HIGH COURT OF MADHYA PRADESH
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Chaturvidi, J. -
(1.)THIS is Plaintiffs' second appeal. Their suit for recovery of Rs. 748 -14 -0 has been dismissed by the trial Court and their oppeal against that judgment has been dismissed by the first appellate Court.
(2.)THE three Plaintiffs under the firm -name of Khajulal Chunnilal are carrying on 'Sarafi, Adat' (Commission Agency), and forward transaction business at Maheshwar. The firm is a member and card -holder of die Sarafa Association, Maheshwar. According to the rules of the said association only members can act as 'Adatyas' and the sale and purchase transactions of silver 'Pats' can be carried on througn the agency of the enrolled card -holders.
The standard weight of the 'pat' is recognized to be 100 'Bhars'. The Defendant is also a resident of Maheshwar. The case for the Plaintiffs is that on 20 -11 -1944 (Magasar Sudi 3 of 2001) the Defendent Biharilal put an order for selling 84 Pats' of silver, 28 'Pats' at the rate of Rs. 115 -10 -0 Anr. 28 'Pats' at the rate of Rs. 115 -8 -0 and the third lot of 28 'Pats' at the rate of Rs. 115 -10 -0 with 'Vaida' of Magasar Sudi 15 Samvat 2001.
The Defendant was to give delivery according to the rules of association on 30 -11 -1944. On that date when the delivery was demanded the Defendant failed to give the same. The Plaintiffs had entered into transactions on behalf of the Defendant with third parties and hence the Plaintiffs could not give delivery to those parties, and the Plaintiffs had to pay losses on the basis of rate of silver on Magasar Sudi 15, Samvat 2001. At that time the rate was 122 -4 -0.
The Plaintiffs had to pay Rs. 562 for loss to the third parties and adding Rs. 198 as interest and Rs. 5 -4 -0 as commission charges, they claimed Rs. 748 -14 -0 against the Defendant. The Defendant totally denied the transaction i.e., he stated that he never contracted for the sale of 84 silver 'Pats' and the Plaintiffs never incurred any losses and never paid any losses to third panics. In the alternative, the Defendant said that if it was found that he entered into any transaction they should be taken to be wagering contracts.
On these pleadings eight issues were framed, out of which three are material for the purpose of this appeal:
1. Whether the Plaintiffs prove that the Defendant had sold 84 silver 'Pats' of forward delivery contract on 20 -11 -44 through the 'Adat' of the Plaintiffs' firm?
2. Whether the Plaintiffs prove that they paid damages to the extent of Rs. 560 on behalf of the Defendant to other parties?
3. Whether the Defendant prove that forward delivery contract for sliver 'Pats' is wagering contract and as such the Plaintiffs are not entitled to claim any damages?
Now on the first two issues both the Courts below have come to the conclusion that the Defendant had in fact, sold 84 silver 'Pats' through the Plaintiffs' agency and that on this account the Plaintiffs had to pay Rs. 560 to the third parties.
(3.)THE only question that assumed importance in this case is whether these transactions were wagering contracts or not? The trial Court came to contract that they were wagering contracts and so dismissed the suit. The appellate Court upheld this finding.
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