The burden of proof is on the pawnbroker to prove that the pledgor has paid the amount due and taken back the pledged goods.

SETHURAMAN, J.:- 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 plaintiff 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, therefore 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 not 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