Exigibility clause and waiver in instalment bond suits require pleading, proof, and evidence of specific payment appropriation.

A suit on an instalment bond containing an exigibility clause falls under Article 75 of the Limitation Act, and once that clause operates the cause of action for the whole debt accrues unless its benefit is waived. Waiver is a mixed question of law and fact, so the creditor must plead and prove it; otherwise the suit cannot proceed on the original instalment terms. Mere forbearance to sue or receipt of an overdue payment does not by itself establish waiver, though acceptance of payment specifically appropriated to a defaulted instalment may do so if properly proved. The matter required evidence on waiver, limitation, and appropriation of payments.

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Issues: (i) Whether, in a suit on an instalment bond containing an exigibility clause, the creditor must plead and prove waiver of the benefit of that clause to avoid the bar of limitation. (ii) Whether mere forbearance to sue or receipt of an overdue instalment, without more, amounts to waiver of the benefit of the exigibility clause.

Issue (i): Whether, in a suit on an instalment bond containing an exigibility clause, the creditor must plead and prove waiver of the benefit of that clause to avoid the bar of limitation.

Analysis: A suit on an instalment bond with an exigibility clause falls under Article 75 of the Limitation Act. When the exigibility clause operates, the cause of action for the whole debt accrues, unless the creditor waives the benefit of that clause. Waiver is a mixed question of law and fact and must be properly pleaded and proved. The creditor cannot rely on the primary instalment terms after the exigibility clause has taken effect if waiver is not established.

Conclusion: The benefit of the exigibility clause had to be pleaded and proved as waived; in its absence, the suit could not be decided on the footing of the original instalment terms.

Issue (ii): Whether mere forbearance to sue or receipt of an overdue instalment, without more, amounts to waiver of the benefit of the exigibility clause.

Analysis: Mere inaction or abstinence from suing does not amount to waiver. A waiver requires some overt act indicating that the creditor has given up the accrued right. Acceptance of a payment specifically towards satisfaction of a particular defaulted instalment may amount to waiver of that default, but a mere payment received towards reduction of the debt does not. The record suggested appropriation of certain payments towards instalments, but the matter had not been properly tried and the facts required evidence.

Conclusion: Mere forbearance or receipt of payment by itself was insufficient to establish waiver, but the case required a fresh trial on the question whether the payments were specifically accepted as satisfaction of defaulted instalments.

Final Conclusion: The dismissal in limine was set aside and the matter was sent back for fresh trial so that waiver, limitation, and appropriation of payments could be properly pleaded and proved.

Ratio Decidendi: In a suit on an instalment bond governed by Article 75 of the Limitation Act, the creditor must plead and prove waiver of the exigibility clause, and such waiver cannot be inferred from mere inaction or mere receipt of payment, though acceptance of payment specifically appropriated to a defaulted instalment may amount to waiver.

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