Indian Kanoon - Search engine for Indian Law

"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 not want to enforce the penalty clause, but for some reason, for example, owing to the poverty of the defendants, I decided not to enforce that clause." King J., was of the view that Article 75 applied to the case and that no waiver having been found, time began to run from the date when the default was made. Alternatively he was of the view that even it the money did not become due until the creditor exercised his option, the creditor must be held to have exercised it by making a written demand on the 21st of May, 1928 for the whole of the money due. He preferred however to rest his judgment on the former view. We may notice that Sulaiman C.J., in the course of his discussion made these observations (at page 669): --