Judgement

Appeal from a judgment and decree of the High Court (March 28, 1913) reversing a judgment and decree of Beaman J. (October 24, 1912).

The appellants sued the respondent in the High Court to recover a sum of over Rs.90,000 on account of losses incurred by them as pakka adatias upon the sale and purchase of 4000 tons of linseed. The respondent, among other defences, alleged that the transactions out of which the debt arose were by way of gaming and wagering.

Law Rep. 45 Ind. App. 29 ( 1917- 1918) Bhagwandas Parasram (A Firm) V. Burjorji Ruttonji Bomanji 133

The facts appear from the judgment of their Lordships, and more fully from the reports, mentioned below, of the hearings in the High Court.

Beaman J. made a decree in the appellants favour. In the course of his judgment, which is reported at

I. L. R. 37 B. 347, he said " Where, therefore, a pakka adatia, who has been compelled owing to default of his client on one side or the other either to find goods or money, seeks to recover from that defaulting client the amount he has thus been obliged to pay on his account, it becomes, I think, on the face of it almost impossible to say that as between him and his client any defence of wagering could succeed. There may be very exceptional cases where the defendant could satisfy the Court that the pakka adatia not only knew that he (the defendant) was merely gambling, but that the client whom he found either to buy or sell with the defendant was gambling too ; and if that could be satisfactorily proved then doubtless the intermediary would be affected by the provisions of Act III. of 1865 and could neither recover his commission nor any losses he had voluntarily incurred on account of his client. Such a case, I think, could only occur where the pakka adatia had handed over a complete order of one client to another and could be shown conclusively to have been fully aware of the intention of both those clients to do nothing more than gamble in differences."

Upon appeal Sir Basil Scott C.J. and Chandavarkar J., by a judgment reported at I, L. R. 38 B. 347, set aside the decree, holding that the common understanding between the appellants and the respondent was that the dealing should be merely in differences, and that the employment of the appellants was consequently by way of wagering and illegal.

1917. Oct. 26, 29. Sir W. Garth, for the appellants. The transaction was not by way of wagering. The appellants could neither gain nor lose by the rise or fall of the market since they sold at the price at which they bought. Whatever the event they could only recover their commission and an indemnity for losses. It is not material that the respondent may not have intended to deliver, even if the appellants knew that that was so. [Reference was made to Bhagwandas v. Canji (( 1905) I. L. R. 30 B. 205.), Bombay Act III. of 1865, ss. 1, 2, and to the Indian Contract Act (T. of 1872), s. 30.1

Nov. 26. The judgment of their Lordships was delivered by

SIR LAWRENCE JENKINS. This appeal arises out of a suit for the recovery of money. Many defences have been pleaded, but only one need now be noticed ; it is that the transactions on which the claim rests were agreements by way of wager. At the trial several issues were framed, and the third was in these terms " Whether the transactions mentioned in the plaint are not wagering transactions and whether the plaintiffs were not aware of the defendants intention to deal in differences only ? "

The trial judge, sitting on the original side of the High Court at Bombay, found all the issues in the plaintiffs favour, and passed a decree for the amount claimed. On appeal the appellate bench of the High Court agreed with the findings of the trial judge on all the issues but the third. On that it held in favour of the defen dant, and dismissed the suit. It is from that decree that this appeal has been preferred by the plaintiffs, and the only question is whether the plea that the transactions were by way of