SEWAKRAM Vs. BASOD

JUDGEMENT

(1.) 1. This is an application in revision against the judgment of the Court of Small Causes, Khandwa, dismissing the plaintiffs' suit brought on a bond. The bond is in the following terms: Rs. 450 was borrowed on 24th October 1925 and repayment was to be made in four instalments. The first of Rs. 100 was to be paid on 24th October 1926 with interest on the original amount of Rs. 450 at the rate of 1 per cent per mensem, Rs. 100 on 24th October 1927 with interest on Rs. 350 at the higher rate of 1-8-0 per cent per mensem, Rs. 100 on 24th October 1928 with interest on Rs. 250 at the rate of 1-8-0 per cent per mensem, and the final balance of Rs. 150 on 24th October 1929 with interest on that amount at 1-8-0 per cent per mensem. The interest on defaulted instalments was to be paid at

(2.) PER cent per mensem and in the case of default of two successive instalments the whole amount became exigible with compound interest. Plaintiff 1 admitted that nothing was paid until 13th September 1928 when Rs. 50 was paid; he claimed that a further sum of Rs. 25 was paid on 8th October 1928 and yet another Rs. 25 on 28th February 1929. Although his cause of action had accrued on 25th October 1927 he claimed that by accepting subsequent repayments which he credited towards the first instalment due of Rs. 100, he had waived his right to sue and that he was entitled to take as his date for the starting point for limitation the 25th October 1928, when default was made in respect of the second and third instalments. 2. The learned Judge of the Court of Small Causes found that no express waiver had been set up by the plaintiffs and that the acceptance by the plaintiffs of payment of the first instalment after the whole sum had become exigible did not amount to a waiver. Holding therefore that the cause of action had accrued on 25th October 1927, by which date nothing had been paid and there having been default of two successive instalments, he found the suit time barred as the suit was not brought until 3rd November 1930. The first ground in the application for revision appears to me to maintain that since the repayment was made as recently as the 28th February 1929 the suit brought on 3rd November 1930 could not possibly be time barred. As the suit is based on the failure to pay successive instalments the date from which limitation runs must clearly be the 25th October either of 1927 or 1928 and the date of the subsequent repayment is quite immaterial for the purposes of Article 75, Schedule 1, Lim. Act. This contention also is contrary to the plaint itself which places the date of the cause of action on 25th October 1928.

(3.) THERE can be no doubt that the plaintiffs' right to sue arose on 25th October 1927 and the only question for determination is whether by accepting payment on three separate dates at the end of 1928 and the beginning of 1929, amounting altogether to Rs. 100, the plaintiff's did waive their right to sue, and whether they are entitled to sue on the alleged fresh breach of the conditions of the bond in respect of the instalments payable in October 1927 and 1928. The applicants base their claim on the ruling in Mukund Balkrishna Booty v. Diwaker Tanko (1891) 4 CPLR 211, where it was held that subsequent acceptance of instalments constitutes a waiver of the obligee's right to claim the entire sum.. This decision, it has been contended, has never been overruled. Although no specific reference was made to this decision, the broad principle therein stated was obviously denied by a Bench of this Court in Ballabhdas v. Dalipsingh (1911) 7 NLR 147, where Batten and Stanyon, A. J. Cs., stated that it was a fundamental proposition of law that payment and acceptance of overdue instalments cannot by themselves prove waiver, and that the question whether there was waiver or not will depend on the attending circumstances of the act claimed as a waiver in each particular lease. I also note in passing that the decision in Mukund Balkrishna Booty v. Diwaker Tanko (1891) 4 CPLR 211 seems to have been decided on proof of a custom condoning defaults in payment which was then found to exist in the Nagpur District. No question of custom has been urged in this case which arose in another part of the province.