Mukhdeo Singh and Another vs Harakh Narayan Singh and Others

Fazl Ali, J.—This appeal arises out of a suit brought by the plaintiff-respondents to enforce payment of money secured under a registered mortgage bond executed by the appellant''s father Isri Singh (defendant 1) in favour of one Ramdeni Singh an ancestor of the plaintiffs on 23rd May 1924, for a sum of Rs. 900. Under the terms of the mortgage bond the money was payable in 18 yearly instalments of Rs. 50, each, beginning on 30th Jeth 1312 Fasli and ending on 30th Jeth 1329 Fasli. It was also provided that if there was default in the payment of any of the instalments, all the instalments whether expired or unexpired shall be payable by the mortgagor and he shall pay interest thereon at the rate of Re. 1 per cent. per month. The plaintiff''s case was that the defendants had paid the instalments up to Jeth 1321, but had made no payments subsequently. He therefore brought a suit for a sum of Rs. 968, of which Rs. 400 was alleged to be the principal due and Rs. 568 was claimed on account of interest. One of the pleas raised in defence was that the suit was barred by limitation, it being asserted by defendant 1 that he had never paid a single farthing to the plaintiffs or their ancestors and that the allegation regarding the alleged payment of a portion of the mortgage debt had been made merely to save limitation.

The learned Munsif who tried the suit did not believe the plaintiff''s story that the instalments up to Jeth 1321 had been paid and held that the suit was barred by limitation. The learned Judge on appeal did not go into the question whether the plaintiff''s story as to the payment of the previous instalments was true or not; but disagreeing with the view of law taken by the Munsif, he held that the plaintiffs were entitled to a decree for all the instalments which had fallen due within 12 years of the date of the institution of the suit, that is to say, for a sum of Rs. 400. His reasons for coming to that decision are set out in the following passage:

The learned Munsif has taken the view that, once the mortgagor has defaulted, the only right which the mortgagee has is to sue for the whole amount outstanding with interest. It seems to me that this view is incorrect. The mortgagee must always have his right to get each instalment as it falls due. The additional right be has to sue for the whole amount due with interest is an alternative condition of a penal nature which he is not bound to enforce. The facts are practically identical with the facts of the case reported in Ramsekhar Prasad Singh and Others Vs. Mathura Lal and Others, .

Now, it being well settled that Article 132, Lim. Act, applies to a case like the present, the only question to be determined is whether the period of limitation in such a case should run from the date of the first default in the payment of the instalments or from the time when the last instalment became due. The question is a difficult one and is one of those on which there has been considerable conflict of opinion. There is no doubt that under the English law it is well settled that if in an agreement for repayment of an existing debt by instalments, it is provided that on the default of payment of any instalment the whole debt shall be recoverable, the statute of limitation runs as to the whole debt from the time of the first default in payment of an instalment. This was held as long ago as in 1843 in Hemp v. Garland [1843] 4 Q.B. 519, and it was in this case that Lord Denman made the observation which is quoted so often that

if the plaintiff chose to wait till all the instalments became due, no doubt he might do so, but that which was optional on the part of the plaintiff could not affect the right of the defendant who might well consider the action as accruing from the time the plaintiff had a right to maintain it.

This case was followed in Reeves v. Butcher [1891] 2 Q.B. 509 and the argument that it had not been referred to for many years was met by Lopez, L.J., in these words:

It is said that this case is not good law and that it has not been referred to for many years. I think that it has not been referred to because it has been acquiesced in and it does not appear that it has ever been questioned.

These two cases have greatly influenced some of the leading decisions in this country of which I shall mention two only, one by the Calcutta High Court in Sitab Chandra Naha v. Hyder Mullah [1897] 24 Cal. 281 and the other by a Full Bench of the Allahabad High Court in Gayadin v. Jummanlal [1915] 37 All. 400. In both these cases it was held that the mortgage money would become due when the first default is made though in the latter case Banerjee, J., took the view that when a creditor is authorized to wait for the full period stipulated for the payment, the money does not become due within the meaning of Article 132, Schedule 1, Limitation Act, 1908, until that period expires. It may be mentioned here that before Gayadin v. Jummanlal [1915] 37 All. 400 was decided the decisions of the Allahabad High Court were by no means unanimous on the point and curiously enough even after the decision of the Full Bench in Gayadin v. Jummanlal [1915] 37 All. 400 there were at least two cases in which the view taken is not easily reconcilable with what had been laid down by the Full Bench. One of these was the case of Mata Tahal v. Bhagwan Singh AIR 1921 All. 104 in which it was held that in the case of a mortgage deed which fixes a certain period of redemption but also provides for payment by the mortgagor of interest annually and in case of default gives the mortgagee the option of suing for the whole of the mortgage money, the mortgagee is not bound to sue on the occurrence of any default and may sue on his option after expiry of the period fixed for redemption. This case does not refer to the Full Bench decision at all which was either overlooked or ignored. The second case was that of Misir Girdhari Lal and Others Vs. Gobind Ram, . In that case the mortgage deed provided that in the event of nonpayment of interest for two consecutive half-years, the mortgagees were entitled to charge compound interest or to sue without waiting for the period fixed for the whole of the principal and interest or to sue for the interest alone. In view of this condition, it was held that several options being given to the mortgagees

if they did not choose to exercise the option to sue for the whole amount on default of payment of two consecutive installments of interest by the debtor, it cannot be said that the time began to run from such abstention.

These cases were criticized in Shib Dayal Vs. Meharban and Others, another Full Bench decision of the Allahabad High Court in which the rule laid down in Gayadin v. Jummanlal [1915] 37 All. 400 was re-affirmed and it was pointed out that limitation would run against the mortgagee from the date of the first default and it would make no difference whether the right to sue for the payment before the stipulated period was optional or compulsory. This case has finally set at rest all conflict so far as the Allahabad High Court is concerned and all the subsequent decisions of that Court are in accord with this case and the case of Gayadin v. Jummanlal [1915] 37 All. 400.

I have already said that the decision in Sitab Chandra Naha v. Hyder Mullah [1897] 24 Cal. 281 is one of the leading decisions of the Calcutta High Court on the question of limitation in respect of a mortgage instalment bond and so far as I am aware this decision has not been expressly dissented from in any subsequent case, although certain observations made in Rupnarain Bhattacharya v. Gopi Nath Mandal 11 C.W.N. 903 which was a case of a simple instalment bond governed by Article 75, have sometimes been relied upon as suggesting a strong argument for the opposite view. As to the other High Courts, I find that the latest pronouncement of the Bombay High Court is in favour of the view taken in Gayadin v. Jummanlal [1915] 37 All. 400: see Srinivas Laxman Naik v. Chansbasapagowda Basangowda AIR 1923 Bom. 201 Ganpati Bala v. Bhikhu Sakharam AIR 1930 Bom. 297. The Lahore High Court is also inclined to take the same view and in Ram Chand v. Bank of Upper India Ltd. AIR 1922 Lab. 281, which is one of the latest decisions of that Court Broadway, J., in the course of his judgment said:

Reliance was placed on Sham Sundar v. Abdul Ahad [1915] 71 P.R. 1915 and Sitab Chandra v. Hyder Mullah 11 C.W.N. 903 as authorities for the proposition that time commences to run from the date of the first default. With these authorities I am in agreement.

So far as the Madras High Court is concerned the earlier decisions were by no means unanimous; but in Naranna v. Ammani Amma [1916] 39 Mad. 981 the view taken in Gayadin v. Jhummanlal [1915] 37 All. 400 was expressly dissented from and it was held that the mortgagee was not bound to take advantage of the default caused and that the right of action did not accrue until the date provided for the payment of the principal sum arrived. It was pointed out in this case that it was a well-settled principle of law that no one is obliged to take advantage of a forfeiture and a remark in Banking on Limitation was relied on to point out that the decision in Hemp v. Garland [1843] 4 Q.B. 519 does not consider the principle that no one ought to be forced to take advantage of forfeiture. This decision has been followed in Velliappa Chettiar v. Venkatasubbarayulu Naidu AIR 1926 Mad 160. and several other cases and the view laid down there may be taken to be the prevailing view of that High Court, although I notice that in Mukyaprana Bhatta v. T.N. Kelu Nambiyar, AIR 1928, Mad. 705 the following observations were made by Ramesam, J.:

So far as all those cases in which the bond contains words like "when required" or "when you require" or "if you choose" or "the mortgagee will be at liberty to sue," it is easy to hold that there is strictly an option given to the plaintiff, though this view conflicts with the decision in Shib Dayal Vs. Meharban and Others, and in such a case until there is an overt act on the part of the plaintiff showing his volition that he intended to take advantage of the default clause and wants the default clause to operate, the right does not arise to sue for the whole amount immediately. Such cases are for example, Kaliappa Nadar v. Sami Iyer [1921] 62 I.C. 762, Lachakkammal v. Sokhayya Naick [1918] 48 I.C. 191, Ramadh Bibi Ammal v. M. Kandaswami Pillai [1919] 51 I.C. 724 and Velliappa Chettiar v. Venkata Subbarayalu Naidu AIR 1926 Mad. 160. I have nothing to say against these decisions but there is another group of cases where without the use of such phrases, it was said the mortgagee has get an option to take advantage of the default clause. They are, for example, Naranna v. Ammani Amma [1916] 39 Mad. 981 and P.P.B. Kunujunna Nair v. Kunujunna Nair [1910] 8 I.C. 510, a case of chit fund. These are in conflict with the decisions in Gayadin v. Jummanlal [1915] 37 All. 400 and Sitab Chandra v. Hyder Mullah, [1897] 24 Cal. 281. I am inclined to agree with the Allahabad and Calcutta decisions and dissent from the decisions of this Court but as I have said already, these are all decisions on the question of limitation and I do not want to pursue this point any further.

These observations were however merely obiter dictum as was conceded by the learned Judge himself and it further appears to me that to lay too much emphasis on the use of express words is to overlook the fact that in certain cases the option referred to by the learned Judge may be implied by the general tenor of the document apart from the use of any particular expression.

I have hitherto referred to the more important cases relating to mortgage or hypothecation bonds to which Article 132 is applicable. Besides these, there are a number of cases which relate to simple instalment bonds or instalment decrees to which Articles 75 and 182 are respectively applicable. Article 75 expressly provides that in case of default in the payment of the instalments, time will begin to run when the first default is made unless where the payee or the obligee waives the benefit of the provision and then time will begin to run when the first default is made in respect of which there is no such waiver. The cases under Article 182, Limitation Act, have also been decided on more or less the same principle. A question has often arisen as to how far these decisions are to be utilized in deciding cases which fall directly under Article 132, Lim. Act. In Surendra Nath alias Kartick Chandra Ghose and Others Vs. Raja Reshee Case Law and Others, , it was definitely held that although the particular case fell under Article 132, the principle underlying Article 75 was applicable and that where there had been a waiver, the suit was not barred by limitation. This view has been suggested in other cases also. On the other band it has also been held on several occasions that the decisions under Article 132 must be construed independently of Articles 75 and 182 as the sole question to be decided under Article 132 is when the right to sue accrues.

Such being the state of the case-law in this country, a Division Bench of this Court composed of Das and Ross, JJ., referred the following question to a Full Bench in connexion with Second Appeal No. 1332 of 1925, Satyabrata Chatterji v. Pratipal Singh:

When does money charged upon a moveable property become due within the meaning of Article 132, Schedule 1, Lim. Act, the money being payable by instalments with the condition that on default of the whole or any portion of the instalment, the mortgagee shall be competent to realize the entire principal with interest.

The reference was made notwithstanding the fact that it had already been held by a Division Bench of this Court consisting of Kulwant Sahay and Sen, JJ. in Ramsekhar Prasad Singh and Others Vs. Mathura Lal and Others, that

it is not obligatory for the mortgagee to bring a suit for the realization of the entire amount as soon as any of the instalments falls due and if he waits until the expiry of the time for payment of all the instalments, his claim would not be barred in so far as the instalments which are within the period of limitation from the date of the institution of the suit are concerned.

Unfortunately, the question which was referred to the Full Bench could not be decided because the appellant withdrew his appeal after the question had been argued for some time. For this reason the learned advocate presses us to refer the matter once more to a larger Bench and he strongly relies on certain observations made by Das and Ross, JJ., in their order of reference, It appears however that since that reference was made, at least in two reported cases, the decision of Kulwant Sahay and Sen, JJ., in Ramsekhar Prasad Singh and Others Vs. Mathura Lal and Others, has been followed and approved, one of the parties to both these decisions being Ross, J., who had made a reference along with Das, J.: see Ganga Bishun Manvari v. Raghunath Prasad and Ganga Bishun Marwari and Others Vs. Lala Raghunath Prasad, .

The question therefore which we have to answer is whether, there being more than one decision of this Court bearing on the point which we are asked to refer to a Full Bench, it is still necessary to make any such reference. For myself I am strongly of opinion that the present case should be decided in accordance with the line of decisions which this Court has preferred to follow so far. My reasons for holding this view are more than one, the chief reason being that I am not prepared to hold that the view taken in those decisions is incorrect or such as is not warranted by the words of Article 132, Lim. Act, Before I give my reasons for saying so, I should like to refer to two important cases decided by the Privy Council, One of these is the case of Juneswar Dass v. Mahabeer Singh [1875] 1 Cal. 163. In that case there was a mortgage deed executed in 1856 in which it was stipulated that the money would be repaid in June 1866, but that in the event of the lands being sold in execution of the decree obtained by a third party before the date fixed for payment, the mortgagee would be at liberty at once to sue for the recovery of the debt. In 1865 the lands were sold and a little over six years later, in 1871 a suit was brought by the mortgagee to recover the amount of the mortgage dead. One of the points urged before the Judicial Committee in that case was that Clause 16, Act. 14 of 1859, which was the general clause applicable to suits for which no period of limitation had been expressly provided, was applicable, and the suit being brought more then six years after the time when the debt became due was barred by limitation. Their Lordships held that the limitation in that case was 12 years; but referring to the contention of the defendant they observed as follows:

Their Lordships must not be supposed, in coming to this decision, to give any countenance to the argument of Mr. Arathoon that this suit would have been barred it the limitation of six years under Clause 16 had been applicable to it. They think, upon the construction of this bond, there would be good reason for holding that the cause of action arose within six years before the commencement of the suit.

This observation has been explained by the learned Judges of the Allahabad High Court who decided the case of Shib Dayal Vs. Meharban and Others, and the explanation given by them is undoubtedly entitled to consideration but if their Lordships of the Privy Council felt that such a case must be decided on the principle which is deducible from Hemp v. Garland [1843] 4 Q.B. 519, they would not have said that the cause of action arose within six years before the commencement of the suit.

The second case is that of Pancham v. Ansar Husain AIR 1926 P.C. 85. In that case a mortgage bond had been executed in 1893, but although the repayment was to be made at the expiry of 12 years, it was also provided that the mortgagors would pay Rs. 800 annually on account of principal and interest and in default of making this payment the mortgagee would be entitled to enforce the mortgage by sale even if the time for repayment had not arrived. The suit had to be dismissed by the Privy Council because it had been brought more than 12 years after the cause of action expressly alleged in the plaint but referring to the Full Bench decision of the Allahabad High Court in Gayadin v. Jummanlal [1915] 37 All. 400 and Shib Dayal v. Meherban AIR 1923 All. 1 Lord Blanesburgh said as follows:

Applying certain previous decisions of that Court and in particular a Full Bench decision in Gayadin v. Jummanlal [1915] 37 All. 400 the High Court held that under a clause in the above form a single default on the part of the mortgagors, without any act of election, cancellation or other form of response or acceptance on the part of the mortgagees, and even it would appear, against their desire, operates ''eo instanti'' to make the money secured by the mortgage "become due", so that all right of action in respect of the security is finally barred 12 years later, that is, in the present case on the 21st February 1906. All this the High Court held, notwithstanding that the mortgage is for a term certain, a provision which may be as much for the benefit of the mortgagees as of the mortgagors and notwithstanding that the proviso is exclusively for the benefit of the mortgagees. The decision also apparently proceeds upon the view that the words of the English Limitation Act and the English decisions thereon apply without question to the words of Article 132 of the schedule to the Indian Limitation Act, a conclusion which as it seems to their Lordships, may involve, and on the critical point when applied to such a proviso as the present, a large assumption.

Their Lordships are fully alive to the seriousness of the view so taken by the High Court emphasized and perhaps extended as it has been by a later Full Bench decision to the same effect: see Shib Dayal Vs. Meharban and Others, Moreover upon the correctness of it there has been in different High Courts of India a sharp conflict of judicial opinion. It is accordingly manifestly desirable that so soon as may be this Board should finally pronounce not only upon the question whether the principle of the two decisions above referred to is correct but also upon the further question whether even if it is these decisions have any application to a proviso framed as is that now in suit.

Now, it is true that in this case also the point has not been finally decided but the observations made by their Lordships raise some important considerations and in Ashiq Husain and Others Vs. Chaturbhuj and Another the learned Chief Justice of the Allahabad High Court and Sen, J., regard these observations as a warning note sounded by the Privy Council.

Now, one of the points to which Lord Blanesburgh drew attention in this case was that the Full Bench of the Allahabad High Court proceeds upon the view that the words of the English Limitation Act and the English decisions thereon apply without question to the words of Article 132, Lim. Act and this their Lordships suggested might involve a large assumption.

Besides Hemp v. Garland [1843] 4 Q.B. 519, which is undoubtedly the leading authority in England on the subject was decided as long ago as in 1843 and as was pointed out by Lopez, L.J. in Reeves v. Butcher [1891] 2 Q.B. 509 remained unquestioned for nearly half a century. That may be one of the reasons why the rule laid down in that case is so firmly established in England as to be now beyond question. In India however Reeves v. Butcher [1891] 2 Q.B. 509 has been explained in certain cases on the ground that its facts were somewhat peculiar and with regard to the decision in Hemp v. Garland [1843] 4 Q.B. 519 it has been said that it is at variance with the well established rule that no one is obliged to take advantage of a forfeiture: see Ram Bhaj v. Debia [1881] 123 P.R. 1881, Narna through Vitappa Shanbhoga v. Ammani Amma [1910] 8 I.C. 510. Now, it is wholly unnecessary for me to discuss whether this criticism is sound or not because I find that the rule laid down in Hemp v. Garland [1843] 4 Q.B. 519 has been practically embodied in Article 75, Lim. Act, which relates to instalment bonds and promissory notes. When however a suit is brought to enforce payment of money charged upon immovable property, it is well settled that the proper article to be applied is Article 132 and under this article the only question to be decided is when the money sued for became due. This question has necessarily to be decided with reference to the terms of each bond and that being so one cannot ignore two important features which are found almost invariably in instalment mortgage bonds; (1) a time is generally fixed by which the entire principal money and interest due thereon are to be paid up; (2) a clause is inserted for the benefit of the mortgagee that if any of the instalments due is not paid in time, the mortgagee would be at liberty to call in the entire money. It is on these two important elements that their Lordships of the Judicial Committee laid emphasis in Pancham v. Ansar Husain AIR 1926 P.C. 85 when referring to the decision of the Allahabad High Court. Their Lordships said:

All this the High Court held notwithstanding that the mortgage is for a term certain, a provision which may be as much for the benefit of the mortgagees as for the mortgagors and notwithstanding that the proviso is exclusively for the benefit of the mortgagees.

Now if we analyse most of these bonds it will be clear that one of the objects which the parties generally have in view is that the mortgage debt should be paid by a certain date which usually coincides with the date of the last instalment. If this was the only condition in the bond, it is clear that the money would become due on the expiry of that date. The question then arises whether it would make any difference, if having practically provided for a due date the mortgagee for his own benefit inserts in the bond a condition that it will be open to him to call in the entire money if the debtor makes default in the payment of any of the instalments fixed. Such a condition is expressed in a variety of ways in different bonds and sometimes express words such as "the mortgagee will be at liberty to sue," or "that the money will be paid when required;" or "on demand" are used to emphasize that the matter is left entirely at the option of the mortgagee. At the same time I think that even without the use of any such words, it may be implied in certain cases that the mortgagee has been given a complete option. Thus the effect of such a stipulation is that under the terms of the bond the mortgagee has successive or recurring causes of action and it is left to his option to avail himself of any one of these causes of action and base his suit upon any of them. Now supposing that the parties agree in clear terms that it will rest with the mortgagee to decide whether he should sue as soon as there is default in the payment of any of the instalments, or on the expiry of the due date fixed for the payment of the entire debt and that ha is under no obligation to avail himself of the earlier cause of action, I do not see how Article 132 will bar his claim, if acting on the terms of the bond he refrains from bringing a suit on there being a default in payment of any of the instalments and prefers to sue on the expiry of the due date I do not see also why the same reasoning should not apply when on a construction of the bond it appears that although express words have not been used, the intention of the parties is to enter into a contract like the one to which I have referred. The notion of continuing or successive causes of action is not entirely foreign to the Limitation Act as will appear from Section 23 and Article 116, Limitation Act. Where therefore a party has recurring or successive causes of action whether under the terms of contract or by operation of law, each cause of action will in my opinion give a fresh start to the period of limitation and the mere fact that a party has not availed himself of the earlier cause of action, will not prevent him from availing himself of a later one

It is in this connexion that it becomes material to consider how far the mortgagee is entitled to waive his right to exercise an option given to him under the bond. Now there is a good deal of conflict in the decisions of the various High Courts in this country as to what would constitute a waiver and what would not. It has been held in several cases that mere abstaining from bringing a suit does not amount to a waiver, and some of these cases were relied on by the learned advocate for the appellant. All those cases however were decided under Article 75, Limitation Act, and it is clear that if it is held in cases falling under that article, that mere abstention from suing amounts to a waiver, that would nullify the main provision in that article which is to the effect that the time would ordinarily begin to run from the date of the first default. In cases however which are not governed by that article, if the terras of the bond themselves provide expressly or by implication that it is open to the mortgagee to sue as soon as the first default happens or to sue later, then I do not see that there would be any difficulty in holding that if the suit is not brought as soon as the first default occurs and is brought after a subsequent default or after the date by which the whole amount due is to be paid, the mere abstention from suing does not amount to a waiver. It has been remarked in certain oases that where a contract gives the power to elect it is not within the province of the law to say that such election shall not be made and it is equally clear that where the contract itself provides for waiver, no statutory authority for such waiver is needed. In this connexion I may usefully refer to the following observation made in J.P. Rego Vs. Phillip Tauro and Another, :

It cannot be said of a person that on the date of the first suit he became entitled to sue for the whole amount, unless he had previously elected by some word or act to take advantage of the default clause. If he had previously done nothing, that is, had made no election, the act involved in bringing the first suit for a single instalment amounts to a waiver on his part of the benefit reserved under that clause. If again after the default has occurred he keeps the question open and does nothing but finally sues for the whole amount, the fact that he has so sued shows that he has waived the benefit reserved to him under the contract.

I have so far dealt with the merits of the controversy; but on two other grounds I am inclined to hold that we should adhere to the view which has prevailed so far in this Court This view has undoubtedly this advantage than it does not entitle the debtor to go behind his own stipulation giving the creditor an option in the matter of bringing the suit. I fully recognize that the Courts should have no hesitation in applying the statute of limitation where it clearly applies, but where there are two possible views under this statute, one tending to deprive a person of his just dues and the other entitling him to recover them, there is no reason I do not see why one should not lean in favour of the view which does not entail any hardships or lead to any unjust consequences. My other ground for adhering to the cursus curiae of this Court is substantially what has been pointed out recently by a Full Bench of this Court in Tribeni Prasad Singh and Others Vs. Ramasray Prasad Chaudhari and Others, and what has been expressed by Mukerjee, J., in the case of Kedar Nath Hazra v. Manindra Chandra Nandy [1910] 5 I.C. 309 in these words:

The Courts must always hesitate to overrule decisions which are not manifestly erroneous and mischievous, which have stood for many years unchallenged and which from their nature may reasonably be supposed to have affected the conduct of a large portion of the community in matters relating to rights of property: Young v. Robertson 4 Macqueen 314.

I have already said that I am unable to hold that the view which has been held in this Court so far, is manifestly erroneous and it is obvious that it is the very opposite of being unjust or mischievous.

I shall now briefly allude to one of the terms of the bond with which we are concerned in the present appeal. It is provided there that the entire money will be repayable by the mortgagor if there is default in payment of any one (koi ek) of the instalments. Now the fact that emphasis is laid on any one of the instalments, plainly means that the right to sue will accrue as much to the plaintiff on the default in respect of the first instalment as in respect of the second, or indeed the last instalment. This clearly amounts to giving an option to the creditor to make any of these various causes of action the basis of his suit. That being so, I think the case has been correctly decided by the Court below and the appeal must fail. As there is no cross-appeal on behalf of the respondent, it is unnecessary for me to decide whether the period of limitation might also have run from 30th Jeth 1329 the last date mentioned in the bond by which the entire amount of the bond was to have been paid up. The appeal therefore must be dismissed with costs.

Macpherson, J.

I agree.