DEBIDIN Vs. GAYA PERSHAD

JUDGEMENT

(1.) THE defendant borrowed certain sums of money from the plaintiff between the 9th and 16th February 1920 and deposited with him a number of bags of Ram Tilli and Tilli as security for the debt. Although the plaintiff alleges that it was the defendant who was to sell the goods, they were sold by the plaintiff on the 20th May 1921 and the 14th August 1921. The present suit was brought on the 3rd August 1923 for the balance due after giving credit for the sale proceeds.

(2.) THE lower appellate Court on the authority of Yellappa v. Desayappa [1906] 30 Bom. 218 and Saiyid Ali Khan v. Debi Prasad [1902] 24 All. 251 held the suit to be time barred. Yellappa v. Desayappa [1906] 30 Bom. 218 was a case of a loan of money secured by a pledge and it was held that the suit for recovery of the amount of the loan was a suit for money lent and none the less so because the money lent was secured by a pledge. Saiyid Ali Khan v. Debi Prasad [1902] 24 All. 251 was a case of a loan secured by a pledge of jewellery and the creditor sued for the balance due to him after selling the pledged property. It was held that the fact that moveable property was pledged as collateral security did not render the suit a suit of any other description than that to which Article 57 of the schedule to the Limitation Act applied, and that the original contract of loan was not put an end to or superseded and no right which did not exist before accrued by the sale.

(3.) ON the allegations of the plaintiff the main difference between the facts of this case and those of the reported cases is that the plaintiff had not the statutory power to sell the goods pledged given to the pawnee by Section 176, Contract Act. Another difference, if at all it may be called one, is that the recovery of the debt out of the sale proceeds which the law authorizes is here expressly stipulated for, Neither of these differentiating circumstances in my judgment takes away or suspends the right of the plaintiff to sue for the debt under the contract of loan. I do not think that the suit if brought before the pawnor chose to sell the goods would have been liable to be dismissed as premature.