Burden lies on the power broker to prove.

The defendant is the appellant. The suit was filed by the respondent/plaintiff for a direction to the defendant to return the gold chain weighing 65 grams by receiving the sum of Rs.833/- due to the defendant in respect of the pledge of the said jewel and borrowing of a sum of Rs.700/- on 27.8.1966. There is no dispute that the said chain, weighing 65 grams, was pledged with the defendant for the borrowing of a sum of Rs.700/-. The defence was that the plaintiff's right to redeem the pledged article had been lost long ago and the defendant had sold the articles. Both the courts below have concurrently held that the defendant had not proved the sale of the pledged article as per the provisions of the Tamil Nadu Pawn Brokers Act, 1943 (hereinafter referred to as the Act) and that therefore, the plaintiff is entitled to the decree as prayed for. In this Second Appeal, a preliminary objection was taken by the learned counsel for the respondent/plaintiff on the maintainability of the second appeal, in view of the provisions of section 102 of the Code of Civil Procedure, which I will deal with later on.

2. Learned Counsel for the appellant in this case contended that under the provisions of the Act and the Rules framed thereunder, and in particular section 11 (2) and the procedure prescribed for auction, the burden is on the plaintiff to prove that the article is not sold, if he wants to seek redemption under the provisions of section 11 (2) of the Act. section 11 of the Act reads thus:

“11(1) Every pledge shall be redeemable within one year from the date of pawning, exclusive of that day; and there shall be added to that year of redemption seven days of grace within which every pledge shall continue to be redeemable.

(2). A pledge shall further continue to be redeemable until it is disposed of as provided in this Act, although the period of redemption and days of grace have expired.”

(Explanation omitted)

It may be seen from this provision, which deals with the rights of both the pawner and the pawnbroker, that in so far as the pawner is concerned, he is entitled to redeem the pledged articles by payment of the amount at any time until the pawned articles are disposed of, as provided for in the Act. So far as the pawn-broker is concerned, he is not entitled to dispose of the pledged articles for a period of one year and seven days and thereafter an option is vested on the pawn-broker either to have the article disposed of and recover the amount lent or wait till the article is redeemed. This is the effect of section 11. Clause (1) of section 11, by providing that every pledge shall be redeemable within one year from the date of pawning and seven grace days thereafter, a restriction is put on the pawn-broker selling the property and realising the amount before that period of one year and seven days. The right under clause (1) of section 11 vested in the pawner, is in no way different from the one, which is made under clause (2) of section 11. Both the rights are, a right to redeem only the articles which are not disposed of. It is put in the negative form in section 11 (1), restricting the right of the pawn-broker in respect of the disposal of the article and recovering the amount lent on the pledge. In these circumstances, therefore, there could be no doubt that the burden of proving that the articles had been disposed of is on the pawn-broker because it is not as if the pawn-broker was obliged to sell as soon as the period of one year and seven days is over. An option is vested in him to dispose it of or ‘wait for the redemption. Therefore, the pawn-broker will have to establish that he had exercised his option and disposed it of. Even otherwise, proving the negative of nondisposal of the article, cannot be said to rest on the plaintiff even under the provisions of the Evidence Act. The burden is therefore on the defendant to prove that he had exercised his option and disposed of the said article and therefore, the plaintiff