B BEEKAMCHAND SOWCAR Vs. M JAYARAMAN

JUDGEMENT

(1.) The defendant is the appellant. The suit was filed by the respondent/plaintiff for a direction to the defendant to return the gold chain weighing 65 grams by receiving the sum of Rs.833.00 due to the defendant in respect of the pledge of the said jewel and borrowing of a sum of Rs.700.00 on 27.8.1966. There is no dispute that the said chain, weighing 65 grams, was pledged with the defendant for the borrowing of a sum of Rs.700.00. The defence was that the plaintiff right to redeem the pledged article had been lost long ago and the defendant had sold the articles. Both the courts below have concurrently held that the defendant had not proved the sale of the pledged article as per the provisions of the Tamil Nadu Pawn Brokers Act, 1943 (hereinafter referred to as the Act) and that therefore, the plaintiff is entitled to the decree as prayed for. In this Second Appeal, a preliminary objection was taken by the learned counsel for the respondent/plaintiff on the maintainability of the second appeal, in view of the provisions of section 102 of the Code of Civil Procedure, which I will deal with later on.

(2.) Learned Counsel for the appellant in this case contended that under the provisions of the Act and the Rules framed thereunder, and in particular section 11(2) and the procedure prescribed for auction, the burden is on the plaintiff to prove that the article is not sold, if he wants to seek redemption under the provisions of section 11(2) of the Act. Section 11 of the Act reads thus:

(3.) Learned Counsel for the defendant referred to the provisions of section 12 and the rules framed thereunder relating to the auction. Section 12(1) says that a pledge pawned shall not be disposed of by the pawn-broker otherwise than by sale at a public auction, conducted in accordance with such rules as may be prescribed. The rules prescribed state that the pawn-broker in the city of Madras shall apply to the Commissioner of Police for permission for sale of the time barred jewels with a list, in triplicate, of jewels, etc. Rule 12 also provides for the mode of selling the articles. In particular, the learned counsel relied on the provision that the auction list should be published and the auctioneer is bound to send a printed catalogue to the pawner by registered post at least one week before the date fixed for the sale. All these provisions relating to the sale are referred to by the learned counsel to show that the pawner should have been aware of the sale and therefore, it is not necessary for the pawnbroker to prove the disposal and also in respect of his argument that the burden of proving that it had not been disposed of, is on the plaintiff. I am unable to see how this argument can be advanced at all in this case. If the case of the plaintiff that the pledged article had not been disposed of is to be accepted, it means the provisions of section 12(1) had not been invoked and there is no question of publication of the auction and sending of notice to the plaintiff at all. If really the defendant had taken action under section 12(1) read with the rules framed under the Act, it would have been easy for him to prove that fact by reference to some or other of the records or by such evidence as he may choose to satisfy the Court that there was a public auction in which the pledged article had been sold. The only evidence available in this case is the oral evidence of the defendant himself, which, both the courts below have concurrently rejected, as unbelievable and unacceptable. In the circumstances, therefore, the defendant could not contend either that the plaintiff is not liable to seek the redemption of the article or that he has discharged the burden of proving that the article had been disposed of. Therefore, even on merits, the second appeal is liable to be dismissed.