Judgment

B. K. MUKHERJEA, J. : This appeal is directed against a judgment and decree of an appellant bench of the Calcutta High Court dated the 12th of March 1951 reversing on appeal, the decision of a single Judge of that court passed in Suit No. 1112 of 1946.

2. The suit, out of which this appeal arises, was commenced by the Central National Bank Limited, the appellant before us, in the Original Side of the Calcutta High Court, for a declaration that the bank acquired the rights of a pledgee in respect of two blocks of shares in two companies, to wit , the Indian Iron and Steel Company Ltd., and the Steel Corporation of Bengal Ltd. and was entitled to sell the shares in enforcement of the pledge. There was a claim for recovery of possession of these shares and also for damages alleged to have been suffered by the plaintiff by reason of wrongful denial of its title by the different bank.

3. The shares, to which the dispute relates, are 800 in number and admittedly they were the property of one Radhika Mohan Bhuiya, the defendant No. 2 in the suit. Sometime in February 1946 Bhuiya agreed to sell these shares to one Dwijendra Nath Mukherjee for the price of Rs. 38,562/8/. On 14th February 1946, Bhuiyan sent these shares along with the relative transfer deeds to the defendant bank with instructions to deliver over the share certificates and the transfer deeds to the purchaser, against payment of the entire consideration money stated above.

On the 18th of February following, the defendant bank directed one of its officers, to wit Nilkrishna Paul, to see Mukherjee at his officer and hand over to him the shares after receiving form him a pay order for the sum of Rs. 38,562/8/- signed by the Punjab National Bank. In accordance with this direction, Paul went to the office of Mukherjee and saw him at this chamber at about 11 a. m. in the morning, Mukherjee asked for the shares, but Paul refused to make over the share certificates to him unless the pay order was given. Mukherjee then said that he wanted to have a look at the shares and the transfer deeds just to satisfy himself that they were all right.

After that Paul placed the shares and the transfer deeds on the table. Mukherjee examined the share certificates one after another and when he was about to leave the chamber along with the share certificates and the bank transfer deeds, Paul raised an objection and asked him not to go away without giving him the pay order. Mukherjee then said to Paul ; "I am going out to get the pay order; it is ready. You take your seat; I am coming". With these words Mukherjee went out of his chamber and did not return thereafter.

It appears that he went straight to the officer of the plaintiff bank and pledged the shares with it, taking an advance of Rs. 29,000/- in terms of an agreement which was previously arrived at between them. What happened in substance was this : Mukherjee gave a cheque for Rs. 100/- with which an account in his name opened for the first time with the plaintiff bank, and the advance of Rs. 29,000/- was given to Mukherjee by way of overdraft on this current account. Mukherjee also executed a promissory note for the said amount in favour of the plaintiff. It is the common case of the parties that Mukherjee has not been heard of since then and his present whereabouts are unknown.

Coming now to Paul, the defendant s officer, after waiting vainly for Mukherjee, he had no other alternative but to come back to his office and inform his superior officer of all that had happened. A complaint was then lodged with the police on behalf of the defendant bank. The cheque, which was given to the plaintiff by Mukherjee, was dishonoured when it was presented for payment. The plaintiff bank thereupon wrote a letter to Mukherjee demanding payment of the loan at once and threatening to seal the shares in case of default.

As no reply came from Mukjherjee, the plaintiff sold these shares through a broker named Jalan. Jalan took delivery of the shares a