Siddhnath vs Harsarup

V.R. Newaskar, J.—Facts material for the purpose of this revision are as follows; -

Defendant Harswarup borrowed Rs. 300 from the plaintiff and agreed to pay the amount by instalments as indicated in a bond executed by him on 14-8-1953. The first instalment of Rs. 100 was to be paid on 15-9-1953, the second on 15-10-1953 and although the date of the third is not specifically given one may feel to be inclined to hold that the third instalment would fall due on 15-11-1953. It was also agreed that along with the third instalment the debtor would pay the entire amount of interest that would become due. There was also a default clause which provided that in the case the debtor committed default in paying a single instalment it would be open for the creditor to file a suit and recover the entire amount with interest at the rate of Rs. 2 per cent per month. One Ramchandra stood surety for the purpose of the obligation under the bond and both the principal as well as the surety appended their signatures to the document. There was no payment till 17-9-1956 on which date the debtor Harswaroop paid Rs. 5 and endorsed the fact of payment in the margin of the bond and put his signature thereunder. The plaintiff made demand for payment of the balance of the amount due under the bond and on failure of the defendant to pay the present suit was brought for recovery of principal amount of Rs. 300 together with interest Rs. 163 towards which he gave a credit of Rs. 5 which had been received. The cause of action was stated to be 15-9-1953 when the first default was committed.

The suit was resisted inter alia on the ground that the claim was barred by limitation.

There was nothing in the plaint to suggest that the plaintiff had waived the benefit of the default clause with respect to the first instalment. In fact the plaint, as worded, was against any such waiver having been made by the plaintiff. The surrounding circumstances also did not suggest any implied waiver. On these facts the Small Cause Judge, Ujjain, held the claim to be barred by limitation in view of the terms of Article 75 of the Limitation Act.

The present revision petition is directed against that decision.

It is contended by Mr. Kulkarni for the petitioner that although the first instalment falling due on 15-9-1953 had become barred by limitation the rest of the claim at least would be within time by reason of the fact of payment appearing in the hand writing of the defendant. Mr. Kulkarni would have been on safe ground had this payment been made earlier than 15-9-1956. It cannot be disputed that there was a default clause and the creditor had option of exercising his right under the default clause. He could have waived the default with respect to the first instalment but no such case of waiver has been put forward. There is also nothing in the surrounding circumstances to suggest that the creditor had waived the default. In fact in the suit he claimed the entire amount including the default instalment which had been barred by limitation when the payment of Rs. 5 was made by the defendant. The cause of action was also stated by him to fall on 15-9-1953 which was the date of the first instalment. In face of this the payment subsequent to the expiry of the period of limitation even if it be one under the signature of the defendant will not have the effect of saying limitation. This is well supported by the Full Bench decision of the Allahabad High Court reported in ILR 57 All. 108 Jawaharlal Vs Mathura Prasad. The learned Small Cause Judge therefore cannot be said to be in error in holding the claim as barred by limitation on the date on which the suit, was filed.

The petition therefore is without force and is dismissed with costs.