Authored By : Banerjee, Robert Fulton Rampini

Banerjee and Robert Fulton Rampini, JJ.

1. This appeal arises out of a suit brought by theplaintiff-appellant to recover money due on a mortgage bond payable byinstalments. The plaintiff alleged that the defendants had after repeateddemands paid two small sums, and the suit was for the balance that remainedunpaid. The defence in substance was that the suit was barred by limitation,that the terms of the mortgage bond had been subsequently modified by a verbalcontract, and that the defendants having performed their part of that contract,the bond was satisfied.

2. The first Court found that the part payments alleged inthe plaint were not proved, that all the instalments under the bond except thelast two were in consequence barred by limitation, and that the subsequent oralcontract set up was not established; and it accordingly decreed the suit inpart.

3. On appeal the Lower Appellate Court has dismissed thewhole suit on the ground that it is barred by limitation.

4. In second appeal it is contended that the Lower AppellateCourt is wrong in law in dismissing the whole suit on the ground of limitation,when it ought to have affirmed the decree of the first Court.

5. The suit being one for the recovery of money due on amortgage bond by the sale of the mortgaged property, the provision of theLimitation Act applicable to it is Article 132, Schedule II; See Ram Din v.Kalka Prasad I.L.R. 7 All. 502 Miller v. Runga Nath Moulick I.L.R. 12 Cal. 389 [LQ/CalHC/1885/116] and Girwar Singh v. Thakur Narain Singh I.L.R. 14 Cal. 731. The period oflimitation under that article is twelve years, and it runs from the time whenthe money becomes due; and the question is when did the money sued for becomedue. The mortgage bond stipulates that the money borrowed shall be paid bycertain instalments, and that upon default in the payment of any one instalmentthe mortgagee may at his pleasure sue either for that instalment or for thewhole of the money then remaining unpaid. And it is admitted on both sides thatupon the facts found, the claim for all the instalments except the last two isbarred upon any view of the case, but that the claim for the last twoinstalments would or would not be barred according as it is held that time runsfrom the date of the first default or from the due dates of those twoinstalments. The contention on behalf of the appellant is that the twoinstallments became due within title meaning of article 132 on their respectivedue dates; while on the other side, it is urged that the money became due assoon as the first default was made. The learned Vakil for the appellant, insupport of his contention, cites Shankar Prasad v. Jalpa Prasad I.L.R. 16 All.371 and Hanmantram Sadhuram v. Bowles I.L.R. 8 Bom. 561 and for the respondentsthe cases of Juggut Mohinee Dossee v. Monohur Koonwar 25 W.R. 278 NobodipChunder Shaha v. Ramkrishna Roy Chowdhry 1. L. R. 14 Cal. 397 Bir Narain Pandav. Darpa Narain Prodhan I.L.R. 20 Cal. 74 [LQ/CalHC/1892/44] Hon Mohun Roy v. Durga Charan GooeeI.L.R. 15 Cal. 502 [LQ/CalHC/1888/23] Ram Pulpo Bhattacharji v. Ram Chunder Shome I.L.R. 14 Cal.352 Hurri Pershad Chowdhry v. Nasib Singh I.L.R. 21 Cal. 542 [LQ/CalHC/1894/12] and Ragho GovindParanjpe v. Dip Chand I.L.R. 4 Bom. 96 are relied on.

6. The cases cited are all distinguishable from the present,though certain general principles, either expressly enunciated or impliedlyrelied on in some of them, clearly bear upon the question now before us.

7. The first case cited for the appellant, Shankar Prasad v.Jalpa Prasad I.L. R. 16 All. 371 is not one relating to the construction ofarticle 132 of Schedule II of the Limitation Act. The question there was whether,where a decree for money is payable by instalments with a provision that upondefault in the payment of any instalment the decree-holder may, if he wishes,execute the decree for the whole sum remaining unpaid, limitation runs inrespect of each instalment from its due date, notwithstanding that the wholeamount covered by the decree became realisable at the decree holders option atan earlier date by reason of the judgment-debtors default; and the learnedJudges of the Allahabad High Court answered that question in the affirmative.The case evidently was one under clause (b) of article 179, Schedule II of theLimitation Act, and the effect of the decision is that the certain date referred to in that clause was the due date for each instalment,notwithstanding that it might have been claimed as realisable at an earlierdate. The principle underlying the decision no doubt appears at first sight tolend some support to the appellants contention that the money sued for becamedue gradually at the dates of the successive instalments, notwithstanding thatthe plaintiff had the option of claiming it as having become due at an earlierdate; but we are unable to follow this decision, because it is in conflict withthe decisions of our own Court in Bir Narain Panda v. Darpa Narain ProdhanI.L.R. 20 Cal. 74 [LQ/CalHC/1892/44] and Hurri Pershad Chowdhry v. Nasib Singh I.L.R. 21 Cal. 542 [LQ/CalHC/1894/12] cited for the respondents, and also because we find it difficult to understandhow money, which, though made payable by instalments, becomes realisable atonce upon default in the payment of any instalment, can be said not to havebeen directed to be paid on the date of such default so as to make limitationrun from that date under clause (b) of article 179 merely because it warsoptional with the creditor to enforce the condition for immediate payment, whenthere is nothing to show that the optional right had been waived. Where thereis an optional right given to enforce payment of money, such right may bewaived; but when it is not waived, or when there is nothing to show that it hasbeen waived, limitation would run from the date when the right accrues. This iswhat this Court held in Bir Narain Panda v. Darpa Narain Prodhan I.L.R. 20 Cal.74 and not, as the judgment, in Shankar Prasad v. Jalpa Prasad puts it, "that the decree-holder on the happening of a default was bound to execute thedecree once and for all.

8. The second case cited for the appellant HanmantramSadhuram v. Bowles I.L.R. 8 Bom. 561 goes against him rather than in his favour.The learned Judge who decided that case accepted as correct the observation ofLord Denman, Chief Justice, in Hemp v. Garland (4 Q. B. 515) " that if he(the plaintiff) chose to wait till all the instalments become due no doubt hemight do so; but that which was optional on the part of the plaintiff would notaffect the right of the defendant, who might well consider the action asaccruing from the time the plaintiff had a right to maintain it," and theonly ground upon which he held that the suit was not barred was that thelanguage of the bond showed that in case of default in payment of oneinstalment the whole amount should become due only if a demand for such amountwas made, and the suit was brought within the time allowed by law from the dateof the demand.

9. In the case of Juggut Mohinee Dossee v. Monohur Koonivar25 W. R. 278 cited for the respondents, MITTER, J., observed that the principleindicated in article 75 of the second Schedule of Act IX of 1871 might beadopted in determining " when the money sued for becomes due " withinthe meaning of article 132; but the learned Judge himself added that it was notnecessary to express any decided opinion upon the point.

10. The other cases cited by the learned Vakil for therespondents relate either to execution of decrees for moneys payable byinstalments, or to suits on instalment bonds in which the provision for thepayment of the whole upon default in the payment of an instalment is anunqualified one, and is not left to be enforced at the option of the creditor,and they do not, after what has been said above, require any detailedexamination.

11. Confining our attention then to the question fordetermination in this case, namely, when did the money sued for become duewithin the meaning of article 132 of Schedule II of the Limitation Act, andbearing in mind that while there is no case directly in point, the balance ofauthority in this Court upon analogous questions relating to execution ofdecrees for money payable by instalments, preponderates in favour of therespondents contention, we think we must hold that the decree passed by theLower Appellate Court dismissing the whole suit is right. The money sued forbecame due according to the terms of the bond when the first default in the paymentof an instalment was made, and it became due none the less because the right toenforce immediate payment was optional with the creditor. The right might havebeen waived if the creditor chose to do so; but he did not waive it in thiscase; and there is no question of waiver raised here.

12. It was argued for the appellant that when it was left tothe option of the creditor to enforce the provision for immediate payment ofthe whole, the presumption should be that the right to enforce such payment waswaived until the contrary was shown. The answer to this is that the provisionbeing for the benefit of the creditor, the natural presumption is that theright created by it was not waived by him unless the contrary was proved. Touse the words of Lord Denman in Hemp v. Garland 4 Q. B. 519 the defendant" might well consider the action as accruing from the time the plaintiffhad a right to maintain it." We may add that the rule laid down in Hemp v.Garland that limitation ran from the date of the first default, notwithstandingthat it was optional with the creditor to enforce payment of the whole uponsuch default, has been followed by the Court of Appeal recently in the case ofReeves v. Butcher L. R. 1891 2 Q. B. 509.

13. For the foregoing reasons we are of opinion that thesuit has been rightly dismissed by the Lower Appellate Court, and that thisappeal should be dismissed with costs.

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Sitab Chand Nahar vs.Hyder Malla and Ors. (22.12.1896 -CALHC)