AIR 1963 CALCUTTA 132 ::67 Cal WN 58 ::1963 CalLJ 172

Calcutta High Court

Hon'ble Judge(s): R. S. Bachawat, C. N. Laik , JJ

(A) Contract Act (9 of 1872) , S.176— Scope - Pawnee's right to sue and right to sell are concurrent and not alternative rights. Per Division Bench : In a case where the pawnor makes default, the right of the pawnee to sue upon the debt or promise does not exclude or destroy his right to sell the pawn. The pawnee's rights to sue upon the debt or the promise or to sell the pawn are concurrent, and not alternative, rights.(Para 8) Per Bachawat J. : In a case where the pawnor makes default, the pawnee has three rights : (i) he may bring a suit against the pawnor upon the debt or promise, and (ii) he may retain the pawn as a collateral security, or (iii) he may sell it on giving the pawnor reasonable notice of the sale. The right to retain the pawn and the right to sell it are alternative and not concurrent rights. While the pawnee retains, he does not sell; and when he sells he does not retain. But the pawnee has the right to sue on the debt or the promise concurrently with his right to retain the pawn or to sell it. The retention of the pawn does not exclude this right of suit, since the pawn is a collateral security only. Nor does the sale of the pawn destroy this right; the pawnor is still liable on the original promise to pay the balance due. The sale does not give a fresh starting point of limitation for a suit to recover the....