Ramsekhar Prasad Singh v. Mathura Lal

Kulwant Sahay and Sen, JJ.:— (after stating the facts set out above, proceeded, as follows): It is contended on behalf of the appellants that the finding of the learned District Judge on the question of limitation was erroneous. His finding on the question of legal necessity for the loan, has not been challenged.

As regards the question of limitation, it is contended that the instalments which fell due within six years of the institution of the suit were not barred by limitation. The question as to whether those instalments which fell due within six years of the suit were or were not barred by limitation would depend upon the terms of the bond. The bond provides for payment of a sum of Rs. 291 in 9 annual instalments. The instalments which fell due within six years of the date of the suit, namely, the 13th January, 1920, would therefore be saved from limitation. But it is contended that the entire amount fell due when there was default in the payment of the first instalment and therefore the suit ought to have been brought within six years of the first instalment which fell due on the 29th September, 1909. In our opinion this contention is not sound. The contract was for payment of the debt by instalments extending up to the 29th September, 1917. It was left to the option of the creditors to demand the entire amount if there was default in payment of an one of the instalments. It was open to the creditors to avail themselves of this right or not to do so. They could exercise their option and demand payment of the entire amount on default of any one of the instalments or they could under the terms of the bond wait until the last instalment fell due. It was not obligatory for the creditors to bring a suit for realization of the entire amount as soon as any one of the instalments fell due. If they waited until the expiry of the time for payment of all the instalments, their claim would not be barred in so far as the instalments within the period of limitation were concerned. This view has been taken in a number of cases [vide Mata Tahal v. Bhagwan Singh, where the facts appear to be very much similar to the facts of the present case; Rup Narain Bhattacharya v. Gopi Nath Mandol and Narna v. Ammani Amma].

In this view of the case it is clear that the claim of the plaintiffs in so far as the instalments from September 1914 to 1917 are concerned was not barred by limitation.

The plaintiffs will, therefore, get a personal decree against the defendant no. 1 for a sum of Rs. 126, being the instalment from September 1914 to September 1917, with interest thereon at the rate of 12 per cent per annum from the date of default of each instalment, and proportionate costs of the suit throughout.