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1953 DIGILAW 191 (KER)

Narayanan Nambiar v. Krishna Menon

1953-12-03

SANKARAN, VITHAYATHIL

body1953
Judgment :- 1. Defendant No. 13 is the appellant. The question for decision in this second appeal is one relating to limitation. The suit is on a kuri security bond executed by defendants 1 to 3 on 15.11.1102 in favour of the plaintiff Yogam. Defendant No. 13 is a vendee of item No.1 of the plaint schedule. The kuri security bond provided that if default was committed in the payment of any one or more instalments the subscriptions payable for all the instalments would be payable in a lump with interest on the whole amount from the date of default. The kuri was commenced in Vrischikam 1099 and terminated in 1115. The 10th of every month was the kuri day. Default was committed in the payment of subscriptions on 10.9.1106. In Makarom 1108 the Yogam sent a notice, Ext. VIII, demanding payment of the entire balance amount with interest. Notwithstanding this notice subscriptions payable for the instalments up to 10.12.1108 amounting to Rs. 79-14-0 were paid to the Yogam on 10.12.1108 itself and received as such by the Yogam. The amount payable for the instalment of Kanni 1109 was paid on 12.1.1108 and that payable in Kanni 1109 was sent by money order on 9.2.1109 and were accepted as such by the Yogam. These payments were entered in the kuri chittas (kMgMvV sMyVaV)) Exts. T. and U. The suit was instituted on 10.3.1121 for the instalments due from 10.3.1109 onwards. 2. Defendant No. 13 contended inter alia that the suit was barred under Art.121 of the Cochin Limitation Act, Act XII of 1112. Art.121 reads: "Description of Suits Period of limitation Time from which period begins to run For recovery of money or The expiration of the first term paddy charged upon immovable of payment as to the part then property payable by instalments payable; and for the other which provides that if default be parts the expiration of the made in payment of one or more respective terms of payment; instalments, the whole shall be due. but, where after the default, and on or before the date on which the last instalment is due, the payee or obligee makes a demand in writing for the payment of the whole, and has not thereafter, waived in writing his right to such payment, then, from the date of such demand". but, where after the default, and on or before the date on which the last instalment is due, the payee or obligee makes a demand in writing for the payment of the whole, and has not thereafter, waived in writing his right to such payment, then, from the date of such demand". It was contended by 13th defendant that the suit instituted more than 12 years from the date of the demand in writing Ext. VIII, was barred under the Article. According to him the receipt by the Yogam of the instalment amounts after the date of Ext.VIII and the entry of those amounts in the kuri chittas would not amount to a waiver in writing so as to enable the plaintiff Yogam to claim the instalments that fell due within 12 years before the date of the suit. The trial court accepted this plea and dismissed the suit. In appeal filed by the plaintiff the District court held that under the Limitation Act that was in force when the instalment amounts were received by the Yogam after the issue of the notice, Ext. VIII, it was not necessary that there should be a waiver in writing as is the case under Act XII of 1112. The Act that was in force in 1108 and 1109 when the instalment amounts were received by the Yogam was Act II of 1079. Art.65 of that Act which was the Article relating to instalment bonds of this nature reads: "Description of Suits Period of limitation Time from which period begins to run 65. On a promissory note or When the first default is made, bond payable by instalments, unless where the payee or which provides that, if default be Three years. obligee waives the benefit made in payment of one instalment of the provision, and then the whole shall be due. when fresh default is made in respect of which there is no such wavier". According to the learned judge the receipt of instalment amounts as such by the Yogam in 1108 and 1109 amounted to an effective waiver and the right of the Yogam to claim subsequent instalment amounts as and when they fell due would not be affected by anything contained in Art.121 of the Limitation Act of 1112. 3. According to the learned judge the receipt of instalment amounts as such by the Yogam in 1108 and 1109 amounted to an effective waiver and the right of the Yogam to claim subsequent instalment amounts as and when they fell due would not be affected by anything contained in Art.121 of the Limitation Act of 1112. 3. Learned counsel for the appellant argued before us that it was Act XII of 1112 which was in force when the suit was instituted that should apply to the case and not Act II of 1079 which was repealed by that Act. He further contended that under Art.121 of Act XII of 1112 there must be a waiver in writing in order to save from the bar of limitation a suit for the instalment amounts that fell due within 12 years from the date of the suit. According to learned counsel the fact that instalment amounts were received as such by the Yogam after the issue of the notice Ext. VIII and the fact that such receipt is evidenced by writing would not amount to a waiver in writing as provided in Art.121. His case is that Exts. T and U can at the most only amount to documents evidencing oral waiver by the plaintiff. It was argued that what the Article requires is not a document evidencing oral waiver but an intimation or communication in writing by the creditor to the debtor to the effect that the former has waived his right to claim the whole amount in a lump. Learned counsel for the respondent replied that assuming that Exts. T and U do not amount to a waiver in writing the receipt of the instalment amounts as such by the Yogam after the issue of the notice Ext. VIII operated as a valid waiver under the Limitation Act that was in force at the time and that the right of the Yogam to sue for the instalment amounts as and when they fell due could not be taken away by the subsequent enactment of Art.121 of the Limitation Act, XII of 1112. It was also argued that the receipt of the instalment amounts as such and the entry of the same in the kuri chittas amounted to a waiver in writing as contemplated by Art.121 of Act XII of 1112. It was also argued that the receipt of the instalment amounts as such and the entry of the same in the kuri chittas amounted to a waiver in writing as contemplated by Art.121 of Act XII of 1112. It was further argued that by reason of the Cochin Kuri Proclamation the Yogam could not sue for the entire subscriptions in a lump notwithstanding the demand made under Ext. VIII and that, therefore, Art.121 of Act XII of 1112 would not apply to the case. 4. It is not disputed that the receipt of instalment amounts as such by the Yogam in 1108 and 1109 after the issue of the notice, Ext. VIII, would amount to a waiver of the right to claim the whole amount in a lump. This question was discussed at length by this Court in John v. Varghese (1951 K.L.T. 281). It is, therefore, not necessary to discuss the question in this case. Exts. T and U show that the amounts paid by defendants 1 to 3 after the issue of the notice Ext. VIII were not paid by them as part of the lump sum payable by them but as amounts payable for particular instalments and that they were received as such by the Yogam. The amount paid on 10.12.1108 was the total amount payable for the instalments due till then. The amount paid on 12.1.1109 was the sum payable for the instalment due on 10.1.1109 and the amount sent by Money Order on 9.2.1109 was the sum payable for the instalment due on 10.2.1109. These payments were entered in Exts. T and U as amounts payable for the particular instalments. We have no doubt that the receipt of the overdue instalment amounts as such by the Yogam after the issue of the notice, Ext. VIII, amounted to a waiver of the right to claim the whole amount in a lump. 5. The further question for consideration is whether the waiver amounts to one in writing. We are unable to accept the argument of learned counsel for the appellant that only in case the creditor expressly says in writing addressed to the debtor that he has waived his right to claim the whole amount in a lump that there can be said to be a waiver in writing. We are unable to accept the argument of learned counsel for the appellant that only in case the creditor expressly says in writing addressed to the debtor that he has waived his right to claim the whole amount in a lump that there can be said to be a waiver in writing. It was argued by him that like a demand in writing waiver in writing also must be addressed by the creditor to the debtor. He pointed out that Art.121 uses both the expressions and that, therefore, they should be understood in the same sense. In other words, according to learned counsel, wavier in writing must amount to a withdrawal in writing of the demand already made by the creditor. We do not think that the word "waiver" connotes that idea. Waiver means giving up the benefit of a right and the intention to give up the benefit may be expressed either by words or by conduct. That does not necessarily require a communication from the person giving up the benefit to the person in whose favour it is given up. On the other hand, "demand" means to ask for a thing as of right. That implies a communication from the person demanding to the person of whom the demand is made. It follows from this that waiver in writing need not necessarily be of the nature of a demand in writing. If the argument of learned counsel for the appellant is accepted even if a creditor expressly says in a registered document executed in favour of a third person that he has waived his right to enforce a particular claim against his debtor it will not amount to wavier in writing. Waiver in writing is more or less of the nature of an acknowledgment in writing. It is clear law that an acknowledgment of a subsisting liability contained in a document executed by the debtor, whether in favour of the creditor or not, is an acknowledgment in writing for the purpose of extending the period of limitation. We are of opinion that what the Legislature meant by the expression "waiver in writing" is only waiver evidenced by writing. It is also not necessary that the creditor should expressly say in writing that he has waived his right. We are of opinion that what the Legislature meant by the expression "waiver in writing" is only waiver evidenced by writing. It is also not necessary that the creditor should expressly say in writing that he has waived his right. As stated by Rustomji in his Law of Limitation (5th Edition) page 807: "When it is sought to establish waiver by payment of an overdue instalment, it is not necessary that the creditor should expressly say that he has waived forfeiture. It is sufficient if from the amount paid and accepted and the circumstances attending the payment and the conduct of the parties, an intention to set up the bond (notwithstanding the default) as one payable by instalment is unequivocally indicated". If the circumstances attending the payment and the conduct of the parties are sufficient to prove waiver it follows that a communication from the creditor to the debtor to the effect that the former has waived his right is not a necessary condition of waiver. 6. Reference may also be made to the observation of Sulaiman, C.J. in Sukh Lal v. Bhoora (57 Allahabad 561): "The waiver, therefore, may be a purely one sided act and need not be for consideration proceeding from the debtor. The waiver may be by the expression of an intention to waive the benefit either by communication to the debtor or by any other overt act Waiver is something more than mere inaction or omission but in my opinion it is not necessary that it should amount to any novation or contract, or any new agreement for consideration or that it should be any other bilateral agreement". If communication to the debtor of the intention to waive the benefit is not a necessary element of waiver it cannot be said that in the case of a waiver in writing there should be such a communication. The fact that the wavier should be in writing cannot affect the real nature of waiver. The requirement of the statute that the waiver should be in writing is based only on grounds of public policy, i.e., restricting the scope for perjured evidenced. This requirement of the statute cannot alter the real nature of waiver. The fact that the wavier should be in writing cannot affect the real nature of waiver. The requirement of the statute that the waiver should be in writing is based only on grounds of public policy, i.e., restricting the scope for perjured evidenced. This requirement of the statute cannot alter the real nature of waiver. If acts and circumstances necessary to constitute waiver are evidenced by writing there is no reason to hold that it will not come within the meaning of "waiver in writing" as used in Art.121 of the Cochin Limitation Act. We are of opinion that the term "waiver in writing" used in the Article means waiver evidenced by writing. 7. In this view of the case it is not necessary to consider the soundness of the argument advanced on behalf of the respondent that Art.121 of Act XII of 1112 would not apply to the case by reason of the fact that the plaintiff had made an effective waiver under the law that was in force when it was made. Neither is it necessary to consider the question whether the plaintiff was prevented from enforcing his claim for all the subscriptions in a lump by reason of the Cochin Kuri Proclamation. We hold that the suit is not barred by limitation. 8. In the result, the second appeal is dismissed with costs. Dismissed.