Kandasami Chetty vs Annamalai Chetty

This suit is brought on a bond for the principal sum of Rs. 300 with interest. The principal amount was payable on the 7th June 1898. According

to the first part of the bond the interest was payable on the 7th June 1897 and the 7th June 1898 respectively. The bond also provided that if

default in making payments were made on the due dates the principal and interest then due with compound rate at Rs. 1-4-0 per cent, per mensem

with annual rests should become payable on request or demand by the obligee.

Two arguments have been advanced before us by the plaintiff-respondent, with reference to the ground taken on behalf of the appellant for the

first time here, that the claim in so far as it was not admitted is barred by limitation and the court is bound to dimiss it u/s 4 of the Limitation Act.

The first is that the provision about the obligee making a request or demand is a condition to the money becoming payable in accordance with

the terms of this portion of the instrument.

The cases to which our attention has been drawn as to this are not uniform though the general principle applicable to the matter is clear, namely,

whether upon the fair construction of the particular instrument the intention of the parties was to make the demand a condition. We do not consider

it necessary to decide this point as we think the appeal must fail with reference to the other arguments put forward, i. e., the obligation cast upon a

court by Section 4 of the Limitation Act is only in cases where it is in a position to dismiss the whole claim or suit. Alimunissa Khatoon v. Syed

Hossein. Ali 6 C.L.R. 267 Rughunath Singh Manhu v. Pareshram Mahata ILR 9 C. 635 are clear authorities in favour of this view.

Following those decisions, we must hold against the appellant inasmuch as a decree has been passed against him for a part of the claim on his

own admission and the appeals in the Lower Appellate Court and here have had to be confined to the portion of the plaintiff''s claim not admitted.

Apart from this the case is not one in which we should permit any issue as to limitation to be taken at this stage, as the appellant is not in a

position to offer any explanation whatsoever why the question was not raised in the courts below.

We accordingly dismiss the second appeal with costs.