1. This appeal will also dispose of Misc. (Second) App. No. 78 of 1944.
2. This is a continuation of the order passed by Pollock, J. on 19-1-1948 whereby he referred the following issue to the lower Court:
“What was the value of the pledged ornaments at the time of the sale by Seth Fulchand?”
3. The trial Court has recorded evidence and given the following finding:
“Thus the position is that the pledged ornaments contained 83¾ tolas (kataki) of dagi and it was sold at Rs. 30 per tola (kataki) which was a fair market price of this type of gold on that day. Such ornaments therefore fetched an amount of Rs. 2512-8-0 on date 22-7-1937. Therefore my finding is that the value of the pledged ornaments on the date of the sale (viz. date 22-7-1937) by Seth Fulchand was Rs. 2512-8-0.”
4. The learned counsel for the appellant has challenged the finding that the pledged ornaments contained 83¾ tolas (kataki) of dagi gold. According to the learned counsel the total weight of the ornaments pawned by the insolvent Ramnarayan (respondent 2—appellant in Misc. App. No. 78 of 1944) was 131¼ tolas. (His Lordship went through the evidence and agreed with the findings of the trial Court on the question of the weight and price of the gold and also agreed with the concurrent findings of the lower Courts that the ornaments were sold by Seth Fulchand in 1937.)
5. The last contention of the learned counsel for the appellant was that the notice given under Section 176 of the Contract Act, was not a reasonable notice of sale of the ornaments within the meaning of that section.
6. According to him it is not a reasonable notice of the sale because the sale did not take place within a reasonable time of the expiry of the period prescribed in the notice which was 8 days in this case, but it took place about 7 months thereafter. This very point was raised in Kesarimal v. Suryanarayanamurty, 114 I.C 820 : (A.I.R (15) 1928 Mad. 1022) and it was held that it is not necessary that the pawnee who gives notice of sale should sell within a reasonable time thereafter. In that case we get the following observations:
“It will be seen that no question was raised in this case Kunjbeharilal v. Bhargava Commercial Bank, 40 All. 522 : (A.I.R (5) 1918 All. 363) as to whether the pawnee who had complied with the requirements of S. 176 by giving reasonable notice of the sale was thereafter bound to sell the pledged jewels within a reasonable time after the expiry of the period mentioned in this notice. In the earlier case in Prag Narain v. Mul Chand, 1897 A.W.N 150 : (19 All. 535) which arose under S. 107 of the Act it was held that if a vendor of goods who has a lien thereon elects to exercise his right of sale or for recovering the damages due to him, by reason of the defendant's breach of the contract, he must not only give reasonable notice to the vendee of the intended sale, but he is also bound to exercise his right of re-sale within a reasonable time after the date of the breach. When the purchaser of the goods fails to perform his part of the contract either by not taking the goods sold to him or by not paying for them the seller has two courses open to him, viz., (1) he may either sue for the price due to him, in which case he must retain the article sold which will have to be delivered over to the vendee on his compliance with the decree for the payment of the price; or (2) he may claim damages for the breach of the contract on the part of the defendant, the amount thereof being the difference between the contract price and the market price of the goods sold on the date of the breach. In the latter case the amount of damages to be decreed to the vendor will depend upon the price which the thing sold will fetch if it is re-sold within a reasonable time from the date of the breach. If the vendor, therefore, elects to exercise his power of sale under S. 107 the re-sale must be made within a reasonable time from the date of the breach. Section 107 also makes it clear that the vendee who has committed the breach has no claim to the property so-that if it fetches more in the re-sale than the price due to the vendor he has no right to claim the excess, but if it fetches less the difference will be the damages which he has to pay to the vendor. But the position of a pawnee is quite different. He holds the pledge as-security for the debt due to him from the pawnor and though he has got the right to sell, he is not bound to sell at any particular time. So long as the security is ample, it may not be to his interest to sell it but if the security is insufficient and the debtor has no-other means of paying it will be to his interest to realise the debt by the sale of the things pledged as speedily as possible. He has also to consider the question whether the market for the goods is a rising or a falling one. Further at whatever time he may sell the things pledged, they are sold as the property of the pawnor and the latter is entitled to the surplus proceeds of the sale after the debt is fully discharged;, and the pawnor has also until a sale is actually made the right to redeem the pledge: (see Section 177 of the Contract Act). All these provisions show that the power of sale is one which is conferred on the pawnee to be exercised for his benefit according to his discretion in order to realise 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 further authorisation or permission of the pawnor to effect the actual sale.
It seems to me that though the case of a pawnee may be analogous to the case of an unpaid vendor of goods having a lien thereof for the damages due to him, as regards the requirement of giving reasonable notice of sale, the analogy goes no further as the rights of an unpaid vendor and of a secured creditor are essentially different. Section 176 does not say that the pawnee who gives notice of sale should sell within a reasonable time thereafter and I do not think that in the case of a pawnee such a further duty should be implied. If the contention of the defendant is upheld, and the pawnee being bound to sell within a reasonable period after the expiry of the time given in his notice should be debited with the price which the thing pledged would have fetched if sold, then it will, follow that the pawnor also would have no right thereafter to redeem the pledge—a view which is clearly; opposed to his right as declared in S. 177………….. I am, therefore, of opinion that the learned Subordinate Judge was wrong in holding that the plaintiff was bound to sell the pledged jewels within a reasonable time from 1-9-1924, and that the defendant should, therefore, be credited with the price the jewels would have fetched if the sale was then held. I am of opinion that the account between the parties should be taken on the footing of the sale which was held in January, 1926.”
7. I am in respectful agreement with these observations. The articles in that case were sold about IS months after the expiry of the period given in the notice of the sale while the corresponding period in the present case is only 7 months. I must make it clear here that there is no complaint in this case from the pawner that he has suffered in any way from the delay of 7 months in the sale after the expiry of the period mentioned in the notice, and I am not called upon to decide what would be the legal position when such a complaint exists.
8. The appeal, therefore, fails and is hereby dismissed. The appellant shall pay the costs of respondent 1 of this appeal. Respondent 2 shall bear his own costs of this appeal. Costs in the lower Courts as ordered by them. Counsel's fee Rs. 50 subject to certificate.
9. Appeal dismissed.