Manohar Pershad, J. 1. Plaintiff-appellant firm filed a suit for the recovery of a sum of Rs. 13,282-12-3 against the 1st defendant-firm and the Official Receiver of defendants 3 and 4 on the basis of contracts and counter contracts for purchases and sales of bales of gunny bags. The 1st defendant firm did not deliver 200 bales of gunny bags as per contracts Nos. 23, 25, 52 and 57 and resold the same to the plaintiff on 26-5-1947 at the rate of Rs. 83-12-6 and both parties agreed to dispense with deliveries under the respective contracts. The 1st defendant firm agreed to pay the plaintiff Rs. 6,087-8-0 towards the difference in price of 200 bales. The 3rd defendant executed a letter to that effect, representing the 1st defendant. Plaintiff, therefore, states that the 1st defendant is liable to pay to the plaintiff an amount of Rs. 10,506-4-0 plus interest of Rs. 2,766-8-0. In the result plaintiff prayed for a decree to the extent of Rs. 13,282-12-3. Defendants 1 to 3 and 7 and 8 remained ex parte. Defendant No. 4 filed a written statement but remained ex parte, at the time of the trial. Defendants 5 and 6 only contested the suit. The 5th defendant pleaded that he was only a working partner and according to the registered partnership deed executed amongst the defendants, he was not liable to share the losses of the firm but was entitled to get Rs. 60/- per month and a share in the profits as remuneration for his services. He further stated that the 1st defendant firm is liable to pay to him Rs. 240/- towards arrears of his pay. Legal objection was also raised that the suit contracts are speculative and wagering in their mature and opposed to public policy and there was no intention to take delivery or give delivery of the goods as per those contracts. The 6th defendant in his written statement pleaded that defendants 3 and 5 who entered into the above contracts on behalf of the partners were not authorised to enter into wagering transactions and that, therefore, he was not bound by those contracts. He further stated that he ceased to be a partner of the 1st defendant firm from 13-6-1.947 onwards and that the plaintiff was not entitled to any decree against him. By an additional written statement defendants 5 and 6 raised a further contention that the suit contracts are void and unenforceable as the prices contracted for therein exceed the control prices and contravened the provisions of; Jute Price Control Order, 1944 and the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, Act XIV of 1946 (hereinafter referred to as Act XIV of 1946). On these pleadings the Subordinate Judge framed 7 issues. On the evidence produced by the parties he held issues 1, 3 and 4 in favour of the plaintiff but however, holding additional issue No. 1 against him, has dismissed the suit. Plaintiff has now come up in appeal. 2. On the last hearing when the case came up for arguments, it was stated on behalf of the respondent that the 2nd defendant has been declared an insolvent in I.P. No. 30 of 1951 and unless the Official Receiver, Kistna, is impleaded as a respondent, the appeal cannot proceed. Learned counsel for the appellant took time and has filed a petition supported by an affidavit that it was not necessary to implead the Official Receiver as a party to this appeal. The contention of the learned counsel for the appellant is that Official Receiver is not a necessary party and without his being brought on record the appeal can proceed against the insolvent. He next contended that the suit is for the recovery of money against the insolvent and in such suits it is not necessary that the Official Receiver should be brought on record. Reliance was placed on Chandmull v. Ranee Soondery Dossee, ILR 22 Cal 259 [LQ/CalHC/1894/94] , Puninthavelu Mudaliar v. Bhashyam Ayyangar ILR 25 Mad 406, Balthazar and Son v. Municipal Corporation, Rangoon, A.I.R. 1935 Rangoon 439. On the merits it was contended on behalf of the appellant that the Court below dismissed the suit only on the ground that the suit contracts were void and unenforceable as they contravened the provisions of the Jute Price Control Order but in a recent case a Bench of this Court has held that jute goods not being included in the schedule as the Act stood then, the Provincial Government had no power to regulate the prices of jute goods and that the Jute Price Control Order passed under the Defence of India Regulation had become dead and could not be revived by a subsequent notification; and in view of this judgment the finding of the Court below cannot be upheld. 3. On behalf of the respondent relying on Govindaswami v. Ranaveerapandian A.I.R. 1926 Madras 1145 and Section 29 of the Provincial Insolvency Act, it was contended that the Official Receiver is a necessary party. Adverting to the arguments on the merits of the case, the learned counsel for the respondent very rightly conceded that in view of the decision in Rama Murthi Gelli Krishnamurthi and Co. v. Seetharamayya, 1957 Andh L T 516 : A.I.R. 1958 Andhra Pradesh 427, it can no longer be said that the suit contracts are void or that they contravene the provisions of Statute. But still his contention is that the word continued used in Section 9 means resumption and though there is a gap between the advent of the new Act and the Notification the Notification would be deemed to have continued even during that period- The next argument advanced was that event if it is held that the suit contracts do not contravene the provisions of the Jute Price Control Order, still the plaintiff could not be entitled to a decree because the suit contract is in the nature of a wagering contract and is hit by Section 30 of the Contract Act. Reliance is placed on Kong Yee Lone and Co. v. Lawjee Nanjee, ILR 29 Cal 461 (PC), Talakshi v. Ujamshi, ILR 24 Bom 227. Lastly it is contended that so far as the claim of the plaintiff to the extent of Rs. 900/-is concerned, the suit is barred by limitation but the Court below has erred in holding that it is within time. 4. Before discussing the merits of the case we would like to dispose of the preliminary objection raised on behalf of the respondent as to whether the Official Receiver is a necessary party to the appeal. Learned counsel for the respondent relied on Section 29 of the Provincial Insolvency Act which reads thus : "Any Court in which a suit or other proceedings is pending against a debtor shall, on proof that an order of adjudication has been made against him under this Act, either stay the proceeding, or allow it to continue on such terms as such Court may impose." It is contended that as defendant No. 2 has been declared an insolvent and a receiver has been appointed, the appeal cannot proceed without bringing the Official Receiver on record. This section, in our opinion, does not relate to bringing a party on record. It only relates to stay of proceedings. There is nothing in this provision to indicate that in cases where a person has been declared an insolvent, the official receiver has to be impleaded in his place. The case relied on by the counsel also is not a clear authority on this point, though there is an observation that it is desirable in such cases to ask a party to implead the official receiver. It may be desirable but unless it is shown that it is obligatory on the appellant, he cannot be forced to implead him as a party. Learned counsel for the respondent could not refer to any other provision of the Provincial Insolvency Act in this regard. The only other provisions which may be relevant are Order 22, Rule 8, or Order 22, Rule 10, Civil Procedure Code. Order 22, Rule 8 cannot be applicable to the instant case as it relates only to insolvency of the plaintiff. Admittedly in the present case the defendant is the insolvent. The only provision that could apply is Order 22, Rule 10, Civil Procedure Code. It applies by reason of an order of adjudication. Even this provision is not mandatory and it is in the discretion of the Court either to ask the party to implead the Official Receiver or to allow the plaintiff to continue the suit or appeal. When it is not obligatory on the appellant and this being a money suit the interest does not vest in the Official Receiver, he is not, in our opinion, a necessary party to the appeal. We are supported in this view by ILR 22 Cal 259 [LQ/CalHC/1894/94] ; ILR 25 Mad 406; D. J. Subbarayar and Brothers v. Muni Swami Iyer and Sons, ILR 50 Mad 161 . The preliminary objection, therefore fails. 5. On the merits, in so far as the question whether the suit contracts contravene the provisions of the Jute Price Control Order, we need not go into a detailed discussion as this point has been set at rest by a decision of this Bench in 1957 Andh LT 516 (E). We do not agree with the contention of the learned counsel for the respondent that the word continue used in Section 9 of the Act XIV of 1946 should be construed to mean resumption. 6. The question that remains to be considered is whether the suit transaction is hit by Section 30 of the Contract Act. Section 30 reads as follows : "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." It would, therefore, follow that contracts by way of wager are void. In order to constitute a wagering contract, neither party should intend to perform the contract itself but only to pay the differences. The common intention of both parties at the time of entering into the contract must be not to call for or give delivery from one to the other. Speculation is different from wager and there is no law against speculation as there is against gambling or wagering. Speculative transactions have to be distinguished from agreements by way of wager. The transaction may be cloaked behind the form of a genuine commercial transaction but to establish the wagering nature it is necessary to prove that the documents evidencing the contract are but a cloak and that neither party intended them to have any effective legal operation. To make a contract, a wagering contract, there must be, from the outset a common intention of the parties to the contract to make and accept no delivery and to deal only in difference. A subsequent agreement, however, to the effect that buyer has no longer right to demand delivery and the seller is no longer obliged to give delivery does not make the contract a wagering one. We are supported in this view by Sukhdevdoss Ramprasad v. Govindoss Chaturbhujadoss and Co., ILR 51 Mad 96 and Bhagwan Das Parasram v. Burjorji Ruttonji, ILR 42 Bom 373 . 7. What is alleged on behalf of the respondent is that it was never the intention of the parties to take delivery of the goods but only to effect adjustments of claims arising out of difference of prices. The Court below in para 10 has discussed this point and has held that the evidence produced was not sufficient to hold that the intention of the parties was not to take delivery of the goods. Learned counsel for the respondent drew our attention to the various settlements of the suit contracts entered into by the parties and contended that none of the contracts show that there was an intention to deliver the goods. On the other hand, he contends, even before the expiry of the period for delivery, parties settled their contracts. In this connection he drew our attention to Exs.A-1(a), A-2(b), A-3(a), A-4(b) and A-5. From a perusal of this, no doubt it appeals that no actual delivery was taken and settlement was made long before the actual date of the delivery of the goods. But merely on this account it cannot be said that the nature of the transaction in question was that of wagering. The mere fact that only an adjustment of the claim was made would not be sufficient to lead to that conclusion. The essential factor for determining whether a contract is a wagering one or not is what was the intention of the parties at the time of the contract. In the instant case the evidence on behalf of the plaintiff which consists of P.Ws. 2 to 4 speaks; to the fact of purchasing and giving of the goods. They further refer to entries in the account books of the company. As against this there is the statement of D.W. 1 who says that there was no intention to take or make delivery of the goods. This statement of the defendant is not acceptable. He admits that he had account books and if what he said was a fact, he could have proved it by producing the account books. Learned counsel relying on the observations of the Court below that the systematic settlement of the contracts between the parties by counter contracts dispensing with deliveries and agreeing to pay differences in prices leads to a reasonable inference that the parties had no intention to implement the contracts by actual deliveries and payment of prices, contended that this was sufficient to establish the wagering nature of the transactions. We are not inclined to accept this contention of the learned counsel. The fact that after the original contract a settlement was made even before the period fixed and there was no actual delivery would not lead us to infer that it was in the nature of a wagering contract, because what we have to see is what was the intention of the parties at the time of the contract and not at the time of the adjustment or the settlement. As stated above, there is no evidence on record to show that at the time when the parties entered into the contract, there was no intention to deliver or take the goods. In this view of the matter we cannot agree with the contention of the respondent that the suit contract is in the nature of a wagering contract. 8. The case relied upon by the counsel for the respondent do not help his contention. ILR 29 Cal 461, was a case where there was a transaction for the purchase and sale of goods comprising of two classes of contracts. The Court on the evidence held that the contracts of the 1st class were different both in their character and in the treatment of them by the parties. In one class of contracts, the seller had an option to deliver rice and in the other class there was no option and on the evidence it was held that there was no intention at all for the delivery of the goods. In ILR 24 Bom 227, it has been held that in order to ascertain whether a contract is a wagering contract, the Court will not only look into the terms of the written contract but also probe among the surrounding circumstances to find out the true intention of the parties. We agree with this principle but as stated above, it does not apply to the facts of the instant case. We are therefore, definite that the suit transaction is not hit by Section 30 of the Contract Act. 9. We next turn to the last argument which relates to the question whether the suit of the plaintiff in respect of his claim for Rs. 900/- is time-barred. Under the suit contracts, the deliveries were stipulated to be made in the months of April, May, and June, 1947. Accordingly, the cause of action under each of the contracts would arise on 30th April, 1947, 31st May, 1947 and 30th June, 1947 for the respective instalments. Plaintiff has not based his claim on the original contract but on the settlement, that is Ex. A-1(a) which superseded the original contract Ex. A-1. The cause of action therefore would arise from the date of the settlement and not from the date of the original contract. The Court below in paragraph 11, while discussing this point, has held that though Ex. A-1 (a) stipulates for resale of the same goods to the plaintiff, but the defendant No. 1 became liable to pay the plaintiff difference between the prices fixed, the plaintiff could not demand the payment of those differences till the actual date fixed for deliveries, i.e., 30th April, 31st May and 30th June, 1947 for the instalments. We cannot agree with this view of the Court below. When parties have entered into a new agreement, the cause of action would be determined by the terms of that new agreement and not the superseded original contract. The settlement is dated 14th February, 1947 and the present suit is filed on 4-4-1950 admittedly beyond the period of 3 years. The claim of the plaintiff to the extent of this item would, therefore, be time-barred. 10. Plaintiff claimed originally Rs. 10,506-4-0 as principal. After deducting the amount of Rs. 900/- disallowed by us, he will be entitled to an amount of Rs. 9,606-4-0. The plaintiff-appellant would be entitled to interest at Rs. 0-12-6 per cent per month on this amount up to the date of the suit and from the date of the suit up to the date of decree and at 51/2 per cent per annum on the aggregate amount from the date of decree till the date of realisation. Plaintiffs claim to the extent of Rs. 900/- is dismissed. 11. The appeal of the plaintiff is allowed to the extent indicated above and the judgment of the Court below is set aside. Parties will be entitled to proportionate costs. This appeal having been set down this day (14-2-58) for being mentioned the Court delivered the following judgment : Manohar Pershad, J. : - On 20-12-1957, we allowed the appeal and decreed the suit to the extent of Rs. 9,606-4-0 with interest at Rs. 0-12-6 per cent, per month on this amount up to the date of the suit and from the date of the suit up to the date of the decree and at 51/2 per cent per annum on the aggregate amount from the date of the decree till the date of realisation. Parties have made a calculation of the principal amount and interest as per directions of the decree, according to which, the total amount decreed including interest up to the date of the decree comes to Rs. 19,146-9-3. On this amount the plaintiff would be entitled to interest till realisation at 51/2 per cent per annum. 13. While allowing the appeal, we had directed that parties would be entitled to proportionate costs. By that we mean proportionate costs throughout. Appeal partly allowed.