1. ' SAJJAD ALI SHAH, J.-This Letters Patent Appeal is filed against the impugned judgment dated 31st March, 1970 of learned Single Judge of this Court, whereby Suit No, 80/1961 filed by Shabbir Hussain plaintiff/ appellant for recovery of Rs, 55,033.73 has been decreed against defendants/respondents for a sum of Rs, 20,385 with costs and interest at the rate of 6% per annum from the date of suit till the realization of capital amount. There were seven defendants, out of whom defendant No, 5 Mian Allah Bux died at the fag-end of proceedings in the suit, as such the suit was not decreed against him and for that reason there are six respondents in this L.P.A. There is connected L.P.A. No, 88:70 arising from the same judgment in which parties are same but has been filed by two Judgment- debtors. After hearing the learned advocates in both the appeals on 22nd October, 1979 by an oral order we dismissed both the appeals with no order as to the costs and for reasons to be recorded subsequently which follow now.
2. ' Brief facts giving rise to this L.P.A. No, 82/70 are that respondent No, 1 namely M/s Mian Khurshid Ahmed and Company is a firm registered with Karachi Cotton Association dealing with cotton business. Respondents 2 to 6 are stated to be the partners of the said firm and defendant No, 5 Mian Allah Bux, who died later, was also a partner of this firm. Appellant, being a non-member of Karachi Cotton Association entered into hedge-contracts through respondent No, 1 for a period from 20th September, 1958, to 25th October, 1958, as was permissible under By Laws of Karachi Cotton Association. It was the case of the appellant that in consequence of these contracts he was entitled to recover a sum of Rs, 50,467.50 as profits and a sum of Rs, 7,386.23 as interest at 6% per annum from the firm and its partners. Appellant admitted in the suit that he had recovered Rs, 3,000 in cash after the cheque for Rs, 20,385 issued by respondent No, 1 in his favour was dishonoured in the bank. After deducting Rs, 3,000 from the outstanding amount of Rs, 50,467.50, a claim was made for the recovery of balance to the tune of Rs, 47, 647.50 with interest and costs.
3. ' Before the trial Court respondent No, 2 Mian Khurshid Ahmed and defendant No, 5 Mian Allah Bux (now dead) did not file written statements and the case proceeded against them ex parte. The remaining respondents contested and took up the stand in their joint written statement that they were not the partners of the said firm at the time of alleged transactions with the exception of respondent Choudhry Mohammad Ismail, who stated that he was just a nominal partner.
4. Respondents Choudhry Nazir Ahmed and Choudhry Niaz Ahmed stated that they are brothers inter se and had withdrawn from the said firm with the consent of all its partners before 20th September, 1958, as such they were not liable to the appellant. Respondent T. A. Akhtar claimed that he was expelled from the said firm before 20th September, 1965, hence he was not a partner at the time of the transactions. In view of the pleadings of the parties issues were framed, evidence was recorded and the suit was decreed for Rs, 47,647.50 with costs and interest at 6% per annum vide judgment dated 17th November, 1965 of Qadir Nawaz Awan, J. Subsequently the respondents being aggrieved against the said judgment filed L.P.A. Which was disposed of vide judgment dated 22nd October, 1969 by a Division Bench of this Court, whereby the case was remanded with the consent of the parties for recording further evidence as the decree impugned therein was found to be not supported by sufficient evidence. After the remand the case came to be heard by Dorab Patel, J.
5. (as his Lordship then was), who recorded further evidence in addition to the evidence already recorded by Qadir Nawaz Awan. J. And decreed the suit against the defendants to the extent of amount of cheque bounced as stated above. On the following 10 issues the impugned judgment was delivered :-
(1) Were the defendants Nos. 2 to 7 partners of the firm at the time of contracts, if not to what effect ?
(2) Did the defendants 3 and 4 with the consent of other partners withdraw from the partnership of firm and transferred their shares to defendants 2 and 5, if so to what effect ?
(3) Did the defendant No, 7 retire from the partnership, if so, to what effect ?
(4) Is the defendant No, 2 solely responsible for the transaction in suit ?
(5) Is the fact of retirement of defendants 3, 4 and 7 in the knowledge of the plaintiff, if so, its effect ?
(6) Did the defendants or any of them receive the sum of Rs, 50,647.50 from Karachi Cotton Association for and on behalf of the plaintiff to be paid to plaintiff ?
(7) Did defendant No, 1 issue a cheque for Rs, 20,385 on 20th November, 1958 which was dishonoured ?
(8) Are the transactions not according to practice and Bye-Laws of the Cotton Association and have no binding effect upon defendants 3, 4, 6 and 7 ?
(9) Is the interest claimed excessive ?
(10) To what relief, if any. Is the plaintiff entitled and against which of the defendants ?
6. ' Issues Nos. 1 to 8 were decided in favour of appellant/plaintiff and the suit was decreed for part of claim to the tune of Rs, 20,385, which amount was specified in the cheque issued by respondent No, 1, which was dishonoured in the bank and for which there was sufficient evidence on the record, with costs and interest as stated above. Being unsuccessful in getting a decree for the whole amount as claimed in the plaint, appellant/ plaintiff has filed this Letters Patent Appeal. Aggrieved by the same judgment defendants 3 and 4 in the suit namely Choudhry Nazir Ahmed and Choudhry Niaz Ahmed have filed connected L. P. A. No, 88/70 in which Shabbir Hussain plaintiff and the remaining defendants in the suit have been impleaded as respondents.
7. ' We have heard the arguments of learned counsel for the parties in both the appeals. Since both appeals arise from the same impugned judgment and parties are same, evidence and questions of law are same, we propose to dispose of both appeals by one consolidated judgment. Mr. Mahmoodi counsel for the appellant in L. P. A. No, 82/70 half-heartedly contended that evidence on record was adequate to warrant passing of decree for the full amount as originally claimed in the suit. The learned Single Judge has written a very elaborate judgment, which contains cogent grounds for arriving at that conclusion. Evidence on the record indicates that appellant Shabbir Hussain claims that he could not do business of cotton for the reason that he was not a member of Karachi Cotton Association, therefore the business was done through the firm M/s Mian Khurshid Ahmed & Co., which is a member of Karachi Cotton Association. The said Firm earned Rs, 50, 647.50 from the association which were payable to the appellant as this amount related to profits earned by the Firm on his behalf from the transactions which were made from 20th September, 1958 to 25th October, 1958. The burden was upon the appellant to prove that the amount specified by him was earned by the respondent firm on his behalf. No such evidence was produced by him. Records of Karachi Cotton Association were not produced. Khwaja Fazal Ahmed, Officer Incharge of the Clearing department of the Karachi Cotton Association was examined for appellant Shabbir Hussain and he deposed before the trial Court that respondent firm was registered with his Association and had six partners and produced a certificate to that effect Exh.
9. No such questions were put to him with regard to the transactions in-question or the total amount claimed in the plaint to have been earned during that period by the said firm. So far the other oral evidence available on the record is concerned, evidence of appellant Shabbir Hussain himself is vague and not of much assistance. He has deposed before the Court that his father Asghar Ali and brother Abbas Ali were looking after and managing his business. His father had died and his brother Abbas Ali, who claims to be a broker was examined. Appellant Shabbir Hussain further admitted in his cross-examination that he had no personal knowledge of those contracts.
8. He further produced five letters Exhs. 5/1 to 5/5 but did not claim personal knowledge about them.
9. Appellant was examined again after the remand of the case and improved upon his previous statement and stated that between 20th September, 1958 and 25th October, 1958 he had purchased and sold cotton to the first respondent (company) and made a profit on those transactions. The first respondent (Company) issued credit notes to him which he produced as Exhs. 6/3 to 6/8. He had received payment by a cheque for those credits, which was dishonoured.
10. The said cheque Exh. 6/1 is on the record. Thereafter he received payment of Rs, 3,000 in cash from the first respondent. He has further deposed that amount due to him was Rs, 50,655 under the credit notes after deducting Rs, 3,000. He also produced notice which he gave to the said firm and its partners, copy of which he produced as Exh. 6/2. He had further deposed that the business was being carried on in the name of S. Ali by his father who was his attorney. His father used to maintain the accounts. Appellant himself could not produce those accounts. He also admitted that transactions in respect of credit notes Exhs. 6/3 to 6/8 were made by his father. He also admitted that from the credit notes only Exh. 6/7 was signed on behalf of the first respondent and other credit notes were not signed. He also admitted that entry of receipt of credit notes from the respondents was not made in his registers. The credit notes were brought to him by his brother from the first respondent. Appellant also examined his brother Abbas Ali, who deposed that he was working as a broker with Karachi Cotton Association. He further stated that appellant gave power of attorney to their father Asghar Ali to enter into contracts with first respondent firm, who is a member of Karachi Cotton Association. He was authorised by the appellant to enter into contracts on his behalf. Appellant earned total profit of Rs, 50.647.50 through these contracts through him.
11. Cheque for this whole amount was issued by Karachi Cotton Association in favour of respondent No, 1 on account of these transactions but respondent No, 1 did not pay this amount to the appellant. Respondent No, 1 issued a cheque for a sum of Rs, 20,000 but it could not be cashed.
12. Respondent No, 1 paid Rs, 3,000 in cash. This witness further testified that he had maintained the accounts of these contracts but could not produce them in Court. He expressed ignorance with regard to the fact as to who had signed the credit notes on behalf of respond: t No,
1. In the absence of documentary evidence the oral evidence produced by the appellant and his brother is neither sufficient nor satisfactory to prove the credit notes or the assertion that respondent No, I made profit to the tune of Rs, 50,647.50 from the transactions alleged on behalf of the appellant and was paid that amount by Karachi Cotton Association, which was recoverable by the appellant.
13. The only thing in the credit notes which is favourable to the appellant is that they are on the letter head of the respondent No, 1 but the signatures could not be proved. The learned Single Judge has rightly not relied upon these credit notes. The only evidence favourable to the appellant on the record is cheque Exh. 6/1 which is for a sum of Rs, 20,385 issued in favour of S. Ali by respondent firm. This cheque is dated 20th November, 1958 while the period of transactions as alleged in the plaint is from 20th September, 1958 to 25th October, 1958: Evidence of Abbas All fully supports the issuance of this cheque in favour of S. Ali in which name the business of appellant was being carried on. Respondent T. A. Akhtar has also admitted in his evidence that this cheque is signed by Mian Khurshid Ahmed Respondent No,
2. There is no evidence or rebuttal from other respondents.
14. This cheque was dishonoured hence it stands proved that the respondent firm attempted to make payment to the appellant of the amount mentioned in the cheque, therefore the decree for this amount is proper and is in accord with evidence on the record.
15. ' In L.P.A. No, 88/70 Mr. Nasim Farooqi advocate for appellants Choudhry Nazir Ahmed and Choudhry Niaz Ahmed contended that both these appellants were not liable to respondent Shabbir Hussain, who is the decree holder, for the reason that at the time of transactions in-question they were not the partners of the firm. In this appeal the firm and its remaining partners have been impleaded as respondents. In the connected appeal L.P.A. No, 82/70 Mr. Nasim Farooqui appears for all the respondents who were defendants in the suit. The contention of the learned advocate is that at the relevant time, that is, from 20th September, 1958 to 25th October, 1958 when the transactions alleged took place, Choudhry Nazir Ahmed, Choudhry Niaz Ahmed and T. A. Akhtat were not the partners in the said firm as the former two had withdrawn from the partnership and T.
16. A. Akhtar was expelled from the partnership. It is also contended by the learned counsel that Choudhry Mohammad Ismail was just a nominal partner at the relevant time. Choudhry Mohammad Ismail has filed a joint written statement alongwith other defendants in the suit in which he has stated that he was only a nominal partner of the firm at the relevant time but has denied the liability or any concern--with the transactions in question. He did not offer himself for evidence before the trial Court. He does not deny that he was not a partner of the said firm at the relevant time. Khawaja Afzai Ahmed an officer from Karachi Cotton Association produced a certificate Exh. 9, which shows that the said firm was registered with Karachi Cotton Association and had 6 partners including Choudhry Mohammad Ismail. So far the other partners are concerned, the stand taken by T. A. Akhtar that he was expelled and was not a partner at the time when contracts in-question were entered into. The name of T. A. Akhtar also appears in the certificate Exh. 9 which was issued on 4th February, 1970. This certificate shows that he was very much a partner of the said firm at the time of transactions which took place between 20th September, 1958 to 25th October, 1958. In the written statement he had stated that he was compulsorily retired and had nothing to do with the said partnership at the time of alleged transactions. In his evidence in the Court he has stated that the partnership in the firm was formed in the year 1957 and then on 1st August, 1958 he was thrown out by Mian Khurshid Ahmad and he handed over the accounts to him and obtained receipt Exh. 5!4. The record shows that Exh. 5/4 is the writing on a sheet torn out from a note-book containing no signature of T. A. Akhtar. There is a note in the handwriting of Mian Khurshid Ahmad signed by him on 1st August, 1958 which is to the effect that he had received cash book with ledger and cheque book from Mr. T. A. Akhtar Qureshi.
17. The cash book is incomplete. He has further stated in his cross-examination that he did not inform other partners in writing about his expulsion because it was not necessary to do so. No deed of retirement was executed by the partners. He had published a notice of retirement probably in the 'Dawn' but this was done a bit late. The publication in the 'Dawn' must have been in 1959 but he could not produce it. Since the case of T. A. Akhtar is similar to other two partners namely Choudhry Nazir Ahmed and Choudhry Niaz Ahmed as there is common plea that all the three partners had ceased to be such at the time of alleged transactions, we shall now advert to their evidence.
18. ' The case of these two partners is, according to written statement, that they had withdrawn from the said partnership with the consent of all the partners and their shares were transferred to Mian Khurshid Ahmed and Mian Allah Bux, who took the entire responsibility of all the liabilities of the said firm. Choudhry Niaz Ahmed did not examine himself before the trial Court but Choudhry Nazir Ahmed did so. He has deposed that he is a brother of Choudhry Niaz Ahmad and both had entered into written agreement of partnership with Mian Khurshid Ahmed, who retained with himself the said partnership-deed. Both the brothers retired from the partnership on the basis of letter Exh. 5/3 which is on the record. This letter is on the letter-head of Mian Khurshid Ahmed and Company and purports to be signed by Mian Khurshid Ahmed partner on 29th December, 1957. It is stated in this letter in Urdu that Choudhry Nazir Ahmed and Choudhry Niaz Ahmed, partners of the firm Mian Khurshid Ahmed and Company have transferred their shares to Mian Khurshid Ahmed and Mian Allah Bux. After 'this, these gentlemen have no concern with the firm Mian Khurshid Ahmed and Company. Choudhry Nazir Ahmed has further deposed before the single Judge that Khurshid Ahmed had also obtained from him signature on a stamp paper with regard to the retirement but he could not produce the copy of that paper. He has further stated that he had addressed a notice to Khurshid Ahmed on 3rd October, 1958 disclaiming liabilities for the debts of the firm as he was no longer a partner and Khurshid Ahmed had sent him a reply which is Exh. 5/5 on the record. This document is a writing in Urdu on the letter head of the said firm and purports to have been signed by Khurshid Ahmed on behalf of the firm. It is dated 7th October, 1958. This letter is addressed to.
19. Choudhry Nazir Ahmed at Rahimyar Khan and its contents are as under :- ' Your notice dated 3rd October, 1958 has been received. About the transfer of shares you have been informed in writing. Question of causing any loss to you and Choudhry Niaz Ahmed does not arise. If any loss is caused to you then we are responsible. Karachi Cotton Association did not accept transfer of shares on stamp paper, and for that application is to be made on a prescribed form. This form will be sent to you in a couple of days and it is hoped that by the end of this month the shares would stand transferred and after that a copy thereof will be sent to you.
20. (Sd.) Khurshid Ahmed, ' for Mian Khurshid Ahmed & Co.
21. ' Choudhry Nazir Ahmed has further deposed that he had also informed Karachi Cotton Association in writing that he had withdrawn from the partnership of the firm and Karachi Cotton Association had sent him a reply which has been produced on record Exh. 5/1. This letter is dated 20th December, 1958 and is signed by Chairman of the Karachi Cotton Association. It is addressed to Choudhry Nazir Ahmad and Company at Rahimyar Khan. It is stated in this letter that for a change in the constitution of the firm, it is necessary to send the intimation on a prescribed from to be duly signed by all the partners. It is further stated therein that necessary action will only be taken after the receipt of the form as advised and the decision of the board thereon would be communicated when reached.
22. ' Choudhry Nazir Ahmed has further testified that all the partners did not sign any deed when he and his brother retired from the said firm. The retirement took place in Rahimyar Khan and other partners namely Mian Khurshid Ahmed, Mian Allah Bux and Choudhry Mohammad Ismail were present in Rahimyar Khan. He has further stated in his evidence that he had published a notice in newspaper `Nai Roshni' about the retirement from the said firm but could not produce the copy of the publication nor could produce the receipt of payment to that paper for the said advertisement although he stated that he had paid Rs,
50. He also could not show any entry in the books of accounts for this payment.
23. ' From the evidence of this witness and the documents mentioned above, it appears that these two brothers namely Choudhry Nazir Ahmed and Choudhry Niaz Ahmed had retired from the partnership but the question remains to be decided whether this retirement was effective and also whether they are absolved from the liability to pay for the contracts in question.
24. ' From the legal point of view this case is covered by Partnership Act, 1932. Section 32 of this Act relates to retirement of a partner which pro-ides as under :-
(1) A partner may retire-
(a) with the consent of all the other partners;
(b) in accordance with an express agreement by the partners; or
(c) where the partnership is at will, by giving notice in writing to all the other partners of his intention to retire:
(2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement.
(3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement: ' Provided that a retired partner is not liable to any third party who deals with the firm without knowing that he was a partner.
25. ' Section 33 of the Partnership Act relates to expulsion of a partner rom the firm and this section is reproduced as under :-
(1) A partner may not be expelled from a firm by any majority of the partners, save in the exercise in good faith 'of powers conferred by contract between the partners.
(2) The provisions of subsections (2) and (3) of section 32 shall apply to an expelled partner as if he were a retired partner.
26. ' It is, therefore, clear from the relevant provisions of the Partnership Act that so far the case of T. A.
27. Akhtar is concerned he cannot be considered to have been expelled from the firm as it was apparently not done by the majority of partners. The partnership-deed is not on the record hence we cannot say whether the said deed contained any powers conferred on one partner to expel the other. The only document available on the record is Exh. 5/4. This document only shows that cash book and other registers were taken over from T. A. Akhtar by Mian Khurshid Ahmed. This document does not show that T. A. Akhtar was expelled. In any case it was imperative on T. A. Akhtar to follow the provisions laid down in subsections (2), (3) and (4) of section 32 of the Partnership Act which put him on the same footing as a retired partner. He had to make public his retirement or expulsion from the said firm by publishing a notice or alternatively any other partner of the reconstituted firm could have done so. T. A. Akhtar as well as the other two partners namely Choudhry Nazir Ahmad and Choudhry Niaz Ahmed have failed to produce any evidence with regard to the fact that they had got such notices published in the newspapers regarding their severance of connections with the said firm. They have stated in their evidence that they had taken steps to have the notices published in the newspapers, but they have failed to produce the newspaper-cuttings showing publication of notice, nor have they produced any evidence to show that such steps were taken.
28. Moreover the evidence on the record does not indicate that the retirements in-question were with the consent of all partners nor the remaining partners were informed by way of notices. In such case these three partners cannot save themselves from the liability of Shabbir Hussain in connection with the transactions in question. The best piece of evidence against them is Exh. 9, which is a certificate issued by K. C. A. On 4th February, 1970 which shows that Choudhry Nazir Ahmed, Choudhry Niaz Ahmed and T. A. Akhtar were three of the six partners of the said firm.
29. ' With regard to the knowledge of Shabbir Hussain that Choudhry Nazir Ahmed, Choudhry Niaz Ahmed and 3T. A. Akhtar were partners at the time when he entered into contracts with the said firm, the evidence of Shabbir Hussain and his brother Abbas Ali is very clear on the point. Shabbir Hussain has testified that he had gone alongwith his brother to K. C. A. And found out that defendants Nos. 2 to 7 in the suit were partners of the said firm which was duly registered with K. C.
30. A. Abbas All has deposed that he was working as a broker with K. C. A. And knew that Khurshid Ahmed and Company was a firm registered with K. C. A. And there were six partners as stated above. Even T. A. Akhtar has admitted that knowledge with regard to the transactions in question and has stated that it was known throughout the market that a lot of profit was due to Shabbir Hussain in the transactions with Khurshid Ahmed and Company and such profits were close to Rs, 40,000 or 50,000. Mian Khurshid Ahmed and Mian Allah Bux did not file written statement before the trial Court. In these circumstances we are satisfied that the procedure as laid down in sections 32 and 33 of the Partnership Act hence the partners who claim the retirement cannot avail of the defence that they had ceased to be partners at the time when transactions in question took place and are not absolved from the liability for payment of the dues outstanding against the firm of which they were the partners.
31. ' The next contention of Mr. Nasim Farooqui is that suit is barred under section 2 of the Bombay Act III of 1865 read with section 30 of the Contract Act and By Law No, 46 of Karachi Cotton Association By Laws. In support of his contention the learned counsel has relied upon a number of rulings, out of which the main two rulings are AIR 1925 Bom. 511 and AIR 1928 P C 30. The first mentioned case relates to a contract for forward delivery, wherein neither party intended to give or take the delivery and differences only were to be paid or received according to the market rate on the due date, which was to be settled by cross contract. It was determined that the second agreement was an agreement to pay differences arising out of original wagering contract, which fell under section 1 of the Bombay Act III of 1865 and the appeal against the dismissal of suit was also dismissed with costs. The second case cited in a Privy Council ruling relates to section 30 of the Contract Act and it was held therein that Patta Patti contracts are not wagering, if seller is unable to give delivery and buyer does not exonerate seller from demanding delivery making of patty patti results in agreement to pay differences only. The Bombay case is not applicable for the reason that it is based upon section 1 of the Bombay Act III of 1865. In Pakistan the law on the subject of gambling which is applicable is West Pakistan Prevention of Gambling Act, 1961, which contains no provision analogous to section 1 of the Bombay Act covering wagering contracts of the kind under discussion. In the absence of such provision the general law as provided in section 30 of the Contract Act has to be followed. Section 30 of the Contract Act provides as under :- ' Agreements by way of wager are void, and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made. This section shall not be deemed to render unlawful a subscription, or contribution, or agreement to subscribe or contribute, made or entered into for or towards any plate, prize or sum of money, of the value or amount of five hundred rupees or upwards to be awarded to the winner or winners of any horse race.
32. ' Nothing in this section shall be deemed to legalize any transaction connected with horse-racing to which the provisions of section of 294-A of the Indian Penal Code (XLV of 1860) apply.
33. ' In the instant case it is to be seen whether the contract in question was a wagering contract falling within definition as envisaged by section 30 of the Contract Act. Wager is defined by Sir William Anson as a promise to give money or money's worth upon the determination or ascertaining of an uncertain event. It is almost settled that a contract if highly speculative B is insufficient in itself to render it void as a wagering contract. Privy Council ruling quoted by Mr. Nasim Farooqui, as stated above, supports the above view that a contract would not be a wagering contract if the seller is unable to give delivery and the buyer does not exonerate the seller from demanding the delivery in making agreement to pay the differences. To make a contract wagering there must be from the outset, common intention of both the parties to the contract to make and , accept no delivery and to deal in differences only. To support this view there is no dearth of case law. In AIR 1956 Hyd. 131, it is held that the transactions of the nature where party speculate on the varying rate of the goods are not Satta and do not come within the purview of section 31 of the Hyderabad Contract Act. In this context it would not be open to one of the contracting parties to take up a plea that because the delivery was not made, the contract would become a wagering contract. What has to be proved in order to establish that a transaction of sale and purchase was a wagering one is the fact that it was agreed between the parties that no delivery was ever to be demanded or given. If the terms of the contract have been proved and they show on their face that delivery was to be given or taken and if it is alleged by one of the parties that in the circumstances stated above it was agreed that the term about delivery was not to take effect, and only differences were to be paid, then the burden lies upon the party making such allegation. Such view finds support in the case of Sheo Narain v. Bhallar (I).
34. ' In Bye-Law No, 45 of Karachi Cotton Association By-Laws trading in new crop under hedge contracts is permitted and By-Law No, 46 prohibits transactions in cotton wherein delivery is not given or taken or contemplated and it is further provided that no member shall have or acquire any interest direct or indirect in such a transaction. These By-Laws do not bar transactions of such kind between members and non-members. In the instant case it is stated in the plaint that Shabbir Hussain was doing hedge contract of cotton between 20th September, 1958 to 25th October, 1958 through respondent firm, in consequence whereof profit had accrued which was not paid by the respondent. The original contract between the parties has not been produced because the respondent-firm and Mian Khurshid Ahmed did not file written statement and did not contest suit.
35. The defence of the other contesting defendants in the suit was that they were not the partners at the time of alleged transactions and defence of Choudhry Mohammad Ismait was that he was a nominal partner. Shabbir Hussain. When examined before the trial Court stated that his father assisted him in the business and he had given him the power of attorney. His business with defendant No, 1 firm in the suit was for purchase and sale of cotton and their agreement was that he would take delivery of goods if asked for the same but in fact he had never done so. Between 20th September, 1958 and 25th.October, 1958 he had purchased and sold cotton to first defendant in the suit and the said first defendant had issued credit notes to him for this profit. Exhs. 6/3 to 6/8 are credit notes issued to him by the first defendant. There is absolutely no rebuttal of this evidence on the record particularly with regard to the assertion of Shabbir Hussain that there was agreement that he would take delivery of goods if asked for the same. The reason is that the main defendant in the suit did not contest and this assertion stands un-challenged. Exhs. 6/3, 6/4 and 6/7 mention delivery of the bales to be taken in the month of January. In the remaining exhibits mentioned above these columns have not been filled in. Shabbir Hussain is supported in his evidence by his brother Abbas Ali.
36. ' In this view of the matter we have no hesitation to say that these were such contracts in which delivery of goods though neither given nor taken was at least contemplated to be taken ; particularly when there is no evidence to rebut the assertion of Shabbir Hussain. We therefore, do not accept the contention of Mr. Nasim Farooqui that these contract were wagering.
(1) AIR 1950 Ali. 35; ' For reasons mentioned above the impugned judgment is maintained and we dismiss the appeal with no order as to costs.