1. Defendant is the appellant. He was doing forward contract business in oil at Cochin through the agency of the plaintiff. The transactions ended in a loss. For the amount found to be due to the plaintiff ou a final settlement of all accounts between himself and the plaintiff, the present suit was instituted by the plaintiff. The defendant denied his liability and put the plaintiff to the proof of his claim. Accordingly, evidence was adduced by the plaintiff. The trial court accepted such evidence and decreed the plaint claim. The appeal is against that decree.
2. Plaintiff is a dealer in oil at Mattanchery. Such dealings at Mattanchery could be conducted only by the members of the Oil Merchants' Assc-eiation, Cochin, at Mattanchery. Plaintiff is a member of this Association while the defendant is not. The defendant thereupon engaged the services of the plaintiff to conduct the trade in oil on his be-half. It follows therefore that every transaction entered into by the plaintiff was binding on the defendant as the principal. It is not disputed that the plaintiff had been authorised as defendant's agent to tarry on the purchase and sale of oil. A lump sum has also been entrusted to the plaintiff. All the same, the defendant chose to deny his liability to the plaintiff.
In the present appeal two points were urged on behalf of the defendant. The first is that th6 plaint claim arises out of a wagering contract and hence it is not enforceable in a court of law. The second point is that the defendant had no opportunity to adduce evidence about the prevailing market rates in respect of each of the several transactions. The second point has to be ruled out at the outset. There is nothing on record to show that the defendant had taken any steps to adduce evidence at any stage. In fact he did not even care to go into the witness-box. Thus he cannot claim that he was not given opportunity to adduce evidence.
3. Coming to the first point, that the transaction between these parties was in the nature of a wagering contract, it has to be pointed out that the transaction between the plaintiff and the defendantwas one between principal and agent and that the plaint claim is for re-imbursement of the amount spent by the plaintiff on behalf of the defendant. The criticism that the dealing in oil was in the nature of a wagering contract, can, if at all, apply to the dealings which the plaintiff had on behalf of the defendant. The present claim is not enforcement of any claim under such a contract. Plaintiff's claim being one for re-imbursement of the loss incurred by him on behalf of the defendant, there is no legal bar to the entertainment of such a claim, Vide Kishan Lal v. Bhanwar, AIR 1954 SC 500.
4. On the merits also the defendant's objection that the dealings in oil were in the nature of wagering contracts, must fail. Plaintiff was doing the business through his managing partner who has been examined as P.W. 2. This witness as also P.W. 1 who was the clerk working under the plaintiff, have sworn to the real nature of the transactions in the nature of actual buying and selling. The account books produced and proved in this case also substantiate their evidence. It is also seen from the confirmation slips Exts. P-5 (b) to (x) series that the defendant was acknowledging every one of these transactions by signing in the slips. Ext. D-2 is the final statement of account sent to the defendant along with Ex. D-3 letter.
These were followed by Exts. P-5 (b), P-5 (a) and P-6. Defendant did not care to send any reply to these notices. It is therefore clear that his belated contention that the transactions were in the nature of a wagering contract, is the result of an afterthought. The evidence already referred to shows that the transactions were in the nature of forward contracts. Delivery of goods was to pass under each sale and purchase. No doubt in appropriate cases there could he adjustments. But there is nothing to show that the transactions were merely in the nature of speculations on the differences in prices. Thus the lower court was right in overruling the defendant's contentions and in decreeing the suit.
5. This appeal fails and is dismissed with costs.