the paid up subscriptions as a non benefitted subscriber (See 11 T.L.T. page 454). This issue is found accordingly." 3. It will be seen from the extract given above that the trial court took the view that once the plaintiff has made a successful bid at an auction, it is not open to him to waive his right to claim the prize money and to go back to his right to claim the paid up subscriptions as a subscriber who had not made a successful bid at the auction. On the face of it, the contention urged on behalf of the plaintiff appellant seems to us to be well founded. As already stated, the total amount which the plaintiff could claim in case he had not bid at the auction was Rs. 1200. But he was prepared to forego over Rs. On the face of it, the contention urged on behalf of the plaintiff appellant seems to us to be well founded. As already stated, the total amount which the plaintiff could claim in case he had not bid at the auction was Rs. 1200. But he was prepared to forego over Rs. 200 on the basis that on the next instalment day which was the 20th instalment day, he would be paid in cash Rs. 989-14-4. It was in anticipation of obtaining this payment that he was willing to forgo the discount subject to which he had made the bid. But when the forman of the chitty could not pay the prize money to him on the 20th instalment day, the transaction in our view became voidable at the option of the subscriber who then became entitled to say that he was not willing to be regarded as a subscriber who had made a successful bid at the auction, but that he would be content to obtain satisfaction as an ordinary subscriber who could ordinarily claim refund of the subscriptions already paid by him. There are three provisions of the Travancore Contract Act which would support such a contention. The first of these is to be found in S. 40 according to which "When a party to a contract has refused to perform, or disabled himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has signified by words or conduct, his acquiescence in its continuance." In the present case, by the collapse of the chitty on the 20th instalment day, the stake-holder disabled himself from performing his promise in its entirety. He was not able to pay the prize money to the plaintiff nor was he able to continue the chit and the plaintiff was thus deprived of the benefit of the discount that would become available to the subscribers generally when other subscribers make their bids at the chit auction. He was not able to pay the prize money to the plaintiff nor was he able to continue the chit and the plaintiff was thus deprived of the benefit of the discount that would become available to the subscribers generally when other subscribers make their bids at the chit auction. Another provision which can be relied on by the plaintiff is S. 55 of the Travancore Contract Act according to which "When a contract consists of reciprocal promises, such that one of them cannot be performed or that is performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may substain by the non performance of the contract." Moreover, in a transaction like the present, in view of the fairly large amount waived by the bidder at the chit action in anticipation of getting the amount of his bid in cash on the next instalment day, time must be regarded as of the essence of the contract and if the stake-holder does not perform his promise on the next auction day as agreed to by him, the contract must be deemed to have become voidable at the option of the subscriber, according to S. 56 of the Travancore Contract Act. This, in our view, is a case in which the parties must be deemed to have regarded time as of the essence of the contract. The subscriber who makes his bid at an auction does so after making a calculation as to the benefit that he will derive by getting cash on the next instalment day. The amount that he is prepared to waive on the basis of that expectation, he gives up and if when the time arrives for him to reap the benefit of that bid, he does not get the amount, then the whole transaction must be deemed to have become voidable at his option. It is in anticipation of getting the amount on a particular date that he voluntarily waives a portion of the total subscription to the refund of which he would become entitled in case he does not bid. It is in anticipation of getting the amount on a particular date that he voluntarily waives a portion of the total subscription to the refund of which he would become entitled in case he does not bid. It is really a transaction which is on a par with a commercial contract in which time is prima facie the essence of the transaction and, therefore, we are of the view that the legal contention urged on behalf of the plaintiff is well founded. 4. The next question is whether there is anything in the Chitty Act or in the Chitty Variyola or in earlier decision which is inconsistent with this legal position. So far as the Chitties Act and the Chitty Variyola are concerned, the respondent's learned counsel has not been able to point out any particular rule which is inconsistent with the position advocated by the plaintiff's learned counsel. The transaction is essentially a contract between the two parties consisting of reciprocal promises to be performed by either side and the provisions of the Travancore Contract Act will in the circumstances apply to the case in view of the scope of that Act. 5. Passing on to the judicial decisions which, according to the Respondent's learned counsel, are opposed to the argument of the appellant's learned advocate, we have not been shown any case in which a different principle was recognised. The court below has chosen to base its decision on the case in Chenthiperumal v. Kesavaperumal (11 TLT 454). On a perusal of the judgment in that case, we find that there was a special feature there which is absent in the present case, which, no doubt, was the reason for the decision. In that case the subscriber who was the successful bidder at an auction wanted to waive his right to claim the prize money for the reason that it was not paid to him according to the terms of the contract and he wanted to claim refund of the paid up subscriptions as a non prized subscriber. The learned judges observed that out of the prize money he had already received a part payment of Rs. 620. By accepting such payment, he had obviously waived his right to repudiate the transaction. He cannot eat his cake and have it. In the present case there is no indication of such waiver. The learned judges observed that out of the prize money he had already received a part payment of Rs. 620. By accepting such payment, he had obviously waived his right to repudiate the transaction. He cannot eat his cake and have it. In the present case there is no indication of such waiver. The learned judges said that they based their decision on the case reported in Ramakrishna Iyengar v. Arunachala Mudaliar (22 TLJ 1274), in support of the proposition "that where a chitty subscriber had bid his ticket but has not been paid his prize amount, he cannot waive his right to claim the prize money and be allowed to go back to his right to claim the paid up subscriptions as a non prized subscriber." The judgment in the latter case makes it clear that the main reason for the court taking the view that the subscriber's right to claim the paid up subscriptions had been superceded by the right to claim the prize money was because he had sent a notice claiming the prize money. That clearly indicated that he had chosen to exercise his option in favour of claiming the benefit to which he was entitled as a subscriber who had made a successful bid for the prize money. Once a party to a contract has elected to make such a claim, it is not open to him to go back upon it and say that he wants waive his claim for the prize money. 6. In these circumstances, we are satisfied that there is nothing in the judicial decisions relied upon by the court below or by the learned counsel for the respondent which stands in the way of the court granting the relief which the plaintiff appellant wants under the provisions of the Travancore Contract Act. There is also this additional feature, that there is no evidence to show that the discount subject to which the plaintiff had made the bid was in fact distributed among the other subscribers who did not bid for the prize money. There is also this additional feature, that there is no evidence to show that the discount subject to which the plaintiff had made the bid was in fact distributed among the other subscribers who did not bid for the prize money. We, therefore, set aside the decision of the court below on this question and hold that in respect of one ticket in the A class chitty conducted by the defendant, it is open to the plaintiff to waive his right to draw the prize money and to insist upon being paid back all the subscriptions duly paid by him towards that ticket in the chit. The appeal is accordingly allowed to this extent with proportionate costs. The result is that in respect of one ticket in the A class chit for which he had made a bid on the 19th instalment day, instead of Rs. 989 awarded to him by the decree of the trial court, he is entitled to refund of the total subscription paid by him together with such interests as is payable under the rules of the chit. Appeal allowed.