COWASJI MUNCHERJI BANAJI Vs. OFFICIAL ASSIGNEE OF BOMBAY

JUDGEMENT

(1.) [After referring to facts the judgment proceded :] I may now refer to Section 174 of the Indian Contract Act which runs: The pawnee shall not, in the absence of a contract to that effect, retain the goods pledged for any debt or promise other than the debt or promise for which they are pledged; but such contract, in the absence of anything to the contrary, shall be presumed in regard to subsequent advances made by the pawnee.

(2.) I do not regard that section as being happily drafted, because it seems to me to involve rather inconsistent notions. But I think it amounts in effect to this: you must find a contract allowing you to hold articles for subsequent advances as well as the original advance. Then if you know nothing more than this that there was a pledge for a particular sum, and that then there was a further payment or a further advance, then you may presume, in the absence of anything to the contrary, that the real contract between the parties was that the pledge should! cover this subsequent advance. But I draw attention to the qualifying words "in the absence of anything to the contrary." also draw attention to the opening words that "in the absence of a contract to that effect."

(3.) Now in the present case what do we find? We find, it is true, a pledge in the first instance of goods for Rs. 2,000 unaccompanied by any writing and on perhaps rather dubious oral evidence. But when we come to the subsequent advances, they in each case (I refer to the two documents of March 10, 1917, a June, 15, 1917) are secured on or refer to other goods which at the time at any rats could have been identified and which are quite separate and distinct from the article originally pledged.