JUDGMENT

N.U. Beg, J. - This is an appeal by a firm Jagatnarayan Durgaprasad. The appellant was the plaintiff in the trial court. The appellant had brought the present suit on the allegation that it was a firm which carried on bullion business as Pacca Arhatya at Nayaganj, Kanpur.

2. The plaintiff's case was that the defendants had entered into a contract with it whereby they had appointed the plaintiff as their agent for doing business in the purchase and sale of bullion, that the defendants had agreed to pay Arhat at the rate of -|8|- per bar of silver, interest at -|10|- percent. per mensem on account of Dalali, -|14|- per bar of silver and -|8|- per bar of silver towards the chamber expenses. According to the plaintiff's case, a large number of transactions were entered into between the parties as a result of the aforesaid contract and a total amount of Rs. 2373|14|- was due to the plaintiff from the defendants by way of principal and interest in respect of the said transactions. As the defendants had failed to make the said payment, in spite of a notice to that effect, the plaintiff had brought the present suit for the recovery of the same.

3. The suit was contested by the defendants on a number of grounds. The main ground was that the contract entered into between the parties was of a wagering nature and was, therefore, bad in law.

4. Both the courts below accepted the defendant's plea in this regard. They held the contract in question to be of a wagering nature and accordingly dismissed the plaintiff's suit.

5. At this stage of second appeal, the same plea is sought to be reagitated before me on behalf of the plaintiff-appellant. I might state at the very outset that so far as the legal position is concerned, it does not admit of any doubt. The crucial question that arises for decision in cases of this nature is whether, when the parties initially entered into the contract, it was their real intention to bring about effective commercial transactions which would result in the delivery of goods, or they merely intended to effect paper entries with a view to ascertain profits and losses accruing in the transactions in favour of or against the parties to the contract. Whether delivery was actually made in the transactions entered into by the parties cannot be considered to be the final test. It can, however, be taken into consideration as a piece of subsequent conduct and as throwing light on the initial intention of the parties. For the purpose of determining the initial intention, the court has to look into the evidence of the parties and to all the circumstances surrounding the transactions coupled with the conduct of the parties. The court need not be led away by the ostensible phraseology or the expression used by the parties. The purpose of the court is to get at the real intention of the parties entering into the contract for the purpose of ascertaining whether its real object was of a wagering nature.

6. In the present case, it might be mentioned that both the parties had adduced positive evidence in support of their respective cases. There was, on the one hand, the evidence adduced by the plaintiff to prove its case that the initial contract entered into between the parties was not of a wagering nature and that actual delivery was intended to be given by virtue of the terms of the said contract. On the other hand, the defendants also adduced evidence in support of their case in order to prove that no delivery was intended to be given and the transactions were of a wagering nature. In support of their case, one of the defendants himself also appeared in the witness-box. In examination-in-chief he stated that his regular business did not consist of dealings in bullion or silver bars at all. He was in fact a dealer in acids, and that, when the plaintiff had approached him, he had made it clear that, for the above reason, it was not possible for him to enter into any such contract. The plaintiff, however, re-presented t