TMI Blog1929 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 as agent on behalf of appellant 2 and during the latter's absence in the F.M.S. brought a suit for its recovery on 3rd November 1921 in the Court of the Subordinate Judge of Sivaganga O.S. No. 110 of 1921. In the plaint it was stated by way of remark that 2 jewels worth in all ₹ 2,700 were pledged for the debt. This was only by way of remark; the jewels were not produced in Court and the suit was framed as for the recovery of the debt, reserving to the plaintiff the right to sell the jewels without the intervention of the Court, a course which the creditor could take under Section 176, Contract Act. It is now admitted that this statement was incorrect because at least 10 jewels were pledged. It is alleged by the appellants that the mistake arose as the jewels were in an iron safe the key of which was with appellant 2 at. Ipoh in the F.M.S., and appellant 1 who had to file the suit before it became barred did not know the number and value of the pledged jewels. However this may be, in March 1922 the respondent applied to the Court to direct the production of the jewels urging that the statement in the plaint as to the number and value of the jewels was incorrect. To this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable. 8 Issues were framed. Issue 1 raised the question of the number and value of the jewels. Issues 2, 4 and 5 raised the question of the factum and validity of the sale and its binding character on the respondent. Issue 3 raised the question of respondents' acquiescence, issue 6 that of the maintainability of the suit, issue 7 that of limitation, and issue 8 is the general issue as to appropriate relief. 6. The learned Judge who tried the case delivered a careful judgment dealing exhaustively with the matters in dispute and it is not necessary for us, as we generally agree with his conclusions, to go as minutely as he has done into the evidence with which he has dealt. 7. The learned Judge held that the appellants had foisted a sale on the respondent whereas in fact there was no sale at all. As to the jewels themselves though at the time of pleadings the appellants denied the existence of one small item worth ₹ 300 out of the items 11, no importance seems to have been attached at the trial to this question and nothing has been urged in the appeal before us about it and we must hold, with the learned Judge that all 11 jewels mentioned in the decree were pledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice Ex. B dated 16th January 1923, by which the respondent was required to pay the decree debt in one week from that day in default of which the 10 jewels mentioned therein would be sold. The respondent's answer to this was Ex. B-l, dated 26th January 1923, in which he pointed out the discrepancy between the plaint in which only two jewels were mentioned and the notice in which 10 jewels were mentioned and stated that neither the 10 jewels admitted nor those still omitted should be sold as he (respondent) intended to take criminal proceedings. The parties being residents of the same village these letters must have reached the other party the same or the next day. 12. It is curious that the sale is dated 25th January which gives the appellants the opportunity of saying that they had already sold the jewels before receipt of the respondent's reply. If any sale actually took place on 25th January, it is curious that the appellants on receipt of Ex. B-l did not take the trouble to inform the respondent that the sale had already been held or what the amount realised was. In fact they gave no information at all to the respondent but followed up the notice by an execution p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worth ₹ 1,200 from one of the neck ornaments which was melted, that for six months no part of the ₹ 5,350 for which the Madura merchants were responsible was paid by themselves or their guarantor or Kumarappa Chetty, that on 16th July 1923 the Madura merchants paid the appellants ₹ 3,640, that at once this ₹ 3,640 was lent to Kumarappa Chetty that, therefore, he was on that day debited with the ₹ 1,200 in one account and with ₹ 3,640 in a new account opened for that purpose and that for the balance of ₹ 510 another new account was opened in the name of the unknown Madura merchants. That these entries are fabrications is seen from the fact that in the body of the entries the date in jhai to which the transaction is referred is left blank. 14. The net result of these ingenious manipulations is that even on 16th July when these entries are supposed to have been made for some reason, not one pie in the shape of cash reached the hands of the appellants out of ₹ 5,350 for which they are supposed to have parted with the respondent's jewels; because ₹ 4,840 was outstanding against Kumarappa Chetty and ₹ 510 against the Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lamirie [1722] 1 Strange 504. The learned Judge had some material before him, viz., the fact that item 1, (a packet a diamonds) which the appellants themselves valued at ₹ 1,500 in the plaint in O.S. No. 110 of 1921 is put down at ₹ 800 in the memorandum Ex. D1, now put forward as the basis on which the total price was fixed at ₹ 5,350. This showed that the real price was somewhere near twice the figure at which the appellants pretended to have sold them. On this and on the evidence of the respondent and the fact that the loan advanced was ₹ 6,000 which with interest came to ₹ 8,160 the learned Judge thought it fair to fix the price of the entire lot of pledged jewels at ₹ 11,000. We find nothing wrong in this method and can only add that if we had to make a valuation for ourselves we would in the circumstances have to adopt the same method and arrive at the same figure. 16. The only other contention that involves any question of fact is that the respondent affirmed and acquiesced in the appellant's allegation of sale and cannot now be permitted to question the sale. It is urged that the principle that no one can approbate and reprobate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law that: as regards knowledge, parsons cannot be said to acquiesce in the claims of others unless they are fully cognizant of their right to dispute them. But it is not necessary that the plaintiff should have known the exact relief to which he was entitled, it is enough that he knew the facts constituting his title to relief. 19. The appellants' contention must, therefore, fail on the ground that he did not know that the sale alleged by the appellants was a myth. But there are other and equally fatal grounds. The ground for admitting the defence of acquiescence or laches according to the doctrine of the English Courts of Equity is that a plaintiff in equity is bound to prosecute his claim without undue delay. Where, however, there is, as in India, a statutory time limit to all conceivable kinds of action, the plaintiff is entitled to the full statutory period before his claim becomes unenforceable. Besides, even if in such cases the defence of laches were admissible the defendants (appellants in this case) would have to show that they had suffered a change of position by reason of respondent's laches in which it would not be reasonable to allow him to assert his r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that refusal by the order dated 27th May 1922 already quoted at the beginning of this judgment. We fail to see how in the above circumstances the respondent could have again agitated in execution the question of the factum or validity of the sale out of Court of the jewels as to which rightly or wrongly the Court had held that they did not form the subject matter of the suit and that the question of their pledge was not in issue. The respondent could not compel the appellants to exercise the power of sale as a means of discharging or satisfying the decree. His only rights were (1) in case the appellants exercised the power, to insist that it should be honestly and properly done and the sale proceeds applied to the debt (2) in case the appellants did not exercise the power, to redeem the pledges on payment of the debt or so much of it as remained otherwise unpaid and (3) in case the sale was improperly exercised, to get damages caused thereby. The 2nd of the above alternatives is what has happened. Having regard to the nature of the former suit, the execution proceedings therein could not at respondent's instance have been converted into an enquiry whether there had been any sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was due to the respondent's not having tendered or his not having been ready and willing to pay the amount due before the suit, which it seems is an essential condition of bringing a suit for redemption. This is a misapprehension. If a pledgor brings a suit for redemption without first tendering the money to the pledgee and it turns out that the suit was unnecessary because the pledgee was always ready and willing to deliver up the property pledged without suit if the debt had been paid, the plaintiff will no doubt be made to pay the costs of the defendant but his suit cannot be dismissed. But if it turns out that in the circumstances which preceded the suit, it would have been perfectly useless to tender the money to the pledgee as for instance where the pledgee declares in advance his inability to return the pledged property, in such a case if the pledgee was at fault in putting it beyond his power to return the goods the pledgor cannot be defeated on account of his not going through a useless ceremony of tender. Section 51, Contract Act makes the matter clear when it declares that neither party to reciprocal promises need perform his promise unless the other party is read ..... 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