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Hulas Kunwar Versus Allahabad Bank Ltd.

1958 (4) TMI 118 - CALCUTTA HIGH COURT

A.F.O.O. No. 45 of 1956 - Dated:- 2-4-1958 - P.B. Chakravartti, C.J. and S.C. Lahiri, J. JUDGMENT S.C. Lahiri, J. 1. This appeal is by the plaintiff in a suit for redemption and is directed against an order, elated 31-8-1955, passed by Sarkar, J. by which be discharged the exceptions taken by the plaintiff to the report of the Commissioner and Special Referee appointed in the suit to submit a report on certain questions referred to him. The facts which are material for the purposes of this appea .....

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was originally fixed at ₹ 50,000/- but it was increased from time to time and ultimately it stood at ₹ 3,50,000/- in 1947. From August, 1948, the Bank wrote a number of letters to the plaintiff pointing out that the securities held in deposit by the Bank against the advances made to the plaintiff fell below the stipulated margin of 40 per cent and requesting the plaintiff to restore the margin either by sending sufficient funds, or by furnishing further securities. On the plaintiff& .....

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the rate fixed by agreement and (b) the sale of the shares by the Bank was in breach of the terms and conditions of the said hypothecation and was contrary to law. On 5-3-1951 it was ordered and decreed with the consent of the parties that the suit be referred to Mr. B.K. Chakravarti, Bar-at-Law, to take accounts and make the following enquiries : "(1) An account of what, if any, is due on this date to the defendant Bank for principal and interest on the overdraft account mentioned in the .....

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s aforesaid ..... " Those portions of the consent order which have not been quoted are not material for the purposes of this appeal. Before the Special Referee the parties agreed that the only issues upon which he should submit his report were : (1) "what rate of interest was agreed upon between the parties, whether 3 per cent or 3 1/2 per cent?" and (2) "were the shares mentioned in the list submitted by the plaintiff and described as 'improperly sold', sold properly .....

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the rate of interest agreed upon by the parties? It is common ground that originally the rate of interest was 3 1/2 per cent Ex. 1, letter from the General Manager of the Bank, dated 29-6-1944. It is also admitted that the rate of interest was reduced to 3 per cent with effect from 1-12-1944 - See Ex. 2, plaintiff's letter to the Manager of the defendant Bank, dated 9-12-1944, acknowledging receipt of his letter dated 7-12-1944. The defendant's case is that on 17-10-1946 the rate of inte .....

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fence case is that a copy of this notice was sent to the plaintiff by ordinary post and though there was no express acceptance of its terms on his behalf, there was an implied acceptance by conduct. This case has been accepted by Sarkar, J. 3. Mr. Meyer appearing for the appellant has argued (a) that the terms contained in the Circular-Ex. 9 cannot be said to constitute a proposal (b) that it has not been proved that the circular reached the plaintiff and (c) that the evidence on the record does .....

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ied agreement between the parties to pay interest at the rate of 3 1/2 per cent from 17-10-1946, both the proposal and the acceptance being implied. 4. Before entering into the merits of the rival contentions, it is necessary to consider whether it is open to the respondent to make a case of implied agreement at the appellate stage. Mr. Meyer contends that it is not open to the respondent to make that case in view of the fact that the only case made by the Bank in the trial Court was one of expr .....

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st; but the alternative case of implied agreement was specifically made in paragraph 4 of the Statement of Facts filed by the defendant before the Special Referee on 20-3-1951 which contains the following sentence : "In the alternative, the plaintiff by accepting the statements of accounts submitted from time to time upto 31-3-1949, as correct, agreed to pay interest at the said rate of 3 1/2 per cent". The Special Referee also in the last paragraph of his report on the first issue rel .....

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issue on the question of rate of interest could be decided in favour of the defendant upon the case of express proposal and implied acceptance, the evidence and authorities in support of a case of implied proposal and implied acceptance would not be of great help". His Lordship did not reject the case of implied agreement as a whole, upon the view that no such case had been made in the pleadings. For these reasons it must be held that the plaintiff had adequate notice of the alternative cas .....

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obtaining the Constituent's assent. It is, on the other hand, a unilateral decision to enhance the rate of interest with effect from the date of the notification. If, as the circular states, the rate of interest is to he raised "as from date", the Constituent has hardly any opportunity to accept or reject the proposal. Reference is made to the evidence of Mr. Macgregor, the Manager of the Calcutta branch of the Bank who states in answer to question No. 17, that the Bank gave fifte .....

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and 128 to 132 that the aforesaid statement of Mr. Macgregor was not correct. 6. All this argument is undoubtedly of great weight against the case of express proposal as sought to he made by the Bank; but it hardly touches the lease of implied proposal which I shall presently consider. 7. The evidence relating to the communication of the so-called proposal to the plaintiff is also riot satisfactory the case of the Bank is that the cyclostyled notice, Ex. 9, was sent to all the Constituents of th .....

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to N by another officer named Babu Mahabbatlal and the rest signed by a third officer named Pannalal Burman who has been examined by the Bank. There is evidence that Laijaram Dubey who signed the overdraft account of the plaintiff Chandmall Batia is dead; but his initials against the name of the plaintiff have been proved bv Pannalal Burman. There is evidence that Babu Mahabbat Lal is also dead. According to Pannalal Burman, the initials of Lajiaram Dubey against the name of Chandmtill Batia sig .....

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it at the same table with Lajjaram Dubey, he saw Laijaram actually signing the circular addressed to Chandmull Batia, be admits in answer to question No. 225 that it was his inference from the register. Indeed, it is impossible for any man to have independent recollection of such a fact after the lapse of five years. As regards, sending of the circular to the plaintiff, both Pannalal Burman and Mr. Maegregor, the manager of the Bank state that the initials of the officers in charge of the three .....

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who affixed the postage stamps, and there is no evidence that the so called important and reliable chaprashis actually posted the circulars or received any bundle of circulars from Lajjaram Dubey for posting. The entry in the register under the name of the plaintiff Chandmull Batia is this : "Rate of interest is increased from Bank rate 3 per cent to 1/2 per cent O. B. R. minimum 3 1/2 per cent from 17-10-46". There is an endorsement on the left hand side of this entry to the effect & .....

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here it was the ordinary course of business for all letters to be carried to the post. It is extremely doubtful if the act of placing a bundle of circulars in the custody of an office peon is equivalent to putting it in a "certain place" within the meaning of the illustration; but assuming it to be so the presumption under the illustration cannot arise in the present case because the particular peon who was entrusted with the duty of posting the bundle of circulars could not be named b .....

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stand in the way of the Bank are still greater. In the first place, the plaintiff, Chandmull Batia has pledged his oath that the circular was never delivered to him (see his answer to question No. 18} which is sufficient to rebut the presumption of due delivery by ordinary post. In the second place Burman admits that at or about the time the circular was posted, i.e., 17-10-1946, Calcutta was in the grip of communal riots and that stabbing was going on in the locality (see his answers to questio .....

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cent from 17-10-1946. According to Section 9 of the Indian Contract Act, if either or both the proposal and acceptance which constitute a promise is or are made in words, the promise is said to be express; but if either or both of them is or are made "otherwise than in words", the promise is implied. It is true that the notice (Ex, 9) communicating the decision of the Bank to raise the rate of interest to 3 1/2 per cent with effect from 17-10-46 cannot be said to he an express proposal .....

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ate and as a consideration for that reciprocal promise the Bank offered to desist from making a demand for the immediate payment of the amount advanced and also to make further advances. If the plaintiff accepted either of these considerations with notice of the fact that the Bank had raised the rate of interest to 3 1/2 per cent from 17-10-46 there would be an implied promise on the part of the plaintiff to pay interest at that rate. It appears that the plaintiff accepted both the consideration .....

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e direct evidence led by the Bank to prove the communication of the notice has been found to be unsatisfactory. 10. The Bank has produced a letter written by the Chairman, Calcutta Exchange Bank's Association to show that on 17-10-1946, "the Association's agreed minimum rate of interest on overdrafts then current against shares was 3 1/2 per Cent per annum." This letter is Ex. 21. It proves that on 17-10-46 the minimum rate of interest of all Exchange Banks on overdraft account .....

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also used to carry on business in jute and tea and that he had overdraft arrangements with several Exchange Banks, viz., Chartered Bank, Mercantile Bank, Eastern Bank and Hongkong Sanghai Bank, (See plaintiff's answers to questions Nos. 60 to 69). It is, therefore, impossible to believe that the plaintiff did not know that the respondent Bank which was affiliated to an Exchange Bank, had also raised its interest to 3 1/2 per cent from 17-10-1946. The respondent Bank has also produced the pl .....

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metimes twice a year and the auditors did not raise any objection on the ground that the Bank had improperly raised the rate of interest (See Question? 82 to 86). The plaintiff also admits that he did not object to the Bank having raised the rate of interest to 3 1/2 per cent per annum when his officer Anath Bandhu Bagchi came to know about it sometime in 1949 (See questions 143 to 151). After the enhancement of the rate of interest in October, 1946 three confirmation slips were sent to the plai .....

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Bank was pressing the plaintiff for payment in order to restore the margin and was threatening to sell off the shares to liquidate the debt. It is hardly possible that a business man like the plaintiff would in these circumstances blindly sign the confirmation slips without examining the accounts. Reference may in this connection be made to the letter Ex. 5 dated 2-3-1949 by which the Bank was intimating to the plaintiff that it had instructed its broker to sell the shares mentioned therein. It .....

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s 3-1-1949 (Ex. 7 (iii)) and it is idle to contend that even after receiving those letters the plaintiff went on signing the confirmation slips without examining the accounts. From all these circumstances the only conclusion that can be drawn is that the plaintiff induced the Bank to desist from making a demand for the immediate payment of the amounts advanced and also took a further advance of ₹ 10,000/- on 19-3-1948 with full notice of the fact that the Bank had raised its rate of intere .....

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21 ; Gaddarmal v. Tata Industrial Bank.: AIR1927All407 and Bruce v. Hunter (1813) 3 Camp 467 (D). The decision of the Judicial Committee in Haridas Ranchordas (A) is a strong case in support of implied agreement. There the only question was whether the Bank was entitled to charge compound interest with monthly rests though the written contract between the parties provided only for yearly interest on the daily balance in respect of the overdraft. The Bank disclosed the pass books which showed tha .....

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had not objected to a charge of compound interest in accounts which for several years he had annually received from the plaintiff afforded sufficient evidence of a promise by him to pay interest in that manner." The same principle was also laid down bv Mukerji and Guha JJ. in the case of AIR1932Cal521 where also the question was whether the Bank was entitled to charge compound interest and the only evidence adduced by the Bank was entries in the Pass Book which would show that compound inte .....

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s subsequently raised. The Bank Intimated its intention to raise the interest to ₹ 10 per cent with effect from 21-4-1922 to which the customer, who was the plaintiff made no reply and the question that arose for the consideration of the Court was whether in the circumstances of the case there was an implied agreement on the part of the plaintiff to pay interest at the higher rate. In that case, as in this, the notice was an intimation to raise the rate of interest with effect from the dat .....

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Act relating to implied agreement. We respectfully agree with the principles laid down in that case and hold that upon those principles an implied promise may also be inferred in the case before us. 12. Learned counsel for the respondent has also argued that under the terms of the order of reference the plaintiff is not entitled to raise the point that the rate of interest should be calculated at 3 per cent instead of 3 1/2 per cent. Reliance has been placed upon the following extract of the ord .....

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rior to 31-3-1949 was less than 3 1/2 per cent. There is no substance in this contention of the respondent. The order of reference does not give the respondent an independent right to resist the plaintiffs claim that interest should be calculated at the rate of 3 per cent. All that it says is that the plaintiff shall not be entitled to travel beyond any settled account or an account which has been examined and accepted as correct which necessarily postulates an investigation into the question wh .....

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hat upon a consideration of the evidence and circumstances of the case I have held that there was an implied promise on the part of the plaintiff to pay interest at the rate of 3 1/2 per cent and that he signed the confirmation slips with full knowledge of the fact the rate of interest had been raised by the Bank to 3 1/2 per cent, but if my conclusion on the evidence had been otherwise the respondent would not have been entitled to set up the terms of the order of reference in support of the pl .....

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es and (b) that the sales had been held without giving proper notice to the plaintiff. Before us Mr. Meyer has confined his attack only to the second ground. It appears that from the month of August, 1948, the Bank was complaining that the margin of securities pledged by the plaintiff had fallen below the stipulated level of 40 per cent and repeatedly requested the plaintiff to restore the margin failing which "we reserve to ourselves the right to sell off your securities to such an extent .....

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ions of Section 177 it is argued that the notice contemplated by Section 176 must be such as to give the pawner an opportunity to redeem the goods pledged "at any subsequent time before the actual sale of them". Therefore, according to the appellant, the notice must specify the actual date, time and place of the intended sale so as to enable the appellant to redeem the shares before the sale is actually held. In support of this proposition reliance is placed upon the case of The Co-ope .....

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e the pawner can exercise the right of sale, as the debtor cannot be said to be in default unless he fails to repay the loan within that date. In such a case therefore the debtor is in the same position as if a date for the payment of the loan had been fixed in the original agreement of hypothecation. Consequently, Sections 176 and 177 of the Indian Contract Act apply equally to cases where a time for the payment of the debt has been fixed in the original agreement of hypothecation and to cases .....

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keep the margin at the stipulated level is a "promise'" in respect of which the goods were pledged" within the meaning of Section 176 and "performance of the promise for which the pledge is made" within the meaning of Section 177, 15. The decision in the case of the Co-operative Hindusthan Bank (E) is an authority for the proposition that the provisions of Section 176, Indian Contract Act, relating to a "reasonable notice of the sale" are mandatory and sup .....

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gee had a right to sell the pledged securities without any notice to the plaintiff. 16. Mr. Meyer also contended that even if Sections 176 and 177, Indian Contract Act do not apply in terms to the present case, the parties would Be governed by the rules of English Common Law as embodying rules of justice, equity and good conscience and that those rules are thus summarised in Halsbury's Laws of England - (2nd Edition) Vol. 25, P. 14, Article 34 : "If there be no stipulated time for payme .....

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or, Manager of the Bank, makes it quite clear that the notices by which the Bank "reserved to itself the right to sell off the securities" were not intended as notices to sell the shares (See Questions 612, 613 and 614) because he expressly admits in his answers to these questions that by reserving the right to sell, the Bank never intends to sell. Sarkar, J. however, has relied upon the letter dated 12-5-1949 for his conclusion that the Bank had given a reasonable notice of its intent .....

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contends that this notice is bad, because it does not give any intimation of the date, time and place of the intended sale and is not a notice of the sale. Reliance is again placed upon the case of AIR1932Cal524 . In the case of Co-operative Hindusthan Bank Ltd. (E), a notice expressed in the following terms - "Failing which we shall arrange for the sale of the hypothecated stock", - was held to be bad because it was merely "an intimation that arrangements will be made for a sale .....

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en rightly pointed out by Sarkar, J. having regard to the nature of the securities hypothecated by the appellant, it was impossible for the Bank to mention the exact dateana time of the sale. There can be no question that the price of tea shares which constituted the subject-matter of sale varies from day to day and the Bank had" every right to sell them at the best available price of which no previous notice could be given. The Bank accordingly was within its rights in telling, the appella .....

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h Court in the case of Kunj Behari Lal v. The Bhargava Commercial Bank ILR All 522: (AIR 1918 All 363 (2)) (F). Mr. Meyer, however, pressed us to dissent from this view by relying upon the language of Section 176. .According to him the use of the article "me" in the expression "reasonable notice of the sale" indicates that notice must be given of the sale that will be actually held; or in other words the pawnee must first arrange for a sale and then give a reasonable notice t .....

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ese reasons I agree with the view taken by the Allahabad High Court in Kunj Behari Lal's case (F) and hold that the reasonable notice of the sale does not require specification of the date, time and place of the sale. The decision in the case of AIR1932Cal524 does not lay down any contrary proposition but merely says that the contents of the notice required to be given under Section 176 depend upon the facts of each case. I, accordingly, hold that the notice dated 12-5-49 read with the notic .....

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nd 10-3-49 that by those notices the debtor was required to restore the margin to the stipulated level of 40 per cent "within a week from the date hereof. That period of seven days was also allowed by the still earlier notices dated 18-1-49, and 3-1-49. It is, therefore, reasonable to infer that by the notice dated 12-5-49, the Bank required the plaintiff to restore the margin within a week from that date; that is to say, the plaintiff was given time till 19-5-49 to restore the margin, fail .....

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res on divers dates in 1949 beginning with 20-5-1949 and ending with 5-8-1949. (See Exs. 7 (vii), 7 (ix) and 7 (viii) ). 20. After 5-8-1949, the Bank did not sell any share for about nine months and the next series of sales started shortly before 13-5-1950. No fresh notice was given to the plaintiff before these sales and the Bank purported to act on the notice dated 12-5-1949. The question that has to be determined is whether the Bank was within its rights in proceeding with, the sales after a .....

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). In reply to both these letters, the Bank informed the plaintiff on 11-8-49, that it would release the Tea and Timber shares on payment of ₹ 67,000/- and ended by saying; "It is possible if you called to have an interview with us, an arrangement suitable to both will be made" (Ex. 4 (vii)). By Ex. 4 (viii) the plaintiff informed the Bank on 22-8-1949 that it was arranged at the interview proposed by the Bank that the plaintiff would deposit further securities of the value of &# .....

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list of shares sold by the Bank and disclosed by the Bank as annexure D to its "State of Facts" before the Special Referee shows that on 23-2-50, 30-3-50, and 9-5-50 the Bank delivered to the plaintiff's agent a large number of shares against payment. As a result of all these transactions and arrangements there was certainly a considerable alteration as to the extent of the plaintiffs liability to the Bank and it was the duty of the Bank to give a fresh notice under Section 176, In .....

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gal obligation to put an end to that arrangement by a fresh notice under Section 176, Indian Contract Act before proceeding to hold the next series of sales in 1950. All the sales held in 1950 are therefore vitiated by the omission of the Bank to serve a fresh notice under Section 176. 23. I shall now proceed to deal with the sales) held in 1951. On 12-5-50 the plaintiff instituted the present suit and on 14-6-50 obtained an order of injunction restraining the Bank upon certain terms, from selli .....

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ot;not to sell any of the shares pledged with you" as the plaintiff intended to pay off the amount due to the defendant and redeem the shares. This letter ended with a request to communicate to the plaintiff's attorney the amount due to the defendant "in the course or today" to enable the plaintiff to pay the same. (See Ex. 12). 24. The defendant's manager, Mr. Mac Gregor states in his evidence that he received intimation of the dismissal of the suit at about half past ele .....

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issued "Sale cards" before the receipt of the letter of the plaintiff's attorney. What is more probable is that the defendant was racing with time to sell as many of the plaintiff's shares as could be sold during the short interval the injunction stood dissolved. It appears that the plaintiff applied for restoration of the suit and also the order of injunction on the following day, i.e. 21-2-51 and the suit and the order of injunction were restored on 22-2-51 upon the plaintiff .....

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intiff's money and the plaintiff's man waiting till 4 P.M. when it returned the money on the ground that it could not deliver the shares over which the defendant had a lien for the claim due to the defendant from Messrs. Jaipur Investment Ltd (See Exs. 12 (ii) and 12 (iii)) Mr. MacGregor admits that the debit balance against the personal account of the plaintiff on 21-2-51 was ₹ 60,646-12-0 and that is why the plaintiff tendered that amount to the Bank on that date (See Questions 7 .....

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the previous day. That is why he addressed a letter to the defendant on 21-2-54 requesting it to return the shares enumerated in the list including all the shares sold on the previous day against payment of ₹ 60,646/12/- in cash (Ex. 12 (iv)). The defendant also informed the plaintiff by two letters dated 20-2-51 and 21-2-51 (Exs. 13 and 13 (ii)) that it had sold many of the plaintiff's shares on 20-2-51 for a total sum of ₹ 42,711/5/- but it is not clear when these letters reac .....

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to understand why he says that the Court directed the Bank to sell the shares on 20-2-51 without any notice. If he means that the dismissal of the suit for default on 20-2-51 resulting in the discharge of the order of injunction is equivalent to an order made by the Court authorising the defendant to sell the shares without notice, he is entirely mistaken. The discharge o£ the order of injunction meant nothing more than this that the parties were free to take any action they liked entirel .....

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many of the shares sold on that date were pledged by the plaintiff long after 12-5-49 and consequently they cannot be covered by that notice. For example 100 Barmahjan Tea shares sold on 20-2-51 (Ex. 13 (ii)) were pledged on 22-8-49 as per receipt (Ex. 4 (ix)); 100 Hashinara Tea shares sold on 20-2-51 were also pledged on 22-8-49 as per receipt (Ex. 4 (iv)); out of 800 Teloijan Tea shares sold on 20-2-51 (Exs. 13 and 13 (ii) ) 600 were pledged before 1-4-49 (Annexure B to the State of Facts bef .....

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