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Eshoor Doss Vs. Venkatasubba Rau - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Judge
Reported in(1894)ILR17Mad480
AppellantEshoor Doss
RespondentVenkatasubba Rau
Cases ReferredThacker v. Hardy L.R.
Excerpt:
indian contract act - act ix of 1872, section 30--contracts to buy and sell government promissory notes--whether wagering contracts or not--admissibility of oral evidence to contradict the nature of a contract in writing--indian evidence act, section 92. - - 585 the first proviso of that section enacts that any fact may be proved by oral evidence which would invalidate any document or which would entitle any person to a decree or order relating thereto, and assuming that in the case before us, defendant is entitled to a decree in case he shows that the agreements which form the subject of this litigation are gaming contracts, he is clearly entitled to adduce oral evidence in proof of its averment, but not precluded from doing so by that fact not being stated in the documents themselves......muttusami ayyar, j.1. this is a regular appeal from the decree of mr. justice davies. plaintiff (appellant) is a sowcar and defendant (respondent) is a pleader of the high court, both residing at madras. on divers dates between the 24th october and the 4th november, 1891, the former agreed to buy and the latter to sell promissory notes of the government of india, 4 per cent, loan, to the extent of 41/4 lakhs of rupees at premia varying from rs. 5-4 to rs. 5-11 per cent., the promissory notes themselves being deliverable on the 30th november 1891. on the 28th november 1891, two days prior to the date fixed for delivery, defendant agreed to buy and plaintiff to purchase [sell?] a similar amount of securities of the same kind to be delivered on the same date but at a premium of 7 per cent......
Judgment:

Muttusami Ayyar, J.

1. This is a regular appeal from the decree of Mr. Justice Davies. Plaintiff (appellant) is a sowcar and defendant (respondent) is a Pleader of the High Court, both residing at Madras. On divers dates between the 24th October and the 4th November, 1891, the former agreed to buy and the latter to sell promissory notes of the Government of India, 4 per cent, loan, to the extent of 41/4 lakhs of rupees at premia varying from Rs. 5-4 to Rs. 5-11 per cent., the promissory notes themselves being deliverable on the 30th November 1891. On the 28th November 1891, two days prior to the date fixed for delivery, defendant agreed to buy and plaintiff to purchase [sell?] a similar amount of securities of the same kind to be delivered on the same date but at a premium of 7 per cent. The plaint stated that defendant broke his contract to sell and thereby became liable to pay plaintiff a compensation of Rs. 7,109-6-0, which represents the difference between the price at which he was bound to buy and the price at which he was bound to sell. Defendant denied the claim in toto though he admitted the execution of the agreements. He contended that they were only nominal transactions, that neither he nor plaintiff ever intended that there should be an actual sale or transfer of Government paper, that the real contract was only to pay the differences, and that such contract, being by way of wager on the varying prices of Government promissory notes in the market, was not actionable. Another ground of defence was that plaintiff' had agreed not to claim the difference until the expiration of six months from the date on which it became due, and consequently that the suit was premature. It was further urged by defendant that plaintiff neither tendered the price of the securities which he had agreed to buy nor the promissory notes which he had agreed to sell, and that he was not ready or willing to do either. The first four issues raised the question whether the agreements sued on were contracts of sale made bond fide in the ordinary course of business or by way of wager, and the fifth and sixth issues related to two other questions, viz., whether the suit was premature and whether the plaintiff was ready and willing to perform his part of the agreement on the 30th November 1891. The learned Judge decided the fifth issue against the defendant, and all the other issues in his favour and in the result he dismissed the suit but without costs. Hence this appeal.

2. Three questions of law arise for consideration in this appeal and on each of them the decision of the learned Judge is correct. The first is as to the burden of proof. The contracts sued upon are in form agreements to sell promissory notes of the Government of India, and there can be no doubt that it is the party who alleges that those agreements are not in substance what they purport to be, that ought to prove his case. In the absence of proof to the contrary, the presumption is that a transaction is in substance what it is in form. The second question is whether oral evidence is admissible for the purpose of showing that an agreement in writing to sell Government paper is really an agreement made by way of wager on its market price on a future day. On this point, there is a conflict of opinion, the High Court at Calcutta holding that it is not admissible whilst the High Court at Bombay holds that it is. I agree in the opinion of the learned Judge that the Calcutta decision does not give, whilst the Bombay decision gives, due effect to the provisions of Section 92 of the Indian Evidence Act; compare Juggernath Sew Bux. V. Ram Dayal I.L.R. 9 Cal. 791 with Anupchand Hemchand v. Champsi Ugerchand I.L.R. 12 Bom. 585 The first proviso of that section enacts that any fact may be proved by oral evidence which would invalidate any document or which would entitle any person to a decree or order relating thereto, and assuming that in the case before us, defendant is entitled to a decree in case he shows that the agreements which form the subject of this litigation are gaming contracts, he is clearly entitled to adduce oral evidence in proof of its averment, but not precluded from doing so by that fact not being stated in the documents themselves. The third question is as to the specific incident which distinguishes agreements by way of wager from agreements to buy or sell made in the ordinary course of business. The general rule is that when two parties agree that the one is to sell and that the other is to buy Government promissory notes at a certain premium, and that the promissory notes are to be delivered by the one and accepted by the other on a future day, whatever may be the rate of premium at which those securities may sell in the market on that date, the agreement is perfectly valid, the reciprocal promises to buy and sell being the consideration for each other. An agreement to sell or buy Government paper is a contract which the law permits in common with any other contract to sell or buy goods. To this general rule, however, Section 30 of the Indian Contract Act introduces an exception and provides that agreements by way of wager are void, and no suit shall be brought for recovering anything alleged to be won on any wager or entrusted to any person to abide the result of any game or other uncertain event on which the wager is made. If two parties bet, therefore, on the premium at which Government securities may sell in the market on a future date, and the one promises to pay certain sum of money to the other, according as the actual market price on that date is one way or the other, the transaction is not a real sale as recognized in the ordinary course of business, but a gambling on the premium at which Government securities sell in the market from time to time. Such gambling is forbidden on considerations of public policy by Section 30 of the Contract Act which enacts that no suit will lie to recover anything won on the wager. It is true that both in contracts of sale and in gaming contracts the market rate of premium on the future date is uncertain and that both may be highly speculative and risky, resulting in considerable profit to one party and loss to the other. But in the one, the actual sale or transfer of Government paper is the basis of the speculation, and in the other, it is a naked speculation, having no connection with any business which is intended to be carried on. The essential difference, then, between the two classes of transactions consists in this--that in agreements by way of wager, there is no intention at the time when they are made to sell or buy Government paper or to do more than to speculate and pay the difference. In Thacker v. Hardy L.R. 4 Q.B.D. 685 Lord Justice Cotton says that the essence of gaming and wagering consists in the agreement that one party is to win and the other party is to lose upon a future event, which at the time of the agreement is of an uncertain nature, that is to say, that if the future event turns out one way, the plaintiff is to win and if it turns out the other way, he is to lose. In Grizewood v. Blane L.R. 11 C.B. 526 the Lord Chief Justice observes: 'We ought to see what was the plaintiff's intention and what was the defendant's intention at the time of making the agreement, whether either party really meant to sell or buy and if they did not, it was a gambling transaction.' Thus, in coming to a decision as to whether the agreements which the plaintiff seeks to enforce are agreements by way of wager, we have to consider whether the real intention at the time when those agreements were made was to buy and sell Government paper.

3. The Privy Council ruled in Ham Loll Thackoorseydass v. Soojumnul Dhondmull 4 M.I.A. 346 that a wager upon the average price which opium should fetch at the next Government sale at Calcutta was not illegal or contrary to public policy, but that decision proceeded on the ground that the Statute VIII and IX Vict., c. 109, did not extend to India. But the Contract Act which came into force in this country in September 1872, altered the law as it stood in 1848 when the Judicial Committee, decided that case.

4. I now proceed to consider the evidence so far as it bears on the intention of the parties when the agreements which form the subject of this litigation were made.

5. As his first witness, defendant states that he entered into the agreements on the understanding that he was to pay only the difference in the premia, that he never considered himself to be under an obligation to deliver Government paper, and that though the sale notes E1 to E7 referred to such delivery, he knew that re-sale notes would be executed so as to cancel them at the end. He goes on to observe that he had no sufficient means to undertake to deliver Government paper fco the extent of 41/4 lakhs and that he would not have made the contracts in question if he had to deliver Government paper. He has not been cross-examined as to his means and there is no other evidence to contradict him. It appears further from Exhibit A, which is a letter of demand addressed to defendant by plaintiff's solicitors on the 30th November, which is the day fixed in the sale notes for delivery, that defendant was called upon to pay the difference but not to deliver Government paper. If defendant's evidence is reliable, as I think it is, there can be no doubt that at all events he had no intention to deliver Government paper and that the agreements were at their very inception mere contracts to pay the difference in the premia.

6. The only other witness who was present when three of the seven agreements E1 to E3 were made is the broker, Syed Meah, defendant's third witness. He deposes that though he negotiated three sales as broker, he does not know whether the agreements evidenced by E1 to E3 were intended to be only contracts to pay the difference or bond fide contracts of sale. He admits m his evidence that the majority of dealings in Government paper, as carried on in the bazaar, and without the intervention of a bank, are contracts to pay the difference only. Seeing that the plaintiff, on whose behalf the broker acted, was not present when the agreements were made and that the latter was aware that most of similar dealings in the bazaar were contracts to pay the difference, it is anything but natural or likely that Syed Meah should not have distinctly ascertained whether Government paper was really intended to be transferred. The evidence of this witness appears to me, therefore, to be evasive, and it discloses also traces of bias in favour of Raja Eshoor Doss. This is all the direct evidence bearing upon the specific agreements which form the subject of this suit.

7. But these agreements were made in the bazaar, otherwise than through a bank. There is strong evidence to show that the majority of dealings in the bazaar in Governmemt paper are only contracts to pay the difference. Defendant and his second witness, a broker, swear that all the dealings in the bazaar are of that description, whilst defendant's third witness, another broker, and plaintiff's second witness, who is a stock broker, and his third witness who often assists him in his business, depose that the majority of them are contracts to pay the difference. This circumstance raises a presumption in favour of the defendant's case.

8. The extent to which such dealings were carried on in the bazaar both by defendant and plaintiff as contrasted with their means of life renders it probable that they were mere contracts to pay the difference. Defendant states that his transactions in the bazaar amounted to 7 lakhs of rupees in September 1891, to 20 lakhs in October, and to 21 lakhs in November. His position in life is that of a vakil of the High Court who, finding his practice not sufficiently remunerative, has resorted to this form of speculation though on his own showing he has no means to deliver Government paper to the extent of 41/4 lakhs. As for the plaintiff, he states that he is worth 6 or 7 lakhs, and I am of opinion that the learned Judge is warranted in saying, after discussing his evidence and Exhibit I, that it is not probable that in one month he would venture the whole of his wealth in speculation.

9. It is a peculiar fact in the case before us that there is a re-sale note (Exhibit III), or cancelling contract as the defendant calls it, the amount and description of Government securities re-sold to defendant being the same as those originally sold by him. This is generally the case with dealings in the bazaar. Defendant says in bis evidence in connection with those dealings: 'We exchange, bought and sold notes at first and cancel them at the end with the same parties or other parties whom they nominate, paying the difference. There are 30 or 40 people so speculating and the plaintiff is one of them.' On this point defendant's second witness, Muni Subbarayulu, states that the entry about delivery of Government paper in the original sale notes is only nominal. It is a sale in the sense that the difference in the premia is to be adjusted. If the transactions take place in the bazaar, it is the difference only that is adjusted. If there is to be a real delivery of Government promissory notes, it is done through the bank, if the amount is at all considerable.

10. Considering again what took place on the 28th November, which is called the settling day, there is strong reason to think that the agreements sued on were merely contracts to pay differences. As to what took place on that day, defendant, his second and third witnesses, plaintiff and his third witness, Venkatachalla Chetty, give evidence of which the following is the effect:

About the 28th November the price of Government promissory notes was rising in the market and plaintiff and others, who had agreements from defendant to sell, attended to call on him to settle with them. Plaintiff's third witness, Venkatachalla Chetty, called on defendant to close his transaction by giving counter-contracts of purchase, and defendant, saying he was in difficulties, offered to pay 8 annas over and above his selling price. Two persons named Krishnasami Chetty and Nambooperumal Chetty agreed to those terms, but Goverdana Doss, plaintiff, and Venkatachalla Chetty insisted on full terms and went away. However, they returned again, according to the evidence, at 6 o'clock in the evening and renewed the discussion and on defendant's repeating his old terms plaintiff' went away asking Venkatachalla to settle for him on the same terms on which Goverdana Doss and Venkatachalla should settle for themselves. Rome one present then suggested that full differences should be paid and that six months' time should be given for the payment. Defendant agreed to this suggestion and Goverdana Doss accepted those terms. Venkatachala Chetty also did so on his own account and on behalf of the plaintiff. Then Goverdana Doss gave a re-sale note to defendant for 6J lakhs and took from the latter a promissory note for the difference in the premia. Then Venkatachala resold 41/4 lakhs on plaintiff's behalf and 21/4 lakhs on his own account. On the 2nd or 3rd December next Venkatachala brought to him from the plaintiff his re-sale note III and delivered it to defendant.

11. Thus, what took place on the 28th November furnishes strong ground for the opinion that no Government paper was originally intended to be sold. Otherwise it is not possible to account for not a word being said about the delivery of Government paper or about the tender of its price or for plaintiff meeting defendant two days before the date fixed for delivery. The explanation given by defendant is probably true. As it was thought that the price of Government securities might rise or fall by the 30th, each party-desired to take advantage of this element of uncertainty and adjust the difference in the best way he could to his best advantage. Nor do I see why, if a real sale was originally contemplated, a re-sale note for the amount of the original sale note should be executed in every case. Looking again to the number of persons that settled with defendant on the 28th November, and the aggregate value of Government paper on which he agreed to pay the difference, it is impossible to believe that with his limited means he could have intended a bona fide sale of Government paper or that his original intention could have remained unknown to plaintiff who systematically speculated on the difference in the premia. Passing on to plaintiff's witnesses, the first witness is plaintiff himself, He was not present when the agreements were made and his statement that they were bona fide sales of Government paper is not entitled to much weight. He does not explain why a re-sale note was executed. He admits a number of transactions of very considerable value in which he received only the difference.

12. His second witness is one Mr. Berry, a stock-broker at Madras. His evidence is that sales of Government paper in the bazaar are generally met by native dealers by payment of the differences. He appears to me to overlook the class of cases in which the original intention was only to pay differences and to assume that there is in the first instance a bond fide sale in every case. I do not desire to be understood as holding that bona fide sales of Government paper may not be adjusted by payments of the difference between the contract price and the market price on the day fixed for delivery so as to supersede the necessity for delivery of Government paper. But what I do hold is that when there is no original intention to deliver Government paper and when the contract is at its inception a contract to pay only the difference, such contract is in law a gaming contract.

13. Plaintiff's third witness is one Venkatachala Chetty, who had also a similar agreement whereby defendant engaged to sell Government paper for 21/4 lakhs to him.

14. Adverting to the transactions in Government paper in the bazaar the witness states as follows: 'I did not expect that Government promissory notes would pass from hand to hand. The profits and loss of each transaction between the selling price and the market price on the day of settlement would be compared, a balance struck and the difference paid. The practice was to buy and sell the same quantity of paper, but it did not matter from whom it was bought and sold. There was no intention at the time of purchase that Government promissory notes should be actually delivered or money paid.' He gave a re-sale note to defendant on account of his own transaction, and he states that plaintiff also gave a similar note to defendant.

15. Thus, in favour of the view that when the agreements in suit were made there was no intention to deliver Government paper, there is first defendant's evidence: there is next the fact that the broker, with whom three such agreements were made does not contradict him and swear to the contrary; and there is, again, the presumption arising from defendant's and plaintiff's means in life and from the general character of dealings in Government paper in the bazaar. There is further the cancelling contract or a re-sale of the same quantity of paper by plaintiff to defendant. There is also the statement of plaintiff's third witness that at the time of purchase there is usually no intention to deliver Government paper or to pay its price. There is further the fact that plaintiff had a large number of transactions in which differences were alone paid as shown by Exhibit I. There is again the conduct of plaintiff and other dealers with defendant on the 28th November which raises a presumption in favour of his contention.

16. In favour of the view that the agreements were bona fide sales, there is the form of the agreements and there is Raja Eshoor Doss' statement. Weakened as it is by the circumstances mentioned in the last paragraph, upon the whole evidence there is no reason to doubt that it was the defendant's intention only to pay the differences. That being so, the plaintiff was aware or not aware of such intention. If the former was the case, it was a gaming contract; if the latter, there was no consensus as to a matter which is of the essence of the contract, and therefore no valid contract. However, the broker's evasive evidence and his omission to contradict the defendant, the position of Raja Eshoor Doss as a sowcar, who is in frequent communication with brokers and dealers in the bazaar, and presumably familiar with the general character of dealings in Government paper in the bazaar, the defendant's statement that plaintiff is one of the thirty or forty in the bazaar that speculate in the manner described by him and the accession of strength which that story receives from the execution of a re-sale note, and from the difference being demanded before the due date and from conduct of the parties on the 28th November, and from the extent of dealings carried on by them as compared with their means--these circumstances lead me to the conclusion that the learned Judge was right in upholding the defendant's contention.

17. I would accordingly dismiss this appeal; with costs.

18. I would also disallow the memorandum of objections.

Best, J.

19. The suit was brought for the recovery from defendant of a sum of Rs. 7,109-6-0 (with interest thereon) as the amount due to plaintiff from defendant on account of dealings in promissory notes of the Government of India 4 per cent. loan.

20. Plaintiff's case is that he purchased from the defendant on various dates in October 1891 and on the 4th of the following month at rates varying from Rs. 105-4-0 to Rs. 105-11-0 Government promissory notes of the aggregate value of 41/4 lakhs deliverable on the 30th November 1891--and resold the whole lot to defendant on the 28th November at the rate of Rs. 107 per cent., the date of delivery being the same 30th November, and that the amount due to him (plaintiff) on account of these dealings is Rs. 7,109-6-4, which he now seeks to recover with interest at 12 per cent, per annum from 30th November 1891.

21. The defendant admitted the facts of sale and purchase of Government notes as stated in the plaint, but pleaded (1) that the transactions were of the nature of gambling, and therefore, void under Section 30 of the Contract Act; (2) that plaintiff had failed to perform, his part of the contract; (3) that the suit is premature, plaintiff having agreed to allow defendant six months' time for making the payments in question.

22. The learned Judge in the Court below found the two latter pleas to be invalid; but on the first plea he found in favour of the defendant and dismissed the suit.

23. The question for consideration is, therefore, whether the learned Judge is right in holding the agreements between plaintiff and defendant for purchase and sale of Government securities to be void as gaming transactions.

24. The law on the subject is clearly stated by Farran, J., in J.H. Tod v. Lakshmidas Purshotamdas I.L.R. 16 Bom. 441 in the following words: 'Contracts are not wagering contracts unless it be the intention of both contracting parties at the time of entering into the contracts tinder no circumstances to call for, or give delivery, from or to each other.' See also Grizewood v. Blane L.R. 11 C.B. 526 The question is, therefore, was it the intention of both plaintiff and defendant in this case at the time of making the agreements for sale by defendant to plaintiff of the Government securities that there should be no actual sale and purchase of Government promissory notes, but only payment of differences in the price of the securities on the 30th November. In this latter case the suit has been rightly dismissed, but in the former, defendant's plea under Section 30 of the Contract Act must be disallowed. This question is one of fact and no doubt the burden of proof is on the defendant.

25. Before the evidence is considered, it is necessary to dispose of the objection taken on behalf of the appellant (plaintiff) that oral evidence is inadmissible to vary or contradict the terms of the contracts which are evidenced by the bought and sold notes. Such was no doubt the ruling of the Calcutta High Court in Juggcrnauth Sew Bux v. Ram Dyal I.L.R. 9 Cal. 791 but as observed in Anupchand Hemchand v. Champsi Ugerchand I.L.R. 12 Bom. 585 the effect of proviso I to Section 92 of the Evidence Act does not appear to have been considered by the lea.rned Judges who decided the Calcutta case, relied on by the appellant. Under that proviso oral evidence is clearly admissible to prove any fact which would invalidate a document, and it is for such a purpose that the oral evidence has been tendered and admitted in the present suit.

26. I now proceed to consider the evidence. The first witness is the defendant himself. He no doubt says that the understanding with which he sold was that differences (in price) should be paid on the day of settlement, and that he himself 'would not have entered into a contract for the actual delivery of 41/4 lakhs of Government paper,' as he 'could not have done it' not having sufficient means. There is every reason to believe that this latter statement is quite true, but his intention alone is not sufficient to make the transactions one of gaming and therefore void. As already observed it is only if both parties intended at the time of entering into the agreement that there should be nothing more than payment of differences that defendant's plea will be of avail to him. Defendant admits that he 'never saw the plaintiff personally till 28th November,' i.e., the date on which took place the re-sale to defendant of all the 41/4 lakhs of Government securities that had been previously purchased by plaintiff from defendant. He says 'I don't know that plaintiff said anything to me' even then, and he admits that plaintiff 'went away without settling anything, and that it was VenkatachellaChetty (plaintiff's third witness) who re-sold to him the 41/4 lakhs on plaintiff's behalf.'

27. Venkatachella Chetty's evidence is to the effect that when he made the contract for plaintiff on the 28th November he was 'not instructed to make it specially with the defendant,' but was free to make it with any one, plaintiff' having simply directed him to sell the ii lakhs of paper in the market, without giving any special directions whatever. This witness further states that the broker, through whom the sale to defendant of the 41/4 lakhs was effected on the 28th November, was Muni Subbarayalu.

28. This Muni Subbarayalu has been examined as defendant's second witness. He merely saw plaintiff on that day, as he was coming downstairs from defendant's office, when plaintiff' told him that he objected to defendant's offer to pay 4 or 8 annas per 100 rupees. All the above witnesses speak merely to the transaction of 28th November, and not to the understanding between the parties at the time when the original purchases were made by the plaintiff.

29. The broker by whom the first three of those purchases were made is Syed Meah Sahib, who has been examined as defendant's third witness. He no doubt states that the 'majority of dealings in Government paper in the bazaar are contracts merely for the payment of differences,' but he also expressly states that he 'cannot say whether this was one of those or not,' and in cross-examination he further states that he is 'quite sure when these contracts were entered into, nothing was said about adjusting differences by counter-sales,' and that he himself 'did not know at the time whether paper was really to pass or only differences to be paid.' He has no doubt stated that a few days after the contracts, plaintiff asked him if defendant would be able to fulfil his contract. 'Whether he would pay differences, for he seemed to be dealing recklessly.' But in cross-examination he gives a more particular account of the conversation as follows: What he said was 'I hear Venkatasubba Rau (the defendant) is selling papers recklessly and I fear very much about it.' Then I said 'He is a straightforward gentleman; there will be no fear.' Then Raja (i.e., plaintiff') said 'Will he pay the differences? If so I shall buy paper from others and give delivery to others to whom I have sold paper.' ' His meaning was,' says the witness, to close the contracts with the defendant on the delivery day or it may be earlier to save trouble, and buy elsewhere to supply people to whom he had sold.'

30. This is all the evidence for the defence and I am of opinion that it is far from sufficient to prove that at the time of entering into the contracts with defendant for the purchase of the Government securities, the understanding on both sides was, that there was only to be payment of differences.

31. The fact of plaintiff having re-sold the whole of the 41/4 lakhs to defendant on the 28th November is not evidence of intention on the several dates of purchase by plaintiff. Nor is the intention on the part of defendant to pay differences sufficient to render the contract void. As appears from defendant's own evidence in the connected case (Original Suit Appeal No. 37) such was also his intention in contract for Government paper entered into by him with the Madras and Agra Banks in which contracts, he says 'my intention was only to pay differences.' He further admits that he has also entered into what he calls 'cancelling contracts' with the banks.

32. There being a mutual understanding for sale of a certain quantity of Government securities on a fixed date at a fixed price, the mere fact of an undisclosed intention on the part of defendant to pay differences only cannot invalidate the contract. As observed by Sir F. Pollock in his Principles of Contracts, fifth edition, page 5--'the law does not allow a party to show that his intention was not in truth such as he made or suffered it to appear.'

33. Plaintiff declares that he had the intention of buying and was both in the position to pay and willing to do so. He admits that he bought with the intention of selling again and making a profit. This amounts to speculation, it is true; but there is no law against speculation. As pointed out by Lindley, J., in Thacker v. Hardy L.R. 4 Q.B.D. 685 it required is England a statute, VII Geo. II. ch. 8, to prevent gambling in the public funds; and further, 'notwithstanding the strong condemnation of such gambling in the preamble, the Act itself was repealed in 1860; and even when the Act was in force, gambling in shares and foreign stocks was held not to be illegal either under the Act or at common law.'

34. I am unable to attach weight to the argument founded on the circumstances of plaintiff's dealings being equal in amount to the value of his whole estate. He is admittedly a wealthy man and there is no reason for supposing he could not have met his liabilities. Nor do I think the fact of his having resold the whole amount to defendant on the 28th November is a circumstance entitled to weight against the plaintiff. Defendant was thus afforded an opportunity of reducing his losses if the price of Government notes should rise during the next two days, and defendant himself has admitted (as observed above) that such 'cancelling contracts,' as he calls them, are allowed by respectable banks. It is true that plaintiff has admitted that if defendant had paid him the difference between selling price and the market price on the date of delivery he would have been satisfied, that this was the profit he intended to make, and that if the price of Government paper had gone down he himself should have paid the defendant the difference between the contract price and the market price; but he adds 'that was not the understanding at the time of making the contract,' and explains this last sentence of his by saying that it was only if the defendant had asked him for the difference he should have paid the difference, and that the intention was that the notes should be delivered.

35. Plaintiff's second witness, Mr. Berry, is a stock-broker, who has been concerned in the purchase and sale of Government paper for the past twelve years. He says 'there are many transactions in Government paper, in which Government paper does not change hands. On settling days either the difference is paid or the notes delivered. Native dealers in the bazaar make contracts for the actual delivery of paper, but they generally meet them by asking the purchaser to take delivery from somebody else and paying or receiving the difference or by selling back.' He further states 'there are fixed settling days once a month, generally at the end of the month, for completing transactions that have been entered into. This is done on the principle of a bank clearing house. The reason is to avoid the risk of large quantities for paper being handed about over the market. Unless there were a settling day, there would have to be a delivery on every purchase. The paper would soon get dirty and want renewal; and numerous endorsements are saved.'

36. Having carefully considered the evidence on both sides, I am unable to concur in the finding arrived at by the learned Judge in the Court below, that the understanding between both the parties was from the beginning that there should only be payment of differences.

37. As to the memorandum of objections filed on behalf of the respondent, I agree with the learned Judge in finding that defendant failed to prove the alleged agreement to allow six months' time for payment; and I also concur in, the finding that there is nothing in the objection as to want of tender by the plaintiff', as there was in fact nothing that plaintiff had to tender.

38. As to the defendant's costs in the Court below, I am of opinion that, considering the nature of the defence set up, defendant was rightly disallowed his costs.

39. I would, therefore, disallow all the respondent's objections, and give plaintiff a decree for the amount claimed by him. But as my learned colleague has come to a different conclusion, the decree of the learned Judge in the Court below must be affirmed, and this appeal dismissed under section 575 of the Code of Civil Procedure.


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