1. This second appeal is by the plaintiff against the concurring judgment of the Courts below dismissing his suit for recovery of damages for breach of contract.

2. The plaintiff's case was that in the month of Bhadva, Samvat 2002, the defendants had entered into four contracts agreeing to sell in all 85 Manis of cotton at certain rates which were to be applied on Fagun Sudi 15, Samvat 2002. As the defendants failed to supply the cotton, the plaintiff assessed dameges on the basis of the difference between the market rate of cotton on that date and the agreed rate.

3. The defendants denied the contracts and pleaded that even if they were entered into they amounted to wagering contracts within the meaning of Circular 5 of Samvat 1970 and were not entered into in accordance with the necessary formalities required by that circular. Accordingly, it was claimed that the contracts were void. In reply, the plaintiff contended that the Circular was impliedly repealed by the Contract Act and that it was also unconstitutional.

4. Both the Courts blow found hat there were four contracts between the parties as alleged by the plaintiff and they did not amount to wagering contracts; but as the necessary formalities required by the Circular had not been complied with, the contracts were held to be void and unenforceable.

5. The material part of the circular has been quoted in the judgment of the lower appellate Court. According to the Circular, only those transactions are considered to be wagering contracts where there is no intention of the parties at the time of entering into them to perform the contracts by actual delivery of the goods sold or purchased. In other cases where such intention exists, the contracts are valid. But the circular lays, down that the contracts must be; (i) in writing, (ii) signed by both the parties; and (iii) a stamp of one anna should be affixed to the document incorporating the contract.

6. So far as the first requirement of the Circular is concerned, both the Courts below have come to the conclusion on the evidence on record that there was an intention that the goods would be actually delivered. This is a finding of fact binding in second appeal and it has rightly been accepted by the appellant.

7. Before I take up the question whether the second requirement was satisfied in the present case, I may discuss the question of the validity and applicability of the Circular. The first objection that has been taken against its Validity is that under section 30 of the Gwalior Contract Act, which provided for wagering contract, the Circular should be deemed to hove been repeated impliedly. The Gwalior Contract Act contained a section corresponding to section 10 of the Indian Contract Act which as follow:

"Nothing herein contained shall affect any law in force in Gwalior State by which any contract is required to be made in writing or in the presence of witnesses or any law relating to the registration of documents."

This clause saves the provision of the Circular in so far as the formalities into prescribed there under forentring into the contract is concerned. That Circular was not expressly repald by the Gwalior Contract Act. Further, there is nothing in section 30 of the Gwalior Contract Act which is repugnant to the provisions of the Circular. The necessary conditions of implied repeal are that the two laws could not stand together. There is no such conflict between the Circular and section 30 and therefore the argument that the Circular should be deemed to have been impliedly repealed is without any substance.

8. The second objection taken against the Circular is that it became discriminatory after the formation of the Madhya Bharat State, as it applied only to a part of the State which was included in Gwalior, and not to the other parts. There are two answers to this objection the first is that the contracts were entered into if the year 1945 when the Constitution of India was not in force. The Articles in Chapter