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TMI Blog1956 (11) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... n-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 ₹ 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. 4. The essential point for determination in this ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn in one lot the goodwill and the furniture and other articles of the defendant firm D. Mullick Co., attached in execution of the said decree and directed to be sold under the said orders and that such sale be held at the premises No. 46A, Netaji Subhas Road, Calcutta. 8. It is clear in our opinion both from the sale proclamation as well as from the relevant orders directing the Sheriff to sell that the property to be sold in this case was nothing else than the goodwill of the business of D. Mullick Co. of 46/A. Netaji Subhas Road as a going concern, apart from the other stock-in-trade and furniture mentioned in the relevant orders. There is therefore, no substance in the appellant's contention that as the sale was by the Sheriff and as the conditions of sale were made-appropriate to those of sale of moveable property therefore the plaintiff's goodwill, if it includes his right to immovable property namely that of a monthly tenant of the shop room, had not been lost by the sale. Even for these irregularities, if irregularities they be, the sale today cannot be set aside as it has become final and the procedure that the appellant should have followed was by ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich forms the largest content of good- will in almost every other business. Specially is the attribute of locality the most important consideration in the business of an ordinary trader or a dealer as in the present case. In my opinion there can be no hard and fast rule, no simple formula and no inflexible and rigid definition of the term goodwill but in each case it is necessary to see the entire nexus of facts connected with the business whose goodwill is to be determined. 11. In fact, Vice-Chancellor Wood in Chur-ton v. Douglas, reported in 1809 John 174 at 188 (A), quotes with approval the well-known observations of Lord Eldon where the learned Lord had said- 'goodwill' must mean every advantage - every positive advantage, if I may so express it, as contrasted with the negative advantage of the late partner not carrying on the business himself - that has been acquired by the old firm in carrying on its business, whether connected with the premises in which the business was previously carried on, or with the name of the late firm, or with any other matter carrying with it the benefit of the business. 12. In Cruttwell v. Lye, reported in (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e us I am satisfied both on the law and on the facts that the goodwill of the business of D. Mullick Co. of 46/A, Netaji Subhas Road was sold and that the sale of goodwill in this case included the monthly tenancy right or whatever right of occupation the plaintiff Dulaldas Mullick had in the said shop room. The terms of the relevant orders for sale and the terms of the sale proclamation in this ease, expressly emphasise the fact that the goodwill of the business as a going concern was sold. To sell the ordinary dealer's business as a going concern and then to say that it does not include the very basic right to occupy the shop room from where the business is carried on will be to dislocate and destroy the business and not to sell it as a going concern for the present business cannot go on except from that shop and it is a business where locality is a significant part of the goodwill sold. 16. We are also fortified in our opinion that the sale of the goodwill included in this case the tenancy right by reason of the fact that the price of ₹ 8,100/- paid for such sale far exceeds the value of the furniture and stock-in-trade which are worth only about ₹ 2,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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