JUDGMENT

The defendant in O.S.No.219 of 2008 is the appellant.

2. The suit was filed by the plaintiff seeking a mandatory injunction directing the defendant to return the jewels described in 'A' and 'B' schedules in the suit as and when the plaintiff seeks redemption of those jewels, for a permanent injunction restraining the defendant from claiming a charge over the suit 'B' schedule jewels for any other debt and for permanent injunction restraining the defendant from forcing the plaintiff to redeem the jewels before expiry of the period of redemption.

3. According to the plaintiff, he had borrowed moneys on the security of the jewels mentioned in 'A' and 'B' schedules. The plaintiff would contend that the defendant had sent notice through E-mail and SMS requiring him to redeem all the jewels by paying interest due to all the loans since some of the jewels that were pledged by the plaintiff were found spurious or in low quality. Contending that he had pledged only pure gold jewelry and the claim that the jewels are spurious has been invented by the defendant, the plaintiff sought for those reliefs as aforesaid.

4. The defendant, which is a non-banking financial institution, resisted the suit contending that the plaintiff is a trader in jewelry and he is a regular customer and he used to pledge the jewel and redeem the same. During the course of business, the parties had developed confidence on each other and therefore, the officials of the defendant, without properly checking the quality of the jewels pledged by the plaintiff, had accepted some of the jewels and allowed the plaintiff to borrow money under security of those jewels. It was found that some of the jewels particularly 'A' schedule jewels were not of good quality and some of them are spurious. Therefore, the defendant, in order to provide an opportunity to the plaintiff to escape from consequences of criminal action, had required the plaintiff to redeem the jewels forthwith by paying principal and interest. It was also contended that a criminal complaint has been lodged against the plaintiff by the defendant, which has resulted in a First Information Report being filed against the plaintiff. The defendant would also submit that subsequent to the filing of the suit, a charge sheet has also been laid. The jewels, which are allegedly spurious, have been handed over to the criminal court and that are in the custody of the criminal court. Therefore, there cannot be a decree for mandatory injunction as prayed for.

5. At trial, the plaintiff was examined himself as P.W.1 and the jewel mortgage receipts were filed as Exs.A1 to A.26. A copy of the First Information Report was filed as Ex.A.27 and certain other proceedings were filed as Exs.A.28 to A.32. One S.Mohan was examined as D.W.1 and one A.M.Govindarajan was examined as D.W.2 and Exs.B1 to B.8 were marked.

6. Upon consideration of the evidence on record, the learned trial Judge concluded that the plaintiff cannot be blamed for pledging spurious jewels, more so, when the defendant, which is a non-banking financial institution, has not taken due care while allowing the jewels to be pledged. The learned trail Judge has also concluded that the defendant cannot shirk his responsibilities in returning the jewels by claiming that they are spurious. On the above findings, the trial Judge decreed the suit as prayed for.

7. Aggrieved, the defendant preferred an appeal in A.S.No.44 of

2011. The learned appellate Judge, on re-consideration of the evidence on record, placing reliance upon Sections 151 and 174 of the Contract Act, held that the defendant cannot take such a plea as a bailee since he is responsible for return of the property to the pledger. The lower appellate court, on the above findings and also concurring with the findings of the trial court, dismissed the appeal. Hence, this Second Appeal.

8. The following questions of law have been framed by this Court at the time of admission:

i)Whether the courts below are right in d