JUDGMENT : SANKAR ACHARYYA, J. 1. Same defendant/appellant has preferred these two appeals against two separate judgements dated March 19, 2015 read with orders of correction passed on 7th April, 2015 by learned Single Judge of this High Court and the decrees drawn up and signed in C.S. 113 of 2002, which was filed by plaintiff Rani Leasing and Finance Limited and in C.S. 114 of 2002, which was filed by plaintiff NPR Finance Limited. These two appeals were heard together and for the sake of convenience and brevity taken up together for disposal by this single judgement. 2. Plaintiffs in both the suits alleged commercial transactions between the parties and prayed for recovery of money with interest against defendant. 3. There is no dispute that plaintiff of C.S. 113 of 2002 advanced loan of Rs.1,10,00,000/- to the defendant/appellant against his pledging 10,400 shares of HFCL and plaintiff of C.S. 114 of 2002 advanced loan of Rs.6,25,00,000/- to the defendant/appellant against his pledging 61,500 shares of HFCL. It is also not disputed that appellant paid Rs. 2,00,00,000/- and interest up to March 2001 to the plaintiff of C.S. 114 of 2002. The defendant/appellant paid interest up to March 2001 to the plaintiff of C.S. 113 of 2002. Admittedly, value of shares of HFCL was diminishing. 4. Plaintiffs claimed in both the suits that the defendant/appellant was requested by plaintiffs of each suit to pledge further shares of adequate value against the loan but defendant failed to do so. Further claim of the plaintiffs in each suit is that after giving notice dated 14th January, 2002, plaintiff of C.S. 113 of 2002 recovered Rs.8,55,400/- only by selling the pledged shares and plaintiff of C.S. 114 of 2002 recovered Rs.50,84,413/- only by selling the pledged shares. After adjustment of such sale proceeds in C.S. 113 of 2002 there was outstanding dues of Rs.1,19,00,456/- including interest calculated up to 19th February, 2002 and in C.S. 114 of 2002 there was outstanding dues of Rs.4,37,24,227/- including interest calculated up to 27th January, 2002. Both the said amounts with further accrued interest are payable by defendant/appellant to plaintiffs/ respondents. 5. The defendant/appellant has not disputed the amounts paid by him as stated in the plaints of the two suits and has not claimed payment of any further amount by him against the two loan transactions. Both the said amounts with further accrued interest are payable by defendant/appellant to plaintiffs/ respondents. 5. The defendant/appellant has not disputed the amounts paid by him as stated in the plaints of the two suits and has not claimed payment of any further amount by him against the two loan transactions. Specific case of the defendant in substance in the suits is that the plaintiffs offered money for investment to defendant as loan against security of shares through one Gobind Prasad Kedia @ G.P. Kedia, a broker to which the defendant agreed and took loan of Rs.6,25,00,000/- from NPR Finance Limited and Rs.1,10,00,000/- from Rani Leasing and Finance Limited pledging shares of matching value to secure the loan. Further case of the defendant is that he sent letter dated 7.2.2001 to Rani Leasing and Finance Limited and letter dated 14.2.2001 to NPR Finance Limited through said G.P Kedia requesting to sell 10,400 shares and 61,500 shares respectively to realise the outstanding dues intimating that defendant would not be liable for any loss by reason of plaintiffs’ holding on the shares any longer. Despite receipt of said letters by G.P Kedia on behalf of plaintiffs, the shares were not sold by said two companies. G.P. Kedia informed the defendant on 8.2.2001 that Rani Leasing and Finance Limited credited a sum of Rs.1,00,722,400/- (perhaps, the amount would be 10722400/-) was credited to the account of defendant when the value of each share of HFCL was Rs.1031/- and the said amount was adjusted and liquidated against principal loan. NPR Finance Limited insisted the defendant on 1.3.2001 for payment of Rs.2,00,00,000/- so that the pledged shares and said payment would fully match the loan amount and accordingly defendant paid that amount to said plaintiff of C.S. 114 of 2002 and the loan account was fully squared up taking into value of 61,500 shares of HFCL at the rate of Rs.682.30 p. per share apart from the dues on account of interest. Defendant also paid Rs.8,23,562/- on 5th March, 2001 and Rs.6,50,000/- on 20th April, 2001. Simultaneously, defendant/appellant has claimed that after such transactions it was found that a sum of Rs.1,11,450/- was payable by NPR Finance Limited to the defendant/appellant after squaring up the principal and interest. Defendant also paid Rs.8,23,562/- on 5th March, 2001 and Rs.6,50,000/- on 20th April, 2001. Simultaneously, defendant/appellant has claimed that after such transactions it was found that a sum of Rs.1,11,450/- was payable by NPR Finance Limited to the defendant/appellant after squaring up the principal and interest. Since the defendant/appellant owed Rs.1,09,600/- to Rani Leasing and Finance Limited which is a sister concern of NPR Finance Limited, the defendant/appellant agreed to set off the said amount of Rs.1,11,450/- against his said dues of Rs.1,09,600/- without insisting for refund of balance amount of Rs.1850/-. Service of notice by plaintiffs, as claimed in both the suits, has been denied. It has been claimed by defendant/appellant that the plaintiffs in both the suits, is responsible for the consequence of not selling the shares after intimation given by letter of defendant/appellant through G.P. Kedia for selling the shares. Denying any liability the defendant/appellant has prayed for dismissal of the suits. 6. Learned Single Judge disbelieved any intervention of G.P. Kedia in the transaction between the parties in both the suits. Both the suits have been decreed in favour of plaintiffs in the impugned judgements. 7. Having gone through the pleadings we are convinced that on the question of facts, if it is proved that Gobind Prasad Kedia @ G.P. Kedia intervened as broker in the loan transactions between plaintiffs and defendant, only then the defence case may have any substance against plaint case. 8. Undisputedly, plaintiffs in both the suits is a financial company and it deals in advancing loan against security including pledge of shares and defendant as stock broker deals in shares. According to defendant’s plea, Gobind Prasad Kedia is a broker and he had several transactions with defendant where he was the mediator in loan transactions of both the suits. It is the burden of defendant to conclusively prove that plea. However, Gobind Prasad Kedia was not called by defendant as a witness. No evidence was adduced to prove as to whether said G.P. Kedia is alive or not. Shockingly, in C.S. 113 of 2002, a question was put to defendant’s witness Mr. It is the burden of defendant to conclusively prove that plea. However, Gobind Prasad Kedia was not called by defendant as a witness. No evidence was adduced to prove as to whether said G.P. Kedia is alive or not. Shockingly, in C.S. 113 of 2002, a question was put to defendant’s witness Mr. Pawan Kumar Haralalka during his Examination-in-Chief going beyond record that “It is alleged by the plaintiff (emphasis supplied by us) that Sanjay Kedia approached one Gobind Kedia for getting loan of Rs.1.10 crore?” This question implies that there is such averment in plaint and that Gobind Kedia is known to plaintiffs. But the plaint does not contain any name of Gobind Kedia within its four corners and facing several questions (question no. 117, 159, 160, 161, 162 etc) from the side of defendant, the plaintiffs’ witness Mr. Ashok Kumar Shah in that suit emphatically denied identity of Mr. Gobind Kedia. Thus, the manner of putting question no. 11 to Mr. Pawan Kumar Haralalka appears to us as improper. Similarly, during cross-examination of Mr. Ashok Kumar Shah, the question no. 117 was put as, “Do you know Mr. Gobind Kedia one of the broker through whom you found out the credential of the plaintiff?”. In our view, it was a complex question with more than one question contained in it. It was put as a simple question for answer, which is not proper. In that question, there were questions like whether the witness knew Gobind Kedia. Whether Gobind Kedia was a broker or not. Whether the witness found out the credentials of the plaintiffs through Gobind Kedia or not. That question is a misleading question also because before facing question no. 117, the said witness never stated that he found out credential of the plaintiffs through Gobind Kedia. In the Evidence Act there is ample scope of putting leading questions during cross-examination to a witness but there is no scope of putting any misleading question. Although the defendant has pleaded that there were several transactions between defendant and Mr. Gobind Kedia, but surprisingly, the defendant did not bring any paper to prove that there was any other transaction between them, except the disputed transactions of the two suits. Defendant’s witness has also not proved any document relating any such other transaction between defendant and Mr. Gobind Kedia. Gobind Kedia, but surprisingly, the defendant did not bring any paper to prove that there was any other transaction between them, except the disputed transactions of the two suits. Defendant’s witness has also not proved any document relating any such other transaction between defendant and Mr. Gobind Kedia. Defendant has claimed that he served two letters upon plaintiffs through Gobind Kedia who received the letters putting his signature. Without producing Gobind Kedia, the defendant tried to prove such service of letters examining his witness Pawan Kumar Haralalka. During cross-examination of that witness (Pawan Kumar Haralalka), plaintiffs claimed that Gobind Kedia is an imaginary person of defendant. Firstly, the totality of deposition of said witness of defendant appears to us as not at all convincing relating to existence of any person as Gobind Kedia. That apart, for proving signatures of Gobind Kedia without producing him in witness box tantamounts to withholding of material evidence by defendant, which draws adverse presumption against defendant under section 114 (illustration- g) of the Evidence Act. More so, the oral testimony of the defendant’s witness appears to us ‘hearsay’. Be it noted that without assigning plausible reason, the defendant kept himself away from witness box during trial. Said circumstances prove that the defendant hopelessly failed to prove existence of any person named Gobind Kedia and also failed to prove the plea of service of any letter on plaintiffs giving instruction to sell the pledged shares. Without going on to discuss further details on evidence, we believe that when, admittedly, the defendant deals in shares of crores of money in stock market, he is ordinarily a prudent person and had there been any existence of a broker in the market known as Gobind Kedia and had there been several business transactions of defendant with plaintiffs and others, the defendant would certainly record at least the contact address/telephone number of such person before entering into any transaction involving huge amounts of money. During trial of the suit, nothing has come out from the defendant to explain as to why Gobind Kedia could not be brought to the Court for examination as a witness of defendant. Considering the above aspects, we find and hold that defendant’s plea connecting Gobind Kedia in the transactions between plaintiffs and defendant is not only ‘not proved’ but ‘disproved’ as per Evidence Act. Considering the above aspects, we find and hold that defendant’s plea connecting Gobind Kedia in the transactions between plaintiffs and defendant is not only ‘not proved’ but ‘disproved’ as per Evidence Act. The conduct of the defendant also does not appear to us either fair or transparent. 9. In the eye of law, it is the burden of plaintiffs to prove its case to get a decree in a civil suit on the strength of its own and not on defendant’s failure to prove his case. It is also the law that admitted facts need not be proved. In both the suits under our consideration in these appeals, admitted facts are that plaintiffs in each suit is a non-banking financial company and defendant is a stock broker and a dealer in trading of shares. In each suit, defendant took loan (amount is not disputed) pledging shares (number of shares is admitted) of HFCL as security of loan. After such pledge, value of shares of HFCL diminished in the market and their value was lost substantially. The defendant paid interest to both the plaintiffs companies at the agreed rate up to March, 2001. He also paid Rs.2,00,00,000/- to NPR Finance Limited against loan amount. Before filing the suits, plaintiffs sold the pledged shares through Calcutta Stock Exchange. Said facts need no proof from the side of plaintiffs. 10. Service of notice upon defendant by plaintiffs demanding payment of outstanding loan and interest through Speed Post with intimation that in case of defendant’s failure to pay the same, the pledged shares would be sold out and legal action against him would be taken for the balance claim. Plaintiffs claim that said notice was sent to defendant through Speed Post in defendant’s residence and place of business simultaneously but defendant deliberately did not receive the same. Plaintiffs has(have) proved the returned envelopes and the address of defendant on those envelopes has been proved to have been correctly written as per evidence of plaintiffs’ witness as well as defendant’s witness. We are satisfied about plaintiffs’ discharge of the burden of proving such service of notice upon defendant before selling the pledged shares and recovery of sale proceeds, which is far below the outstanding dues. Balance amount has been claimed in the suits. As such, we are satisfied about plaintiffs’ proving the facts alleged in the plaints. 11. We are satisfied about plaintiffs’ discharge of the burden of proving such service of notice upon defendant before selling the pledged shares and recovery of sale proceeds, which is far below the outstanding dues. Balance amount has been claimed in the suits. As such, we are satisfied about plaintiffs’ proving the facts alleged in the plaints. 11. Having gone through the pleadings and evidence we find nothing to differ with the findings of facts made in the impugned judgement. Therefore, on facts, the appellant in both the appeals is not successful to convince this Court of Appeal. We accept the arguments advanced by learned counsel for the plaintiffs/respondents. 12. We have already disbelieved the defence plea that defendant/appellant sent or served any letter upon the plaintiffs asking for sell of the pledged shares. 13. Learned senior counsel for the appellant has argued that the plaintiffs ought to have sold the shares as a prudent person as the plaintiffs had an obligation to mitigate their own loss. In support of his arguments he has referred to the provisions of sections 73, 176 and 177 of the Contract Act and has relied upon some judicial pronouncements which were also cited before the Trial Court. He has cited another judgement before us in Vimal Chandra Grover Vs. Bank of India reported in 2000 (5) SCC 122 . 14. Learned senior counsel for the plaintiffs/respondents has argued that the concept of mitigation is applicable to a claim for damages, which under our Indian law is under sections 73 and 74 of the Indian Contract Act, 1872 and is totally separate from the statutory right of sale of a pledge under section 176 of the Indian Contract Act, 1872. He has distinguished this case from the facts of the judgements cited by the learned senior counsel for the defendant/appellant. He has also cited the same judgements which were cited before the Trial Court. 15. In the impugned judgement delivered in C.S. 113 of 2002, the provisions of law referred to and the citations relied by learned counsel for both the parties have been discussed. At the time of hearing this appeal, nothing could be brought to our notice to establish that the learned Single Judge made any erroneous finding on points of law argued before the First Court. 16. At the time of hearing this appeal, nothing could be brought to our notice to establish that the learned Single Judge made any erroneous finding on points of law argued before the First Court. 16. However, it is required to be considered by us as to whether it was the obligation of plaintiffs/respondents to sell the pledged shares before the actual selling of the same in order to mitigate the loan taken by defendant/appellant although the defendant/appellant took no steps for selling those shares earlier, when admittedly, the value of the shares was diminishing day by day ever since the day of pledging. 17. The law of the land is required to be looked into for consideration in the above fact scenario. The decisions cited before us on behalf of both the parties do not relate to such a fact scenario. Here, the appellant has claimed that had the plaintiffs/respondents, being prudent business companies, sold the pledged shares, such a loss would not occur. Was it the legal obligation of the plaintiffs/respondents only to prevent loss? 18. It is to be noticed that share dealings are done by persons concerned in a fluctuating and volatile market where rise or fall in price of shares occur in days/hours/minutes. We believe that plaintiffs and defendant are prudent persons in share business. In the two suits, it appears from the plaint schedules and the averments of defendant/appellant made in written statements that soon after payment of loan by plaintiffs to defendant for certain amount of money as loan, a certain number of shares of HFCL were pledged by defendant with the plaintiffs as security. Within a few days thereafter, the defendant had to pledge some more share against the same amount of loan taken by him earlier in order to square up the loan, only because the value of each share had fallen in the market. In such a scenario, the defendant again took loan from plaintiffs pledging shares of HFCL as security and again after few days, pledged more shares with plaintiffs in order to square up the loan amount, due to diminishing of the value of HFCL shares in the market. In such a scenario, the defendant again took loan from plaintiffs pledging shares of HFCL as security and again after few days, pledged more shares with plaintiffs in order to square up the loan amount, due to diminishing of the value of HFCL shares in the market. In such a scenario, the defendant might have sold the shares of HFCL instead of pledging the shares of HFCL in order to protect himself from his loss – occasioned day to day – but he did not do so exercising his business prudence. Now he claims that exercising prudence, the pledged shares of HFCL ought to have been sold earlier by plaintiffs in the market to avoid further loss. 19. Section 172 of the Indian Contract Act defines ‘pledge’, ‘pawnor’, ‘pawnee’ as – “The bailment of goods as security for payment of a debt or performance of a promise is called ‘pledge’. The bailor is in this case called the ‘pawnor’. The bailee is called ‘pawnee’.” 20. In the two suits under consideration, the pawnor is the defendant/appellant, pawnee is the plaintiffs and the shares of HFCL given by pawnor to the pawnee as security are the pledged goods. 21. Section 173 of the Indian Contract Act does not provide ownership of the pledged goods with the pawnee but he may retain such goods as security for the loan, interest and incidental expenditure, if any borne by him. When pawnor makes default in payment of the debt, section 176 of the Act gives right to the pawnee to bring suit for retaining the pledged good as collateral security with alternative options to sell the pledged goods after giving reasonable notice of the sale to the pawnor and in case of the sale proceeds received by him is found less than the amount due the pawnor remains liable to pay the balance. For nonpayment of such balance dues by pawnor to the pawnee, the pawnee is entitled to recover the same through process of law which course has been adopted in both the suits by plaintiffs. We find no wrong in such process according to the proved facts and circumstances of the suits. 22. In the two suits under our consideration, it has been sufficiently proved that the defendant, as a pawnor, has breached the contract by his failure to pay the debt with interest to the plaintiffs. We find no wrong in such process according to the proved facts and circumstances of the suits. 22. In the two suits under our consideration, it has been sufficiently proved that the defendant, as a pawnor, has breached the contract by his failure to pay the debt with interest to the plaintiffs. As such, he is liable to compensate the plaintiffs under section 73 of the Indian Contract Act. In the two suits, the plaintiffs not claim any remote or indirect loss or damage as compensation. As such, said section does not provide any protection to the defendant/appellant. Therefore, it is lawful for the plaintiffs/respondents to sue against the defendant/appellant for recovery of balance dues after selling the pledged shares of HFCL upon giving reasonable notice to defendant/appellant, which course has been adopted by plaintiff companies. 23. The case discussed in Vimal Chandra Grover Vs. Bank of India (supra) is not even remotely similar to the case under our consideration. In the reported case, there was instruction from pawnor to the pawnee to deliver the pledged shares for sale, but due to the fault of pawnee, the shares were not delivered as instructed in time for which the price of shares fell and shares could not be sold at the price indicated by pawnor. In such a fact scenario, the pawnee had to compensate the pawnor. In the two suits, there was no instruction from the pawnor to pawnee for sell of pledged shares and there is no suit or counter-claim of pawnor against pawnee. In our considered opinion, the said reported judgement of the Supreme Court does not fortify the stand of the defendant/appellant in these appeals. 24. The other reported judgements which have been cited before us were also cited before the Trial Court and the said judgements have been rightly discussed by the learned Single Judge in the impugned judgement of C.S. 113 of 2002. 25. Having considered the facts, circumstances, evidence on record and also the relevant law on the subject, we are satisfied to hold and therefore, we hold that both the appeals are devoid of merit and liable to be dismissed with costs. 26. As a result, both the appeals are dismissed with cost of Rs.30,000/- payable by appellant to respondent in each of the appeal. 26. As a result, both the appeals are dismissed with cost of Rs.30,000/- payable by appellant to respondent in each of the appeal. The impugned judgements dated 19th March, 2015 and decrees passed in C.S. 113 of 2002 and C.S. 114 of 2002 are hereby affirmed. 27. Urgent photostat certified copy of this judgement and order, if applied for, be supplied to the parties on priority basis upon compliance with all requisite formalities. I agree with the conclusion, BISWANATH SOMADDER, J. Later : Prayer for stay of operation of the order is made after the judgement is pronounced. Such prayer is considered and refused.