JUDGMENT : S. A. Shah, J. This second appeal is filed by the original plaintiff, a Company registered under the Companies Act. The plaintiff-company is floating various schemes and advancing loans to its members. 2. The facts of this case are more or less admitted. Present respondent No. 1 (original defendant No. 1) Smt. Champaben Gamanlal Gheewala made an application, Exhibit 43, dated 5-2-69, to the plaintiff-company for joining the Schemes known as “Chit Fund Scheme”, “Bonus Loan Scheme” and “Fixed Loan Scheme” and paid the first instalment. Exhibit 44 are the Rules made by the plaintiff-company for Fixed Interest Guarantee Loan Scheme. 3. After respondent No. 1 (defendant No. 1) was taken as a member of the plaintiff-company, she was given a loan of Rs. 5,000/- and a written agreement was executed by her (defendant No. 1) on 20-2-1969 as principal debtor and gave two sureties. The said agreement is produced at Exhibit 49. There is no dispute regarding the execution or advancement of loan of Rs. 5,000/- to defendant No. 1. 4. The only question permitted to be raised in this appeal is, “What is the period of limitation for filing such a suit ? Under clause 3 of the said Agreement, repayment of loan of Rs. 5,000/- was by instalment of Rs. 250/- per month. The first instalment was to start from 7-3-1969, and the entire amount of Rs. 5,000/- was to be paid by monthly instalments beginning from 7th of each calendar month. Clause 4 of the said Agreement provided that if defendant No. 1 makes any default in payment of any instalment on due date along with the amount of commission, she would be liable to pay interest at the rate of 12 per cent per annum from the date of such default till payment thereof. It was further provided in the said clause that if any of the two instalments are not paid on the due date, the remaining amount of the Bond including the interest and costs will immediately become payable, and defendant No. 1, the principal debtor, and both the sureties would be jointly and severally liable for the payment thereof, and the plaintiff-company will also be entitled to forfeit the Bonus amount that has accrued and credited in the account of the principal debtor. Under clause 6 of the said Agreement, undertaking is given to the effect that the principal debtor and the sureties are jointly and severally liable to repay the entire amount of loan. It is further stipulated therein that if they make default in paying the instalment, the plaintiff-company will be entitled to waive the same. But such action of the company would not discharge the debtor or the sureties from the liability to pay the remaining amount of loan at a time. 5. It is not disputed that defendant No. 1 has paid six instalments only, amounting to Rs. 1,500/-, and the remaining amount of Rs. 3,500/- have remained to be paid by way of instalments. The last instalment was paid on 12-7-1969. The first default committed by defendant No. 1 was on 7-8-1969, and the second default committed was on 7-9-1969 and, therefore, as the second default was committed on 7-9-1969, the respondents-defendants became liable to pay the remaining amount of Rs. 3,500/- with interest at the rate of 12 per cent per annum, and also the amount of commission, if any, as provided under Clauses 4 and 6 of the Agreement Exhibit 49. 6. Though the remaining amount of loan, i.e. Rs. 3,500/- became due and payable on or about 7-9-1969, it is not disputed that the plaintiff-company has not taken any action, except giving of notice Exhibit 51, dated 12-8-71, demanding from the principal debtor (defendant No. 1) the remaining amount of Rs. 3,500.90 paise only. The said amount having not been paid by defendant No. 1, the plaintiff-company filed Regular Civil Suit No. 1090 of 1973 in the Court of the Joint Civil Judge, Junior Division, Surat, for recovery of the amount of Rs. 3,500/- only, and no claim for the interest at the rate of 12 per cent per annum from the date of default or any amount for commission has been made therein. 7. Both the Courts below have held that the entire suit is barred by limitation. This Court has, therefore, in this second appeal framed the following questions of law : 1. Whether in the facts and circumstances of the case, the mere omission to sue by not enforcing the default clause for a full period of the term of loan amounts to waiver? If it does not amount, is the suit time-barred under Article 37 of the Limitation Act, 1963? 2. Whether in the facts and circumstances of the case, the mere omission to sue by not enforcing the default clause for a full period of the term of loan amounts to waiver? If it does not amount, is the suit time-barred under Article 37 of the Limitation Act, 1963? 2. Whether in the facts and circumstances of the case, does the liability of defendant No. 2 and/or defendant No. 3 survive as principal debtors on the construction of the Bond, Exhibit 49, even if the suit is time-barred against principal debtor No. 1 ? 8. Mr. S. K. Zaveri, learned Advocate for the appellant, has raised the following three contentions for my consideration : 1. The default clause is for the benefit of the creditor and, therefore, if the creditor does not intend to take any action under the default clause, he can waive and file a suit for the amounts of instalments when all the instalments become due and payable. 2. On true construction of the Bond, Exhibit 49, unless the plaintiff-company makes a demand of recovery, the default clause does not come into operation. In other words, making a demand of recovery is a condition precedent before the right accrues to the creditor-company. 3. The suit has been filed only for the recovery of instalments after they have fallen due, and the forebearance of the plaintiff-company not to make demand and/or file a suit for the full amount on the due dates, amounts to waiver within the meaning of Article 37 of the Limitation Act. In order to consider the contentions raised by Mr. Zaveri, it is necessary to reproduce Articles 36 and 37 of the Limitation Act, 1963 (hereinafter referred to as ‘the Act’). They are as follows: Description of suit Period of limitation Time from which period begins to run 36. On a promissory note or bond payable by instalments. 3 Years The expiration of the first term of payment as to the part then payable; and for the other parts, the expiration of the respective terms of payment. 37. On a promissory note or bond payable by instalments, which provides that, if default be made in payment of one or more instalments, the whole shall be due. 3 Years The expiration of the first term of payment as to the part then payable; and for the other parts, the expiration of the respective terms of payment. 37. On a promissory note or bond payable by instalments, which provides that, if default be made in payment of one or more instalments, the whole shall be due. 3 Years When the default is made, unless where the payee or obligee waives the benefit of the provision and then when fresh default is made in respect of which there is no such waiver. Mere reading of these two Articles 36 and 37 of the Act clearly points out the difference between the two suits. So far as Article 36 is concerned, it will apply to a suit based on a promissory note or bond payable by instalments. Whereas, Article 37 will apply to a suit based on a promissory note or bond payable by instalments, which provides that, if default is made in payment of one or more instalments, the whole shall be due. It is, therefore, evident that wherever there is a simple bond providing repayment by instalments without any penalty for default, Article 36 will apply; and when a Bond provides for instalments, and further provides that if any default is made in payment of one or more instalments, the whole amount shall become due, then Article 37 will apply. It is not in dispute that in the instant case the Bond is a Bond providing for repayment by instalments, and it further provides that if default is made in payment of two instalments, the whole amount shall be due and payable. It cannot, therefore, be argued that on 7-9-1969 the whole amount, i.e. the remaining amount of Rs. 3,500/-, became due and payable by the defendants to the plaintiff-company. There is no dispute that the period of limitation for filing a suit against such cause of action is three years. 9. Now, the real dispute that arises is as to the meaning and interpretation of the time when the period of limitation will start running. Column 3 of Article 37 of the Act provides that the period of limitation will start running when the default is made. 9. Now, the real dispute that arises is as to the meaning and interpretation of the time when the period of limitation will start running. Column 3 of Article 37 of the Act provides that the period of limitation will start running when the default is made. Therefore, on conjoint reading of columns 1 and 3 of Article 37 of the Act the position that emerges is that on default being made as provided in the Bond, the whole amount becomes due and payable, and the necessary consequence that follows is that when the default is made, the limitation also starts running, and that is exactly what is provided in column 3. Now, in column No. 3 there is a further provision in the nature of exception, which states that when the payee or obligee waives the benefit of such provision, which is in his favour, the limitation would start running from the time when the fresh default is made in respect of which there is no such waiver. It is, therefore, very clear that a creditor has a power to stop the running of the limitation by waiving his right which has accrued on account of the default of the debtor. Obviously because the default clause is for the benefit of the creditor, unless that benefit is waived, or, in other words, condoned, by the creditor, the period of limitation will start running from the date of such default and right to sue will expire on the completion of three years from the date of cause of action and/or from the date of default. 10. Keeping in mind the aforesaid scheme of Articles 36 and 37 of the Act, I shall now examine the contentions raised by Mr. Zaveri seriatim. 11. The first contention of Mr. Zaveri that the default clause, as provided in the Bond, Exhibit 49, is for the benefit of the creditor, cannot be disputed. It is also not in dispute that the creditor has power to take action or not to take action by waiver, but in that case the creditor has to express his intention when the cause of action arises, i.e. when the default is committed. (The Statute provides that the period of limitation starts as soon as the default is committed, and power is given to the creditor to waive the benefit of such provision. (The Statute provides that the period of limitation starts as soon as the default is committed, and power is given to the creditor to waive the benefit of such provision. However, if that power or right to waive the benefit is not exercised by the creditor, the limitation which has already started on account of the default cannot be stopped.) Only question, therefore, that remains to be considered is whether the creditor-plaintiff-company - has exercised its right of waiver? If the plaintiff-company cannot show that it has exercised the right of waiver, necessary inference would be that the limitation which has started on account of default will not be stopped, and the suit for recovery of the amount which has become due and payable on account of the default would be time-barred on completion of the period of limitation. In my opinion, once the default is committed, right to recover the full amount that remains due and payable accrues in favour of the creditor, and the creditor has to waive this right and treat the amount due as the amount payable under the Bond by instalments, and thereafter, unless a fresh default is again made by the debtor, the debtor would be under an obligation to pay the instalments as and when they become due. However, without expressing the waiver and forgoing the right which has accrued to the creditor, the period of limitation cannot be stopped. 12. Mr. Zaveri has cited before me the decision of the Privy Council in Lasa Din v. Mt. Gulab Kunwar, AIR 1932 Privy Council 207. In that case the Privy Council was called upon to construe the mortgage deed executed in 1912. The said mortgage-deed provided that the mortgage money were payable after 6 years, i.e. in year 1918, and the interest was to be paid annually, and it was further provided that in default of payment of interest in any one year, the creditor would be entitled to realise the entire mortgage money with interest at once. No interest was paid, and the mortgagee brought the suit in 1928, i.e. after 12 years from the date of default, but within 12 years from the date of the mortgage amount which was payable in 1918. In short, the suit was in time so far as the mortgage amount, as agreed to be paid under the mortgage deed was concerned. In short, the suit was in time so far as the mortgage amount, as agreed to be paid under the mortgage deed was concerned. It was considered that if the date of payment is construed on the breach of mortgage bond, which was made in 1912, and full amount of mortgage money became due and payable on account of default in 1918, the suit would clearly be barred by limitation. In that case, the Privy Council observed : “A proviso of this nature was inserted in a mortgage deed ‘exclusively for the benefit of the mortgagees’ and that it purported to give them an option either to enforce their security at once, or if the security was ample, to stand by their investment for the full term of the mortgage. If on the default of the mortgagor - in other words, by the breach of his contract - the mortgage money becomes immediately due, it is clear that the intention of the parties is defeated and that what was agreed by them as an option in the mortgagees, is in effect, converted into an option in the mortgagor. For if the latter after the deed has been duly executed and registered, finds that he can make a better bargain elsewhere, he has only to break his contract by refusing to pay the interest, and ‘so instanti’ he is entitled to redeem. If the principal money is due and the stipulated term has gone out of the contract, it follows that the mortgagor can claim to repay it. This is an impossible result. The mortgagor cannot in this way take advantage of his own default; upon such default he cannot have the right to redeem and the mortgage money does not become due within the meaning of Article 132 (Old Limitation Act of 1908) until both the mortgagor’s right to redeem and the mortgagee’s right to enforce his security have accrued. This would of course also be the position if the mortgagee exercised the option reserved to him.” In order to understand the observations of the Privy Council, it will be worthwhile to reproduce Article 132 of the Old Limitation Act, 1908 which was found applicable in that case. It read as under : Description of Suit Period of Limitation Time from which period begins to run 132. To enforce payment of money charged upon immovable property. It read as under : Description of Suit Period of Limitation Time from which period begins to run 132. To enforce payment of money charged upon immovable property. Twelve years Where the money sued for becomes due. The statutory provision of Article 132 of the Old Limitation Act in terms is that a suit by a mortgagee to enforce payment of money charged upon immoveable property can be filed within 12 years where the money sued for became due. Obviously, in that case before the Privy Council, the mortgage money were payable after 6 years, i.e. in year 1918. No doubt, in that mortgage-deed the default clause regarding payment of interest gave additional right to the mortgagee to recover the mortgage amount with interest on default being committed by the mortgagor. But that was the option given under the mortgage-deed itself which could be exercised by the creditor. So far as the mortgagor was concerned, he could not ask the mortgagee to take money from him and discharge him from the obligation, because according to that mortgage deed, payment was to be made after six years. The mortgagor was the defaulting party who had committed breach of contract by not making payment of interest, but under the contract he had no right, and the provisions of Article 132 of the Old Limitation Act did not provide that the limitation would start running from the date of default. As stated earlier, Article 132 of the Old Limitation Act, 1908, in terms provided that the period of limitation would start running when the money sued for became due. There is no such provision in Article 37 of the Act, with which we are concerned; under this Article 37 of the Act the creditor has to exercise his option by waiver. It is under the aforesaid circumstances, and having due regard to the provisions of Article 132 of the Old Limitation Act, that the Privy Council has made the aforesaid observations. Those observations of the Privy Council will not help Mr. Zaveri for the simple reason, that though there is a provision in Article 37 of the Act, which is also made for the benefit of the creditor, the legal provision is that the period of limitation will start running unless the creditor waives the benefit. Those observations of the Privy Council will not help Mr. Zaveri for the simple reason, that though there is a provision in Article 37 of the Act, which is also made for the benefit of the creditor, the legal provision is that the period of limitation will start running unless the creditor waives the benefit. The language of both the Articles - 37 of the Act and 132 of the Old Limitation Act - is to some extent different, though the purpose of providing option is the same. Interpretation of Article 132 has to be made in accordance with the language used by the Legislature. In view of this difference in language of both the Articles, the aforesaid decision of the Privy Council, though binding on me, cannot help Mr. Zaveri. 13. The next contention of Mr. Zaveri is that on the true construction of Bond Exhibit 49, unless the plaintiff-company makes a demand of recovery when the default was made, the default clause does not come into operation. For this proposition he has considerably relied on the decision of the Bombay High Court in Hanmantram Sadhuram Pity v. Arthur Bowles, ILR 8 Bombay 561. In that case, the facts were as under : “On the 20th August, 1879, the defendant being indebted to the plaintiff, gave his bond for Rs. 4,000/-. The bond provided for the payment of monthly instalments of Rs. 80/- each, the first of such instalments to become due on the 4th September, 1879. The bond also contained the following clause: ‘If the said Arthur Bowles shall - in default of payment of any one of such instalments, or in the event of default being made by him in payment of the premium money when and as the same shall become due in respect of the said policy, if so required by the said Hanmantram Sadhuram Pity, his executors, administrators and assigns - pay the whole amount which may then be due under and by virtue of these presents without deduction, then the above written bond or obligation shall be of the effect; otherwise the same shall be and remain in full force and virtue.’ ” The said Bond, no doubt clearly provided a default clause, that on nonpayment of any of the instalments, the whole amount would be due and payable. But there was a further clause to the effect, “in the event of default being made by him in payment of the premium when and as the same shall become due in respect of the said policy, if so required by said Hanmantram Sadhuram Pity, his executors, administrators and assigns - pay the whole amount which may then be due under and by 'virtue of these presents without deduction”. Hence, the full amount became due and payable only on satisfying two conditions precedent - (1) that default is made in payment of any one of such instalments, and (2) demand is made by Hanmantram who was the creditor. There was a positive provision made in the Bond itself that even if there was default, unless demand was made, the whole amount would not become due. The logical inference would be that even if default was made, unless the creditor made a demand, he could not file a suit. In other words, the Bombay High Court construed that if demand is not made in spite of default by the debtor, it: would amount to a waiver made by the creditor and, therefore, limitation will not start running on account of the said default. 14. Similarly, in E. Karunakaran Nair v. M. Krishna Menon, ILR 36 Madras 66, there was a provision in the Bond, “In default of our making such payment also the amount that may be found due for all future drawings shall be paid in a lump on your demand'' (emphasis supplied). This clearly shows that a demand was one of the conditions precedent before the full amount could be claimed, and if the demand is not made, such an inaction was considered to be a waiver. However, in the instant case, I do not find any such condition precedent of making demand by the Company. 15. Mr. Zaveri has drawn my attention to the Rules and Regulations of Fixed Interest Guarantee Loan, Exhibit 44. Rule 3 (5) of the said Rules and Regulations is to the effect that if the debtor fails to pay the amount of instalments, then the company would be entitled to recover the full amount at the rate of 1 per cent per mensem in any manner it thinks fit, and the company will also be at liberty to recover the same from the sureties. Mr. Mr. Zaveri also drew my attention to clause 6 of the Bond Exhibit 49, which provides that if the debtor makes default in payment of instalments, the Company has a right to condone the same. Reading of these two clauses together, Mr. Zaveri contends, means that the plaintiff-company has to make a demand for the full amount and if such demand is not made, the Court should presume that the plaintiff-company has waived the benefit which is given under that clause. I am afraid, Mr. Zaveri’s contention is misconceived. Clause 6 of the Bond, no doubt, gives power to the plaintiff-company to waive or condone the default committed by the debtor. However, the sentence that follows thereafter is very material. It says that though the plaintiff-company is given power or right to condone the default, even then the debtor or sureties will not be discharged from the liability of making full payment. In my opinion, this Clause 6, instead of helping Mr. Zaveri, destroys the very foundation of his argument. This clause provides that though the company has power to waive the benefit, by such waiver the liability of making full payment will not come to an end. Therefore, even if by inaction the company does not enforce its right which has accrued under the default clause, the liability for payment of full amount shall continue. I am, therefore, of the opinion that Mr. Zaveri is not right when he contends that the aforesaid two decisions of the Bombay High Court and the Madras High Court are applicable to the facts and circumstances of the instant case. On the contrary, Clause 6 of the Bond clearly indicates that even by not enforcing the benefit of the default clause, the debtor will continue to be liable for payment of full amount. 16. The third contention of Mr. Zaveri is that the suit has been filed for recovery of the instalments after the instalments became due and payable in accordance with the provisions of the Bond Exhibit 49, and he has not claimed any interest or commission on the loan amount and also he has not tried to enforce at any time the benefit of the default clause, and in that view of the matter, the suit is within time and the default clause, if it is applicable, should be considered as waived by the Company. 17. 17. I have already discussed the scheme of Article 37 of the Act and the mandatory language employed by the Legislature. First column of Article 37 of the Act in terms provides that if there is a default clause and if the default is made in payment of the instalments, the whole amount shall be due and payable. 18. Now, there are two Articles in the Act which refer to suits on Promissory Note or Bond payable by instalments. Article 36 of the Act is in respect of the bond merely payable by instalments. It does not provide for any default clause. When a suit is brought on such a Bond, the period of three years will start running at the expiration of every term of payment of instalment. In other words, the period of limitation will start as and when an instalment would become due and payable. Whereas, Article 37 of the Act applies to a suit on Bond payable by instalments, which provides an additional clause. Though both the articles apply to the Bond, Article 37 makes a special provision in respect of the Bond payable by instalments having a default clause. It is a known rule of construction that if there is a special provision, the same should be applied in preference to a general provision. Therefore, for consideration of the question whether Article 36 or Article 37 of the Act would apply, only the Bond is to be seen, and on interpretation of the Bond if it is found that the Bond is the Instalment Bond, then Article 37 shall have to be applied. If the period of limitation has started to run by claiming the instalments or by framing a suit only on instalment Bond, without taking the advantage of the default clause, the same will not change the application of the Article. Application of the Article depends upon the construction of the Instalment Bond. As soon as it is found that the Instalment Bond provides for a default clause, then necessarily the said Article shall have to be applied, and it has to be seen whether the default has occurred. Application of the Article depends upon the construction of the Instalment Bond. As soon as it is found that the Instalment Bond provides for a default clause, then necessarily the said Article shall have to be applied, and it has to be seen whether the default has occurred. It is an admitted position that default has occurred, and the cause of action has arisen in 7-9-1969 and, therefore, unless the plaintiff proves that it has waived the benefit of default clause in accordance with the provisions contained in the third column of Article 37 of the Act, the period of limitation cannot be extended. 19. In Devidas Dhaniram v. Parma Gokalia, AIR 1959 Madhya Pradesh 413, the Madhya Pradesh High Court had an occasion to construe the provisions of Article 75 of the Limitation Act, 1908, which is like Article 37 of the Act with which we are concerned. The Madhya Pradesh High Court in that decision after considering the decision of the Privy Council in Lasa Din v. Mt. Gulab Kunwar, AIR 1932 Privy Council 207 (Supra), and the decisions of the Allahabad and Nagpur High Courts, and reviewing the entire case law on the subject, has summed up the true legal position as under : “(1) As soon as the exigibility clause comes into operation, the cause of notion for the recovery of the whole amount due accrues and that is the starting point of limitation for the suit, unless there is waiver. (2) Waiver is the abandonment of a right and it must, therefore, be intentional. (3) A waiver may be express or implied. It may be implied from conduct. (4) The plaintiff’s (creditor’s) intention to waive his right must be manifest by some overt act. For instance, acceptance of a payment specifically made towards the satisfaction of a particular defaulted instalment. (5) Mere abstinence from suing for the whole amount due on a default or allowing a benefit to pass unnoticed does not constitute waiver within the meaning of Article 75. (6) Waiver must be specifically-pleaded and must also be proved. The onus of proving waiver is on the creditor. (7) Waiver is a mixed question of law and fact and it has to be considered in each case whether the plaintiff (creditor) did waive his right to bring a suit at once on the happening of the default. (6) Waiver must be specifically-pleaded and must also be proved. The onus of proving waiver is on the creditor. (7) Waiver is a mixed question of law and fact and it has to be considered in each case whether the plaintiff (creditor) did waive his right to bring a suit at once on the happening of the default. That must depend on some definite act or forbearance on the part of the creditor. (8) Lasa Din’s Case, ( AIR 1932 PC 207 ) can be applied only to a suit on foot of a mortgage but not to the case of a bond under Article 75.” Applying the aforesaid summing up to the present case, it is clear that the cause of action for the present suit arose in September 1969 when the two instalments became due and payable, and the cause of action for the recovery of the whole amount arose in favour of the plaintiff-company. Unless the plaintiff-company proves that it has waived the benefit which has accrued in its favour, the suit would be barred by time after three years from 7-9-1969. 20. Mr. Zaveri’s contention that since the plaintiff-company has not made any demand or tried to recover the suit amount coupled with the fact that the suit is filed only for recovery of the instalments, clearly shows that the plaintiff has waived the benefit which has accrued in its favour on account of the said default. I am unable to accept this contention of Mr. Zaveri. The doctrine of waiver had been the subject of scrutiny by the various Courts including the Supreme Court. 21. In M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh, AIR 1979 Supreme Court 621, the Supreme Court has, in respect of the doctrine of waiver, observed as under : “It is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings.” In para. 6 it is observed : “....Waiver means abandonment of a right and it may be either express or implied from the conduct, but its basic requirement is that it must be ‘an intentional act with knowledge’. 6 it is observed : “....Waiver means abandonment of a right and it may be either express or implied from the conduct, but its basic requirement is that it must be ‘an intentional act with knowledge’. - per Lord Chelmsford L. C. in Earl of Darnley v. London, Catham and Dover Rly. Co. (1867) 2 HL 43 at p. 57. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it. It is pointed out in ‘Halsbury’s Laws of Englond' (4th Edition), Vol. 16 in para. 1472 at p. 994 that for a ‘waiver to be effectual it is essential that the person granting it should be fully informed as to his rights’ and Isaacs, J. delivering the judgment of the High Court of Australia in Craine v. Colonial Mutual Fire Insurance Co. Ltd. (1920) 28 CLR 305 has also emphasised that waiver ‘must be with knowledge, an essential supported by many authorities’.” In the instant case, the plaintiff-company has not pleaded that it has waived the benefit which has been available to it on account of the default committed by defendant No. 1. There is no issue in this regard, and both the Courts below have held that the waiver is neither pleaded nor proved. Since waiver is a question of fact, and in absence of the pleading to that effect, it cannot be presumed that by merely not filing a suit or demanding the full amount, the plaintiff-company is said to have waived the benefit that has accrued to it by virtue of the default clause. Mere abstinence from suing for the whole amount due on a default or allowing a benefit to p unnoticed does not constitute waiver within the meaning of Article 75. I am in full agreement with this proposition No. 5 formulated by the Madhya Pradesh High Court in Case of Devidas (Supra). 22. In M. Thirumalachariar v. S. P. Varadappa Chettiar, AIR 1962 Madras 210, the Madras High Court also held that the moment there is a default committed in payment of instalment due cause of action arises, and unless the creditor has waived the benefit of the default provision, the suit would be barred by limitation. Whether there is a waiver or not is a question of fact. Whether there is a waiver or not is a question of fact. Obviously, it will have to be pleaded and established, if it is to be relied upon as a ground for the exemption from the bar of limitation provided by Article 75 (new Article 37). The mere fact that a waiver will be to the advantage of the plaintiff inasmuch as that will save him from the bar of limitation, will not ipso facto be a proper basis to have waived the benefit, and that on that basis the defendant who pleads to the contrary, should be called upon to establish the negative, namely, that the plaintiff has not waived. 23. In view of the discussions made above, I am in agreement with the observations made by the Madras High Court in the aforesaid decision, and hold that Article 37 of the Act would be applicable to the present case, and that the period of limitation started running from 7-9-1969, and the plaintiff-company having not proved that it has waived the benefit, the limitation would expire in September, 1972. The suit of the plaintiff-company, therefore, is obviously barred by the period of limitation. The decisions of both the Courts below are, therefore, in accordance with law and they are hereby confirmed. 24. In the result, this second appeal fails and is dismissed with costs. 25. No argument has been advanced on behalf of the defendants so far as cross-objections are concerned. However, since the appeal is dismissed, such cross-objections do not survive. Appeal dismissed.