JUDGMENT
Narayan, J.
1. The plaintiff (Bharat Bank Limited) is the appellant, and the appeal arises out of a suit for recovery of a sum of Rs. 7357/15/3 including interest. The plaintiff bank is a registered company having its head-office at Delhi and branches at several places in India. One of the branches of the company is situate in mahalla Saraiyaganj in the town of Muzaffarpur. The defendant carries on grain business at Bairagnia within the district of Muzaffarpur in the name and style of Messrs Ram Ganesh Ram Sheoji Prasad. In November 1944 he applied to the plaintiff bank at Muzaffarpur for opening a cash credit account with the bank up to the limit of Rs. 100,000 on the security of grains. The plaintiff company acceded to this request and allowed the defendant to open a cash credit account with the bank on 1-3-1945. On this very date the defendant executed a promissory note in favour of the bank for Rs. 100,000 promising to pay interest at the rate of one per cent. per annum above the rate fixed by the Reserve Bank of India subject to a minimum rate of 6 per cent. per annum with monthly rest. The defendant put the bank in control of his store of grains stored in his godown at Bairagnia.
On 21-9-1945 there was an adjustment of account and a sum of Rs. 18,448/10/3 was found due to the bank. This amount included Rs. 543-11-6 as interest, and the entire adjustment was confirmed by the defendant on 22-9-1945. The plaintiff’s allegation is that as in spite of repeated demands the defendant did not clear up the account and pay the dues and that as the amount of the gram pledged with the bank was deteriorating the plaintiff, after giving due notice to the defendant, sold the grain on 29-11-1945 in presence of the defendant to one Messrs. Ramlagan Sah Balkuer Prasad of Bairagnia for a sum of Rs. 9200, which price was accepted as fair by the defendant. Thereafter, in January 1946 the defendant paid a sum of Rs. 2500 to the plaintiff for which a credit had been given by the plaintiff. After deducting the amount for which the gram was sold and also after making allowance to the defendant for the payment of Rs. 2500 made in January 1946, the balance claimed by the plaintiff is Rs. 7357/15/3.
The defendant admitted that by adjustment of accounts Rs. 18,448/10/3 had been found due from him, but he resisted the plaintiff’s claim on the ground that the gram had been sold without any proper or reasonable notice and that the price fetched at the sale was consequently insufficient. According to the defendant’s contention the 3350 maunds’ of gram which be had deposited with the plaintiff and which had been sold should according to the then prevailing market rate, have fetched a price of Rs. 32,662/8/-. It is therefore that the defendants contends that he is entitled to get credit not only for the sum of Rs. 32,662/8/- but also for the price of bags in which the gram had been kept, besides the sum of Rs. 2500 for which credit has been given to him in the plaint.
2. The learned Subordinate Judge has held that the gram was not sold after a reasonable and a proper notice and that the value of the gram sold calculated at the rate of Rs. 9/12/- per maund would come to Rs. 32,662/8/-, besides the price of bags and the sum of Rs. 2500 actually paid to the plaintiff. In this view of the matter learned Subordinate Judge has dismissed the claim of the plaintiff.
3. The learned Government Advocate, who argued this appeal on behalf of the plaintiff-appellant, strongly relied on the letter, Ext. 1(a), which, in his opinion, conclusively established that the sale had been confirmed by the defendant. The witness who has proved this letter is the Manager of the plaintiff bank, and his statement so far as this letter is concerned is that it was given to him by the defendant Sheoji Prasad and that it was signed by him in his presence. Though the Manager is a fairly respectable witness, his statement to this effect cannot be accepted for the simple reason that the letter does not seem to bear any signature and the writing on the letter has not been proved by him.
The defendant stoutly denies having given any letter to the Manager by the way of confirmation of the sale, and it is curious that the letter on which the Manager or the bank relies does not bear any signature. If the bank considered it necessary to obtain any letter from the defendant by way of confirmation of the sale, they should have insisted on the defendant signing that letter. There being no signature on the letter and the writing having not been proved, it is difficult to reject the testimony of the defendant that he did not give any letter to the Manager or to anyone else in the bank confirming the sale. We are not, therefore, able to take a view different from the one taken by the learned Subordinate Judge so far as this letter is concerned.
4. The other letter relied on by the learned Counsel is the letter, Ext. 1(c), which was sent to the Manager on 23-11-1945. This letter shows that the defendant had promised to make certain payments and had prayed to the Manager that his goods might not be auction sold on 26-11-1945. The sale actually took place on 29-11-1945, and we cannot disagree with the view of the learned Counsel for the appellant that what the pawnee is to do is to give a reasonable notice of the intended sale and that if he has done that, he does not require any further authorisation or permission of the pawnor to effect the actual sale. I think the right to sell the property is perfected with the giving of the notice of sale and it is open to the pawnee to sell the goods even sometimes after the date for the sale is advertised. But, the question still arises whether any reasonable notice as contemplated by law was given in this case, and the further question which arises on the facts as given by the Manager in his evidence is whether in view of what happened subsequent to 26-11-1945, whatever notice had been given by the bank for the sale before 26-11-1945 could be regarded as a sufficient and a reasonable notice for the sale which was actually held on 29-11-1945.
We cannot think of differing from the view of the learned Subordinate Judge that though leaflets and handbills are said to have been distributed by way of advertisement for the sale on 26-11-1945, the evidence adduced in this case is too meagre and insufficient for leading us to the conclusion that any leaflet or handbill had been distributed. The learned Subordinate Judge has rightly pointed out that even the plaint does not say that leaflets or handbills had been distributed. The statement in paragraph 10 of the plaint in this connection should not be overlooked, and it is this that after giving due notice to the defendant the plaintiff sold the stock of gram kept in the defendant’s godown on 29-11-1945 in his presence. The impression which one gets after reading paragraph 10 of the plaint is that the plaintiff bank actually relies on notice to the defendant alone and also on the fact that the sale had taken place in presence of the defendant and that he confirmed it. The evidence, therefore to the effect that leaflets and handbills had been distributed, insufficient as it is, is not fit to be accepted; nor can we take with any seriousness the statement of P. W. 2, Chandradeep Singh, that he had got the handbill of the bank regarding the defendant’s gram.
This man was not present at the time of the sale. He says that he had noted the date of the sale in his diary, but he did not care to bring the handbill or the diary. Reliable direct evidence for proving the advertisement or for proving due notice to the defendant of the date of sale or of the proposed sale is, therefore, not forthcoming in this case; but reliance, as I have already pointed out, is placed on the statement in the letter, Ext. 1(c), “Hence I now pray that my goods may not be auction sold on 26-11-1945.” Firstly, after having made this prayer the defendant could not be sure that the sale would actually be held on 26-11-1945. Though the defendant did not keep his promise of making the payments and though no further communication appears to have been sent by the bank to the defendant after this letter, one cannot reasonably fix the defendant, on a perusal of this letter, with the knowledge that the sale was actually going to take place on 26-11-1945. Left to itself, the letter cannot establish that a reasonable notice had been given, and this letter does not, thus, fulfil the requirement of the law.
Secondly, the plaintiff’s Manager has created by his evidence a peculiar situation in this case. What he says is that when no bidder turned up on 26-11-1945 he waited till 28th November for bidders and that thereafter at the request of the defendant he started private negotiations for the sale and finally sold the gram to Messrs. Ramlagan Balkaur Prasad for a sum of Rs. 9200. Again, the impression which one gets after reading this evidence of Manager is that it was the result of some private negotiations that the gram was actually sold to Messrs. Ramlagan Balkaur Prasad. If private negotiations had been started after 26-11-1945 when no bidder could turn up, then can it be urged with any show of reason that on account of the advertisement that had taken place prior to 26-11-1945 the sale was held on 29-11-1945? The defendant, of course, does not admit that he ever gave his consent to this sale, nor does he admit that the gram was sold in his presence. The persons with whom negotiation is said to have taken place have not been examined.
Section 176, Indian Contract Act lays down that the pawnee may sell the thing pledged on giving the pawnor reasonable notice of sale. The letter, Ext. 1(c), does not, in my opinion, fulfil the requirement of the law, nor does the evidence of the Manager. The evidence of the Manager rather shows that even if there was any advertisement worth the name, that was given a go-by before the sale actually took place. The section is mandatory, and the required notice has to be given under the law as it stands. Under Section 177 the pawnor has been given the right of redeeming the goods pledged after notice and at any subsequent time before the actual sale of the goods. If no proper notice was given, and according to my finding it cannot be held in this case that the notice as contemplated by law had been given, then the pawnor could not exercise his right of redemption,
5. In — ‘Co-operative Hindustan Bank Ltd. v. Surendra Nath DE’, AIR 1932 Cal 524 (A), a Division Bench of the Calcutta High Court while construing a notice which was in the following terms held that the requirement of the law had not been fulfilled :
“Failing which we shall arrange for sale of the hypothecated stock.”
Their Lordships say that this is merely an intimation that arrangements will be made for a sale but that it is not a notice of the sale that is to be held. I respectfully agree with their Lordships’ view that a notice as contemplated by law would require more definite particulars and that what such particulars should be must depend upon the peculiar facts of each case. To the private negotiations spoken of by the Manager the defendant was really no party, and if by the result of these private negotiations the sale was held on 29-11-1945, it is impossible to hold in this case that the sale was held after giving reasonable notice to the defendant within the meaning of the expression as used in Section 176, Indian Contract Act. I need not repeat that even on a proper construction of the terms contained in the letter, Ext. 1(c), we are not able to hold that the sale that was held was, in fact, preceded by a reasonable notice as contemplated by law.
6. The learned Government Advocate, however, pressed before us a petition under Order 41, Rule 27, Civil P. C., which had been filed by the appellant on 26-11-1948. In our opinion there is no good ground for taking additional evidence in the case. Even the learned Government Advocate could not contend before us that it would be a reasonable ground, as contemplated by law, for taking additional evidence if the papers which the appellant is now praying to file could not be filed in the
Court below on account of their being in the head-office at Delhi or on account of the delay in making correspondence with the head-office or any branch office. The application for taking additional evidence must be rejected.
7. The learned Government Advocate, with his usual candour, conceded before us that the price of the goods sold at the prevailing market rate would not be less than Rs. 32,662/8/-. The rate of Rs. 9/12/- per maund, as stated by the defendant, has not been disputed before us and, therefore, if the goods had not deteriorated, the defendant has paid much more to the plaintiff than what he was liable to pay. The evidence of deterioration is certainly unsatisfactory. The goods had been deposited with the bank on 1-3-1945 and the sale took place on 29-11-1945. What the defendant has stated in this connection appears to me to be perfectly correct. Gram is not a kind of grain which can deteriorate so soon and so easily, and if it is kept in husk, it can never deteriorate within a year or so. His witness, D. W. 2, also appears to have made a correct statement when he says that gram, in any case, cannot deteriorate within one year or so. On the whole, the oral evidence adduced by the defendant in this case is distinctly preferable to the oral evidence adduced by the plaintiff, and if the sale is wrongful as, according to our finding it is, a pawnor has got the remedy to sue the pawnee for having converted his goods to his own use. And if he has got such a remedy and if by the sale and by making a payment of Rs. 2500/- he has already paid to the plaintiff’s bank more than what he was liable to pay, then the present suit is bound to be dismissed.
8. In the result, therefore, I must dismiss this appeal with costs.
Jamuar, J.
9. I agree.