1. This is a second appeal by the defendant in suit for recovery of money on certain commercial transactions.

2. The respondent in this case is a firm known as Gulab Chand Poonam Chand carrying on business at Balotra. A suit was filed by the said firm against the appellant Poonam Chand, son of Lala of Gada and another person, Poonam Chand, son of Birda of Dipalpura, for recovery of Rs. 2385/- on the allegation that Poonam Chand, son of Lala, by his agent defendant No. 2 carried on business of purchase and sale of yarn through the plaintiff firm, and incurred losses, and that Rs. 2031/14/6 remained outstanding after receiving certain payments. The plaintiff added Rs. 353/1/6 as interest, and claimed Rs. 2385/-. The two defendants filed a joint written statement, in which defendant No. 1 agreed to have carried on business by defendant No. 2 through the agency of the plaintiff firm, but objections were raised to the correctness of the demand on various grounds, the following being relevant for the purpose of this appeal:—

(1) That the defendant did not authorise the sale of ten bales on Magh Bud 11, Samwat 1999, at Rs. 9/12/3, 15 bales on Magh Bud 12, at 9/15/41/2,

(2) That he did not authorise the plaintiff to purchase 75 bales of yarn on Phalgun Sud 15, Samwat 1999, to cover the aforesaid sale of 50 bales, as also to cover another transaction of 25 bales at 11/12/3,

(3) That the sum of Dalali and Dharmada amounting to Rs. 41/14/- was improper,

(4) That debit of Rs. 22/10/3 for telegram charges had not been proved,

(5) That interest was not contracted for,

(6) That the suit was bad for non-joinder, as one Nathmal was not made a party to the suit, and

(7) That the transactions were of a wagering nature and the defendant was not liable to pay the loss.

3. The trial Court cut out interest amounting to Rs. 353/1/6, but decreed the rest of the claim, against defendant No. 1 and absolved defendant No. 2, as being only an agent of defendant No. 1. Defendant No. 1 filed an appeal and the plaintiff put in cross-objections. The appeal was dismissed the cross-objections were allowed, and the entire claim for Rs. 2385/- was decreed. In this appeal the objections mentioned above are reiterated.

4. As regards the transaction being of a wagering nature, the law is very clear, namely, that the intention of both the parties to the transaction should be proved to be to wager before it can be held to be of a wagering nature. In the present case the defendant appellant has not come in the witness box at all, and reliance is placed on the statement of defendant No. 2, who stated that he had intimated to the plaintiff that no delivery would be given or taken in regard to any of the transactions, and that he would deal only in profits. If, according to the said witness, the plaintiff had agreed to these terms, some document in writing should have passed between the parties, or certain margin amount demanded to minimize the risk. In any case the plaintiff firm was acting only as an agent, and, as is clear from the various accounts produced in this case, the defendant, or on his behalf defendant No. 2, was apprised of the names of the third parties with whom the transactions were conducted through the agency of the plaintiff firm. There is nothing to show that these third parties had any intention to wager. The plea as to the transactions being void on the ground of wager has been rightly rejected by the two Courts.

5. As to Nathmal being a partner, reliance is placed on the statement of Kesrimal, who seems to have admitted in cross-examination that Nathmal was a partner. The trial Court has noted that the record in this connection seems to be erroneous, and the word “not” seems to have been left out. The plaintiff firm is stated to be a registered firm under the Partnership Act, and Kesri Mal in his examination-in-chief denied that Nathmal was a partner. The other witnesses have also said so. As the partnership deed was a registered one, the defendant could easily obtain a copy of it to contradict the plaintiff, if he liked to do so. In any case, the suit being on behalf of the firm, the non-joinder of Nathmal is of no consequence.

6. The objection as to non-liability of account of telegram charges and Adhat and Dalali was abandoned in the first Appellate Court, and has not been pressed in this Court.

7. The real controversy hangs round the transactions of bales objected to. The transactions as to the sale of 50 bales in three lots are noted in the Sauda Bahi of the plaintiff, and the entries show that these were entered into in the presence of the defendant himself, and witnesses have been produced to show that the plaintiff did enter into contracts with third parties. The brokers and the third parties with whom the contracts were entered into have been produced in each case. The objection on behalf of the appellant is that the signatures of the appellant or his agent Poonam Chand, son of Birda, do not appear on these transactions, although such signatures were secured in respect of almost all other transactions. Some point was also made out that in respect of the first item of sale of ten bales on Magh Bud 11, Samwat 1999, the entry in the plaintiff's Sauda Bahi was not proved as it was not referred to in any of the statements of the witnesses for the plaintiff. The third party, Nainmal, P.W 3, and Misri Lal, the broker, however, proved the fact of this transaction having been entered into and it only remained to be proved whether this transaction as also the others in dispute were on account of the defendant. The evidence of the Page: 135plaintiff that he entered into the three transactions of sale under instructions of the defendant No. 1 or his agent defendant No. 2, taken by itself is weak, but a strong support is found in the fact that a detailed account of the transactions of sale and purchase relating to the Phalgun Sud 15 Vaida was sent by the plaintiff to the defendant, and this fact is admitted in the written statement. This was done soon after the date, but no objection was ever taken prior to the institution of the suit in regard to these transactions. The defendant has not produced that account, and the presumption is that these transactions were also entered in it. The defendants also took inspection of the plaintiff's account books before filing the written statement, and it is clear that the objection has been raised only because the signatures of the defendants do not happen to be affixed on the entries of these transactions. The presumption against the defendant is further strengthened by the fact that the defendant-appellant himself did not come in the witness-box to deny these transactions. All the transactions are entered in Sauda Bahi along with other transactions of various custom rs interspersed with those of the defendant, many of them being signed by him or his agent, defendant No. 2. No body knew at the time of the transactions or their entry in the Siuda lahi whether they would result in loss or profit, and there is no reason why the plaintiff should have wrongly ascribed them to be of the defendant at that time. The loss only occurred as the market price on the due date or near about that period went high, and covering contracts were entered into by the plaintiff (firm), who, according to his version, did so on instructions of the defendant. According to the defendant he had already intimated to the plaintiff firm that he would not give or take delivery, and, therefore, the covering contracts were made on his implied instructions. In any case as the defendant failed to object to any of these transactions when account was sent to him soon after the transactions, the present objection can only be the result of an after-thought, and that too after he hod pried into the plaintiff's books of account. The learned advocate for the appellant tried to show from a letter, Ex. P.45, produced by the plaintiff alleged to have been despatched by the defendant, wherein the defendant asked the plaintiff to send his man with the account books for settlement of account, that the account had not been accepted. This letter was not admitted by the defendant, but if it can be held to be despatched by the defendant, the defendant is in a worse position since if showed, firstly, that the defendant had also some account books for comparison and, secondly, if he was keen on verifying the correctness of the plaintiff's account why he did not go to the plaintiff's place with his own account and information supplied to him by his agent, the defendant No. 2, of the transactions entered into by him on defendant's behalf through the plaintiff. Having failed to come in the witness box he shut the doors of any explanation that could be offered on his behalf. In respect of item No. 2, a letter purported to have been written by the plaintiff firm to Manak Chand of Bhinmal, who was a purchaser in this case, shows that the sale to Manak Chand was made on behalf of the defendant. This letter Ex. P.W 9/1 was produced by Manak Chand, P.W 9, and shows that the plaintiff had on that very day ascribed this transaction to the account of the defendant. This letter is a strong corroboration of the plaintiff's version. The sale of 50 bales will thus be held to have been made on behalf of the defendant. The covering contract of the purchase of 50 bales in respect of the three items will similarly be deemed to have been proved to be authorised by the defendant by the non-objection of the defendant when the account was sent to him. As regards the covering contract in respect of 25 bales, which were on hand as a result of Teji Mandi transaction dated Magh Sud 7, Samwat 1999, the defendant No. 2, as a Witness, has admitted that, he had Page: 136asked the plaintiff to enter into the covering contract. His only grievance is that intimation of the covering contract was not given to him. It is, however, clear from the above that a complete account for the Vaida of phalgun Sud Punam was sent to the defendant, and he had not objected to the same. The plea of the defendant that the four contracts referred to above were entered into without his authority, therefore, falls to the ground.

8. The last point, which remains to be decided, is as to the liability for interest. The plaintiff has not alleged any contract for payment of interest. The only proof of usage consists of the statement of one of the plaintiffs, and is insufficient to clothe the defendant with that liability. The entire transactions were entered into during the short period of a few months, and the plaintiff has delayed unnecessarily in coming to the Court. The interest claimed, viz., Rs. 353/1/6, is, therefore, disallowed.

9. The appeal is, therefore partly accepted, the decree of the Appellate Court is modified by reduction of the amount of interest, and that of the trial Court restored with costs proportionate to the sum decreed.

Dutta, J.:— I entirely agree with the judgment of my learned brother Mr. Justice Bapna but as the plea of wager is often raised in the subordinate courts and as in the present case, both the lower courts have not given any clear finding as to the wagering nature of the transactions in suit, it would not be out of place to add a few words to the elaborate discussion on the point by my learned colleague. In the present case the transactions in suit were entered into by defendant No. 1 through the plaintiff (firm) as his commission agent. The entries in the account books of the plaintiff (firm) show that in each and every transaction, the name of the principal with whom the contract was entered into, is disclosed. In order to establish the plea of wager, it must necessarily be proved, in respect of each and every transaction separately by the party raising the plea, that the intention of both the contracting parties, was, at the time of entering into the contract, to deal in differences only, and under no circumstances to take the delivery. In the present case even an attempt was not made to tender any proof of the intention of the other contracting parties i.e, the parties whose names stand disclosed in the account books of the plaintiff. It is not sufficient to say that the commission agents were told by the defendants that no delivery will ever be taken.

11. The defendant has tried to prove through the testimony of some of the witnesses that no delivery was ever taken by him. This fact, even if taken to be established, is not sufficient to prove the wagering nature of the transactions. What is required is to prove that at the time of entering into the transactions the intention of both the parties was to deal in differences only. No inference can be drawn of the presence of such an intention from the circumstance that no delivery was ever taken or given by the defendants. There is possibility that both the parties or one of the parties at the time of entering into the contract intended to give or take delivery but sometime afterwards, as the time of giving and taking delivery approached near, both the parties decided to adjust differences and not to bother themselves about giving and taking delivery. The plea set up by the defendants that the transactions in suit were wagering transactions does not stand proved on the file.