TMI Blog1949 (5) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... est. It further provided as follows:-- With power to you (the bank) at your discretion to sell all or a sufficient portion of such securities in the event pi my not maintaining a margin of 40 per cent, on the market value of the securities for the time being or on my failing to repay the amount of any loan made by you to me on the due date of such loan . On these shares the Company claimed a lien for ₹ 1,10,000. When Nissim pledged the shares with the bank, he had signed five transfer forms (Ex. A-8) in blank and had given them to the bank. Barring Nissim's signature as transferor, which was witnessed, the forms were blank. The name of the Company, viz., The Asian Assurance Company Ltd., was however filled in. 2. Nissim was also a debtor to the bank in other accounts. He had underwritten the issue of new shares of the bank and ₹ 95,000 were due to the bank by Nissim on that account. The bank claimed a lien on those shares. Nissim had further guaranteed repayment to the bank of loans standing to the debit of Kuberdas Raghavji and Issac Ezra. 3. Mr. Jamnadas Mehta (3rd defendant) was the Chairman of the Board of Directors of the Company and also of the bank. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case of any difficulty arising you may take my assurance that I shall remain ultimately responsible, as already personally stated to you . The shares there referred to were the shares of the bank itself. Later in the day, on the 10th July, 1940, a meeting of the executive committee of the bank was held at which Mr. Jamnadas presided. Resolution No. 7 was in these terms :-- Resolved that the offer of Mr. J.M. Mehta for buying the shares numbering 26,000 in all of the Asian Assurance Company Ltd. standing in the name of Meyer Nissim for a sum of ₹ 73,000 or thereabouts, as contained in his letter of the 6th instant, be and is hereby accepted and Mr. J.M. Mehta's account be debited with the purchase price . Another resolution in respect of the bank shares was passed at the same meeting and was in these terms :-- Resolved that the transfer of the following shares as stated in a separate statement signed by the Chairman be and is hereby sanctioned. (ii) Transfer from underwriter Mr. Meyer Nissim 4876 shares.... Transferee Dr. T.M. Kajiji, Bar-at-law. and it is further resolved that Dr. T.M. Kajiji should be debited with the purchase price of the shares at par. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at way in the bank's books till 1944. On 12/13th July, 1940, Deshpande wrote to Nissim in these terms :-- With reference to our conversation on the phone we have to inform you that we have disposed of the shares of the Asian Assurance Company Ltd. and of our bank standing in your name and the sale proceeds are being adjusted to your loan accounts. You are therefore no longer a debtor of this bank. Considerable evidence was led to challenge the genuineness of this letter. The appeal court considered it unreliable. According to Deshpande's evidence (which is the only evidence on the point), this letter was first handed over by Deshpande to Nissim on the 15th of July. Nissim was adjudicated insolvent on the 16th July. In his statement of assets and liabilities filed with the Official Assignee on that day he showed these shares as held by the bank as security against his account. He sent the letter dated the 12th July to the Official Assignee with his letter of 6th September, 1940 and asked for permission to amend his schedule. 5. On the 1st November, 1940, the bank wrote to the Company intimating that the Board had decided to get the 26,000 shares transferred to the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 2nd defendant, if any, in the said shares ceased and came to an end. The plaintiffs further submit that even if the agreement mentioned in paragraph 9 above is not proved the rights of the 1st plaintiff bank as the pledgee of the said shares remain unaffected. 7. The prayers were for a declaration that the Company had no lien on the shares, that in any event the lien, if any, was subject to the security created by Nissim in favour of the plaintiffs or in any event subject to the payment by the Company to the plaintiff of ₹ 5 for each of the said 26,000 shares, for an injunction restraining the Company from selling the shares in exercise of their alleged lien or in the alternative for damages for ₹ 1,30,000. The Official Assignee was informed that he was a formal party. A notice of motion praying for an interim injunction was taken out and in the affidavits various statements were made in respect of these shares. 8. When things stood in that way, the plaintiff on the 23rd of October, 1941, wrote a letter to the bank recording an agreement made by him with the bank and Jamnadas under which he purchased the 26,000 shares. The relevant portion of the letter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 of 1941 in the Bombay High Court referred to by you in your letter under reference. 9. Suit No. 921 of 1941 ended on the 30th of August, 1943, in a consent decree under which Nissim admitted that he was a bare trustee for Jamnadas. In Suit No. 1001 of 1941 the written statement was filed on the 4th of November, 1941 and the hearing was concluded by September, 1943, but judgment was reserved. On the 12th October, 1943, the plaintiff filed the suit from which the present appeal has arisen. The Company, the bank, Jamnadas Mehta, Nissim and the Official Assignee were made party defendants. The plaint recites that on the 23rd January, 1940, the bank held the shares as pledgee or mortgagee for the total advance of ₹ 75,000 made by the bank to Nissim and for all other debts and liabilities of Nissim to the bank. It was next stated that Nissim was adjudicated insolvent on his own petition on the 16th July, 1940. In paragraph 7 of the plaint, the plaintiff's letter to the bank to purchase the shares and the bank's reply dated the 24th October were referred to. 10. Paragraph 8 of the plaint is in these terms: 8. The said letter of the plaintiff mentions the fact o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the trial court several issues were raised on the counter-claim of the Official Assignee. The learned Judge, inter alia, came to the following conclusion :-- (1) That the Official Assignee was not estopped from disputing the sale of the shares in favour of the plaintiff. (2) That the issues about the fact and validity of sale in favour of Jamnadas was not res judicata by reason of the proceedings in Suits Nos. 1001 of 1941 and 396 of 1940. (3) That the Official Assignee was entitled to go behind his admission and withdraw the admission, if any, about disclaiming his interest in the shares and was not estopped from claiming an interest in the shares. (4) That on the adjudication of Nissim no interest in the shares vested in the Official Assignee because the shares had passed on to Jamnadas and that the sale to Jamnadas was not bad for want of notice. (5) That the allegations and statements characterised as false and fraudulent in paragraph 25 of the written statement of the Official Assignee were not proved. On appeal, the findings in favour of the Official Assignee were confirmed. The appeal court, however, differing from the trial judge, held that there was no sale of the sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares independently of the tripartite agreement was not envisaged. The tri: partite agreement having been given up the appellant cannot rely on it. 14. The question therefore is whether irrespective of such an agreement, the sale of the shares to Jamnadas is proved. On this point the evidence consists of documents and the oral evidence of Deshpande. The evidence of Pranjpe, the other bank official, has no bearing on this question. He made entries and only carried out the directions afterwards given by Deshpande and or Jamnadas. Jamnadas has not been called as a witness to prove any such sale. As regards the oral evidence of Deshpande and Pranjpe, the learned trial Judge in his judgment observed as follows:-- I may go 60 far as to observe that if Deshpande and Pranjpe had not been corroborated by any documents which are contemporaneous and even proved to be such, I would not have relied merely on the oral testimony of Deshpande and Pranjpe . Having regard to this observation, the right approach to the question is to keep away at first from the oral evidence and to look at the documents. A sale according to the Sale of Goods Act (and in India goods include shares of joint stock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deshpande clearly shows that even after the resolution of the executive committee the sanction of the board was considered necessary for making the transfer entries. That also explains why in fact no entry closing the account of Nissim and debiting the balance to Jamnadas was made till the board sanctioned the transaction in April, 1941. If one client's securities and liabilities en bloc are taken over by another client it will not be an ordinary normal transaction to be entered into by a bank and therefore it will not be within the powers of executive committee to sanction the same. Again, if the consideration was the balance due at the foot of the overdraft account on 10th July, 1948 there should have been no credit or debit entries in the account after that day. The transfer of ₹ 2,132 on 18th July, 1940, to the credit of this account from Nissim's current account is inexplicable if the consideration for the transfer of the shares was the balance due at the foot of the overdraft account on the 10th July, 1940. In his evidence, Deshpande said that he considered that the bank was entitled to take this credit because Jamnadas had taken over all assets of Nissim and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he intention was that Jamnadas was to be the owner of these shares, if at all, one of those transfer forms should have been signed by Jamnadas as the transferee. It would be surprising if, while these transfer forms with the name of the Company filled in existed, another form, without the name of the Company, should have been utilised for showing that Jamnadas had become the owner of these 26,000 shares of the Company. Similarly, if there was a conscious effort to record that these 26,000 shares of the Company were pledged by Jamnadas to the bank on 10th July, 1940, the name of the Company would have been filled in the transfer form (Ex. A-47) signed by Jamnadas. Moreover, if these documents formed part of the security and the transfer thereof, they should have been handed over by the bank to the plaintiff in October, 1941. Deshpande's evidence in this connection is very instructive. When Ex. W. (the blank transfer form signed by Nissim and Jamnadas) was shown to him he said that on the 10th July he had in his possession about five or seven blank transfer forms signed by Nissim in this manner which had been given by Nissim when the money was paid to him against the shares of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided, a notice of the intention to sell must he given. When no period fixed for repayment of the loan, the pledgee has the right either to have the shares sold through the court or he can sell the shares after notice of sale is given to the pawnor. In either case, therefore, the power to sell is conditional on the notice of sale being given to the pawnor. The question whether the pawnor can contract to give up this right does not arise here as the letter of hypothecation signed by Nissim does not amount to such a contract. The demand for payment contained in the bank's letter of 10th April, 1940, is not a notice to sell. It is therefore clear that no notice to sell was given by the bank to Nissim, as required in law. In the trial court it was suggested that Nissim had waived such a notice. The trial court did not record any finding on this issue, as it considered it unnecessary to do so. The appellate court held that there was no waiver on the part of Nissim. In my opinion, on the evidence on record, that conclusion is correct. While Nissim may have agreed to the bank transferring all his securities to Jamnadas against Jamnadas taking over all his liabilities to the bank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the loan accounts running between him awl them, the blanks in the transfers of stock being filled up with the names of nominees of the banks. In so dealing the banks either actually knew, or had reason to believe, that the securities did or might belong not to M. but to his customers. M. became bankrupt. The banks sold some of S.'s securities and claimed to hold the proceeds and the unsold remainder as security for all the debt due from M. to them. It was held that though the banks had the legal title to the securities they were not purchasers for value without notice, but ought to have enquired into the extent of M.'s authority; and that upon payment to the banks of the money advanced by M. to E., S. was entitled to the value of such of the securities as had been sold by the banks and to redeem the remainder. The order of redemption was limited to certain securities only, because in respect of the securities sold the legal title was ostensibly in the banks and the purchaser had no notice of any defect in the banks' title to the securities. It was noticed that to complete the pledge, the execution by S. of blank transfer forms was an incident of the transaction. It wai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts proved or admitted in this case the fact of selling in the broker's name was neither calculated to induce nor did in fact induce that belief. The Earl of Sheffield's case (1888) 13 A.C. 333 shows that when a person advances money on the security of shares which stand in someone else's name, it is his duty to enquire whether the person tendering the security had authority to do so. Section 27 of the Sale of Goods Act is applicable to the relationship of pawnor and pledgee also. In the present case, therefore, as no notice of the bank's intention to sell the shares was given to Nissim, the bank had no authority to sell the same and Jamnadas must be held aware of this want of authority. 18. The next question is in respect of the sale to the plaintiff in October, 1941. The plaintiff negotiated the whole transaction through his friend Fouzdar. Fouzdar admitted that he had gone to the bank, looked into the papers and discussed the whole position about the shares with Deshpande . Fouzdar was keen on the shares remaining under the control of somebody he knew. He had not suggested that anything was kept back from him. He stated he did not see the necessity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an, J. 20. This case comes before us on an appeal against a decree of a Division Bench of the Bombay High Court setting aside a decree of a single judge of that Court. 21. We have therefore before us two judgments expressing divergent opinions on a vital question of fact. It is true that a judge of first instance can never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on questions of fact, put on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal court should not lightly Interfere with the judgment. Looking at the evidence as a whole, in my opinion, the appellate court in this case was not justified in reversing the decision of the trial judge and that decision should be restored. 22. The question to decide in the case is whether the 26,000 new shares of the Asian Assurance Co. Ltd. standing in the name of one Nissim had been lawfully transferred to Jamnadas Mehta and then to the plaintiff or whether the Official Assignee of Bombay on the insolvency of Nissim acquired the ownership of the shares subject to the pledge of the New Citizen Bank o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oo suddenly. He did not pursue the litigation seriously and it remained in a state of suspended animation till August, 1941, when the Official Assignee tried to revive it but eventually gave up the attempt. 24. The financial position of Nissim had become unstable by the beginning of 1940 and the Board of Directors of the Bank resolved to recall the loans advanced to him. A letter of demand was accordingly issued to him by the Bank on the 12th April, 1940. Nissim had no money to meet the demand. He seems to have made up with the Chairman of the Bank, Jamnadas Mehta and ways and means were being devised to adjust the loans. Nothing matured till the beginning of July, 1940. 25. It is said that on the 5th July, 1940 an agreement was reached between Nissim, the Bank and Mehta, under which Mehta agreed to take over all the liabilities of Nissim to the Bank as well as the securities wedged by him. Under this arrangement Mehta was to become debtor to the Bank for the whole of the indebtedness of Nissim and he was also to become the owner of all the securities that Nissim had pledged to the Bank. On the following day Mehta wrote a letter to Deshpande, the Managing Director of the Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was expressly stated that in pursuance of his conversation on the telephone with Deshpande, the shares had been sold and that the sale proceeds would be adjusted in his account and that he was no longer a debtor to the Bank. 26. Nissim filed a petition for his adjudication as an insolvent on the 16th July, 1940. He mentioned the amount due to the Bank in the preliminary schedule of debts. It is possible that this schedule had been prepared by him before the 11th or 12th July, 1940. He corrected this matter when he filed his first schedule on 6th September, 1940. In his letter of 6th September, 1940, Nissim told the Official Assignee that the shares had been sold and did not belong to him. A copy Of the Bank's letter dated 12th July, 1940, received by him on 15th July, 1940, was also sent to the Official Assignee. The Official Assignee accepted the position as disclosed by Nissim to him in his letter of the 6th September, 1940 and never questioned the sale transaction or the statement of Nissim in the letter of 6th September, 1940. In this letter of 2nd June, 1941, the Official Assignee asked the Bank to furnish to him an explanatory statement showing the indebtedness of Nis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ijayakar filed a suit for a declaration that the revocation of the power of attorney and the proxy was invalid and that by the issue of an injunction Nissim shall be directed to vote it the meeting as desired by Jamnadas. This suit was numbered as 921 of 1941 and remained pending till August, 1943, when it ended with a consent decree. Nissim admitted that he had no interest in the shares and that he held them as trustee for Jamnadas. 30. As the Company was claiming a lien on these shares, on the 30th July, 1941, the Bank and Jamnadas jointly filed a suit, being Suit No. 1001 of 1941, against the Company, Nissim and the Official Assignee, for a declaration that the Company had no lien on these shares. The Official Assignee was informed that he was merely a pro forma party and he took no interest in the litigation. The suit was fought out between the Bank and Jamnadas on one side and the Company on the other. The Company challenged the locus standi of both the plaintiffs to maintain the suit. Whether Jamnadas had a locus standi to maintain the suit or not the Bank as pledgee obviously was competent to maintain it. In order to establish his locus standi, it was contended by Jamnada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bank was a pledgee of these shares on his account. 32. On 23rd October, 1941, the Bank as pledgee and Mehta as owner sold these shares to Madholal Sindhu, the plaintiff in the suit out of which this appeal arises, for a sum of ₹ 1,20,000. The sale was subject to the contentions of the parties in the two pending suits, viz., Suits Nos. 921 of 1941 and 1001 of 1941. Suit No. 921 of 1941 as already indicated, was for a declaration that Nissim was bound to vote at the meetings of the Company as desired by Jamnadas. That suit ended in favour of Jamnadas. The other suit concerned the lien of the Asian Assurance Company on the shares. The lien was held established to the extent of the balance of the Overdraft account. There is no question that this sale was a genuine one. Madholal Sindhu had no connection or concern with the Bank or the Company. He was a bona fide outside purchaser and paid full value for the shares. The amount was paid by cheque and was credited in the books of the Bank to Jamnadas Mehta's account. The share scrips and blank transfer forms were handed over to the purchaser. 33. As already indicated, Suit No. 921 of 1941 was decided in August, 1943 and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this litigation by some group of speculators who want to have control over the Company by purchasing these shares. There could be no other motive behind it as the amount due on the pledge would be considerably in excess of the real value of the shares. Thus, the claim of the Official Assignee is on the face of it of a very speculative character. 34. The trial Judge, Mr. Justice Bhagwati, decreed the plaintiff's claim against the Company and dismissed the counter-claim of the Official Assignee. He upheld the plaintiff's contention that Jamnadas Mehta had become the owner of these shares by the sale transaction of the 10th July, 1940 and that it had been effected with the full knowledge and concurrence of Nissim before the date of his insolvency. The learned judge pronounced the sale in favour of the plaintiff as a bona fide one and held that even if Jamnadas Mehta had not become the owner of these shares on the 10, July, 1940, the Bank as pledgee of these shares had every right to put them to sale and that the failure on his part to give notice to the Official Assignee as required by, s. 176 of the Indian Contract Act was a mere irregularity which did not affect the title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question in its proper perspective. They were obsessed with their own respective decisions in Suit No. 1001 of 1941 though those decisions were not res judicata and were not otherwise relevant about the tripartite agreement and could not dissociate their minds from them. It has thought that the tripartite agreement pleaded in the former case was still the subject matter of the present suit and that it had only been given a new form. I am satisfied that this line of approach was not justified. Whether the sale transaction of the 10th July, 1940, was in pursuance of the previous arrangement or was an independent transaction by itself is not relevant to decide this dispute. Assuming that there was no tripartite agreement made between Jamnadas Mehta, the Bank and Nissim on the 5th or 10th July, 1940, under which Mehta took over all the assets and liabilities of Nissim, it does not follow that what took place subsequently is automatically wiped out. If a concluded contract of sale is evidenced by the documents and it is not a sham transaction, it must pass title in the shares to Mehta, no matter what negotiations preceded the sale and no matter whether the sale was made to give effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he single Judge who had arrived at his own conclusion on the evidence about the genuine execution of the documents that came into existence on the 10th July, 1940. It is difficult to appreciate an appellate judgment which sets aside the judgment of the trial Judge simply because the Judges constituting the appellate court had previously expressed different opinions from those expressed by the trial Judge and expresses surprise as to why that Judge had not followed their opinions. Such a disposal of the appeal cannot receive the approval of this Court Mr. Justice Chagla arrived at the same conclusion on a different reasoning. He observed as follows: If the matter is left to be determined on these two documents alone, I should have no hesitation in holding that the plaintiff has established that these share were sold by the Bank to Jamnadas Mehta. As I have already pointed out, the Bank Was holding these shares as a pledgee of Meyer Nissim and the sale would then be by the pledgee in possession in exercise of his power of sale. But these documents have got to be considered in their proper context. . . . . But the most curious thing is that the amount of the price is not credited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record to suggest that any valid grounds exist for the suggestion, that the Bank, Mehta and Nissim entered into a conspiracy and the documents executed on the 10th were the result of the conspiracy and were not intended to be given effect to. 38. The broad facts in the case are that the Bank was a pledgee of the shares and was entitled to sell them, when Nissim failed to meet the notice of demand admittedly issued to him in April, 1940. Having committed this default, he had no option but to agree to the sale of these shares to the Bank. He had no means whatsoever to meet the Bank's demands. There is ample evidence on the record to prove that he was meeting the Chairman of the Bank, Mehta and its manager, Deshpande. One fact stands firmly established that on the 5th July, 1940, all these gentlemen (sic) and discussed the agreement under which Mehta was willing to take over all the liabilities of Nissim along with his securities. Nissim was quite willing to pass on his liability to Mehta along with the securities an apparently the securities were not sufficient to me them. Mehta was willing to take over these liability and securities because it was at his instance that (sic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bhagwati was right in the remark that Jamnadas having persuaded the Bank to advance a loan to Nissim, felt himself morally bound to recoup the Bank when Nissim was not able to pay it and safeguarded himself by the sale of the shares and it may be that he agreed to take over all the assets and liabilities of Nissim and that the whole of the arrangement was not carried through or that it could not be satisfactorily proved. It does not follow however that what actually took place cannot be given effect to. The decision that there was a sale of these shares in favour of Mehta on 10th July, 1940, does not in any way run counter to the decision in the earlier suit about the tripartite agreement not being proved. On the other hand, it is consistent with that decision. It was therein observed that the sale may have taken place though no tripartite agreement was proved. As a matter of fact, Mr. Justice Chagla held in the former case that Jamnadas Mehta had locus standi to maintain that suit by reason of the sale. Be that as it may the decision in the former suit does not operate as ret judicata in this case and the findings in that case are therefore not relevant here and should not be al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le arrangement was not carried out, a part could not be given effect to even if carried out as there was no separate consideration for it and either the whole had to stand or it had to go in its entirety and the effort to represent this sale as an independent transaction was somewhat belated. Without positively asserting that what is evidenced by the documents of the 10th was a sham transaction, the learned counsel asked us to look at all of them with suspicion. 40. In my opinion, the contentions of Mr. Munshi, though plausible, are devoid of force. It is no doubt true that the offer by Mehta for the purchase of these shares was for a definite price of ₹ 73,000 and the acceptance by the Bank was for a price of ₹ 73,000 or thereabouts. It is also true that Deshpande made somewhat different statements at different stages as to the price. In express terms it was not deposed to by him that the sale of these shares was for the amount due from Nissim on the overdraft account of ₹ 75,000. But the whole transaction has to be judged in the light of the attendant circumstances. There is strong circumstantial evidence that unerringly fixes the meaning of the expression 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, while for the two other accounts Mehta had executed separate guarantee letters. There can therefore be question that so far as the sale of 26,000 shares of Asian Assurance Company is concerned, the sale (was made for the amount due on the overdraft account of Nissim and it could relate to no other account. The contention of Mr. Munshi that subsequently the Bank continued this account and even credited it with further amounts cannot in any way affect the case because what the Bank officials did later on would not in any way deprive the purchaser of the ownership of the shares transferred to him on the 10th July, 1940. Once it is held that the expression Rs. 73,000 or thereabouts was used to specify the overdraft account of Nissim and that both the parties understood this expression in that sense, then the contention that the sale was not for a fixed price cannot hold water. As regards the fact that the sale of shares by the Bank with the consent of Nissim in favour of Mehta was not expressly pleaded, the reply to it has been sufficiently given by Mr. Justice Chagla in the following terms: Although both the pleadings and the issues raised are far from satisfactory for a tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only did he acquiesce in the transaction but the Official Assignee after full investigation also acquiesced in it. 43. For the reasons given above I am of the opinion that none of the contentions raised by Mr. Munshi have any force. The reasons given by the learned Judges of the Division Bench who reversed the decision of the trial court cannot be justified in law. The result therefore is that the appeal is allowed with costs, the decision of the Division Bench set aside and that of the single Judge dismissing the counter-claim restored. 44. Several other questions were argued in the case, namely, whether a pledgor can enter into a contract to the contrary against the provisions of s. 176 of the Indian Contract Act and can waive notice, or whether a sale by a pledgee of pledged shares without notice to the pledgor is a mere irregularity and cannot affect the title of a bona fide purchaser for value. None of these contentions require consideration in the view of the case that I have taken. Fazl Ali, J. 45. I agree with Mahajan J. Mukheejea, J. 46. I concur in the judgment delivered just now by my learned brother Mahajan J. and I hold on the reasons given b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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