UMEDMULL MANGALCHAND Vs. MANI RAM AGARWALLA

JUDGEMENT

(1.) The only question is that of limitation. The suit is on an adjustment of accounts on a commission agency Which took place on 15 April 1921 The effect of the adjustment was that Rs. 4,000 Was found due by the defendant firm to the plaintiff firm. The document signed by the defendant firm embodied an undertaking to pay the amount by instalments of Rs. 500 and Rs. 200 alternatively, eleven in all, running from 13 Aswin Sudhi 1978 until 13 Aswin Sudhi 1983. The first named date corresponds with 14 October 1921. There was also a provision in the document which, as translated, is as follows: If we fail to pay the instalments we shall pay interest on all the instalments at 12 annas (twelve annas) percent per month. If we fail to pay one instalment you will be competent to realize all the instalments in a lump sum by filing a suit.

(2.) In these circumstances it is argued on behalf of the first defendant that the suit is barred by limitation on the ground that the very first instalment of all payable on 14 October 1921 was never paid and that there was therefore a breach of the agreement enabling the plaintiff then and there to bring his suit for the recovery of the full amount and the period of limitation commenced to run from that date. It is admitted that at the time of the filing of this suit the first six instalments were in fact barred by limitation and the suit only covers the amount of the last five which are within the period of three years before the institution of the suit.

(3.) The difficulty upon the point which is raised arises mainly from the conflict of authorities in this Court and from the fact that the trend of the later authorities in this Court differs from that of some of the other High Courts. The most recent case to which I have been referred is Basanta Kumar V/s. Nabin Chand a A.I.R. 1926 Cal. 789 which proceeds on the same lines as two previous Jadav Chandra V/s. Bhairab Chandra [1904] 31 Cal. 297and Hurry Pershad v. Nasib Singh [1894] 21 Cal. 542. The effect of that decision is that no distinction can be drawn between a case where the proviso is that on non-payment of an instalment the whole amount shall become due and one in which it is provided that on non-payment of an instalment the whole amount may be sued for. The cases to which I have been referred which take the opposite view, favouring the plaintiff in this case, are Rupnarain V/s. Gopinath [1907] 11 C.W.N. 903 and Chunder Komal Das V/s. Bisassurree Dassia [1882] 13 C.L.R. 243 the decisions in Ajudhia V/s. Kunjal [1908] 30 All 123 Mohanlal V/s. Tika Ram [1919] 41 All. 104 and Karunakaran V/s. Krishna Menon [1913] 36 Mad. 66 which take the same line.