TMI Blog1966 (5) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... arhtia for entering into transactions of forward delivery in respect of Gur, silver and gold according to the rules of the aforesaid chambers which were fully known to the defendants. Arhat and other expenses and interest according to the customs obtaining in the market together with the chamber expenses, according to the rules of the aforesaid chambers, were also agreed to be paid. The defendants were alleged to have entered into transactions shown by letters A, R, C, D, G and H in respect of silver, gold, and Gur mentioned in the schedule which was attached to the-plaint. Up to 7th November, 1949, the accounts were apparently squared up.' Later on, from 9th November, 1949 to 14th February , 1950 the defendants entered into transactions in respect of silver and Gur shown in the schedule attached to the plaint and marked with letters E, F and I. In transaction marked by letter E, there was a profit to the defendants, whereas in transactions marked with letters F, and I, the defendants had suffered losses. The total loss mentioned in the plaint was stated to be a sum of Rs. 6,169|-|6(sic). To this was added the interest claimed by the plaintiff and the decree was claimed for a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H in the schedule attached to the plaint, but he added that the same had been entered into with the plaintiff as principal and not as pakka arhtia Receipt of profits in respect of these contracts on 7th November, 1949, was also admitted. Contracts mentioned in I (J) for the due date Phagun Shudi 15, Sambat 2006 were not admitted. All the contracts were stated to be of wagering character and, therefore unenforceable. It was added that all forward transactions in respect of Gur had been declared illegal by the Government on 14th February, 1950. 5. After this statement, the plaintiff's counsel expressed a desire to plead in reply that the plaintiff had acted as Commission Agent and had paid losses for the defendants to third parties. As such, the losses were recoverable even if the contracts were held to be wagering. The Court allowed the plaintiff to file a replication which was done on 12th March, 1953. 6. On the pleadings, the following issues were settled: -- (1) Whether the defendants entered into Gur transactions mentioned in the Schedule I, filed by the plaintiff, as pakka arhtias ? (2) Did the plaintiff-firm actually enter into transactions in dispute on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd regulations of the Vishnu Exchange and also that there was nothing on the record to show that the defendants had specifically authorised the plaintiff-firm to enter into contracts through the said exchange on their behalf. The plaintiff-firm had thus no authority to settle the transactions in dispute on 14th February, 1950, before the due date. The Court also concluded that though the Vishnu Exchange had authority to pass the disputed resolution on 14th February, 1950, it did not pass the same on that date and the same was passed subsequently and ante-dated in order to avoid the effect of the notification, dated 15th February, 1950. The Gur transactions for the forward delivery were declared void on 15th February, 1950, by Government notification and the defendants were not bound by the resolution of the Exchange. Issue No. 6, in view of the decision on other issues, did not arise for decision. The plaintiff's suit was accordingly dismissed. 9. On appeal in this Court, the learned counsel for the plaintiff-appellant has taken us through the evidence on the record and has addressed elaborate arguments on various aspects of the controversy. The counsel has tried to persuade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29th February, 1950. But our attention has not been drawn to any accounts from which we can find the details of the transactions and the persons to whom payments were made as a result of the settlement of accounts. While this witness was being examined, the plaintiff desired to amend his plaint, which prayer was allowed on 7th December, 1954. P.W. 1 was again recalled on 6th April, 1955 and he produced a copy of the proceedings of the Exchange, dated 14th February, 1950, from the minutes book, P.W. 1/50--a document which having not been relied upon was allowed on payment of costs. The bye-laws of the Exchange were also produced: Exhibit P.W. 1/51. In cross-examination, it was elicited that the register containing resolutions of the Exchange was not paged and the original register did not bear the witness's signatures. The register for agenda of meetings was also not produced. This witness was unable to tell the Court as to who were the brokers of the transactions in dispute. 12. At this stage, I may appropriately advert to the legal position in regard to entries in account-books. Under section 34 of the Evidence Act, entries in books of accounts regularly kept in the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counter to the view just expressed by me. There is no quarrel with the rule of law laid down by the Supreme Court in Narayandas v. Sangli Bank A.I.R. 1966 S.C. 170, cited by the appellant, to the effect that to support a plea of payment, passing of cash payment need not be shown and payment is possible by means of transfer entries in books of account, and indeed this rule of law is binding on us, but it has little relevance to the facts before us because we are not impressed by the entries produced in the case in hand. Lodna Colliery Co. Ltd. v. Bholanath Rai and others A.I.R. 1954 Cal. 233, merely lays down that in a limited Company, books and papers kept in the usual course of business are the best evidence. This rule is again unexceptionable but has little applicability to the facts of the present case. The decision in Jagat Singh Rai v. Jagat Singh Kawatra Sons A.I.R. 1933 Lah. 212, in which the plaintiff had produced account-hooks and deposed that they were regularly kept and were correct and he was not cross-examined on the point and his testimony supported by the account-books was held legally sufficient to establish his claim, is also of little assistance to the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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