TMI Blog1962 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, 1960 the defendant served a notice on the plaintiff demanding payment of its dues and stating in default of payment on or before February 18, 1960 'the pledged shares or such of them as the defendant might decide to sell would be sold by the defendant i. exercise of its rights and powers as the pledgee and the nett proceeds would be applied in reduction of the plaintiff's indebtedness. On June 27, 1960, the plaintiff wrote to the defendant stating inter alia that in view of the pendency of the suit instituted by the defendant, the defendant had no right to sell or dispose of any of the shares. On June 29, 1960, the plaintiff instituted this suit claiming perpetual injunction restraining the defendant from selling the shares on the ground that in view of the institution of Suit No. 858 of 1959, the defendant had no longer any right to sell the shares. By a subsequent amendment made on September 7, 1961, the plaintiff alleged that the notice dated February 6, 1960, was not a reasonable notice of the sale and/or was in contravention of Sec, 176 of the Indian Contract Act. There was also a prayer in the plaint asking for a decree directing the defendant to accept the bullio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving reasonable notice. We think that we are free to decide the point in issue on a consideration of the relevant sections of the Indian Contract Act. 4. Now, a pledge is a bailment of goods as security for payment of debt or performance of a promise, see Section 172 of the Indian Contract Act. The pawnee has the right to retain the pawn as security and the scope and ambit of this right of retainer Is defined by Sections 273 and 174. Section 176 defines the pawnee's rights where the pawnor makes default. Section 177 gives the defaulting pawnor a right to redeem the pawn at any time before the actual sale of it. Section 176 reads thus: 176. If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale. If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umed that the right of sale out of Court is alternative to the right to Institute a suit on the debt or promise, I am by no means satisfied that the two alternatives are mutually exclusive and that the exercise of one alternative right destroys all future recourse to the other alternative. Mr. Deb relied upon the following observation of Lord Simonds In Chlchester Diocesan Fund v. Simpson, reported in (1944) 2 All ER 60 at 73: These two words are Joined or separated by the word or , a particle of which the primary function is to co-ordinate two or more words between which there Is an alternative. It is, I think, the only word in our language apt to have this effect; its primary and ordinary meaning is the same, whether or not the first alternative is preceded by the word 'either'. 7. The House of Lords affirmed the judgment of the Court of Appeal in In re Diplock, Wintle v. Diplock, (1941) 1 All ER 193, wherein Sir Wilfrid Greene, M. R. at p. 200 observed: The word 'or' is prima facie, and in the absence of some restraining context, to be read as disjunctive, and, if a testator wishes to give his trustees a discretion to apply his property eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his contention. The notice stated that in default of payment of the debt due to the defendant on or before the 18th February, 1960, The undernoted shares, or such of them as the Bank may decide to sell will be sold by .the Bank In exercise of its rights and powers as pledgee and the net proceeds applied in reduction of your indebtedness. The notice gave a reasonable time to the plaintiff to pay the debt ana redeem the pawn and definitely and clearly stated that in default of payment within the time mentioned the defendant would sell the shares or such of them as the defendant might decide to sell. The word sale In Section 1/6 means intended sale as opposed to the expression actual sale in Section 177. Section 176 requires notice of we intended sale. Such notice was sufficiently given by the letter dated February 6, 1960. Mr. Deb relied upon the decision in ILR 59 Cal 667: (AER 1932 Cal 524) and the unreported decision in A.F.O.D. No. 12 of 1953, D/- 1/-1-1957 (Cal). Both these cases are distinguishable. In the first case, the notice could not reach the pawnor before the sale. Consequently the sale was not a sale on reasonable notice of it. Besides the notice there stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y differs from our law on this point. Under the law prevailing in the United States of America, in the absence of a special agreement, a sale of the pledged property must be by a public auction and consequently as a general rule the pawnee must give the pawnor reasonable notice of the time and place of the sale (See Corpus Juris Secundum- A complete restatement of the entire American law by Francis J. Ludes and Harold J. Gilbert Francis, Vol. lXXII, Arts. 59-60, pp. 117 to 123). Under our law the pawnee Is not bound to sell the pawn by public auction. He may sell it by private treaty after giving reasonable notice or the sale under Section 176. Such a notice may be sufficiently given without specifying the place, date and time of the sale, see Kunja Behari v. Bhargava Commercial Bank, ILR 40 All 522: (AIR 1918 All 363 (2)) and AIR1958Cal644 . Section 176 does not require that the notice of sale must in all cases give such particulars. The reasonableness of a notice varies from case to case. The special circumstances of some particular case may require that a reasonable notice of the sale should give such particulars, but the onus is upon the pawnor to establish that such special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt due to the defendant. The debt is not fully secured. In these circumstances even if I were, in a proper case, inclined to grant an injunction restraining sale of the shares I would have done so only upon the term that the plaintiff should deposit In Court the entire amount due to the defendant. Mr. Deb however, stated that tha plaintiff was unable to deposit any money. Consequently, in the exercise of my discretion I would, in any event refuse to grant theinjunction. 15. There is no merit in this appeal. We pass the following order: The appeal be and is hereby dismissed with costs. Certified for two counsel. The interim injunction be and is hereby vacated and discharged. 16. Mr. Mukherjee orally prayed for stay of the operation of the order for a fortnight. Mr. Roy Choudhury opposed this prayer. The prayer of Mr. Mukherjee is refused. Chandra Narayan Laik, J. 17. I substantially agree with the reasonings given in the judgment just delivered by my learned brother Badiawat J. and respectfully agree with the conclusion arrived at by my Lord but I like to add a few words. 18. As to whether the right of the suit is alternative or not on the interpretation of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that punctuation is after all a minor element in the construction of a Statute ana very little attention is paid to it even by the English Courts. It may have some uses in some cases where there is doubt, (but it cannot be allowed to control the plain meaning of a text. Here the plain meaning of Section 176 should not be allowed to be controlled by semi-colon. 23. It was argued on the other hand on behalf of the respondent that the marginal note in the said Section 173 is made only for the benefit of the Pawnee and not for the Pawnor. This view also cannot be accepted, because the marginal note cannot be referred to for the purpose of construing a Statute (vide Commr. of Income Tax v. Ahmedbhai Umarbhai and Co. [1950]181ITR472(SC) . Marginal notes cannot also control the meaning of a body of a section. [See Nalinakhya Bysack v. Shyamsundar Haldar [1953]4SCR533 . Therefore my conclusion is that the word 'or' is an alternative between the two words 'retention' and 'sale'. In other words, the Pawnee under Section 176 of the Contract Act has got the concurrent rights to sue, as well as either to retain or to sell. 24. On the second branch of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Una-ings of Sarkar, J. on the question of notice. 27. In view of the principles laid down in Madnolai Sindhu v. Official Assignee of Bombay, 1949 FCR 441 at p. 482 : (AIR 1950 FC 21 at p. 38), where the sale was held at the request of the defendant, no notice under Section 176 is at all necessary and the findings of Sarkar, J. on the question of notice should neither have been not necessary to be upset. The said alleged findings of Sarkar, J. should not be read without the context. Moreover, they are not strictly findings but strong obiter dicta being not the ratio for the decision. Hence in my view it would not be correct to say that the said unreported decision was contrary to the decision reported in AIR1958Cal644 . 28. The reasonings given by Tekchand, J. (supra) were adopted by Mr. Deb as his argument before us. But as has been found by my Lord Tekchand, J. drew the source of inspiration from the American Law and the principles laid down therein are admittedly not correct. Moreover, Tekchand, J. expressly dissents from the Bench decision of this Court, viz. AIR1958Cal644 (supra), with which I respectfully agree. I differ from the views of Tekchand, J. with great respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
