1. These two appeals arise from the judgment and decree of the Kottayam District Court in O.S No. 72 of 1115. In that suit the Kottayam Bank Ltd., Kottayam (hereafter in this judgment referred to as the Bank) sought to recover from defendants 1 and 2 the balance of three loans they advanced to defendant 1 on the security of some shares he had in two limited Companies and on the strength of a letter of guarantee from defendant 2. Defendant 1 is defendant 2's son-in-law. The aggregate amount of the three loans came to Rs. 14,775 and each loan is evidenced by a promissory note executed by defendant 1. The first loan was for an amount of Rs. 5775, the second for Rs. 2400 and the third for Rs. 6600. The relative promissory notes are Exs. B, C and D and they are dated 11-9-1112, 14-9-1112 and 23-9-1112 respectively. Exhibits B, C and D provide for payment of interest at to per cent, per annum; One hundred shares of the Indian Iron & Steel Company Ltd., and two hundred shares of the Midland Rubber Company Ltd., were pledged with the Bank when the first loan was advanced. For the second loan the security given was two hundred shares of the Midland Rubber Company Ltd. and for the third two hundred shares of the Indian Iron and Steel Company, Ltd. On the day the first loan was advanced (11-9-1112 corresponding to 23-4-1937) and before the advance itself was made defendant 2 gave a letter of guarantee to the Bank undertaking responsibility for all loans the Bank advanced to defendant 1 on promissory notes and on the security of shares in limited Companies. The said late of guarantee is Ex. A. No payment was made towards these transactions for very nearly 1 months and when the price of shares began fall the Bank started pressing defendant 1 to payment. As however no response was made they issued a notice, Ex. F (4-2-1938) demanding payment of all amounts due within 7 days and Page: 67intimating defendant 1 that otherwise they would sell the shares and proceed to realise the balance. To this defendant 1 sent a reply Ex. E (7-2-1938) to the effect that he was endeavouring his best to dose the transactions and that it would be inopportune to sell the shares at that time when the market was dull. Though the reply proceeds on the assumption that the Bank needed his permission to effect the sale, it also contained a request to the Bank to refrain from taking ‘any hasty and unsympathetic course’. Apparently the Bank did not want to precipitate matters and sent another letter Six. VII (10-2-1938) stating that at the current price of the shares the loans far exceeded the value of the securities given and calling upon farm to make some remittance to cover the margin. This defendant 1 did not comply with. The Bank, however, did not take any action for some farther time. In October 1938 they caused a lawyer's notice (Ex IX) to be sent demanding settlement of these and other transactions defendant 1 had with them failing which they threatened they would take legal action. That threat was also not executed. However in August 1939 they sold the 400 shares of the Midland Rubber Company Ltd., at the then market rate for Rs. 1125. Dafendant 1 was informed of this Bale as per Ex. X (18-9-1939). That letter also contained a demand to close the transactions by payment of the balance and that otherwise the remaining securities also would be sold and necessary action taken against him and defendant 2 for the balance that would be found due. Time allowed for payment was four days and no settlement taking place the remaining securities viz., the 300 shares of the Indian Iron & Steel Co., Ltd., were also sold. This sale was on 28-9-1939 and it fetched Rs. 9343-9312-0. Besides the amounts fetched by the two sales the Bank had realised dividends on the Indian Iron & Steel Co., Ltd., shares to the extent of Rs. 2097-14-0 and the suit giving rise to these appeals was brought to realise the balance from defendants 1 and 2. The balance claimed was Rs. 5120-11-9. Though the stipulated rate of interest was 10½ per cent, per annum the Bank claimed only 9 per cent.

2. Defendant 2 died soon after the suit was filed and his legal heirs were brought on the record as defendants 3 to 6. They are none other than defendant 1's wife (D-3) and children. The children are minors and their Court guardian as well as defendant 1 contested the suit. The main defence raised by defendant 1 was that the sale of the shares was unauthorised and without proper or reasonahle notice to him and hence invalid. He contended that the shires are sold at very low prices and that had they been sold at proper prices besides satisfying the amounts due to the Bank there would also have been a large surplus. According to him it was a case of wrongful conversion and he put forward a counter-claim for Rs. 6737-8-0. It was further contended that the debt being secured under Act III [3] of 1116 the Bank cannot claim more than 6 per cent, interest per annum.

3. The Court guardian of the minor defendants even put the Bank to prove the genuine-ness of Ex. A and contended that even if that be genuine it cannot have any operation with respect to the loans advanced under Exs. C and D, but only to that under Ex. B. Another contention raised was that by the Bank's direct dealings with defendant 1 the contract of surety, ship stood cancelled even during the life-time of defendant 2, Like defendant 1 the minor defendants also raised objection to the rate of interest claimed by the Bank.

4. The main defences of defendant 1 failed in the Court below. He succeeded only in reducing the rate of interest. The learned Judge accepted his contention that only 6 per cent, interest can be allowed and reduced the plaintiff's claim to Rs. 4303,13-4. A decree was passed against defendant 1 for this amount and future interest thereon. The Bank was also allowed their costs. As against the legal heirs of defendant 2 the Bank was given a decree only for Rs. 2356-9-6 with future interest and half the costa incurred by the Bank in the suit. The learned Judge was of opinion that though Ex. A was couched in wide terms as to cover all advances made by the Bank to defendant 1 on promissory notes and the security of Company shares there was clear indication that the parties intended defendant 2's guarantee to have operation only with respect to the loan advanced under Ex. B on 11-9-1112. While defendant 2's name was entered in the books of the Bank as the guarantor of the first loan as against the second or the third loan there was no such entry. For them the shares pledged on the respective dates are alone shown as securitieg. In other respects their defence also failed except as to interest, Defendant 1 and defendant 3 (the wife of defendant 1) as representing the estate of the deceased defendant 2, have preferred separate appeals against the lower Court's judgment and decree.

5. A.S no. 23 of 1120 is the appeal by defendant 3 and A.S No. 113 of 1120 is defendant 1's appeal. In his appeal, defendant 1 has repeated his claim for damages and paid court-fee for the full amount of his counter-claim (Rs. 6737-8-0). The Bank has raised no complaint against the lower Court's decision.

6. Defendant 1's appeal (A.S no. 113 of 1120) is the main appeal and it is convenient to deal with that first. Mr. K.N Narayanan Nair appeared to support both the appeals and in A.S No. 118 he raised three points. They are: (1) that the sale of the securities was without proper or reasonable notice; (2) that assuming there was valid notice of the sale, by an arrangement the power of sale was suspended indefinitely and there was also waiver on the part of the Bank of their right of sale and (3) that there was inordinate delay in effecting the sales which resulted in the shares being sold at low prices and the Bank should be made liable for the loss caused by the delay. We shall deal with these points in their order.

7. In dealing with the first point, it may be mentioned that in the Court below it was even contended that the Bank cannot effect the sale of the securities pledged with them without the consent or permission of defendant 1. In the appeal no such point was urged and if we may say so rightly. Section 176 of the Contract Act (Section 129 of the Tranvancore Contract Act) defines the rights a pawnor has with respect to his securities and the said section reads thus:

“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 sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor.”

8. Defendant 1 had executed promissory notes with respect to the loans and they had become overdue when Ex. F latter was sent on 4th February 1938. That there were prior demands is set out in Ex. F itself and that is not denied in the reply defendant 1 sent (Ex. E). Exhibit XIII (27th January 1938) is a letter which the Bank seat to defendant 1 asking him to remit at least Rs. 3,000 to cover up the margin caused by the fall in the price of shares. That letter would also show prior demands and it was when no heed was paid to such demands that Ex. F was sent. After referring to the indifference shown by defendant 1 to the Bank's demands that letter proceeds to state thus:

“Kindly take notice that if the amounts which come to Rs. 14,916-6-2 is not paid within 7 days, we will be forced to sell the securities in the open market and realise the proceeds towards the loan. You will be responsible for the charges that may be incurred on account of the sale and the balance amount after crediting the sale proceeds will be realised from you.”

9. The letter makes it clear that unless the amounts which had already become over due are not paid within the period specified it was the Bank's intention to enforce their right of sale. It was not contended that the seven day's time was too short. What Ex. E reply asked for was an indefinite postponement of the sale with a view to see whether the price of shares woods not rise. Defendant 1 did not comply with the demand the Bank made immediately they received Ex. E. What the Bank wanted was defendant 1 to remit a portion of the amounts to cover up the margin caused by the fall in the price of the shares. (See Ex. VII dated 10th February 1938). The subsequent exchange of letters did not therefore take away the effect of Ex. F or mar its purpose. The argument that the pawnee should give notice of the actual date, time and place of the intended sale to the pawnor is one which Courts have always repelled. See Sankara Pillay v. Nedungadi Bank, Ltd. (19 T.L.J 1211) and Kunj Behari Lal v. Bhargava Commercial Bank, Jubbulpora, 40 ALL. 522 : (A.I.R (5) 1918 ALL. 863). The appellant's learned Advocate urged before us that under Section 177 of the Contract Act, the pawnor has a right to redeem the security at any time before the actual sale, and that unless he is given full information of the date, time and place of the sale it would be impossible for him to avail of this right. To this we need only observe that a similar contention was raised is the two cases mentioned and what is pointed out in them that the expression the may sell the thing pledged on giving reasonable notice of the sale in S. 176 only means an intimation of the intention to sell and not that a sale should be arranged beforehand and due notice of all: details given to the pawnor finds abundant support in earlier as well as in later decided cases. The latest pronouncement of an Indian’ High Court on the subject is that occurring in Official Assignee v. Modho Lal Sindku, A.I.R (34) 1947 Bom. 217 : (48 Bom. L.R 828). At p. 227 of the report after stating that the law with regard to a pawn enacted in the Indian Contract Act, 1872 is a codification of the English Common law, Stone C.J said as follows:

“Speaking of the common law right to sell Story J. in his commentaries on the Law of Bailments, eighth edition says at p. 262:

‘Another right resulting, by the common law, from the contract of pledge, is the right to sell the pledge, where there has been a default in the pledge or in complying with his engagement, but a sale before default would be a conversion. Such a right does not divest the general property of the pawnor, but still leave in him (as we shall presently see) a right of redemption.’

10. And at p. 263:

‘The common law of England, existing in the time of Glanville, seems to have required a judicial process to justify the sals, or at least to destroy the right of Page: 69redemption. But the law as at present established leaves an election to the pawnee. He may file a bill in equity against the pawnor for a foreclosure and sale; or, he may proceed to sell ex mero motu, upon giving notice of his intention to the pledgor.”

11. The English common law rules bearing on the subject are, if we may say so with respect, set out succinctly by Stirling L.J in his judgment in Deverges v. Sandeman Clerk & Co. (1902-1 Ch. 579 : (71 L.J Ch. 328). That case no doubt refers to a case of mortgage of shares as distinguished from a pledge, but a conscious effort to assimilate the rules applicable to the one to the other is seen in the judgments of all the three learned Lord Justices Vaughan Williams L.J Stirling L.J and Cozens-Hardy L.J who took part in the decision of the case. On pp. 592 to 594 of the report Stirling L.J has stated as follows:

“This case was decided in the Court of first instance and has been argued in this Court, on the basis that the relation between the plaintiff and the defendants was that of mortgagor and mortgagee; and I think that it must now be dealt with on that footing. I agree with Farwell J. in thinking that the statement of the law at p. 276 of vol. I of Bobbins on Mortgages is correct. The passage is as follows: ‘If stock is itself made the security for money, and the day appointed for payment is passed, the mortgagee may at once proceed to sell the stock, and repay himself principal and interest, without any authority from the mortgagor, and without commencing an action of foredo-sure.’ This, however, leaves open the question, what are the rights of the mortgagee when no day has been appointed for payment? and I have nowhere found any authoritative statement of the law on this head. Some light may be derived from what has been said by learned Judges as to the rights of pawnee or pledgee of chattels in like circumstances. Thus, Bowen L.J said in Ex. parte Hubbard; In re Hardwick, (1888) 17 Q.B.D 690 at p. 698 : (55 L.J.Q.B 490): ‘There is at common law an authority to the pledgee to sell the goods on the default of the pledgor to repay the money, either at the time originally appointed, or after notice by the pledgee.’ In Ex parte Official Receiver; In re Morritt, (1886) 18 Q.B.D 222 at p. 232: (56 L.J.Q.B 139), Cotton L.J said: ‘A contract of pledge carries with it the implication that the security may be made available to satisfy the obligation and enables the pledgee in possession (though he has not the general property in the thing pledged, but a special property only) to sell on default in payment and after notice to the pledgor, although the pledgor may redeem at any moment up to sale.’ He afterwards said, Ex parte Official Receiver; In re Morritt, (1886) 18 Q.B.D 222 at p. 233: (56 L.J.Q.B 139), with reference to the position of a mortgagee of personal chattels: ‘Where there is no express power of sale given by the mortgage, he has, after default in payment, and after he has given the mortgagor a reasonable time to pay the money due, a power to sell and give a good title to the purchaser, though, of course, the mortgagor has, at any time before sale, a right on payment of the money due, including expenses, to prevent the sale and redeem the chattel.’ According to those authorities, it would seem to me that when no time for payment has been originally fixed, then, before the power of sale can be exercised, notice is to be given to the mortgagor, and default must be made by him in payment after such notice. What this notice is to contain is nowhere defined; but it must, of course, be a notice which is in all respects reasonable, regard being had to the circumstances of the case. A notice demanding payment of an excessive sum has been held to be bad; Pigot v. Cubley, (1864) 15 C.B (N.S) 701 : (33 L.J.C.P 134). The notice must give a reasonable opportunity to the mortgagor to pa) what is due under the mortgage; and I think it is at least desirable that it should fix a day for that purpose, and also convey to the mind of the mortgagor that, if he fails to avail himself of the opportunity given to redeem the mortgagee will be in a position to put in force his rights.”

12. We are now, no doubt, bound by the statute, but the provisions of that statute relevant for our present purpose have never been under-stood to be any the different from the English common law rules relating to pledges. We are therefore unable to accept the contention that the statutory requirement of a reasonable notice of the sale has not been complied with in this case. In the light of the law as stated above it is difficult to accept the view taken in the case relied on by the appellant's learned Advocate in support of this part of the case viz., Nandalal v. Dasarathi, A.I.R (19) 1932 Cal. 534 at p. 535: (59 Cal 1052), that the form of the notice in that case did not conform to law. The notice stated that failing payment by the day fixed the pawnee shall arrange for sale of the hypothecated stock. It was said that such a notice should contain more definite particulars and that what such particulars should be must depend upon the peculiar facts of each case. Whatever that be on closer examination it would be seen that the decision in that case turned on whether the notice was reasonable and the sale regular. The notice of demand gave the pawnors hardly 48 hours to liquidate the debt and the notice itself never reached them. They had closed down their business and the pawnee Bank despatched the notice to their former place of business after they had left the place and their whereabouts unknown. The sale too was not held in such a way as to be above suspicion. That case cannot therefore be of much use to the appellant in this case. Here Ex. F contains an unequivocal indication of the Bank's intention to sell the shares if occasion demanded it; the appellant had notice of it and what he did was to attempt to gain more time so that the sale may be held when the share market was more favourable. The lower Court's decision that the legal requirements of a valid notice are satisfied in this case has therefore to be upheld.

13. In view of our decision on the first point the other two points also arise for consideration. In a sense the third point is inconsistent with and contradictory of the second. The two contentions ill go together, but a defendant is not precluded from raising pleas in the alternative.’

14. The second point raised is that the sale held in violation of an agreement to postpone it indefinitely is not valid and binding on the appellant. The third point argued was that the sales held were inordinately delayed after notice of the sale and that the Bank should bear the consequent loss the appellant sustained thereby. We have to consider these two points on their respective merits.

15. No case of any agreement to postpone the sale was pleaded or proved. No issue was raised with respect to it nor has the lower Court considered the point. The memorandum of appeal to this Court is equally silent about it. The appellant's learned Advocate however made a laboured attempt before us to bring the case within the principle of the decision in Pigot v. Cubley, (1864) 143 E.R 960 : (33 L.J.C.P 134). In that case it was found on the evidence that before the power to sell was exercised the parties had substituted a new agreement, under which the time for payment and consequently the power of sale was indefinitely extended. It was therefore held that the power of sale exercised in contravention thereof amounted to wrongful conversion. As already indicated, there is hardly any foundation on the facts of the present case to sustain the contention. Paragraph 11 of the plaint which was very much relied upon by the appellant's learned Advocate does not indicate anything more than that the Bank had shown some indulgence in the matter of enforcing its rights against the debtor and the securities. No trace of an agreement as sought to be made out on behalf of the appellant can be found in the plaint or in the evidence of P.W 1, the Managing Director of the Bank. No other material was relied upon in support of the argument except para. 9 of the appellant's written statement in the case. That does not carry the matter any further, nor can it serve the appellant any useful purpose even if it did. We, therefore, feel constrained to hold that there is no substance in this point either. What was attempted was not to apply the law to facts admitted or proved, but to read the facts so as to suit the law as laid down in the case cited.

16. The second point has another branch. It was contended that if there was no agreement express or implied there was clear evidence of the Bank having waived its right of sale of the shares. This aspect of the case, though not laised by the pleadings or the issues raised in the case has been considered by the Court below. Paragraph 11 of the judgment of the learned Judge below discusses the question. The point is however not taken in the memorandum of appeal to this Court. Be that as it nay, we shall discuss it. One ground on which a waiver was sought to be spelled out was from the delay in effecting the sales. Exhibit P. was Bent on 4-2-38 but the sales were held as late as 2-8-39 and 28-9-39. The law does not impose a burden on a pawnee to bring the security to sale within a reasonable time of the notice of the sale. Decided cases covering this point will appear in the sequel. No waiver of the right of sale can therefore be inferred from mere delay.

17. The other ground on which this argument was sought to be rested was that Ex. IX, the lawyer's notice issued in October 1938, long after Ex. F was sent, made no reference to the Bank's right of sale but only to a suit in a Court of law to recover the amounts due. It is too farfetched to contend that the implication of the notice is necessarily the abandonment of the right of sale. Section 176 gives a pawnee the right to bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security as also the right to sell the thing pledged, on giving the pawner reasonable notice of the sale. So long as the security is not released the pawnee has the liberty to choose either course the law allows. It is an accepted rule that a party must in law be deemed to be acting always in his best interests to safeguard his rights and not in derogation of them. That the Bank never intended to abandon its right of sale will also be clear from Ex. X, the letter they sent to the appellant immediately after the sale of the Midland Rubber Co., shares. The contents of that letter has once been alluded to in this judgment. With Ex. F notice, the plaintiff had acquired the right to sell the shares and we concur in the view the learned Judge in the Court below took that it was not since lost at any time until it was put into operation. This branch of the case also therefore has to be decided against the appellant.

18. Now we come to the third and the last point argued in the appeal. That point as mentioned earlier is that the sales were inordinately delayed with the result that only low prices were fetched and that it was not open to the Bank to take its own time to effect the sales. We have noticed that while Ex. F was on 4th February 1938 the sales were only in August and September 1939. The question is whether the pawnee has the right to choose his own time to put his power of sale into operation after he gives due notice of the same. The appellant has not been able to refer us to any law or decision in support of his contention that the pawnee has no such right. Decided cases are definitely against him. See 19 T.L.J 1211; Kesarimal v. Suryanarayanamurthy, A.I.R (16) 1928 Mad. 1022 : (114 I.C 820); Champaka Rica Mill Co. v. Ramaswami Page: 71Pillai, 1929 M.W.N 167 and Travancore National & Quilon Bank Ltd. v. Cheriyan, (1945 T.L.R 864). The two cases of the Madras High Court now cited are referred to with approval and followed in 19 T.L.J 1211 and Travancore National & Quilon Bank Ltd. v. Cheriyan, 1945 T.L.R 864. The headnote to the decision in Kesarimal v. Suryanarayanamurthy, A.I.R (15) 1928 Mad. 1022 : (114 I.C 820) which correctly seta out the sense of the decision can be usefully quoted here:

“The power of sale is conferred on the pawnee to be exercised for his benefit according to his discretion in order to realize the debt due to him for which the pledge is a standing security. In order to exercise the power of sale all that the pawnee need do is to give reasonable notice of the intended sale. If he does so he requires no farther authorization or permission of the pawnor to effect the actual sale and he is not thereafter bound to sell the pledged goods within a reasonable time after expiry of the period mentioned in the notice.”

19. In Mannargudy Champaka Rice Mills, Ltd. v. Ramaswami Pillai, 1929 M.W.N 167, referring to S. 176, Coutts-Trotter C.J observed as follows:

“That (S. 176) has been in fact construed by the learned Judge to mean not merely that the notice of the proposed sale must be within a reasonable time but that the unfortunate pawnee is put to exercise his judgment at his peril as to when is the proper and reasonable time for him to sell. Why should he? He has got the goods. In this particular case, the respondent is wholly without merits because it was at his request that the mill held their hand and did not sell at a much earlier date as they otherwise would have done because he represented that he had the sub-purchasers of the rice who would take delivery and pay the mill as things went on what was due to them.”

20. The learned Chief Justice's comment regarding the conduct of the pawnor in asking the pawnee to postpone the sale and afterwards turning round to say that the sale was delayed applies with equal force to the conduct of the appellant in this case. The evidence shows that the shares were sold by recognised brokers through the medium of well-known institutions like the Central Bank of India Ltd. In fact the appellant's Advocate had no complaint before us that the sales did not fetch the current prices prevailing on the respective dates. To quote from the head-note of the decision reported in Nettoo v. Mathulla, 29 T.L.J 514:

“The only limitation recognised by the law under which a pawnee under the circumstances has to act are that the power of sale should be exercised prudently and that no heavier burden can be imposed by the sale on the pawnor than could be helped in the circumstances of each case. If the highest price that could be obtained in the circumstances had been fetched by the sale, the pawnor has nothing to complain about. Further than this, the law does not impose any limitation upon the powers of a pledgee to sell.”

21. On the whole there is no substance in the complaint that the sales were inordinately delayed or as to the manner in which they were effected. In fact no point was made before us concerning the latter aspect and as to the former the law is on the side of the Bank.

22. What follows from our decision on the points raised is that the sales held of the shares involved in this case are valid and proper and not wrongful in any sense. No case of wrongful conversion therefore arises and the appellant's counter-claim is clearly inadmissible. A.S No. 113, therefore, fails and the lower Court's decision has to be upheld in its entirety as against defendant 1.

23. We have next to deal with defendant S's appeal (A.S No. 26 of 1120). She had not entered any contest in the Court below. It was her minor children that defended the suit through their Court guardian on behalf of the estate of the deceased defendant 2. In our view that estate got all possible benefits it could get at the hands of the Court below and the appeal is devoid of any merit.

24. Practically every point urged before us in this appeal is new in that the written statement filed by the Court guardian of the minor defendants did not raise them. Nor did, for that matter, the written statement of defendant 1 contain any one of them. It was first urged that Ex. A was vague and ambiguous and hence void under Section 29 of the (Travancore Act, 80) Indian Contract Act. That section says: “Agreements, the meaning of which is not certain, or capable of being made certain, are void.” Exhibit A, the letter of guarantee passed by defendant 2 to the Bank is, in our opinion, clear, as clear can be. Thereunder without reserve or restriction defendant 2 entered into a contract of guarantee with the Bank to be jointly and severally liable for all loans the Bank advanced to defendant 1 on the strength of promissory-notes executed by him and the pledge of shares in limited companies. There was no time limit or any limit for the amounts for which defendant 2 stood guarantee. The contention does not even find mention in the memorandum of appeal and we cannot help looking upon the point as thoroughly untenable.

25. It was next urged that the sale of the shares effected without notice to the guarantor rendered it invalid as against him and that the guarontor's estate cannot now be made liable for the amounts decreed against that estate. This point again is not raised either in the Court below or in the memorandum of appeal to this Court. It is a question of fact whether the guarantor had notice of the sale and strictly speaking the appellant is not even entitled to be heard on it. We would however venture to observe that while a reasonable notice of the sale is a statutory requirement so far as the pawnor is Page: 72concerned, we have not been referred to nor are we ourselves aware of any rule of law enacted, or Judge made or otherwise which places a pawnor's guarantor in the same position as the pawnor himself with respect to notice. Suffice it to say that Ex. A does not contain any such clause or condition and the guarantor or those who stand in his shoes cannot be heard to complain of a want of notice of the sale to them. Next it was faintly argued that the Bank's conduct or their dealings with defendant 1 operated to effect a discharge of the contrast of guarantee. This, no doubt, is a point raised in the Court below as also in the memorandum of appeal to this Court, but we are unable to find any material in the records which would sustain the contention. Mere forbearance to sue or take other action against the principal debtor would not discharge the surety. See Pollock and Mulla's Contract Act, 7th Edn. p. 464 and Section 137 (Travancore Section 90) of the Indian Contract Act. Nothing higher than mere forbearance to sue the principal debtor or to enforce the right of sale earlier was pointed out to us from the evidence on the record. It is not simply neglecting to sue the principal which would have any effect upon the surety's liability but there must be a positive agreement with the principal that the creditor will postpone the suing of him or enforcing other remedies to a subsequent period before a surety can claim his discharge. We have found in discussing the other appeal that such agreement there is none in the case. Hence this argument also fails. No other point was urged before us and this appeal like A.S No. 113 of 1120 must fail.

26. In the result we dismiss both the appeals with costs.

27. Appeals dismissed.