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"(1) Buyers to give seven clear working days notice to place goods alongside.
(2) Goods to be packed, folded, well pressed, marked and shipped by sellers in covered cargo boats in iron bound bales of 400 pcs. each.
(3) Payment to be made in cash in exchange for delivery orders on sellers, or for railway receipts, or for docks receipts or for mates receipts (which docks or mates receipts are to be handed over by a dock or ships officers to the sellers representatives).....
(5) Delivery of the said goods to given and taken as follows :

(a) providing for the payment or receipt, as the case may be, of margin in such manner and on such dates as may be specified in the contract, or

(b) by or with any person, not being a person who, -

(i) habitually deals in the sale or purchase of jute goods involving the actual delivery of possession thereof, or

(ii) possesses, or has control over, a godown and other means and equipment necessary for the storage and supply of jute goods."

The terms and conditions of the standard form of the Indian Jute Mills Association contained clauses (1), (3) and (4) which are the same as clauses 1, 2, and 3 of the contract in this case. The Supreme Court noted that "in respect of the goods deliverable under the contracts the mills would, in the case of goods sent by them alongside the vessel in accordance with the shippers instruction in that behalf, obtain in the mates receipts in respect of the same and such mates receipts would be delivered by the mills to their immediate buyers who in their turn would pass them on to their respective buyers in the chain of contracts resting with the ultimate shipper. If the mills held goods in their godown, they would issue s delivery orders on the due date, which delivery orders would be dealt with in the same manner as the mates receipts aforesaid. Both these sets of documents would present the goods and would be passed on from seller to buyer against payment of cash." It was common ground that the contract did not provide for the payment or receipt of margin and that the respondent did not possess or have control over a godown and other means and equipments necessary for the storage and supply of jute goods. The only point at issue was whether the respondent was a person who habitully dealt in the sale or purchase of jute goods involving the actual delivery of possession thereof. The contention of the respondent was that the transactions were purely speculative, that mere delivery orders passed between the parties and that such order did not represent the goods and that transfer thereof did not involve as between the intermediate parties actual delivery of possession of the goods. The learned judges of the Appeal Bench of the Calcutta High Court had come to the conclusion that "actual delivery of possession" meant physical or manual delivery as opposed to a symbolical or constructive delivery. According to the Supreme Court this consideration was too narrow. The court observed that "even if regard be had to mischief which was sought to be averted by the promulation of the Ordinance, the Government intended to prevent person who dealt in differences only and never intended to take delivery under any circumstances, from entering into the market. Provided a person habitually dealt in the sale or purchase of jute goods involving delivery of the goods, he was not to be included in the ban. This court be the only intendment of the Ordinance, because otherwise having regard to the ordinary course of business, business in jute goods would become absolutely impossible." The court founded that "the manufacturer of jute goods does not come normally into direct contract with the shipper. It is only through a chain of contracting parties that the shipper obtains the goods from the manufacturer and if only actual delivery of possession as contrasted with symbolical or constructive delivery were contemplated it would be possible carry on the business. If the narrow construction which was put by the appeal court on the expression actual delivery of possession was accepted, it would involved each one of the intermediate parties actually taking physical or manual delivery of the goods from their sellers and again in their true giving physical or manual delivery of the goods from their sellers and again in their turn giving physical or mannual delivery of the goods which they had thus obtained to their immediate buyers. Such an eventuality could never have been contemplated by the Government and the only reasonable interpretation of the expression actual delivery of possession can be that actual delivery as contrasted with mere dealing in differences was within the intendment of the Ordinance and such actual delivery of possession include within its scope symbolical as well as constructive delivery of possession. The court laid great strees on the words used in section 2(1)b)(1) involving the actual delivery of possession thereof and held that the word involving, in the context meant resulting in and this condition would be satisfied if the chain contracts as entered into in the market resulted in actual delivery of possession of goods in the ultimate analysis". In my opinion the decision of the Supreme Court does not lay down the broad proposition contended for by the learned advocate forth assessee before us that mere exchange of pucca delivery orders amounts to actual delivery or transfer of the goods within the meaning of Explanation 2 of section 24(1). As already noted, the Supreme Court pointed out of that the whole object to the Ordinance was to prevent dealing in differences only by persons who never intended to take delivery under any circumstances and that the ban was not imposed in the case of person who habitually dealt in the sale or purchase of jute goods involving actual delivery of possession of the goods. Further, as already noted, the mischief of the Ordinance would be avoided if the chain contracts as entered not ultimately resulted in actual delivery of possession of goods. This means that, so far as the intermediate contracts were concerned, there need not have been actual transfer of the goods. The Explanation to section 24(1), however, does not prevent persons from entering into contracts in which the buyers and sellers may not actually hand over the goods physically. The Explanation is only designed at grating for income-tax purposes loss sustained in transactions of a certain kind. It may be that such transactions are not speculative in the light of section 30 of the Contract Act. It is well settled that to make a contract wagering within the meaning of section 30 of the Contract Act, there must be a common intention of both the parties to the contract not to give or take delivery but only to deal in differences. The Explanation to section 24(1) goes a step further and takes the transactions out of the domain of intention altogether in that there must be actual delivery or transfer of the commodity. The word "actual" means "real" as opposed to "theoretical or probable."