Mt. Kaunsilla and Another vs Dip Singh and Another

Dalal, J.—There was an instalment bond executed by the defendant for payment of the money borrowed by instalments with the option of recovering the whole amount and in case of default of payment of any instalment, interest was recoverable if the option was exercised. The trial Court dismissed the suit on the ground that it was instituted more than three years after the first default. Four payments were alleged by the plaintiffs'' creditor, but not believed by the Court on a denial by the defendant. In my opinion the trial Court has not paid proper attention to the form of the suit which is entirely for the recovery of certain instalments after waiving of the right which accrued to the plaintiffs to sue for the whole amount. The ruling in the case of Amolak Chand v. Baijnath [1913] 35 All. 455 will therefore not apply, because the suit here is not for the whole amount in exercise of the option. Under Article 75, Sch. 1, Lim. Act, where the benefit of the provision as to the recovery of the whole amount is waived, the cause of action accrues on each default and a suit for a separate instalment may be brought within three years of that particular default. The plaintiffs having waived the benefit of the provision will not be able to sue in future for the whole amount at once, but they are entitled to sue for the instalments as they fall due. The trial Court further believed that Article 80 applied. In my opinion the bond is of the nature to which Article 75 will apply and not the general Article 80. In my opinion the plaintiffs have not lost their right to sue the defendants for the instalments as they fall due.

The argument as to interest not being chargeable is correct. Interest is chargeable only in case option is exercised.

In the result, I set aside the decree of the trial Court, and decree the suit for Rs. 40 with proportionate costs in both Courts.