R M P PERIANAN CHETTY Vs. MARIAPPAN ASARI

JUDGEMENT

(1.) This is an application to revise the decree in S.C.S. No. 1420 of 1921 on the file of the District Munsifs Court, Madura Town. The plaintiff brought the suit for Rs. 90 due on an instalment bond, dated 11-9-1917 executed by the 1 defendant and the father of the defendants 2 and 3 for Rs. 50 payable in ten monthly instalments of Rs. 5. The District Munsif dismissed the suit in respect of nine-tenths of the claim as being barred by the law of limitation and gave a decree only in respect of the last instalment.

(2.) The respondents do not appear here. It is urged that time did not begin to run against the plaintiff till 11-7-18, the date on which the last instalment fell due by reason of the provision in the bond that the whole amount shall be payable on demand if any one of the instalments was not paid on the due date, and that article 75 of the Limitation Act is applicable to the case, and the suit filed on 4-7-21 is within time.

(3.) Reliance is placed on two decisions reported in Ramadh Bibi Ammal V/s. Kandaswamy Piliai (1919) M.W.N. 82, and T.V. Seetharama Iyer V/s. Munuswamy Mudaliar (1919) M.W.N. 185. In the first case the suit was upon a hypothecation bond in which there was a provision that interest should be paid every six months and the principal before a fixed date and in default "we shall pay, whenever you require, the interest accruing due for the days overdue at the aforesaid rate, and the principal amount." The mortgagor committed default in paying interest. Spencer and Krishnan, JJ., held that no demand was made for payment of the principal and therefore time did not begin to run from the date of the default of payment of interest. In the second base Seshagiri Aiyar, J., sitting as a single Judge made the following observation in regard to a provision in the bond that if there was a default in the payment of any instalment the whole money would be payable on demand: "I think that the parties deliberately used the expression, because, although there was a liability to pay each of the instalments separately, they intended to make it a condition precedent that a demand should be made if the whole amount is to be asked to be paid at once. It is open to the obligee of a bond to waive his right to claim the whole amount in default of payment of an instalment. Where the provision is that the whole amount is payable on demand in case of default, time does not begin to run againsb him unless and until he exercises his option."