G SIRUR Vs. AMBHAMIA

JUDGEMENT

(1.) This is an appeal against the judgment of Coutts-Trotter, J, passing a decree in the plaintiff's favour for Rs. 3,144 and odd found to be due, on account of shares sold by the plaintiff to the defendant upon the Madras Stock Exchange. The defendant raised two defences to the suit; first that the transaction in question was a dealing is differences and thus partaking of the nature of a wagering contract and secondly, that part of the contract was entered into by the defendant's clerk outside the Stock Exchange and so not according to the rules and regulations and therefore irregular and not enforceable.

(2.) The plaintiff and the defendant are both members of the Madras Stock Exchange. The onus in cases of this sort of proving that there was a mutual understanding that shares should not be delivered lies upon the defendant, who asserts the same. When, as here, both parties are themselves stock-brokers, that onus is greatly increased, for the reason that it is of the nature of dealings between stock-brokers that they should settle differences periodically between themselves on a settling day and pay the balances due, and that shares should not be actually transferred between the two as they would be between a member of the Stock Exchange who sells shares and a member of the public who purchases them. The plaintiff asserted that in respect of 15 shares he actually delivered the shares to the defendant. On the other hand, the defendant swore that no shares were delivered or received. The defendant did not pursue the point or adduce any other evidence to show that the plaintiff's statement was false, as he might have done by demanding the production of the receipt or voucher for the share certificates which were tracsferred. The plaintiff subsequently became insolvent and he filed an affidavit in the insolvency proceedings, in which he admitted that certain other transactions were of the nature of wagering transactions. He attempted to distinguish those transactions from the suit transactions and the defendant made no further attempt to connect the two together. On the whole, we are satisfied that the defendant did not discharge the onus that lay on him of proving that the contracts in suits were of a gambling and wagering nature.

(3.) As regards the other defence, it is not denied by the plaintiff that the defendant's agent entered into certain transactions on the 11 and 15th December; but the letter, Exhibit D, is ample proof that the defendant himself ratified the acts of his agent. There is, therefore, no reason to interfere with the judgment of the learned Judge and the appeal is dismissed with costs. Beasley, J