GOKHUL MAHTON Vs. SHEOPRASAD LAL SETH

JUDGEMENT

(1.) I do not propose to add much to what I stated in the judgment under which this case was in the first instance referred to a Division Bench. The facts of the case were set out in that judgment and I do not propose to repeat them. The first question which arose was whether there had been a waiver within the meaning of the third column of Art. 75, Limitation Act; the waiver alleged was the payment of Rs. 25 as a part payment of the instalment or instalments then due. I content myself by repeating the observation of Try J., as he then was, in Keene V/s. Biscoe (1878) 8 Ch. D 201 to this effect: Where a right has accrued it can be waived, but to amount to waiver there must be something done which is inconsistent with the continuance of that right. Now, the right here was to immediate payment of ?400 and interest, and the receipt of a portion of that sum is in no way inconsistent with that demand.

(2.) I refer to the facts of this case. The question may be asked--could the acceptance of Rs. 25 in any way prevent or be an answer to the cause of action which the creditor might have had to the other amount? There can be only one answer to that question and that answer is in the negative. From one point of view the conclusion that there was no waiver disposes of the matter; but Mr. Bose who appears on behalf of the plaintiff-respondents developed his argument before us and that argument requires consideration. His contention was, although perhaps not expressed in these words, that Art. 74, Limitation Act, was an omnibus Art. providing a period of limitation for promissory notes or bonds payable by instalments both in those cases in which there was a default clause, and in those in which default clause was absent, and that if the creditor chose to sue on the default clause for the full amount, then and then only Art. 75 came into operation. In my judgment that is an argument which cannot be accepted and if what Mr. Bose contends were correct in my opinion Art. 75 would be redundant. Mr. Bose relies for his argument upon the decision of their Lordships of the Judicial Committee of the Privy Council in Lasa Din V/s. Gulab Kunwar . There, their Lordships were dealing with a default clause in a mortgage bond and were considering Art. 132 in coming to the conclusion that the expression "when the money sued for becomes due" in col. 3 of Art. 132 had reference to the period for which the money was lent and had no reference to the earlier date under the default clause. The case was relied upon by Mr. Bose for the observation of Sir George Lowndes to the effect that the default clause was put in for the benefit of the mortgagee. But it is to be observed that their Lordships of the Judicial Committee considering this matter referred to the earlier case being the decision of Lord Blanesburgh in Pacham V/s. Ansar Husain A.I.R (1926) . P.C. 85 in which it was observed that the default clause is both for the benefit of the mortgagee and the mortgagor. It is to be noticed that their Lordships of the Judicial Committee in Lasa Din's caseNilmadhab Chuckerbutty V/s. Ramsodoy Ghose (1883) 9 Cal. 857 referred to the decision in Reeves V/s. Butcher (1891) 2 Q.B. 509--an authority to which reference was made in my earlier judgment--and observed that the question which there was decided, had that fallen to be decided in India, would have come under Art. 132 and not under Art. 75, Limitation Act, "which" say their Lordships "is in very special terms" and it is the terms of Art. 75 which we have to construe in this case.

(3.) Mr. Bose also relied upon the decision of Sir Francis Maclean and another Judge in Rup Narain Bhattacharya V/s. Gopi Nath Mandol 11 C.W.N. 903. But the learned Chief Justice's decision there was that it was open to the creditor, if default were made, to sue at once for the whole amount or if he so elected to waive the benefit of the proviso. The learned Chief Justice made this observation during the course of his judgment: Speaking for myself, if the matter had been res integra I would have felt some doubt whether the case did not fall within Art. 75 of Schedule 2, Limitation Act, rather than within Art. 116.