ASHOK THADHARAM CHAWLA Vs. MAHABALI BOGHA SHETTY

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dismissing the plaintiffs' suit with costs, passed by the learned Civil Judge (S.D.) Kachehhi Bhuj. in Special Civil Suit No. 84 of 1977. The facts of the case may briefly be stated as follows:

(2.) One Haridas Kevalram was the owner and landlord of Shop No. D-23 situated at Gandhidham, Kachchh. He gave that shop on lease to Thadharam Chawla, the father of appellant Nos. land 3 and the husband of Appellant No. 2 in or before 1951. In that shop, Thadharam was doing some business. From January 1,1959, Thadharam gave that shop to respondent No. 1 under various documents executed from time to time. Upto a certain time, those documents were executed by and between respondent No. 1 on one hand and Thadharam on the other, and thereafter, by and between respondent No.2 on one hand and the said Thadharam on the other. It appears that Thadharam died sometime in October 1966, and thereafter some litigations, to which I will have an occasion to refer hereafter, arose between the present appellants, respondents and the origninal owner Haridas. On September 20,1972, an agreement Exh. 129 came to be executed by and between the appellants on one hand and the two respondents on the other. That agreement is captioned as" Agreement to run a Business". The suit, from which this appeal arises is based upon that agreement.

(3.) In the Plaint, the appellants contended that they are the owners and proprietors of the business concern of restaurant which is being carried on under the name and style of M/s. Chawla Cafe & Milk Bar, being run in the shop bearing No. D- 22-23 situated at Gandhidham and they are also the owners of the Ice Candy business, carried on in the said shop. According to the appellants, all the properties like furnitures, fixtures, fittings, machinery and other articles of the business belong to them. It is the case of the appellants that the said business was established by Thadharam Chawla in or about 1951 A.D. and Thadharam Chawla was the sole prroprictor of that business. The appellants contend that Thadharam Chawla had also installed in the aforesaid shops an Ice Candy plant for manufacturing ice candy and had established a good business having a good will. The two respondents are brothers inter se. It is the case of the appellants that under the agreement, dated September 20, 1972(Exh. 129), they granted a licence to the two respondents for manufacturing ice candy and to run the business concern in the name of M/s Chawla Cafe and Milk Bar, for a period of five years, on the terms and conditions cnumerated in that agreement. It is further the case of the apppellants that this licence for manufacturing ice candy and to run the business of the Cafe and Milk Bar was given by them to the respondents, as a running business, with all its furnitures, fixtures, fittings, utensils, trade name and style as also all the facilities which were fixed in the business premises, including radio, telephone, etc. and a list of these articles has been attached to the aforesaid agreement Exh. 129. The appellants contend that under the agreement, the respondents were liable to pay to them licence fee of Rs. 475/- per month for manufacturing ice candy and to run the business of Cafe and Milk Bar and for the use of furnitures, fixtures, etc.