PUNAJI Vs. GOVINDA RAGHOBA

JUDGEMENT

(1.) 1. The main question that arises in this appeal is one of limitation. The suit was instituted to recover money due under a mortgage-deed which was executed by the defendant on 23rd February 1909. The loan was repayable in ten annual instalments on Pus sudi 15 in each of following years i.e., in January in the years 1910 to 1919 inclusive, with interest at 1 p.c., p. m. The bond also contained the following stipulations: We shall pay instalments in time as stipulated above. For defaulted instalments we shall pay compound interest, payable yearly, at Re. 1/4 p.c. p. m. In case of default of any three instalments, in full or in part, we shall pay the amount of all the instalments in a lump sum, with penal compound interest from the first date, without pleading that future instalments are yet to fall due.

(2.) DEFAULT was made in paying the instalments due in 1911, 1912 and 1913, and the whole amount therefore became payable on 12th January 1914. The suit is governed by Article 132, Lim. Act, which provides that the period of limitation shall be 12 years from the date when the money sued for became due. The suit was filed on 19th April 1927 and is therefore within time if limitation runs from 16th January 1919, on which date the last instalment was payable, but is barred if it runs from 12th January 1914 when the whole amount became payable. A long conflict of opinion has been set at rest by the recent decision of their Lordships of the Privy Council in Lasa Din v. Mt. Gulab Kunwar A.I.R. 1932 P.C. 207, in which they held that, where an instalment mortgage bond provides that in case of default the mortgagee shall have power to realize the entire mortgage money in a lump sum, the whole amount does not become due on the date of such default within the meaning of Article 132 and limitation runs from the date on which the last instalment was payable. The learned counsel for the appellants has attempted to distinguish that decision on the ground that there the mortgagee had an option to recover the entire mortgage money on default by the mortgagor, and that in the mortgage-deed now before me he had no such option. That distinction appears to me to be unsubstantial. The decision of their Lordships was based mainly on the argument that a proviso of this nature is inserted in a mortgage-deed exclusively for the benefit of the mortgagees and that 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 to by them as an option in the mortgagee is in effect converted 'into an option in the mortgagor.

(3.) THOSE remarks apply with equal force, in my opinion, to the present case, and I entirely agree with the view expressed by Fazl Ali, J., in Mukhdeo Singh v. Harakh Narayan Singh AIR 1931 Pat 283, that to lay too much emphasis on the use of express words is to overlook the fact that in certain cases the option may be implied by the general tenor of the document apart from the use of any particular expression.