Written Submissions for the Respondent

BEFORE THE HIGH COURT OF JHARKHAND,

AT RANCHI

(Under Section 96 of the Code of Civil Procedure, 1908)

In the matter of

Indus land Bank Appellant

Versus

S.H. Mustaq Respondent

Memorial on behalf of the Respondent

DRAWN AND FILED BY COUNSEL ON BEHALF OF THE RESPONDENT

RASHI PANDIT
SEMESTER III, ‘A’
ROLL NO. 402

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Written Submissions for the Respondent

TABLE OF CONTENTS

Cover page 1

Table of contents 2

List of abbreviations 3

Index of authorities 4

i. Table of cases 4
ii. Books referred 4
iii. Websites 4

Statement of jurisdiction 5

Statement of facts 6

Issue Raised................................................................................................................7

Summary of arguments 8

Arguments advanced 9-11

Prayer 12

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Written Submissions for the Respondent

LIST OF ABBREVIATIONS

 & And
 ¶ Paragraph number
 AIR All India Reporter
 CrPC Code of Criminal Procedure
 IPC Indian Penal Code
 Anr Another
 Art. Article
 Bom Bombay
 HC High Court
 SC Supreme Court
 Hon’ble Honourable
 Ltd Limited
 Ors Others
 p. Page number
 SC Supreme Court
 SCC Supreme Court case
 UOI Union of India

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Written Submissions for the Respondent

INDEX OF AUTHORITIES

List of Cases
Sr. No. Name of the Case Page no.

1 Tapanga Light Foundry And Ors. vs State Bank Of India AIR 1987 9
Ori 174

2 Hulas Kunwar v. Allahabad Bank Ltd. AIR 1958 Cal 644 9

3 Wangapally Latchiah v. Peddi Laxmiah AIR 1960 Andh Pra 272 9

4 Haridas Mundra v. National and Grindlays Bank Ltd AIR 1963 Cal 9
132

5 Prabhat Bank Ltd. v. Babu Ram AIR 1966 All 134 10

Books referred

i. Dr. RG Padia, Indian Contract and Specific Relief Act,vol.2(12th ed. Lexis Nexis
Butterworths Wadhwa Nagpur 2001)
ii. Dr. Avtar Singh, Law of Contracts And Specific Relief, (11th ed. Eastern Book
Company Lucknow 2013
iii. Pollock & Mulla, The Indian Contract & Specific Relief Law, Vol II, 14th edition

Statutes

i. Indian Contract Act, 1872

Websites

1. www.manupatra.com
2. www.scconline.com

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Written Submissions for the Respondent

STATEMENT OF JURISDICTION

The counsel for the respondent has approached the Hon’ble Supreme Court of India under
Section 961 of the Code of Civil Procedure, 1908.

The present Memorandum sets forth the Facts, Contentions & Arguments in the
present case.

1
96. Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or
by any other law for the time being in force, an appeal shall lie from every decree passed by any court
exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts
of small causes, when the amount or value of the subject matter of the original suit does not exceed ten thousand
rupees.

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Written Submissions for the Respondent

STATEMENT OF FACTS

S.H. Mushtaq pledged gold ornaments of five sovereigns on 11.11.1981 with Indus land
bank, Ranchi and borrowed a sum of Rs.2500/- on the security of those gold ornaments. Later
he paid Rs.1918.70 on 8.4.1985 towards the loan amount. The Bank issued a notice dated
4.2.1986 to the S.H. Mushtaq recalling the loan and informing him that if he failed to
discharge the debt, the ornaments would be sold in auction on 27.2.1986. S.H. Mushtaq
claimed to have paid Rs.500/- in response to the notice and thereafter he expressed his
willingness to discharge the balance amount. But the gold ornaments were not returned to
him. A notice was issued by the S.H. Mushtaq, which caused the bank to send a reply
containing false allegations. The bank claimed to have sold the jewels. S.H. Mushtaq claims
that it was unauthorized, illegal and contrary to law.

Being an unauthorized sale, it is also stated that the Bank is not entitled to adjust the balance
amount due from the sale proceeds. Claiming that he is entitled to return of the ornaments, he
laid the suit, or in the alternative claiming Rs.12,000/-. The bank resisted the suit. The pledge
was admitted. The bank disputed that 5 sovereigns of gold were pledged and contended that
30,700 grams which was equal to three and three fourth sovereigns were pledged by the S.H.
Mushtaq. The valuation of jewellery was estimated at Rs.4500/- and a sum of Rs.2500/- was
given as loan to S.H. Mushtaq on execution of a pronote also. S.H. Mushtaq was bound to
discharge the debt within three years. He did not do so. In case the debt was not paid, the
Bank was entitled to cause sale of the ornaments after notice to S.H. Mushtaq in compliance
with the statutory requirements. The Indus land bank issued notice dated 4.2.1986 informing
S.H. Mushtaq to wipe off the debt as in case of default the ornaments pledged would be sold.
After receiving notice, S.H. Mushtaq paid a sum of Rs.500/-. Sale was published in Ranchi
Khabar daily dated 20.7.1986 and the ornaments were sold in public auction.

On a consideration of the materials before it, the trial court came to the conclusion that the
sale was in accordance with law and S.H. Mushtaq is not entitled to any reliefs. Accordingly
the suit was dismissed. S.H. Mushtaq carried the matter in appeal as A.S. 17 of 1991 before
the Sub Court, Hulundu. The appeal was allowed, the judgment and decree of the lower court
were set aside; and the suit is decreed for a sum of Rs.6,844/- (Rupees Six Thousand Eight
Hundred and Forty Four only) with costs throughout. Time for payment is one month.

Hence the appeal.

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Written Submissions for the Respondent

ISSUES RAISED

Issue 1- whether the judgment of the sub court should be upheld or not?

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Written Submissions for the Respondent

SUMMARY OF ARGUMENTS

Issue 1- Whether the judgment of the sub court should be upheld or not?

It is humbly submitted before the hon’ble court that the Judgment of the sub court is valid
and thus it should be upheld and appeal should be dismissed. Before exercising the power of
sale the pawnee should give to the pledger reasonable notice of the sale. In the present case
the notice mentioned a specific date but the goods were sold before that day, which is
somewhat contradictory to the statutory provisions.

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Written Submissions for the Respondent

ARGUMENTS ADVANCED

Issue 1- Whether the judgment of the sub court should be upheld or not?
It is humbly contended before the hon’ble court that the judgment presented should be
upheld.
In case of possession of goods pledged with the pawnee, Section 176 recognizes three rights
in case of default by the pawnor. They are
(i) He may bring upon a suit,
(ii) He may retain it as a collateral security and
(iii) He may sell it by giving the pawnor a reasonable notice of the sale.
The right of the pawnor to have a reasonable notice is well recognized in law. If the pawnor
commits default in payment of the debt within the stipulated period in respect of which the
goods were pledged, the pawnee can either file a suit or to resort to sale of pledged goods by
giving reasonable notice. Indian Contract Act does not prescribe any particular form of notice
or any particulars the notice should contain. What is stated is only that the pawnor should be
given a reasonable notice of the sale.

The provisions of Section 176 of the Indian Contract Act are of mandatory character.2
Section 176 lays down that if the pawner 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 pawner upon the debt or promise, and retain
the goods pledged as a collateral security; or he may sell the thing pledged, on giving the
pawner reasonable notice of the sale.
In Hulas Kunwar v. Allahabad Bank Ltd.3, it was held that the provisions of Section
176 relating to a "reasonable notice of the sale" are mandatory.
In Wangapally Latchiah v. Peddi Laxmiah4, it was held that before exercising the power of
sale the pawnee should give to the pledger reasonable notice of the sale. In order that that
provision should not be made nugatory, the proper interpretation to put on Section 176 is to
hold notwithstanding any contract to the contrary notice has to be given. At the time of
entering into a contract of pledge the pawner cannot agree to waive notice as it would be
inconsistent with the provisions of Section 176.

2
AIR 1987 Ori 174
3
AIR 1958 Cal 644
4
AIR 1960 Andh Pra 272

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Written Submissions for the Respondent

In Haridas Mundra v. National and Grindlays Bank Ltd.5, it was held that the pawner is
entitled to reasonable notice under Section 176.
In Prabhat Bank Ltd. v. Babu Ram6, It was held that a notice of the character contemplated
by Section 176 cannot be implied. Such notice must be clear and specific in its language and
must indicate the intention of the pawnee to dispose of the security. On consideration of the
above principles and the provision of Section 176 of the Indian Contract Act, it is clear that
the pawner is entitled to reasonable notice before sale of the pawned goods and the provisions
are mandatory in character.
While Section 176 confers right of sale on the pledgee after issuing reasonable notice,
Section 177 confers a power to the pledgee the right to redeem before the actual sale. In the
present case the notice mentioned a specific date but the goods were sold before that day,
which is somewhat contradictory to the Section 177 as how can the goods be redeemed once
they are sold.

5
AIR 1963 Cal 132
6
AIR 1966 All 134

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Written Submissions for the Respondent

PRAYER

Wherefore in the lights of the issues raised, arguments advanced and authorities cited, it is

humbly prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that;

 The appeal should be dismissed.

And pass any other order it may deem fit the interest of justice, equity and good conscience.

All of which is humbly submitted.

Sd/
DATE: 7-12-2015 Counsel on behalf of the Respondent.

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