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27. Now if there are two convenants it must be left to the plaintiff to decide whether he would enforce one or the other or if possible, both. Let us consider at once what the plaintiff's case, is. Is he asking for the enforcement of the 'penalty clause' to use a short expression for the stipulation which entitles the creditor to sue, on default of payment of two instalments, or whether he is suing for his money with, out any attempt to enforce the penalty clause. I have already read the plaint. The plaintiff distinctly says that he gives up the benefit of the penalty clause but he has assigned some reason for that. His reason is that he was paid Rs. 20 and the defendants told him that the former could not pay the entire amount instalment by instalment. This allegation has no doubt been found to be not established. But the fact remains that the plaintiff distinctly says that he is not enforcing the penalty clause by the suit. The penalty clause could be usefully enforced only before the 5th June 1929, that is to say while any portion of the stipulated period of 21 months yet remained unexpired. After the expiry of 21 months the penalty clause spent itself and is of no use to the plaintiff because the other stipulation, namely, payment of the whole amount by instalments within 21 months holds good. The object of the penalty clause was to insure immediate payment but that object could not be served because of the lapse of time. It is argued on behalf of the defendants that Article 75 of the Limitation Act applied. I have to see whether this argument is sound. In the Limitation Act Schedule 1 is divided into three columns. The first column relates to the description of the suit to which the rule of limitation is to be applied. The second relates to the period of limitation and the third column states the date from which limitation is to be started. In Article 75 the description of the suit is as follows:

29. If we are to hold otherwise, a position may occur which cannot be tolerated Let as again proceed by an example. B is indebted to A in the sum of Rs. 2,000. He agrees to pay Rs. 1,000 by instalments at the rate of Rs 100 a year and agrees that in case of default in payment of one instalment the whole shall be due; as regards the remaining Rs. 1,000 he agrees to repay she sum at the end of 5 years. The installments will run up to 10 years and the sum of Rupees 1,000 is to be paid in the course of 5 years. Now if the suit be for recovery if the Rs. 1,000 repayable at the end, of 5 years, nobody would say, because of the default in one instalment, that the sum of Rs. 1,000 also became payable, although An independent period of time has been fixed for its payment Again with the game illustration before us, let us consider this position. After the expiry of 4 years from the execution of the bond a brings a suit for recovery of Rs. 1,000 on the ground that there was default in the payment of the 1st instalment and the whole sum became payable. A pleads that the first instalment has not been paid. It is held that the first instalment has not been paid. The result would be that the suit would be dismissed as barred by time. Now A is entitled to recover the 10 instalments year by year. If A institutes, thereaftar, a suit for recovery of, say, the 8th, 9th and 10th instalments, will it be said that his suit is not maintainable? I suppose nobody would be bold enough to make an assertion like that. The reason is that the penalty clause to recover in a lump sum, the sum of Rs. 1,000 payable in 10 years could not be enforced on the ground of limitation. A has another stipulation in his favour, namely, payment of several instalments year by year. If he cannot enforce the penalty clause, surely there is nothing that would prevent him from enforcing the other stipulation in the bond.

37. On the remarks set forth above, I am of opinion that the suit should succeed in respect of 11 instalments which are within three years of the institution of the suit. Before I finish I may mention a case, Kanhai v. Amrit A.I.R. 1925 All. 499. It was a case in which the only point urged before me was what was the meaning of the word "waive" or "waiver" as used in Article 75, column 3, of the Limitation Act. It was taken for granted that Article 75 applied. No mention was made of Article 74 or any other Article. That case is, therefore, no authority for any proposition which we have to consider in this case. Now the next question is the effect of the notice to pay up. That was given by the plaintiff to the defendant on 21st, May 1928. That notice clearly stated that there was a default in payment of the first two instalments and that the defendants must pay up in accordance with the penal clause. The notice had been given within 9 months of the execution of the bond and, therefore, there was ample time within which to enforce the penalty clause. It has been argued that the plaintiff, having decided to claim the entire amount on the ground of default, is now precluded from maintaining that his suit is not governed by Article 75. It is further urged that the whole amount became due within the meaning of Article 75 and, therefore, Article 75 must apply. In my opinion the argument is not sound. It was not a suit, as I read the plaint, for the enforcement of the penalty clause. I must take it that when notice was given, it was the intention of the plaintiff to enforce the penalty clause. But he never brought a suit to enforce the penalty clause and there is nothing in the law to prevent him from not enforcing the penalty clause, if he so chooses. The plaintiff is certainly entitled to say:

When I gave that notice, I did want to enforce the penalty clause, but for some reason, for example, owing to the poverty of the defendants, decided not to enforce that clause.

38. In my opinion the notice does not adversely affect the present suit which is based on a stipulation other than the penalty clause. In the result, I would allow this application in revision in part and decree the claim for recovery of 11 instalments with proportionate interest and proportionate costs in both Courts.