SHAMRAO Vs. MORESHWAR

JUDGEMENT

(1.) 1. This appeal arises out of a suit on a simple money bond for Rupees 10,000 executed on 30th March 1932. The money was repayable in seven instalments, six instalments of Rs. 1,500 payable on Pus sudi 15 in the years Rule 1332-37 inclusive and the last instalment of Rs. 1,000 payable on Pus sudi 15 F. 1338. The English dates on which the instalments were payable fell in January 1923-1929 inclusive. Simple interest at Re. 1 per cent. per mensem, was payable along with each instalment and on default in making payment of any two instalments the whole debt was to become exigible. Nothing was repaid. On 2nd January 1929 shortly before the seventh and last instalment was payable, this suit was instituted to recover the 4th, 5th and 6th instalments and interest thereon. No claim was made for the first three instalments.

(2.) THE main question is one of limitation. As the bond was payable by instalments and provided that if default were made in payment of two instalments the whole debt should become due, it appears to me to be clear that the suit is governed by Article 75, and this was the view taken by a Full Bench of this Court in Vishwanath v. Sadasheo AIR 1932 Nag 1. Under that article the period of limitation is three years from when the default is made, unless the payee or obligee waives the benefit of the provision, and then from when a fresh default is made in respect of which there is no such waiver. In Vishwanath v. Sadasheo AIR 1932 Nag 1, it was held that mere failure to sue cannot amount to waiver and that when on default a creditor is entitled to recover the whole sum due under an instalment bond and a debtor becomes liable to pay it, the whole sum becomes due within the meaning of Article 75, and that if a suit for the whole amount has become barred under that article the creditor cannot sue for instalments which, under the primary terms of the bond, would have fallen due after the default. It is conceded that if this case was correctly decided the present suit is barred by limitation but it is urged that that decision must be deemed to have been overruled by the decision of the Privy Council in Lasa Din v. Gulab Kunwar AIR 1982 PC 207. That was a suit on foot of a mortgage governed by Article 132 which provides a period of limitation of 12 years from the date when the money sued for becomes due.

(3.) THAT however was a case decided on the wording of Article 132, and their Lordships madelit clear that had the suit fallen Under Article 75 their decision might have been different. There is a difference in principle between money lent on a mortgage and money lent on a simple money bond. When a creditor lends money on a mortgage he obtains a long term investment on security and it is not necessarily for his benefit that the money should be repaid before the stipulated term has expired, but in lending money on a simple bond without security he is actuated by a different consideration. It appears to me that the decision in Lasa Din v. Gulab Kunwar AIR 1982 PC 207 does not apply to suits that fall Under Article 75, I and must follow the decision of this Court in Vishwanath v. Sadasheo AIR 1932 Nag 1. I therefore hold that the suit is barred by limitation.