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TMI Blog1966 (12) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... nt also executed an agreement whereby he agreed to pledge as security for the debt the said aeroscraps and to deliver them at the appellant's house and keep them there in his custody. The appellant's case, however, was that the first respondent failed to deliver the said goods to him, stored them in a plot adjacent to the aerodrome at Allahabad and therefore the said agreement did not ripen into a pledge. Consequently, he was entitled to recover the amount advanced by him in the suit based on the said promissory note and the said receipt. In his written statement the first respondent admitted the said loan but alleged that in pursuance of the said agreement he delivered 147 tons of aeroscraps of the value of Rs. 35,0001/- to the appellant. He claimed that the appellant was not entitled to obtain a decree unless he was ready and willing to re- deliver the said goods pledged with him. In the Trial Court the appellant besides examining himself also led the evidence of other witnesses. The respondents in their turn led both documentary and oral evidence and relied in particular on certain notices served upon them by the appellant as also certain receipts issued by the appellant in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stored at the aforesaid place was with the appellant or with the first respondent. The first broad fact that inevitably strikes one is that though the first respondent had agreed to hand over the said goods to the appellant and though he failed to do so, the appellant did not at any time protest or call upon him to deliver the goods. Since he had advanced a fairly large amount it would be somewhat unusual, if the said goods were not placed in his possession, not to call upon the first respondent to forthwith deliver the goods. Since a large amount was advanced by him the appellant also would not ordinarily be content merely with a promissory note from the first respondent. The appellant's case, however, was that since he had obtained a guarantee from the second respondent, the father of the first respondent, he did not worry even if the said transaction remained at the stage of an agreement to pledge. But the letter under which the 2nd respondent agreed to be the surety was obtained under different circumstances. Under the said agreement the appellant was to permit the first respondent to remove and sell part of the said goods provided he paid to the appellant 34th of the sale pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds interest. The removal of these goods and the said payment were simultaneously made. That fact would indicate that the first respondent had removed the said goods with the appellant's consent which again envisages that the goods were at that time in the appellant's charge. In November 1947, 100 maunds of the said aeroscraps were sold to one Amrit Lai for Rs. 1,400/--. It is significant that Amrit Lai paid Rs. 200/- by cheque out of the said Rs. 1,400/directly to the appellant. The receipt Ex. D in respect of this amount indicates that the appellant was concerned with the sale. If the goods were not in his possession and they were sold by the first respondent without the appellant being concerned with the sale, Amrit Lal would not have directly given the cheque to the appellant. That the appellant was concerned with the said sale becomes also apparent from the fact that in the notice Ex. P given by him to the first respondent he had intimated that he intended to sell 100 maunds out of the goods. Two notices given by the appellant to the first respondent dated August 4, 1947 and September 11, 1947 furnish clear indications that the appellant was in possession of the said goods. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment before judgment of the goods belonging to the first respondent. The evidence of Banerjee was that when he went to attach the aeroscraps belonging to the first respondent he was informed that part of the said goods were in possession of the appellant and that thereupon he refrained from attaching those goods. This evidence shows that at that time it was a well known fact that the aeroscraps in question were in possession of the appellant. There were two items of evidence, however, on which the appellant relied to establish that the goods were never in his possession. The first was the evidence of Kedar Nath, the owner of the plot where the said goods were stored. His evidence was that the first respondent had taken the said plot on rent from him in October 1946 and that he was paying the rent therefor. The evidence of Kedar Nath, was, however, rejected by the High Court on the ground that he was not in a position to give the exact date on which the said plot was leased to the first respondent and also on the ground that his evidence was not satisfactory to show that the said goods were not stored before October 1946. The second fact relied on by the appellant was that the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a necessary element in the making of a pawn. But delivery and advance need not be simultaneous and a pledge may be perfected by delivery after the advance is made. Satisfaction of the debt or engagement extinguishes the pawn and the pawnee on such, satisfaction is bound to redeliver the property. The pawner has an absolute right to redeem the property pledged upon tender of the amount advanced but that right would be lost if the pawnee has in the meantime lawfully sold the property pledged. A contract of pawn thus carries with it an implication that the security is available to satisfy the debt and under this implication the pawnee has the power of sale on default in payment where time is fixed for payment and where there is no such stipulated time on demand for payment and on notice of his intention to sell after default. The pawner however has a right to redeem the property pledged until the sale. If the pawnee, sells, he must appropriate the proceeds of the sale towards the pawner's debt, for, the sale proceeds are the pawner's monies to be so applied and the pawnee must pay to the pawner any surplus after satisfying the debt. The pawnee's right of sale is derived from an implie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here he is not able to redeliver the goods he cannot obtain a decree. If it were otherwise, the result would be that he would recover the debt and also retain the goods pledged and the pawner in such a case would be placed in a position where he incurs a greater liability than he bargained for under the ,contract of pledge. The pawnee therefore can sue on the debt retaining the pledged goods as collateral security. If the debt is ordered to be paid he has to return the goods or if the :.goods are sold with or without the assistance of the court appropriate the sale proceeds towards the debt. But if he sues on the debt denying the pledge, and it is found that he was ,,given possession of the goods pledged and had retained the same, the pawner has the right to redeem the goods so pledged by payment of the debt. If the pawnee is not in a position to redeliver the goods he cannot have both the payment of the debt and also the goods. Where the value of the pledged property is less than the debt and in a suit for recovery of debt by the pledgee, the pledgee denies the pledge or is otherwise not in a position to return the pledged goods he has to give credit for the value of the goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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