JUDGMENT : 1. This is plaintiffs' second appeal. Their suit for recovery of Rs. 748-14-0 has been dismissed by the trial Court and their appeal 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 the 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 through 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 deft. Bihariial put an order for selling 84 Pats' of silver. 28 Pats' at the rate of Rs. 115-10-0 another 28 Pats' at the rate of Rs. 115-3-0 and the third lot of 23 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 these 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 parties. 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. 3. On these pleadings eight issues were framed, out of which three are material for the purpose of this appeal : 1. 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. 3. 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 silver '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. 4. The only question that assumed importance in this case is whether these transactions were wagering contracts or not ? The trial Court came to the conclusion that they were wagering contracts and so dismissed the suit. The appellate Court upheld this finding. 5. Now the onus of proving a contract to be a wagering one is on the party alleging to that effect. Thus the burden was on the defendant. The defendant Biharilal D.W. 1 in his statement before the Court did not say any thing about the contract being a wagering one. He denied his entering into any contract in the following words : In the presence of this statement it is obvious that the onus that was on the defendant was not in the least discharged. Curiously enough the suit has been dismissed by the trial court on the ground that the witnesses produced on behalf of the plaintiffs had admitted that in all the forward delivery transactions which took place at Maheswar through them or other persons actual delivery of goods was never demanded or given. It was further observed by the trial Court that in all the transactions only differences were recovered and paid and that in the suit 'Souda' also actual delivery was neither demanded nor given. Only differences had been paid. It was further observed by the trial Court that in all the transactions only differences were recovered and paid and that in the suit 'Souda' also actual delivery was neither demanded nor given. Only differences had been paid. On this basis the learned trial Court thought that these were wagering contracts and so dismissed the suit. 6. Mr. Sanghi, learned counsel for the appellants rightly argues that this was an altogether wrong approach made to the case. Mr. Sanghi has placed reliance on many rulings and I have no doubt that the rule is well settled that the fact that there has been no delivery but that there has been payment of differences in numerous transactions is not sufficient to rebut the evidence against the contract being a wagering one. As their Lordships of the Privy Council observed in- 'Bhagwandas v. Burjorji, AIR 1917 PC 101 (A). The fact that the principle was a speculator who never intended to give delivery, and even that the agent did not expect him to deliver would not convert a contract, otherwise innocent into a wager. Speculation does not necessarily involve a contract by way of wager, and to constitute such a contract a common intention to wager is essential. 7. Now it is important to note that every forward contract is to some extent speculative but merely on that account it is not necessarily a gambling one. In- 'Forget v. Ostigny', 1895 AC 318 (B) their Lordships of the Privy Council observed at page 323. "It may well be that the appellant was aware that in directing a purchase to be made the respondent did not intend to keep the shares purchased, but to sell them when, as he anticipated would be the case, they rose in value; that his object was not investment but speculation. To enter into such transaction with such an object is sometimes spoken of as "gambling on the stock Exchange" but it clearly does not follow that the transactions involve any gambling contract. A contract cannot properly be so described merely because it is entered into in furtherance of a speculation. It is a legitimate commercial transaction to buy a commodity in the expectation that it will rise in value and with the intention of realising a profit by its resale. Such dealings are of everyday occurrence in commerce. A contract cannot properly be so described merely because it is entered into in furtherance of a speculation. It is a legitimate commercial transaction to buy a commodity in the expectation that it will rise in value and with the intention of realising a profit by its resale. Such dealings are of everyday occurrence in commerce. The legal aspect of the case is the same whatever be the nature of the commodity, whether it be a cargo of wheat or the shares of a joint stock company. Nor, again, do such purchases and sales become gaming contracts because the person purchasing is not possessed of the money required to pay for his purchase, but obtains the requisite funds in a large measure by means of advances on the security of the stocks or goods he has purchased. This also, is an every-day commercial transaction. For example a merchant who has to pay the price of a cargo purchased before he resells it obtains in ordinary course the means of doing so by pledging the bill of 'lading". In- 'Kong Yee Lone and Co. v. Lowjee Nanjee', 29 Cal 461 (PC) (C) at p. 467, their Lordships of the Privy Council observed. "If the circumstances are such as to warrant the legal inference that parties never intended any actual transfer of goods at all, but only pay or receive money between one another according as the market price of the goods should vary from the contract price at the given time, that is not a commercial transaction, but a wager on the rise or fall of the market". In- 'Sukhdevdoss Ramprasad v. Govindoss Chaturbhujadoss and Co.', AIR 1928 PC 30 (D), Lord Darling delivering judgment of the Board laid it down that the mere fact that contracts are highly speculative is insufficient in itself to render them void as wagering contracts to produce that result there must be proof that the contracts were entered into upon terms that performance of the contracts should not be demanded but that differences only should become payable. 8. The recognised test, therefore, is whether the parties had agreed that there would not be any demand for the delivery of the goods. 9. 8. The recognised test, therefore, is whether the parties had agreed that there would not be any demand for the delivery of the goods. 9. Even if one party to a contract were a speculator who never intended to give delivery and that fact was known to the other party, yet, in the absence of any bargain or understanding express or implied, that the goods were not to be delivered, that would not convert a contract otherwise innocent into a wager, nor would the mere fact that as to the greater part of the goods there was no delivery but an adjustment of claim vitiate the transaction. 'Firm Aya Ram Tola Ram v. Sadhulal', AIR 1938 Lah 781 (E). It is now well settled that it is not enough that both parties contemplate that delivery would not in fact be likely to be demanded, but a definite agreement that delivery could not, in any event, be demanded without a breach of understanding between the parties is necessary to be proved before a contract can be regarded as a wagering one, ('Kundan Mal v. Quadir Ahmed Ali', AIR 1924 Nag 290 (F); 'Sukhdeodass v. Govindass', AIR 1924 Mad 373 (G) 'Ramdin Lal Hazari Lal v. Mansaram', AIR 1929 All 890 (H) and 'Sheo Narain v. Bhallar', AIR 1950 All 352 (I). 10. In the present case there is no evidence at all to prove any agreement or understanding between the parties that delivery would not be called for and only differences would be paid. The mere fact that delivery was in fact, not given in numerous other transactions, or, in this case, does not prove that it was not given because of an agreement to that effect or that there was a term in the original contract to that effect. In every case the terms of the contract or of the agreement have to be proved. The learned counsel for the respondent took me through the rules of the Association at Maheshwar which are on the file and are exhibited (Ex. P. 8) but there is nothing in those rules to indicate that no delivery was ever to be demanded or given. In fact rules Nos. 3 and 8 clearly provide that delivery of silver will be given and taken. Despite these rules if the parties deal only in differences that will not be sufficient to constitute a wagering contract. P. 8) but there is nothing in those rules to indicate that no delivery was ever to be demanded or given. In fact rules Nos. 3 and 8 clearly provide that delivery of silver will be given and taken. Despite these rules if the parties deal only in differences that will not be sufficient to constitute a wagering contract. It was explained in- 'Chimanlal v. Nyamatrai', AIR 1933 Bom 44 (J) that to deal in differences only is one thing, but it is quite another thing where both the parties agree that under no circumstances should either of them require the other to give or take delivery. A person may well be in a position to give or take delivery and yet may agree to settle the contracts by differences only. In this view of the matter I am not prepared to take the transactions in the present case as wagering one. No agreement has been proved which would have constituted the contracts to be wagering ones; nor are there circumstances which may warrant the legal inference that parties never intended any actual transfer of goods at all. 11. Mr. Agrawal then sought to justify the reference of the first appellate Court to the provisions embodied in Ss. 30A and 30B, Indore Contract Act, which runs as follows : Section 30A : "All contracts whether by speaking, writing or otherwise knowingly made, to further or assist the entering into effecting or carrying out agreements by way of gaming or wagering and all contracts by way of security or guarantee for the performance of such agreements or contracts shall be null and void; and no suit shall be allowed in any Court of Justice for recovering any sum of money paid or payable in respect of any such contract or contracts or any such agreement or agreements as aforesaid". Section 30B : "No suit shall be allowed in any Court of Justice for recovering any commission, brokerage fee, or reward in respect of the knowingly effecting or carrying out or of the knowingly aiding in effecting or in carrying out or otherwise claimed or claimable in respect of any such agreements by way of gaming or wagering or any such contract as aforesaid, whether the plaintiff in such suit be or be not a party to such last mentioned agreement or contract, or for recovering any sum of money knowingly paid or payable on account of any persons by way of commission, brokerage fee, or reward in respect of any such agreement by way of gaming or wagering or contract as aforesaid". These provisions are similar to those found in the Bombay Act 3 of 1865. All that the Sections mean is that contracts collateral to or in respect of wagering transactions cannot be enforced. The result of these Sections is to put a contract collateral to an agreement by way of wager on the same footing as the agreement itself. But in order to bring the case within the meaning of these sections the transactions in respect of which the brokerage, commission or losses are claimed must amount to wagering agreements. As Rangnekar, J. observed at p. 50 of AIR 1938 Bom 44 (J) "if the contracts were wagering they were void under S. 30, Contract Act; if not, there was an end of the defendant's case". As the transactions in the suit cannot be held to be wagering ones a reference to S. 30 A and S. 30 B does not in the least help the defendant's case. In my opinion, the learned first appellate Court was in error when it thought that Ss. 30A and 30B. Indore Contract Act, raised any legal presumption against the plaintiffs or in any way lessened the burdeza that was on the defendant to prove that the contracts in this case were wagering ones. 12. The result is that the decrees of the two Courts below must be reversed. The appeal is allowed and as the claim (except interest) was proved before the trial Court there will be a decree in favour of the appellant for Rs. 550-14-0 with interest thereon at the rate of 6 per cent from the date of the judgment of the trial Court. The appeal is allowed and as the claim (except interest) was proved before the trial Court there will be a decree in favour of the appellant for Rs. 550-14-0 with interest thereon at the rate of 6 per cent from the date of the judgment of the trial Court. The defendant will pay the costs throughout. Appeal allowed.