Ram Chandra Nayek Kalia vs Gharbharan Ahir

Robert Lindsay Ross, J.—This is an appeal by the plaintiffs who sued for the last six installments due under an installment bond for Rs. 822. The bond provided. "We and our heirs shall be liable to pay interest on the defaulted installment at the rate of 2 per cent per mensem. The said Mahajans are and will be by all means entitled and empowered, in case of default in payment of installments, to recover the said entire kistbandi money, principal with interest, at the aforesaid rate in whatever way possible without waiting for expiree and unexpired installments. The question is one of limitation. It is contended on behalf of the respondents (and this view was taken by both the Courts below) that the effect of this clause in the bond was that time began to run from the first default and that consequently the entire claim is out of time. It seems to me on reading the document that the plaintiffs were given the option either to recover the installments in default with interest at 2 per cent or to bring a suit as soon as the default took place. The language does not indicate that they were compelled to sue but only that they were entitled to sue. The case is completely covered by the decision of this Court in Ramsekhar Prasad Singh and Others Vs. Mathura Lal and Others, . In that case there was a condition that if default was made in payment of any one of the installments the mortgagees would be entitled to demand the full amount secured by the bond with interest; and it was held that "it was left to the option of the creditors to demand the entire amount if there was default, in payment of any one of the installments. 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 installments or they could under the terms of the hand wait until the last installment fell due."

It was decided in that case that the creditors were entitled to sue for the unpaid installments. There are many conflicting decisions in other Courts on this question, but it is impossible to distinguish the present case from this decision which is binding upon us. It is unfortunate that this decision which was reported in 1925 was not cited before either of the Courts below.

The appeal must be decreed, the decrees of the Courts below set aside and the plaintiff''s suit decreed with costs throughout.

A.E. Scroope, J.

I agree.