Muttusami Ayyar, J.@mdashThe learned Judge rests his decision in this case against the plaintiff on his practically admitting that the contract sued
on was for payment of differences only, and on the reasons assigned by him for his decision in Original Suit No. 74 of 1892. I concur in that
opinion for the reasons mentioned in my judgment in Regular Appeal No. 36 of 1893. I would dismiss this appeal also with costs, and disallow the
memorandum of objections.
Best, J.
2. This suit was tried with Original Suit No. 74 of 1892, which forms the subject of appeal in Original Suit Appeal No. 36 of 1893.
3. The learned Judge has dismissed the suit for the reasons given in his judgment in the connected suit with the remark added that the plaintiff in this
suit has ""put himself out of Court by practically admitting that the contract was for payment of differences only."" But on referring to the evidence in
the case I am unable to find any such admission on the part of the plaintiff. Plaintiff''s statement (as his own first witness in the case) is that the
intention was to get actual delivery of paper, but if he sold again to the same party then differences only were to be paid""; and, as a matter of fact,
a sale to defendant was made on the 28th November, i.e., two days before the date on which defendant was to deliver under the original contract.
I have no doubt whatever the plaintiff was, in a sense, gambling in Government paper, but such gambling, however demoralizing and reprehensible,
is not illegal, as observed in Thacker v. Hardy L.R. 4 Q.B.D. 685 In the absence of proof that at the time of entering into the original agreement
the understanding of both parties was that it was merely for payment of differences, I am of opinion--for reasons stated in my judgment in Original
Suit Appeal No. 36 of 1893--that the contract between the parties cannot be held to be void within the meaning of Section 30 of the Contract
Act.
4. If the same objections have been filed in this case, I would disallow them for the reasons stated in my judgment in that case, and also for reasons
stated in that judgment I would allow this appeal; but as my learned colleague''s finding is in favour of the respondent, the decree of the learned
Judge in the Court below must be affirmed, and this appeal dismissed with costs u/s 575 of the Code of Civil Procedure.
5. Branson d Branson, Attorneys for Appellant.
6. Wilson of King, Attorneys for Respondent.
