1. This second appeal arises out of a suit instituted by the plaintiff-appellant against the defendant for accounts alleging that he had incurred certain loans from the defendant and had deposited certain ornaments with the defendant. The ornaments were said to be of the value of Rs. 3400 or Rs. 3500 while the loans incurred were said to be Rs. 2380 inclusive of interest. In para. 6 of the plaint the plaintiff stated that he was entitled to claim back his ornaments, or if they had been sold the value thereof, less the money payable to defendant by him; and he therefore tentatively valued his claim at Rs. 1000. In the relief clause plaintiff claimed a decree for accounts against the defendant, and prayed that whatever sum was found due to him from the defendant should be decreed with costs. On these allegations of the plaintiff and on the further facts that the transaction between the parties was that of a creditor and debtor (plaintiff was the debtor and the defendant was the creditor) and that the ornaments were as a matter of fact pledged with the defendant as a collateral security for the debts incurred both the Courts below came to the conclusion that a suit for accounts as framed was not tenable and that the plaintiff had valued his suit at Rs. 1000 only to evade the court-fee payable if he had sued for the recovery of the ornaments or for their redemption. It has been pointed out by both the Courts below that though this defect was brought to the notice of the plaintiff he declined to amend the plaint and wanted the Court to proceed with the suit as framed. Consequently, they had no other alternative but to hold that the suit as framed was not tenable and that proper court-fee for the reliefs that necessarily flow from the allegations in the plaint had not been paid.
2. Though there are 26 grounds of appeal in the memorandum of appeal filed by the plaintiff before me only one ground (No. 8) attacks the finding regarding payment of proper court-fee.
3. The finding of the Courts below that the suit as framed as one for accounts was not tenable has not been attacked anywhere. In ground No. 8 it is urged “that the suit being one for damages for wrongful sale of the appellant's ornaments or for claiming the difference between the value of the ornaments less the respondent's due, it ought to have been held to be correctly valued for court-fees.” Though the two Courts below came to the conclusion that the suit as framed was not tenable and that proper court-fee had not been paid they proceeded to decide the suit on merits and dismissed it. Inasmuch as the finding of both the Courts below that the suit as framed was not tenable was not attacked in appeal before me the appeal should have stood dismissed on that ground alone and it should not have been necessary for me to go into all the points urged in the memorandum of appeal; but at the hearing of the appeal I thought that it might be possible to argue for the plaintiff that what he was claiming in this suit, though he wrongly called it a suit for accounts, was the amount that was still due to him after giving credit for the value of the ornaments towards the loans he had incurred, or if it be found that the defendant was entitled to sell them then after giving credit for the value that he obtained on such sale. Looked at from this point of view the suit would be tenable to the extent of Rs. 1000 at which the plain, tiff valued his claim. I therefore proceed to consider the merits of the case.
4. Learned counsel has urged three points: (1) that the lower Courts were wrong in holding that the case was governed by Section 176 of the Contract Act, that in any case even if S. 176 applied no valid notice had been given to the plaintiff before the sale of the ornaments, and that therefore the sale was wrongful; (2) that the sale being wrongful the defendant must be held to have wrongfully converted the plaintiff's ornaments and was liable in damages; and (3) that the value put by the plaintiff ought to be the test for determining the damages and not the value obtained by the defendant at the sale. It was attempted to raise some other minor points, which had not been urged in the lower Courts, and it was attempted to argue several questions of fact which have been determined conclusively by both the Courts below and which cannot be disturbed in second appeal; but he was not allowed to do so. The main questions therefore that have to be decided by me are three as stated above. It was conceded by counsel for the appellant that this was a case of a pledge and not of a deposit as stated in the plaint, and that the plaintiff-appellant was the pawnor and the defendant-respondent was the pawnee; but it was urged that S. 176 only speaks of a power of sale in the case of a pawnee when 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. Inasmuch as both the Courts below have held that this is a case in which there was no stipulated time for the performance of the promise it was argued that the case is not covered by Section 176 of the Contract Act, and the defendant therefore had no right whatsoever of selling the pledged articles even after giving reasonable notice of the sale to the plaintiff. In support of this proposition, learned counsel relied upon a case of the year 1835 reported in 132 E.R 135 (1835) 132 E.R 135 at p. 140. The observations relied on are:
Now that lease, at the time of such sale, was in the possession of the defendant as a pledge or security for the payment of his demand against the bankrupt: being either in his possession as solicitor, under a claim upon it for his lien which the law gives him: or having been expressly deposited with him as a security for his demand according to the evidence of Stevens. In either case, the right and power of the defendant over the lease was precisely the same; he had the right to retain the lease in his possession until his demand was paid, and so far, by means of the possession of the lease, to enforce payment of his demand; but he had that right only; he had no right to sell the lease, and to pay himself his demand out of the proceeds.
5. These observations were made with reference to the facts of that case. It was either the solicitor's lien or a deposit: it was not a case of a pledge as is defined in the Contract Act in S. 172. That case has really no application to the facts of the present case. The observations made in that case were observations based upon the facts of that particular case, and, it appears, that it was a case in which there was no power of sale granted to the person with whom the lease was deposited. 143 E.R 9602 is more appropriate to the facts of the present case. It lays down that where there is no stipulated day for payment, or where the stipulated time has been rendered indefinite by a subsequent agreement between the parties, it is not competent to the pawnee to sell without a proper demand and notice. Pollock and Mulla in their Contract Act, Edn. 6, page 546, have stated that:
Where no time is originally stipulated for payment, it seems that ‘the debtor is not in default until notice is given by the creditor that he requires payment on a certain day, and that day is past. The debtor is then in default, and is in the same position as if a day for repayment had been fixed in the original contract.’
6. They rely on 143 E.R 9602 for this proposition. Admittedly, there was no time stipulated in this case, and, in all cases in which no time is stipulated, the presumption is that the amount of loan taken is payable on demand. If the creditor makes a demand and informs the debtor that he should pay the amount by a particular date it can reasonably be concluded that the creditor being entitled to claim the amount on demand stipulated the time for such payment by his notice, and if the debtor commits a default the case falls under Section 176 of the Contract Act, because it is a case in which the pawnor had made default in the payment of debt at the time stipulated by making a demand. That was the promise he made to the creditor and he has failed to fulfil that promise. The creditor has thus the right to sell the pledged goods. This was the view taken in 8 Lah. 373; (’27) 14 A.I.R 1927 Lah. 408 , 101 I.C 725 , 8 Lah. 373 but the English case that I have referred to has not been quoted there. I hold that this is a case to which S. 176 did apply.
7. The next question is about the validity of the notice and its reasonableness. Both the Courts below have concurrently come to the conclusion that the creditor gave notices to the plaintiff to pay the debts due and redeem the ornaments pledged with him and that he also informed the plaintiff that if this was not done by a particular date he would exercise his power of sale given to him by law. So far as the reasonableness of the notice is concerned, I should think that in the circumstances of the case it was for the Courts below to find out whether the notice given was reasonable or not, and they have concurred in holding that the notice was reasonable. What is argued, however, before me is a further point that the notice given in this particular case was not a valid notice inasmuch as it did not specify the amount of the debt due. The notice is Ex. P-6 dated 23rd January 1937. That is the only defendant's notice that has been translated for inclusion in the paper-book. The trial Court in its judgment (para. 9) refers to three notices given by the defendant to the plaintiff. One was given in January 1936 (Ex. P-17), the second was given on 23rd January 1937 (Ex. P-6), and the third was given on 28th January 1937 (Ex. P-5). After considering what was contained in all the three notices both the Courts below came to the conclusion that the notice was valid and reasonable. My attention has been drawn to only one notice, Ex. P-6. That notice also is not vague. It calls upon the plaintiff-debtor to pay all the debts due with interest by a particular date and also informs him that if he fails to pay all that was due by that date with interest thereon, his pledged ornaments would be sold. It is perfectly clear that the plaintiff was fully aware of what debts he had incurred and what was the interest due thereon; and, I have not been shown any authority under which it could be said that it was necessary for the defendant-creditor to mention specifically the amount due and also the amount of interest due. In this case it has been found by both the Courts below that the plaintiff though in full possession of the facts of the case, viz., the debts incurred by him, the date of repayment, and the interest due, and knowing full well what were the ornaments that were pledged by him with the defendant, he went on asking the defendant after some notice was served upon him to state to him the details thereof. The trial Court has also noted that the plaintiff had in his possession a note book in which the entire, information necessary was available to him. In the circumstances of the case, therefore, I am clearly of the opinion that it was not necessary for the present defendant-creditor to specify the amounts due in the notice.
8. The last notice, which has not been translated for inclusion in the paper-book, would have disclosed that the defendant by his notice very clearly informed him that the entire account of the amount due, together with interest was shown to the plaintiff as desired by him and that he had copied it out in his note book and that he was made fully aware of what was due. It appears that this notice was deliberately not included in the paper-book. The plaintiff was given to understand by that notice that unless the ornaments were redeemed within four days the creditor would sell them and credit the sale proceeds towards the realization of his debts. I hold, therefore that the notice given in the case, and particularly the final notice dated 28th January 1937, was reasonable and that the plaintiff was supplied with all the details necessary to enable him to know what he was required to pay and what were the ornaments that would be sold in case he did not pay. This is not a case therefore in which either the legality of the notice or its reasonableness could be questioned.
9. The third point argued was that this case may be treated as one of wrongful conversion, and therefore the plaintiff was entitled to damages according to the value of those ornaments of the plaintiff and not according to the value at which the defendant sold them. Inasmuch as I have come to the conclusion that S. 176 applies to the facts of the present case, and that valid and reasonable notice was given by the defendant, it is not at all possible to come to the conclusion that there has been any wrongful conversion. Both the Courts below have already dealt with the question of certain purchases of the ornaments made by the defendant himself out of the ornaments that were to be sold and have come to the conclusion that they were sold to himself at proper price, viz., at the price then prevailing in the market. There is no wrongful conversion in that fact also. The value of the goods on the date of sale according to the market price is the value which the plaintiff could claim as being entitled to be credited to his account, and this has been done. Even in cases of wrongful conversion, it has been held that the measure of damages is ordinarily the value of the goods on the date of conversion according to the market price: see, 8 Lah. 373 (’27) 14 A.I.R 1927 Lah. 408 , 101 I.C 725 , 8 Lah. 373. This ground also therefore fails and has no substance. As already stated before, the other minor points that were tried to be argued were either such as were not urged in the Courts below and could not be allowed to be argued or were such as were covered by concurrent findings of fact of both the Courts. The appeal, therefore, has no substance on merits even; it fails and is dismissed with costs.
10. Appeal dismissed.