1. The plaintiffs in O. S. No. 1907 of 1971, on the file of the City Civil Court, Madras, are the appellants. The first plaintiff died after filing the suit and plaintiffs 2 to 6 are his legal representatives and it is they who are the appellants herein. The first Plaintiff Pledged with the defendant, a pawn broker, valuable jewels described in the pawn ticket No. A. 6685 dated 22-3-1970, as security for a loan of Rs. 30,000 taken on that day. On 25-4-1970 the first plaintiff paid to the defendant a sum of Rs. 11,000. and the same was endorsed and acknowledged by the defendant on the pawn ticket itself. There was thus a balance of Rs. 19,000, which had to be repaid with interest at 12% per annum. The first plaintiff claimed that he approached the defendant to pay the sum of Rs. 19,000, with interest, but the defendant refused to deliver the jewels to him and to receive the amount from him. The first plaintiff, therefore, came forward with the suit for redemption of the pledged jewels on Payment of the sum of Rs. 21,090 and for a permanent injunction restraining the defendant from bringing the Pledged jewels to sale by public auction.
2. The defendant resisted the suit contending that on 17-9-1970 the first plaintiff, apart from the sum of Rs. 11,000, paid on 26-4-1970, as admitted by the first plaintiff, made a further payment of Rs. 19,000, that he issued a receipt bearing No. A. 6673 and that after the payment of the total sum of Rs. 30,000 the first plaintiff had taken back the jewels. It was also stated that the first plaintiff represented that the original pawn ticket was lost and endorsed on the duplicate about the loss of the original ticket. It was, therefore, stated that there was- no- question of the first plaintiff paying any sum of Rs. 19,000 and the defendant refusing, to receive it and that the whole proceedings were the offshoot of some other litigation between the parties.
3. On the pleadings, the following issues were raised -
1. Whether the plaintiff is entitled to redeem the jewels on payment of Rs. 19,000;
2. Whether Rs. 19,000 was paid by the plaintiff and jewels were redeemed by the plaintiff already on 17-9-1970;
3. To what relief ?
On behalf of the plaintiffs the second plaintiff gave evidence, and she being a Purdhanashin lady was examined before the Commissioner. The defendant examined himself as his sole witness Before the Commissioner the pawn ticket issued to the first plaintiff was marked as Ex. C.1. and the duplicate thereof was marked as Ex. C. 4. Ex. C. 5 is the receipt book of the defendant in which the plaintiff was alleged to have signed. These are the principal exhibits.
4. The learned Subordinate Judge considered the oral and documentary evidence and found that the plaintiffs were not entitled to redeem the jewels on payment of Rs.19,000, that they were not, therefore entitled to the return of the Jewels and that the first had paid the amount due towards the pledge and received the jewels as contended by the defendant. Consequently the suit was dismissed with costs. The unsuccessful plaintiffs have, there from filed the present appeal.
5. On behalf of the appellants, Mr. A. K. Sreeraman, the learned counsel, contended that the first plaintiff had not paid back the amount, as alleged by the defendant, and obtained the return of the jewellery and that the finding to the contrary was absolutely unjustified. He further contended that the defendant, who was expected to maintain the necessary records and books of account, had produced his books, that D. W. 1 while he gave evidence on the forenoon of 11-2-1974, undertook to produce the account books after lunch and that when he was examined after lunch he pleaded that the books had been filed before the Income-tax authorities. It was, therefore, stated that the defendant, having withheld the production of the vital records could not be taken to have proved that the first plaintiff had paid back the amount and taken return of the jewellery.
6. For the respondent, Mr. Srivatsamani, the learned counsel contended that on the basis of the exhibits the court below had rightly drawn an inference that the amount was paid by the first plaintiff and that the jewels were returned to him and that, therefore, the present suit was not maintainable.
7. During the course of the arguments we called upon the respondent to produce the account books, and time was granted for that purpose. He has now produced a book called the pledge book marked as Ex. B. 3. No oral evidence was found necessary to be examined in this case for the purpose of receiving Ex. B. 3 in evidence, as it was admitted by the learned counsel for the appellants that this book could be taken to have been maintained in the usual course of business.
8. Therefore, the first question that requires to be examined is whether the amount due under the pledge had already been paid by the first plaintiff during his lifetime and the relevant jewellery had been returned to him. On this aspect, while in the written statement it was stated that a sum of Rs.19,000 was paid by the first plaintiff an 17-9-1970 in the reply to the suit notice issued by the defendant through his advocate it was stated that the sum of Rs. 19,000 was paid on 7-8-1970 and that there was a receipt under receipt No. A. 6673 for having received the said sum. Thus, even as regards the date on which the first plaintiff was said to have paid the amount, there is a discrepancy between the replies to the suit notice marked as Ex A.1 and the written statement. In Ex C. 5 (a), which is the counterfoil of the receipt No. A. 6673 dated 7-8-1970, there is a mention of receipt of a sum of its. 19,760 and not merely Rs. 19,000 as alleged in the reply notice and in the written statement though under different dates. In the pawn ticket issued to each and every pawner, there is a statement at the back in printed Tamil words running as follows-
(Matter in Tamil omitted. Ed.)
This part of the counterfoil has been marked as Ex. C. 4 (c). It is after these words, there is a purported signature of the first plaintiff marked as Ex. C. 4 (c). The signature of the first plaintiff is disputed. If really there was any representation that the pawn ticket was lost and if there was a payment on another date, one would have expected the endorsement containing the date as well its the additional payment to discharged the amount due under the transaction an the ticket counterfoil itself. There is absolutely no date under the purported signature. While there is an endorsement for the receipt of Rs. 11,000 on 26-4-1970, there is absolutely no endorsement on the duplicate in Ex. C. 4 as regards the alleged payment of Rs. 19,000. It is not clear from Ex. C. 4 Itself whether any amount was paid subsequent to the initial admitted payment of Rs. 11,000.
9. It is in this context that we have to scrutinize the entries in Ex B . 3. Column. 1 of Ex B. 3 give the number of the pledge as 6685 in the present cam there is no dispute about it. The name and address of the pawner is given in column 2 and the date of loan, the amount of principal loan and the rate of interest are all given in columns 2 to
5. Running across columns 3 to 6 there is a narration of the payment of Rs. 11,000 on 26-4-1970. It is below that narration there is recording of a receipt of Rs. 19,760. There is an erasure in the entry and there is also a correction even in the entry made after the erasure. There is no mention of any date in columns 2 to 5, as regards the receipt of Rs. 19,760. This is in contrast to the recording of the receipt of Rs. 11,000 where the date is given as 26-4-1970. In the entry relating to the receipt of Rs. 11,000, there is a narration of interest for one month having been paid while in respect of the sum of Rs. 19,760, there is no such narration. In column 7 there is a description of the articles pledged and in column 8 their value. Column 9 sets out the time for repayment as 12 months and in column 10 the date of repayment is shown as 7-8-1970. Even here, there is a correction and overwriting. Thus, Ex B-3 itself contains internal evidence of the entry therein not having been recorded in the normal course.
10. When these unusual and suspicious features were brought to the notice of the learned counsel for the respondent, he had no explanation to offer except to state that these entries have been made in the normal course of business. We are unable to agree with him, In view of the difference in the version as regards the date or which the pleaded jewels are said to have been, redeemed and the suspicious features in Ex. B-3 and C-4, it is difficult to accept the claim of the respondent that the amount was actually paid on 7-8-1970.
11. Section 10 of the Tamil Nadu Pawn Brokers Act 1943 provides for the Pawnbroker keeping a pledge book and other records as specified therein. It is true that Ex. B-3 is a register maintained as required by Sec. 10 read with R. 7 and Form E. However, it is difficult to believe that the defendant, who is carrying on business on such a large-scale as shown by Ex. C-4, relating to the present case, did not maintain a cashbook and a ledger. However, it is unnecessary to pursue this point in the light of the suspicious nature of the entries in Ex. B-3, statutorily required to be maintained by the defendant. Though there is oral evidence of D. W. 1, to the effect that the amount due under the pledge had been Paid and the jewels returned to the party, we are unable to accept the oral evidence. There is absolutely no evidence to show that this book was ever produced before the Income-tax authorities as stated by D. W. 1 in the witness box. If it had been produced there would be the seal of the income-tax department on it. There is none. It would be unsafe to act on the evidence of a person, who is so unreliable as the defendant here. There is no other independent and disinterested evidence to show that the amount due was paid either on 7-8-1970 or on 17-9-1970. It has, therefore, to follow that the suit filed by the plaintiffs has to be decreed.
12. In the event of the Jewels not belong available for return the question that arises is as to what is the amount that has to be decreed, The learned counsel for the respondent submitted that the Jewels had been shown as being of the value of Rs. 38,000 in Ex. C-4 and that the first plaintiff would only be entitled to that amount subject to any adjustment of the amount due to the defendant. It is in this connection that a decision of the Supreme Court in Dhian Singh Sobha Singh v. Union of India, , has been cited by Mr. Sreeraman, the learned counsel for the appellants. That was a case in which two trucks had been hired by the Union of India. After the agreement was terminated, the owner of the vehicles was intimated that he could remove the trucks. However, when the owner went for getting the return, the trucks were not delivered to him, nor were the hire charges paid. He therefore, came forward with a suit. But the question relevant for our purpose debated in that can was as to the value of the vehicles, which had not been returned by the Union of India. In that case while in the suit notice the owner had claimed only a sum of Rs. 3500, as the price of the two trucks, in the suit that was filed, he valued the trucks at Rs. 14,000. The question was whether he was entitled to the higher value claimed by him. In paragraph 50, their Lordships observed as follows-
"It follows from the above suit the position in law in regard to measure of damages in an action for wrongful conversion is far from clear and the law in regard to the same cannot be said to be perfectly well settled. Whatever the position in regard to the same in actions for wrongful conversion, one thing is quite clear that in actions for wrongful detention the measure of damages can only be the value of the goods as at the date of the verdict or judgment. The tort is complete the moment the goods are wrongfully converted by the defendant and no question can arise in these cases of any continuing wrong. In a case of wrongful detention, however, the cause of action may certainly arise the moment there is a refusal by the defendant to redeliver the goods on demand made by the plaintiff in that behalf. But even though the cause of action thus arises on a refusal to redeliver the said goods to the plaintiff the wrongful detention of the goods is a continuing wrong and the wrongful detention continues right up to the time when the defendant redelivers the goods either of his own volition or under compulsion of a decree of the Court. There is moreover, this distinction between actions for wrongful conversion and those for wrongfu1 attention that in the former the plaintiff abandons his title to the goods and claims damages from the defendant on the basis that the goods have been wrongfully converted by the defendant either to his own use or have been wrongfully dealt with by him. In the latter case, however, the plaintiff asserts his title to the goods all the time and sues the defendant for specific delivery of the chattel or for redelivery of the goods bailed to him on the basis that he has a title in these goods. The claim for the redelivery of the goods by the defendant to him is based on his title in these goods not only at the time when the action is filed but right up to the period when the defendant to him redelivers the same. The wrongful detention thus being a tort which continues all the time until the redelivery of the goods by the defendant to the plaintiff, the only verdict or judgment which the court can give in actions for wrongful detention is that the defendant do deliver to the plaintiff the goods thus wrongfully detained by him or pay in the alternative the value thereof which can only be ascertained as on the date of the verdict or Judgment in favour of the plaintiff." (Emphasis, added) (Not found in certified copy -Ed.)
13. Again, in paragraph 52, their Lordships observed as follows-
"It is therefore, clear that in actions for wrongful detention the plaintiff is entitled on default of the defendant in redelivering the goods to him, to payment in the alternative of the value of the goods thus wrongfully detained as at the date of the verdict or judgment, in other words, at the date of the decree. We are, therefore, of opinion that the appellants were entitled to recover from the respondent the value of the said trucks which, as has been already stated, was Rs. 7,000 in the alternative on default committed by the respondent in redelivery of the same to the appellants."
14. Thus, it is the date of the judgment or decree that would be the relevant date. In the present case the decree was passed on 27-2-1974 and the plaintiffs would be entitled to the value of the jewellery as on that date. In case any question of court fees arises, the plaintiff would have to pay the same on the value of the goods as on the date of the decree.
15. The learned counsel for the appellants stated that the value has, to be ascertained as on the present date. In other words, he contended that the. Date of decree would be the date of decree passed by us in the appeal. The delay in the disposal of the appeal not being due to the fault of either of the parties, the present value cannot be taken. In the case before the Supreme Court the trial court passed a decree on 7-7-1944, the High Court disposed of the appeal on 7-4-1948 and the Supreme Court on 29-10-1957. It is the valuation as, on the date of the decree of the trial court that was adopted in that case and the same basis should follow here.
16. The result is that the appeal is allowed with costs.
17. This matter has been posted before us for being spoken to after hearing the learned counsel for the appellant, we are of the view that there is no necessity to modify the direction regarding the valuation of the jewels.
18. Appeal allowed.