DULALDAS MULLICK Vs. GANESH DAS DAMANI

JUDGEMENT

(1.) This is an appeal from the judgment of the learned trial Judge dismissing the plaintiff's suit with costs.

(2.) The suit was instituted by the plaintiff on the 17th February, 1950, for the delivery of possession of a shop room in premises No. 46/A, Netaji Subhas Road, Calcutta, and for seeking other incidental reliefs. The plaintiff's case was that he was carrying on business as a dealer in paints and varnish at the said shop room as a monthly tenant paying rent at the rate of Rs. 144-6 per month under the name and style of D. Mullick & Company. He was indebted to a person called Gopal Lal Daga who instituted a suit being Suit No. 610 of IMS against the present plaintiff under Order 37, Civil P. C., for the sum of Rs. 3735-9-9 on certain hundis. That suit was decreed with costs on 7-5-1948. The decree-holder Daga of that case started execution proceedings and in course of such execution proceedings the furniture, stock-in-trade and goodwill of the business of D. Mullick & Company of the plaintiff were sold as a going concern and were purchased by the defendant Ganesh Das Damani on 19-2-1949 for the sum of Rs. 8,100. The sale was held by the Sheriff. It is the plaintiff's allegation in the plaint that on 22-2-1949, Damani wrongfully put his padlocks on the doors of the said shop room and has continued to be in possession of such room since then. It is also his allegation in the plaint that the second defendant Usha Bolt and Nut Company is now in possession of the said shop room and is carrying on business there. In fact the second defendant Usha Bolt & Nut Company purchased on 23-6-1949 for valuable consideration the business of D. Mullick & Company with its goodwill stock-in-trade and furniture as a going concern.

(3.) The learned trial Judge after hearing the parties and their evidence came to the conclusion that the sale in this case included the goodwill of the business of the plaintiff in the said shop room as a going concern, and that by sale of such goodwill the plaintiff also lost his monthly tenancy rights therein.