071-NLR-NLR-V-44-PALIAMAPPAR-CHETTIAR-Appellant-and-AMARASENA-Respondent.pdf
PaUamappar Chettiar and Amarasena.
291
1943Present: Soertsz S.P.J. and Keuneman J.
PAUAMAPPAR CHETTIAR, Appellant, and AMARASENA,
Respondent.
106—D. C. Grille, 38$27.
Pawn—Action to recover amount lent—No necessity to tender pawn or pledge—
Roman-Dutch law—Pawnbrokers Ordinance (Cap. 75), ss. 3 and 4.
It is not the necessary condition of the right of a pawnee or pledgee torecover the amount lent by him that he should tender the pawn orpledge. –
A contract of pawn or pledge which comes within the provisions of thePawnbrokers Ordinance would be governed not solely by the provisionsof the Ordinance hut by those provisions to the extent to which theymodify the Roman-Dutch law.
PPEAL from a judgment of the District Judge of Galle.
H. V. Per era, K.C. (with him Ivor Misso), for plaintiff, appellant.
G. P. J. Kurukulasuriya (with him H. W. Jayewardene), for defend-ant, respondent.
Cur. adv. vult.
1 L. R. (1935) 2 K. B. D. 209 at 215 et seq.
292
SOERTSZ S.P.J.—Paliamappar Chettuir and Amarasena.
April 21, 1943. Soertsz S.P.J.—
The plaintiff, a licensed pawnbroker, says that, on July 21, 1941,
. the defendant borrowed from him Rs. 850, giving him certain articles ofjewellery in pawn, and that similarly, he borrowed Rs. 225 on August 30,1941, and on both these transactions, he seeks to recover from the defend-ant the amount stated in the plaint together with interest and costs.
The defendant’s answer to this claim is’threefold. He says :
That he pawned the articles and received the sums of moneyclaimed for and on behalf of one Suppiah ; that he delivered bothsums to Suppiah ; and that the plaintiff has, therefore, no cause ofaction against him, and should sue Suppiah. The defendant does not,however, say that he disclosed to the plaintiff or that the plaintiffknew that the defendant was acting for Suppiah.
That the plaintiff being a licensed pawnbroker is limited to suchrelief as he may be able to obtain under the provisions of the Pawn-brokers Ordinance.
That the plaintiff is not entitled to sue him “ without tendering
…. the articles in question as a condition precedent to his
recalling the amounts …. or until the alleged thief is prose-
cuted to conviction and the articles pawned are by an order of Court.• . , delivered to some claimant other than the plaintiff ”.
Regarding this last averment, it is undisputed that the articles pawnedwith the plaintiff have been taken from him by the Police and givensto the custody of the Court in connection with a charge of theft madeby one third party against another third party in respect of those articles.
The learned District Judge held with the defendant on the third pointtaken by him, and dismissed the plaintiff’s action with costs.
On appeal, only questions (b) and (c) were discussed. Question (a)was, obviously,' untenable, and so, in my opinion, is question (b), too,although it was pressed. In view of sections 3 and 4 of the Pawn-brokers Ordinance^ the provisions of that Ordinance certainly cannotapply to the transaction of July 21, 1941, which involved a sum overRs. 500. So far as the later transaction is concerned, it is within thatOrdinance, but it would be governed not solely by those provisions, butby them to the extent to which they modify the common law.
“The only question, then, left for consideration is question (c), andthat question is not dealt with by the Ordinance. The answer to itmust be sought, under the Roman-Dutch law as it commonly obtainshere. An examination of that law, as expounded by the acceptedauthorities, and of such case law as we have in our reports, leads oneclearly to the conclusion that in the absence of any special agreement,
■ for a pawnee or pledgee to sue, to recover the amount lent by him on thesecurity of a pawn or pledge, it is not a necessary condition that he shouldtender the pawn or the .pledge, in a transaction of that kind, there are,really, two contracts, one ancillary to the other. As Maasdorp says,on the authority of Voet 20.1.18
“The contract of mortgage (or pledge) is in its very nature accessoryonly, and pre-supposes the existence of some other valid principal.
293
SOERTSZ S.P.J.—Paliamappar Chettiar and Amarasena.
obligation, in security of which the mortgage (or pledge) contract isentered into and the mortgage (or pledge) itself granted, andwithout which neither of these latter can exist ” (Book 2, 2nd Ed.,p.240).
It follows from this that the pawnee or pledgee may sue on the principalcontract of loan disregarding the security he holds, for there is nothingin law to prevent a person waiving a benefit that he has. It is no answerto such a claim in the absence of a special agreement, that the pawnee orpledgee holds a pawn or pledge, in satisfaction of his claim. The pawner’sor pledger’s course of action must be to discharge his obligation on theprincipal contract, and then seek to recover what is due to him on theaccessory contract, or damages in default. He'may, of course, do thisuno ictu, tendering the money due by him and asking for the return of thething pledged or pawned, or its value, or damages. The plaintiff has nottaken that course, and his present defence fails completely.
There was much discussion in the course of the hearing of this appealin regard to the liability of the plaintiff to the defendant in view of theadmitted fact that the articles pledged or pawned have gone out of hispossession. The law appears to be that a person in the position of theplaintiff, here, would be excused if the loss of possession of ,the articlesis due to either ins major, or casus fortvxtus, or robbery or theft withouthis being to blame in that regard. Seyadoe Ibrahim v. Cogan1, Wapochiev. Martkar5, Santia Kaithan v. Assam Umma*. The plaintiff’s loss ofpossession was submitted to us as one coming under vis major. Butit is a question whether a pawnbroker who in ignorance of his right tohold even stolen property pawned with him against the owner himselftill he is paid the amount due to him (see Walter Pereira, p. 293 based onGrotius 2-3-5~6), and in ignorance of the powers of the Police as limitedby section 30 of the Pawnbrokers’ Ordinance, surrenders the pawn, isentitled to plead vis major. But that question does not arise here, for thedefendant before us seeks to repel the claim made against him with thesimple plea that he is not liable to pay or tender the money due becausethe articles pledged have not been tendered to him. That plea, as Ihave already observed, cannot succeed. The defendant’s cause ofaction on the accessory contract arises only on his paying or tenderingthe amount due.
For these reasons, I would set aside the judgment of the learned Dis-trict Judge and enter judgment for the plaintiff as prayed for with costshere and below.
KeuNEMAN J.—I agree.
Appeal allowed.
1 (7357) Lorenz's report, Pi. II., p. 114.1 {1859) Joseph'sandBeven's reports p. 31
5 3 S.C. C. 98; Burge, Vol. 3, p. 588.