ABINASH CHANDRA BOSE Vs. BAMA BEWA

JUDGEMENT

(1.) IN this case on 8 March 1900, one Kailas Haldar, predecessor-in-interest of defendants Nos. 1 and 2, and defendant No. 3 executed a bond in favour of plaintiff No. 1 and Jadu Nath Banerjee, predecessor-in-interest of plaintiffs Nos. 2, 3 and 4. The bond was registered and contained a provision for payment of the debt by sixteen annual instalments, the first of which would fall due in April 1901. The bond also contained a stipulation, that in the event of default being made in payment of any one instalment, the whole amount should fall due, and carry interest at 25 per cent per annum. The plaintiffs filed this suit on the 8 February 1909. They alleged that the first two instalments which fell due in April 1901 a April, 1902, respectively, had been paid, and that default had been made in the payment of the subsequent instalments from 1903 onwards. They claimed to recover the whole sum due on the bond less the amount of the first two instalments. The defendants pleaded limitation, alleging that nothing had been paid in respect of the first two or any instalments. It has been found as a fact that the first two instalments were not paid. The question is whether the suit is barred by limitation. It is conceded that the terms of Art. 75 of Schedule I of the Limitation Act, 1908, apply, the period of limitation being extended to 6 years by virtue of Art. 116. It is not possible for the plaintiffs to go behind the finding of fact as to the non-payment of the first two instalments, but it is argued on their behalf that the mere abstinence to sue for the amount of the first two instalments if not paid amounted to waiver of the condition that on a default the whole amount should become due. The learned pleader relied on the case of Chunder Komal Das v. Bisassuree Dassia 13 C.L.R. 243 where it appears to have been held that it was optional with a decree-holder to realize the whole decree at once, upon default being made, or to waive his right to do so and realize subsequent instalments as they fell due. As pointed out by Wilson, J., in Mon Mohun Roy V/s. Durga Churn Gooee 15 C. 502 the report is meagre and there may have been some special circumstances in the case which do not appear. The decision as it stands appears to be contrary to the earlier decisions in Chenibash Shah V/s. Kadum Mundal 5 C. 97 and Asmutullah Dalai V/s. Kally Churan Mitter 7 C. 56. It was directly dissented from in Mon Mohan V/s. Durga Churn 15 C. 502; Hurri Pershad Chowdhry V/s. Nasib Singh 21 C. 542 and Jadab Chandra Bakshi V/s. Bhairab Chandra Chukerbutty 31 C. 297. It might have been relegated to oblivion had it not been for the recent case of Rup Narain Bhattacharya V/s. Gopi Nath Mandal 11 C.W.N. 903 where it was cited and followed. It does not appear from the report that any of the other cases to which we have referred were cited, and we think that it cannot have been brought to the notice of the learned Judges that the ruling in Chunder Komal Das V/s. Bisassuree Dassia: 13 C.L.R. 243 had been three times dissented from, or they would assuredly have commented on the fact.

(2.) THE law was very clearly enunciated by Wilson, J. in Mon Mohan V/s. Durga Churn 15 C. 502 and we cannot improve upon the language which he employed. To hold that by merely doing nothing the plaintiff could give the go-by the condition in the bond would, in our opinion, render nugatory the provisions of Art. 75. THEre could be no limitation in such a case. This case is a very strong one against the plaintiffs. We do not concur in the opinion which has been expressed in one or two of the cases cited that waiver can be effected only by acceptance of a subsequent instalment. THE waiver of such condition may Be effected in a variety of way's and may be inferred from various circumstances. It must, however, always depend on some definite act or forbearance on the plaintiffs part. Here they distinctly pleaded payment of the first two instalments. THE fact of waiver would be absolutely inconsistent with such a plea, and they could not be allowed to set it up when their plea of payment had been found to be false. For these reasons we are of opinion that time began to run against the plaintiffs from the date of the first default in 1901, and that their suit filed in 1909 was, therefore, barred by limitation. THE rule is, accordingly, discharged with costs, three gold mohurs.