HARA KUMAR SAHA Vs. RAM CHANDRA PAL

JUDGEMENT

(1.) I have had the advantage of reading the judgment which is about to be delivered by my learned brother and I agree that the appeal must fail. It may now be taken to be settled, so far as this Court is concerned, that mere forbearance to see is not sufficient proof of waiver on the part of he plaintiff. In this case the plaintiffs feeling that difficulty set up another case that in 1312, when default was first made, they had arranged with the defendants not to insist in the future on the clause in the bond, which provided that on failure of two instalments the whole amount would become due. To this contention there are two objections. The first is one of fact that no such arrangement was pleaded nor was it found by the Courts to have been actually made. What did take place was that in 1312 there was a default and a waiver of the plaintiffs rights in respect of that default, with the result that further instalments were paid, the last instalment being that for Baisakh 1313. If it be argued that there was such an arrangement with regard to future payments, the answer would be that such an arrangement would amount to a variation of the contract which could only be effected by a writing similar to that of the contract itself, namely, a writing registered. The appeal is dismissed with costs.

(2.) The plaintiffs prefer this appeal. The defendants, or their predecessors, owed a large sum of money to the firm which is now represented by the plaintiffs, and on Sraban 24th, 1312, they executed a bond by which they agreed to pay Rs. 3,000 by monthly instalments of Rs. 25. The bond was registered. It contained a provision that if the defendants made default in two consecutive months, the creditors should be entitled to sue for the whole amount due under the bond. It is found by the lower Courts that the defendants paid ten instalments only, the last payment being the one made on Baisakh 3lst, 1313.

(3.) The present suit was instituted on June 13th, 1914, (Jaith 30th, 1321), and is for 72 instalments beginning with the instalment payable for Jaist 1315.