LAWS(BOM)-1947-12-3

WAMAN VISHWANATH BAPAT Vs. YESHWANT TUKARAM

Decided On December 12, 1947
WAMAN VISHWANATH BAPAT Appellant
V/S
YESHWANT TUKARAM Respondents

JUDGEMENT

(1.) THE facts leading up to this appeal are that on August 20, 1936, the appellant obtained a mortgage decree for Rs, 7,303-7-0. That decree was made payable by certain instalments. THE first instalment was to be made payable on May 1, 1937. THE instalment fixed was Rs. 300, the next instalment of Rs. 200 on or before May 1, 1938, the third instalment of Rs. 300 on or before May 1, 1939, the fourth instalment of Rs. 500 on or before May 1, 1940 and the subsequent instalments of Rs. 500 each payable on or before May 1, of every subsequent year.

(2.) THERE was a default clause which was to operate on the failure to pay any two instalments. The judgment-debtor committed default and on June 2, 1941, the decree-holder filed a darkhast applying for the execution of the decree. A notice was issued under Order XXI, Rule 22.The judgment-debtor did not appear in answer to that notice and on August 2, 1941, the mortgaged property was ordered to be sold and notice was issued under Order XXI, Rule 66. THEREafter the decreeholder obtained a sum of Rs. 100 from the judgment-debtor and he decided not to proceed with his darkhast and the darkhast was dismissed. THEREafter certain amounts were paid by the judgment-debtor to the decree-holder. On October 11, 1943, the present darkhast was filed by the decree-holder and again the mortgaged property was ordered to be sold and a notice was issued under Order XXI, Rule 66.The date for the sale of the property was fixed on June 12, 1944, Before that on June 9, 1944 the judgment-debtor presented an application submitting among other grounds that he was bringing into Court the sum of Rs. 1,210, the amount then due under the various instalments, that that amount should be accepted and he should be relieved against the breach he had committed in payment of the instalments on their respective due dates.

(3.) THERE are two conflicting views which have been taken by this Court on this question and the two protagonists of these two views are Sir John Beaumont and Sir Norman Macleod two learned Chief Justices of this Court. Sir John Beaumont in Burjorji Shapurji v. Madhavlal Jesingbhai (1934) I. L. R. 58 Bom. 610 : S. C. 36 Bom. L. R. 798 was considering a case where a certain amount was made payable under the decree and it was provided that if a certain amount was paid on the dates specified, then satisfaction was to be entered up. In default of payment on the due date the full amount under the decree became payable. The judgment-debtor failed to pay the smaller amount on the due date and the decree-holder applied for execution and the question arose whether the delay in payment on the due date should be condoned and Sir John Beaumont took the view that what the decree-holder had done was to have made a concession to the judgment-debtor, the concession being that if he paid the smaller amount by a particular date, full satisfaction would be entered up, but in default of payment on the due date the amount actually due under the decree would become payable, and the learned Chief Justice took the view that the provision for the payment of the full amount in default of payment of the smaller amount on the due date was not in the nature of a penalty and the Court could not relieve against the breach committed in the failure to pay the amount on the due date. At page 617 the learned Chief Justice sets out the law which he says is not open to any serious question and what he says is this: If there is an agreement to pay a sum of money by a particular date with a condition that if the money is not paid on that date a larger sum shall be paid, that condition is in the nature of a penalty against which a Court of equity can grant relief and award to the party seeking payment only such damage as he has suffered by the non-performance of the contract. But if, on the other hand, there is an agreement to pay a particular sura followed by a condition allowing to the debtor a concession, for example, the payment of a lesser sum, or payment by instalments, by a particular date or dates, then the party seeking to take advantage of that concession must carry out strictly the conditions on which it was granted, and there is no power in the Court to relieve him from the obligation of so doing.