1. This first appeal by the State of Rajasthan (which will hereinafter be called the State) arises out of a suit filed by it against the defendant Bundi Electric Supply Company Limited, Bundi (which will hereinafter be referred to as 'the Company') in the Court of Senior Civil Judge, Bundi. The Company also filed a cross suit against the State. The suit by the State was filed on 4-7-1958 and was registered as Civil Original Suit No. 7 of 1958 and the suit by the Company was filed on 16-10-1958, and registered as No. 9 of 1958. The relevant facts giving rise to these two suits may be stated as follows :
2. There was a commercial concern owned by the former State of Bundi called the Bundi Petrol Automobile Supply Agency (hereinafter referred to as 'the Agency') which used to carry on business of running buses and trucks and also dealt in petrol and spare motor parts etc. It is alleged in the plaint filed by the State that the Company was registered under the Bundi Companies Act, 1936. It wanted to obtain a licence for monopoly of motor service within the territory of the former Bundi State and therefore it approached the then Ruler of Bundi for the said purpose and a licence was granted to the Company by the Ruler on 31-7-1944, a copy of which has been placed on the record and marked Exhibit 7. According to the State, one of the conditions contained in the licence was that the defendant Company would 'take over the Bundi Petrol and Automobile Supply Agency (a commercial undertaking of the Bundi State) lock, stock and barrel and in lieu thereof pay a sum of Rs. 4,00,000 to the Bundi State'. The case of the State is that the Company paid Rs. 1,00,000 in cash and agreed to issue 30,000 fully paid up ordinary shares of the face value of Bs. 10 each (total value of the shares being Bupees 3,00,000) in lieu of the balance of the price money i. e. Rs. 3,00,000. The Bundi State agreed to this proposal and the Company allotted 30,000 ordinary fully paid up shares. Besides the above mentioned 30,000 shares, Bundi State further acquired 11,600 ordinary fully paid up shares of Rs. 10 each of the Company. With the merger of the Bundi State into the State of Rajasthan, the State became the owner of these shares by virtue of the provisions of Article 295(2) of the Constitution of India. It is averred by the State that the Company had been declaring and paying dividends on all the aforesaid shares upto the year 1950 but thereafter it stopped doing so. For the year 1950-51 the Company paid Rs. 16,407 as dividend and allotted 1640 bonus shares together with a sum of Rs. 7 in cash but it did not issue share certificates of these 1640 shaves. The State has alleged that the Company had declared dividends and other benefits on its ordinary shares for the years 1950-51 to 1955:56 but it has mala fide not paid any dividends to the State for this period. The State therefore claimed the following reliefs in its plaint:
(i) The company be directed to pay a sum of Rs. 1,41,587.50 paisa as the amount of dividend along with interest thereon at 6% per annum Rs. 27,740.79 paisa.
(ii) It may be declared that the State is entitled to receive dividends and benefits on all the shares held by it as and when the Company declares the dividends on the shares.
(iii) The Company may be directed to allot and issue 2520 ordinary fully paid up shares of the value of Rs. .10 each in lieu of bonus shares to be allotted for the year 1950-51 and also to issue share certificates for 1640 Bonus shares already allotted in 1950-51.
3. The defendant company denied the State's claim, in the written statement filed by it on 10-10-1958. It admitted that the Company was desirous of obtaining monopoly rights with respect to plying of motor stage-carriages and other vehicles within the former Bundi State and had in pursuance thereof offered certain shares to the Ruler of Bundi, who accepted them subject to certain modifications contained in the order dated 6-1-1944, a copy of which has been placed on the record and marked Exhibit 5. It was also admitted that the Company was granted monopoly to ply motor buses and lorries throughout the territory of the State of Bundi for a period of 30 years, commencing from 11th January, 1964 by licence Exhibit 7. It was, however, denied that the purchase price of Rupees 4,00,000 was settled as the price for taking Over the Bundi Petrol and Automobile Supply Agency from the Bundi Darbar.
The Company pleaded that the stocks held by the agency were worth about a lakh of rupees at that time, and therefore, Rs. 1,00,000 were paid as price of the agency and the rest of the amount i. e. Rs. 3,00,000 were to be paid in lieu of grant of monopoly rights to ply buses and lorries within the territory of the former Bundi State for a period of 30 years. It was stated by the Company 'that these rights have been denominated as 'goodwill rights' and the shares have been called as 'goodwill shares' or money by the Bundi Government in their Order dated 10-1-1944 and in Clause No. 6 of the license Ex. 7. It was thus pleaded that out of Rs. 4,00,000 agreed to be paid by the Company to the former Bundi State Rs. 3,00,000 were paid by issue of 30,000 shares of Rs. 10 each in consideration of the aforesaid monopoly rights granted to the Company. It was, however, admitted by the Company that the dividends declared up till year 1950 only were paid to the State and the dividends claimed by the State in its suit have not been paid. With respect to these 30,000 shares, it was further pleaded that the price of these shares was agreed to be paid and adjusted by writing off Rs. 10,000 each year during the period 30 years for which monopoly rights had been granted to the Company. The Company went on to say that the Motor Vehicles Act, 1939 was applied in the State of Rajasthan from 1st April, 1951 and with the coming into force of this Act the monopoly granted to the Company came to an end and thus the consideration for the purchase of 30,000 shares viz. the grant of monopoly rights 'fell, and became illusory and inoperative as soon as the rights were infringed'.
The case of the Company, thus, is that the State is not entitled to any dividend on the 30,000 shares after the Company's financial year 1950-51. So far as the bonus shares of the value of Rs. 16,400, i.e. 10% of the 11,600 (sic) shares of the value of Rs. 1,16,000 is concerned, the company did not raise any dispute as to the ownership of the State of these shares. It was also pleaded by the Company that the State had at no time in general meeting of the Company raised any protest against the Company s intention of not paying the dividends on the said 30,000 shares despite the fact that the notice of each general meeting of the Company was duly sent to the Finance Secretary of the Government of Rajasthan for the last 7 years and thus the State was estopped from claiming dividends on these shares, after the cessation of the monopoly rights granted to the Company.
4. As already stated above, the Company filed the counter suit against the State on 16-10-58 and prayed for a decree for Rs. 4,18,710.59 paisa against the State by way of compensation on account of infringement of the monopoly rights granted to it, or in the alternative as the price of the so-called 30,000 illusory shares inclusive of interest thereon. The State also filed a rejoinder on 28-2-1959 in the suit filed by it wherein it denied the position taken by the Company and while admitting that the monopolistic rights granted to the Company had come to an end with the coming into force of the Motor Vehicles Act, 1939 with effect from April 1951 yet pleaded that the licence granted by the then Ruler of the former State of Bundi was a sovereign act and not a commercial contract, and at any rate the monopoly rights of the Company had not been disturbed by the State but they had automatically come to an end.
5. Separate issues were framed in both the suits. Both the parties produced a few documents. The Company examined one witness Brijnarain on its behalf, whereas no witness was examined by the State. The learned Civil Judge disposed of both the suits by a common judgment dated 21-12-1959. Suit No. 9 of 1958 filed by the Company was dismissed in entirety while suit No. 7 of 1958 filed by the State has been decreed in part and the Company has been directed to pay Rs. 13,575 to the State as the balance or the dividends still unpaid, and Rs. 1399.13 as interest as also penclente lite and future interest on the principal amount at 3%. It has been declared that the State is entitled to receive in future dividends and all other benefits on 11,600 shares mentioned in Part B of the Schedule 1 attached to the plaint. It has also been declared that the State is entitled to dividend etc. on 7,223 shares only issued in lieu of monopoly, and it has further been directed that the Company shall allot 242 Bonus shares not so far allotted by it. A direction has also been issued to the Company to issue share certificates in respect of 1,882 Bonus Shares. The rest of the claim of the State has been dismissed.
6. The State alone has come in appeal to this Court and consequently we are no more concerned with the claim made by the Company in suit No. 9 of 1958 filed by it against the State. The Company has also not made any grievance with respect to that part of the claim of the State which has been decreed by the lower court, by filing any appeal or cross-objection to this Court.
7. In this appeal it has been prayed by the State that a decree for a sum of Rupees 1,55,752 in addition to the amount already decreed by the trial court be passed, and it may further be declared that the State is entitled to all benefits on the 30,000 shares held by the State. It has also been prayed that a direction be issued to the Company to allot 2520 ordinary shares fully paid up of Rs. 10 each in lieu of the balance of the bonus shares declared in the year 1950-51 and to issue share certificates thereof.
8. We have heard the learned Advocate General on behalf of the State and Shri M. B. L. Bhargava on behalf of the Company at some length. The learned Advocate General has urged the following points :--
(1) That out of the sum of Rs. 4,00,000 agreed to be paid by the Company Rupees 1,00,000 was for the price of the physical and visible assets of the agency and Rupees 3,00,000 (in lieu of which 30,000 fully paid up shares were issued by the Company) was the price of the goodwill and nothing was paid in consideration of grant of monopoly rights to the Company by the former Bundi State, which had granted monopoly rights to the Company as a bounty.
(2) That the Company is not entitled to question the consideration for which 30,000 fully paid up shares of Rs. 10 each were issued to the State and the Company is bound to pay the dividends to the State on these shares and the State is entitled to all the benefits as a share-holder.
(3) That in any case even if 30,000 shares are held to have been issued in lieu of grant of monopoly rights to the Company, the Stale is not liable to restore any benefits or advantage under Section 56 or 65 of the Contract Act, or under any other provision of law.
9. The main controversy in the case centers round the question whether the fully paid up shares of Rs. 3,00,000 had been issued by the Company to the State of Bundi in consideration of the grant of monopoly rights by it to the Company to ply exclusively motor stage carriages and lorries throughout the territories of former State of Bundi, and whether on account of these monopoly rights having come to an end on 1-4-1951 with the coming into force of the Motor Vehicles Act, 1939, the State is not entitled to get any dividends or benefits on account of the said 30,000 shares? On a consideration of the various documents produced by the parties and the statement of Brijnarain, the learned Senior Civil Judge has come to the conclusion that out of the amount of Rs. 4,00,000 paid by the Company Rs. 1,00,000 was for the stock or the assets held by the Bundi Petrol and Automobile Supply Agency and the 30,000 fully paid up shares worth Rs. 3,00,000 were issued by the Company in favour of the fonner State of Bundi as a consideration for the grant of monopoly rights and not as a price for sale of good-will of the agency. The learned Senior Civil Judge also came to the conclusion that the State of Rajasthan which is the successor to the former State of Bundi was entitled to dividends, bonus and other benefits on account of 30,000 shares of the value of Rs. 3,00,000 at the rate of Rupees 10,000 per year commencing from 11-1-1944 to 31-3-1951 and not thereafter, when the monopoly rights granted to the Company came to an end, and the Company was not bound to declare or pay any dividend on those shares after 31-3-1951.
10. We shall, therefore, deal with this aspect of the case first. But before we do that, we would like to mention that the stand taken by the State before this Court as well as the lower court was that the consideration for shares worth Rs. 3,00,000 was the 'goodwill' of the agency which the former Bundi State had transferred to the Company at the time of selling the assets and other things belonging to the agency. Mr. N. B. L. Bhargava, however, took a preliminary objection that the State was not entitled to urge that the consideration of Rs. 3,00,000 was the sale of the 'goodwill' of the agency to the Company. He contended that this had not been the case of the State in the pleadings nor any proof had been led in this respect by it and the lower court should not nave allowed the State to press this aspect of the case at the stage of arguments. To be more precise, the contention of Mr. Bhargava is that neither in the plaint nor in the rejoinder, the State has ever come forward with a case that the consideration of Rs. 3,00,000 was the transfer of goodwill of the agency to the Company. In this connection he has taken us through the whole of the plaint filed by the State as well as its rejoinder. He has also invited our attention to the issues framed in both the suits, and has argued that the contention of the State incorporated in issue No. 3 which is the only relevant issue on the point is whether the whole of the purchase price of Rs. 4,00,000 was for the assets of the agency alone?
11. For a proper appreciation of the contention raised by Mr. Bhargava we might reproduce here paras. Nos. 2 and 3 of the plaint which are relevant on the point:
'2. That the defendant company was desirous of obtaining a licence for monopoly of Motor Service within the former Bundi State. It approached the Bundi Dar-bar for that purpose and a licence was granted to the defendant company on the 31st day of July, 1944. One of the conditions of the licence was that the defendant company shall take over the Bundi Petrol and Automobile Supply Agency (a commercial undertaking of the Bundi State) Lock, stock and barrel and in lieu thereof pay a lump sum of Rs. 4,00,000 to the Bundi State.
3. That the defendant company paid only a sum of Rs. 1,00,000 in cash out of the abovesaid sum of Rs. 4,00,000 and desired that the Bundi State may accept 30,000 fully paid up ordinary shares of the face value of Rs. 10 each share total value Rs. 3,00,000 towards the satisfaction of the balance of the above said claim. The Bundi State agreed to this proposal and the defendant company allotted 30,000 ordinary fully paid-up shares and issued the share certificates for the same. The relative share certificates bear the numbers, as shown in Part A of the Schedule I appended herewith,'
In reply to Para. No. 2 the Company in its written statement has pleaded inter alia as follows :
'It is, however, not admitted that the purchase price of Rs. 4,00,000, as mentioned in this paragraph, was for the stocks alone held by the Bundi Darbar at that time, which were hardly worth about a lac of rupees at the relevant date. The rest of the purchase money i. e. Rs. 3,00,000 were for the grant of monopoly rights within the Bundi State territory to be enjoyed for a period of 30 years. These rights nave been denominated as goodwill rights and the shares have been called the goodwill shares, or money by the Bundi Government in their Order dated 10-1-1944 or in term No. 6 of the licence granted to the defendant company. The method of payment of these 3 lacs of rupees is clearly embodied in the council Resolution dated 6th January, 1944.'
Further Para. No. 3 of the written statement of the company reads as below:
'3. Para. 3 of the plaint is not admitted as stated. The sum of Rs. 1,00,000 was passed in cash to the Bundi Government as the price of the assets of the Bundi Petrol and Automobile Agency and the balance of Rs. 3,00,000 was paid in shares (30,000 of Rs. 10 per share) by the defendant Company as agreed to by the Bundi Government is consideration of monopoly rights for carrying on the business within the Bundi State territory. The number of shares is not denied.'
Paragraph No. 6 of the additional pleas of the written statement makes the position taken by the Company still clear:
'6. That no casb consideration as shown above, was paid for the purchase of the 30,000 shares. The consideration, as mentioned above, was the grant of monopoly rights, which failed and became illusory and inoperative as soon as the rights were infringed. The balance of those shares over and above adjusted under the Council Resolution dated 6-1-44 became illusory and inoperative. As such the plaintiff is not entitled to any dividend on those shares after the defendant Company's financial year 1950-51.'
It is noteworthy that in spite of this specific plea having been taken by the Company and an opportunity having also been given to the State to file a rejoinder, the State, it so appears, filed a rejoinder rather unwillingly and even then made no mention therein that the consideration of Rupees 3,00,000 for which 30,000 shares had been issued by the Company was in lieu of the price of the goodwill of the agency sold by the Ruler of the Bundi State to the Company. The rejoinder starts as under:
'The plaintiff State did not want to file rejoinder to the written statement of the defendant, but as the Hon'ble Court has directed to do so, the rejoinder is submitted as under.'
Paragraph No. 2 of the rejoinder which is relevant, reads as under:
'2. In Paras. 2 and 3 of the written statement the assertion of the defendant company that Rs. 1,00,000 was paid to Bundi State as price of the assets of the Bundi Petrol and Automobile Agency and the balance of Rs. 3,00,000 was paid in shares (30,000 shares of Rs. 10 each) in consideration of monopoly rights is emphatically denied, under Clause 2 (c) of the Motor Monopoly Licence, 1944, the value paid was one and whole and indivisible. The consideration of Rs. 4 lacs was paid for the entire business lock, stock and barrel of the Bundi State concern, viz. 'Bundi Petrol and Automobile Supply Agency.....'
Issue No. 3 which is the only relevant issue on the point has been framed as below:
'(3) Was the purchase price of Rs. 4,00,000 made up of Rs. 1,00,000 for the assets of the Bundi Petrol and Automobile Agency and Rs. 3 lacs for the amount of the monopoly rights or goodwill to be enjoyed for 30 years or was it for the assets alone?'
While framing the issues the lower Court has observed that:
'Issues have been framed with the consent of the parties. Issue No. 2 has been framed by me of my own accord. No other issue bas been suggested by any of them.'
12. Learned counsel for the Company has urged that the only contention in this respect raised by the State was that the whole purchase price of Rs. 4,00,000 was for the assets alone and nothing was paid by the Company as consideration for the grant of monopoly rights to it. The use of the word 'goodwill' in issue No. 3, it is contended by Mr. Bhargava, was in the sense that the monopoly rights were denominated as goodwill. In other words he submits that the monopoly rights were described as goodwill in this transaction.
13. The learned Advocate General conceded that the State had, no doubt, nowhere pleaded either in the plaint or in the rejoinder that Rs. 3,00,000 was the price of the goodwill. He had also to admit that the contention that Rs. 3,00,000 was the price of the fiodwill had not been put in any issue. But s submission was that since this aspect of the case has been considered by the lower Court in its judgment without any objection from the Company he should not be shut out from pressing this point before us also.
14. After bestowing our careful consideration on the objection raised by Mr. Bhargava we are of opinion that it is not without force. It is well settled that no amount of evidence can be looked into on a contention which bas not been raised in the pleadings. We are further of opinion that the lower Court should not have allowed the State to argue that the consideration for the issue of 30,000 shares worth Rs. 3,00,000 was the price of the goodwill of the agency transferred by the former Bundi State to the Company. We are also clear in our minds that this is not a pure question of law and this question should not have been gone into without there being a specific issue on the point. However, since the Company did not raise objection to the case being argued on this point before the lower Court and the lower Court has given its decision thereon, we think it proper to decide this point on merits also.
15. Apart from the fact that it bas nowhere been pleaded by the State that Rs. 3,00,000 were in consideration for the transfer of the goodwill to the Company, the State has chosen not to lead any evidence on this point either in Ex. 7, which has been described as a licence granted by the Ruler of the former State of Bundi to the Company, reference to the word 'goodwill' has been made in Clause No. (6) which reads as under :
'6. The Bundi State shall always have the right to terminate the operation of the licence granted by these presents to the Company but only after giving one year's previous notice as a condition precedent and shall take over all the stock-in-trade such as stated in Para. 2 (c) above as shown in the books of the Company as well as the benefits of all the then existing contracts in favour of the said Company provided that in the case of such termination the Bundi Darbar shall pay to the Company the value of all the then existing assets of the Company including the balance of the goodwill money then outstanding as shown in its books together with an additional sum calculated at 10% of such valuation as compensation for compulsory acquisition.'
16. The Indian Contract Act does not define the word 'goodwill' but in its legal sense the word 'goodwill' means every affirmative advantage as contrasted with negative advantage that has been acquired in carrying on the business, whether connected with tie premises, or its name or style and everything connected with it. or carrying with it, the benefit of the business. It includes the whole advantage of the reputation, and connection of the firm or the owner, which may have been built up by years of hard work, or gained by lavish expenditure, beyond the mere value of the capital stock and property embarked in the business, in consequence of the general public patronage and encouragement, which is received from habitual or constant customers. It is that species of connection in trade, which induces customers to deal with a particular firm or concern. It differs in its composition in different trades, and different businesses in the same trade. It has no meaning, except in connection with a continuing business. It is treated as part of the assets of the firm. In other words goodwill represent business reputation. The sale of a goodwill implies the probability that the old customers will resorl to the old place, that is, to the established business, wherever it may be situated. Reference in this connection may also be made to N. G. C. Mills Limited v. L. A. Tribunal, AIR 1957 Bom 111 and Dulaldas Mullick v. Ganesh Das, AIR 1957 Cal 280 in which their Lordships have discussed the meaning and implications of the term 'goodwill'.
17. We then find it difficult to accept that if the term 'goodwill' was used in the sense in which it is used in the commercial world, or in its legal sense there would arise any question of paying the balance of the goodwill by the State of Bundi to the Company in case of compulsory acquisition of all the stock-in-trade of the Company. The fact that the word 'goodwill' was used in Clause (6) of the licence not in its ordinary sense but in a peculiar sense becomes clear from the Council Resolution dated 6-1-1944 which preceded the grant of the licence Ex. 7 on 31-7-1944. Para, (e) of this Council Resolution (Ex. 5) reads as below:
'(e) Each year a sum equal to l/30th of the purchase price, excluding the value of the stock in hand, must be set aside or writing of the goodwill.'
This paragraph shows that the Company was to write oil' Rs. 10,000 every year as expenditure in the account of the goodwill' money. It passes our comprehension how could a goodwill account be opened and where would e the question of setting aside a sum of Rs. 10,000 every year for writing off the goodwill if by the word 'goodwill' was meant 'business' reputation? There is thus force in the contention of Mr. Bhargava, that the word 'goodwill' has been used in Clause 6 of the licence Ex. 7, as well as in Para (c) of the Council Resolution Ex. 5 not in its ordinary sense but in a peculiar sense, and that it was meant to refer to monopoly rights granted to the Company by the State of Bundi.
18. As already observed above there is nothing on the record to show that Rupees 3,00,000 were settled as the price of the 'goodwill' separately. On the other hand the frame of Issue No. 3 shows that the case of the State was that the whole of the price of Rs. 4,00,000 was in lieu of the assets of the agency and nothing was paid for the grant of monopoly rights to the Company. We are, therefore, of opinion that there is no substance in the contention raised by the Advocate General that 30,000 fully paid up shares of the value of Rs. 3,00,000 had been issued by the Company in favour of the State as price of the goodwill' of the agency. We are firmly of the view that no separate price was fixed for the 'goodwill' of Bundi Petrol and Automobile Supply Agency to be charged from the Company even assuming that it possessed 'goodwill'.
19. The only question, therefore, which we have to determine is whether the whole of the purchase price of Rs. 4,00,000 was for the assets of the agency including the 'goodwill' if it had any, or the 30,000 fully paid up shares of the value of Rs. 3,00,000 were issued by the Company in favour of the former State of Bundi as consideration for the grant of monopoly rights to the Company by the then State of Bundi.
20. The learned Advocate General has argued that for the decision of this question we should not look at any document except the licence Ex. 7 which is the sole memorial of the transaction and all other evidence should be excluded by virtue of the provisions of Section 91 of the Indian Evidence Act. We shall examine this argument later on but for the present we shall concentrate our attention on the licence Ex. 7 only :
21. Paragraph No. 2 of the licence shows that the Company shall have the monopoly of running the lorry and bus services throughout the Bundi State territory for a period of 30 years and shall run such lorry and bus services on the following terms and conditions :
(c) The Company shall take over the Bund! Petrol and Automobile Supply Agency together with all the motor lorries, ouses spare parts, petrol and oils and other assets in stock as shown in the books of the Bundi Petrol and Automobile Supply Agency after Payments of the Dividend due on the 1st November, 1943 as well as the contracts for the Railway Out-agency and Postal Mail and agencies for Burmah-Shell Petrol and Motor and Lubricating Oils, kerosene oils, shell-tax Grease Diesel oils, Automobiles, spare parts Dunlop Tyres and tubes Batteries and Simp-son's Charcoal Gas producer plants and also all other business which at present is being carried by the said Bundi Petrol and Automobile Supply Agency and in consideration for and in lieu of the foregoing shall pay to the Bundi State a lump sum of Rs. 4,00,000 (Rupees four lacs).'
22. The argument of the learned Advocate General is that the word 'foregoing' used in Clause (c) of the licence refers to the things mentioned in Clause (c) only and not to the preceding Clauses (a) and (b) and the main Para. (2), and, thus he contends that nothing was paid in lieu of the grant of monopoly rights by the Bundi State. In other words his submission is that the Ruler of the former Bundi State in exercise of the powers as a sovereign granted monopoly rights to the Company ex-gratia. We, however, find it difficult to accept the interpretation put by the learned Advocate General. The main para (2) of the licence says that 'the Company shall have the monopoly of running the lorry and bus-services throughout the Bundi State territory for a period of 30 years, and shall run lorry and bus services on the following terms and conditions' and then follow the sub-paras (a) to (h). In sub-para (c) it is mentioned 'that in consideration for and in lieu of the foregoing the Company shall pay to the Bundi State a lump sum of Rs. 4,00,000' i. e. the consideration for the payment of Rs. 4,00,000 is all that has preceded. The word 'foregoing' is used in the sense 'what is previously mentioned' and therefore in the present case it would include the grant of monopoly rights to the Company which is mentioned in the main para (2) as well as sub-paras (a) and (b) also. The word 'foregoing' cannot be restricted to only what has been described in sub-para (c) and must be taken to refer not only to what is contained in the sub-para (c), but also to all that has preceded this sub-paragraph.
We are, therefore, of opinion that the consideration of Rs. 4,00,000 was not only the price for taking over the Bundi Petrol and Automobile Supply Agency together with all its assets as mentioned in sub-para (c) but also the grant of monopoly rights by the former State of Bundi to the Company. In this connection it may be useful to make reference to Clause (6) of the agreement also. At one stage the learned Advocate General argued that Clause (6) is altogether independent of Clause (2) and there is no connection between the two and therefore for interpreting Clause (2) we need not go to Clause (6) at all. Even if it be so, as we have already held above on an interpretation of Clause (2) alone, we are of the view that, the consideration for the payment of Rs. 4,00,000 by the Company was not only taking over of the Bundi Petrol and Automobile Supply Agency but also the grant of monopoly rights to the Company by the State. However, we are not prepared to accept the contention of the learned Advocate General that Clause (6) need not be looked into at all. To find out the intention of the parties at the time of issue of licence Ex. 7 and for the purpose of finding out the consideration for payment of Rs. 4,00,000 we must take into consideration the document as a whole and it would not be proper to confine our attention to a particular Clause of the licence only. Thus, in our opinion, it would be permissible to look to the contention of Clause (6) of the licence. Clause (6) provides that the Bundi State would have a right to terminate operation of the licence after giving one year's previous notice and it will also be entitled to take over the stock-in-trade of the Company as shown in the books of the Company as well a.s the benefits of all the then existing contracts in favour of the company provided that in the case of such termination the Bundi Darbar would have to pay to the Company the value of all the then existing assets of the Company including the balance of the 'goodwill' money then outstanding as shown in the books together with compensation for compulsory acquisition at 10 per cent of such valuation. As we have already held in the earlier part of the judgment the use of the 'goodwill money' in this Clause does not refer to 'goodwill' as it is understood in the commercial sense or the legal sense but it referred to nothing else but the consideration for monopoly.
23. We now deal with the objection raised by the learned Advocate General that for the purpose of finding out what were the terms of the licence we should not look into any other evidence except the license itself. In support of his argument the learned Advocate General has relied upon Sections 91 and 92 of the Evidence Act and has submitted that when the terms of a contract or of grant or of any other disposition of property, have been reduced into the form of a document, no evidence can be given in terms of such contract, grant or other disposition of the property except the document itself. He has further submitted that Section 92 of the Evidence Act excludes evidence of any oral agreement between the parties to such document for the purpose of contradicting, varying, adding to, or subtracting from its terms.
On the other hand the learned Counsel for the Company has relied upon proviso 6 to Section 92 which says that any fact may be proved which shows in what manner the language of a document is related to existing facts. He has also referred to Section 98 of the Evidence Act, according to which evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense. He has argued that where the terms of the deed are ambiguous, the subsequent conduct of tha parties is admissible for the purpose of interpreting the deed. He submits that the word 'goodwill' used in Clause (6) of the agreement has been used in a peculiar sense and not in the ordinary sense. He submits that the evidence led by the Company both oral and documentary would show in what manner the language of Clause (6) of Ex. 7 related to the existing facts. In support of his argument learned Counsel has also relied upon Ganpatrao Appaji v. Bapu Tukaram, ILR 44 Bom 710 = (AIR 1920 Bom 143); Subra-mania Ayyar v. Raja Rajeswara Selhupathi, ILR 40 Mad 1016 = (AIR 1918 Mad 1167); Abdulla Ahmed v. Animendra Kissen, AIR 1950 SC 15; Sankar Roy v. Secretary of State, AIR 1925 Cal 346; Ali Abbas v. Sher Bahadur Singh, AIR 1925 Oudh 264 and U. P. Government v. C. M. T. Association Ltd., AIR 1948 Oudh 54. We do not consider it necessary to discuss these cases, as in our view, the principle is well settled that where the point in dispute is as to the meaning of a particular word in the document, evidence may be admitted to show in what peculiar sense that particular word was used, and extrinsic evidence including the evidence regarding the subsequent conduct of the parries is admissible to determine the effect of the instrument as well as the intention of the parties. It is not the case of the State that the document suffers from any patent ambiguity. The Company has come forward with the allegation that the monopoly rights granted to them by the Bundi State were denominated as 'goodwill rights' and the shares have been called as 'goodwill shares' or 'money'.
24-26. Let us therefore, examine how far the contention of the Company that the word 'goodwill' used in Clause (6) or the licence refers to monopoly is correct
(After discussion of some documents and oral evidence the judgment proceeded):
27. Thus after taking into consideration the various documents referred to above along with the statement of P. W. 1 Brijnarain there is no escape from the conclusion that the consideration for grant of monopoly rights by the Bundi State to the Company for running the service and lorries exclusively within the territory of former State of Bundi was settled as Rs. 3,00,000 and in lieu thereof 30,000 fully paid up shares were issued by the Company in favour of the Bundi State and it was further agreed that Rs. 10,000 would be deemed to have been adjusted for each year the Company enjoyed the monopoly rights and thus the so-called 'goodwill account was as a matter of fact account of monopoly rights and the expression 'goodwill money' means nothing else but money paid for grant of monopoly rights.
28. Our conclusion in this respect is further fortified by the correspondence which passed between the Company and the State. In its letter dated 7-5-1953 a copy of which has been placed on the record and marked Ex. 12 the Company has written to the Government of Rajasthan that apart from 11,600 shares the Company had issued without any payment shares of Rs. 3,00,000 in consideration for the grant of transport monopoly for a period of 30 years. It is further mentioned in this letter that such amount of Rs. 3,00,000 was to be adjusted in 30 equal annual instalments so that at the end of monopoly period the Government may have owned shares of Rs. 3,00,000 as cash paid. In reply to this letter the Government vide its letter dated 3-6-1953 (Ex. 14) informed the Company 'that the question or claim for compensation arising out of the abolition of the monopoly rights has to be treated separately from the dividend that has become due.' It is remarkable that the State has not denied the assertion made by the Company in its letter Ex. 12 that shares of Rs. 3,00,000 were in consideration for the grant of monopoly for a period of 30 years. On the other hand, the Government has merely said that the question of claim for compensation arising out of the abolition of monopoly rights will be treated separately. Then again the Company wrote a letter on 17-6-1953 to the State (Ex. 8) stating therein 'that the question of compensation is inseparably linked with the goodwill shares and as a matter of course should have been settled simultaneously. The Company also asserted in this letter 'that the Government's letter dated 3-6-1953 (Ex. 14) makes it clear 'that the Government has surrendered the goodwill shares of the value of Rs. 2,51,930 and no dividend has accrued thereon from 31-7-1950.' It was also stated in this letter that a cheque for Rs. 11,828/9/6 was being remitted to the State on the assumption of the correctness of the position taken by the Company and should the State find a position different from the one taken by the Company, the State may return the cheque and fix the time and place for thrashing out the matter. It is significant that the cheque was accepted by the State and the Company was informed vide letter dated 15-2-1956 (Ex. 10) that the matter was being enquired into by the State. The State, however, did not proceed further in the matter and the Company gave a notice to the State under Section 80, Civil P. C. on 28-7-1958 in which the Company again asserted that no consideration had been paid by the State of Bundi for the 30,000 shares in dispute and the consideration consisted of monopoly rights to ply stage carriages and trucks in the Bundi State. It was claimed in the notice that the Company should be paid compensation for infringement of the monopoly rights granted by the former State of Bundi. This notice was served on the State on 30-7-1958, and thereafter the present litigation started by institution of suit No. 7 of 1958 by the State and a counter suit No. 9 of 1958 by the Company,
29. We have given this brief resume of the correspondence which took place between the State and the Company, and the facts leading to the institution of the suits by both of them to show that the State had never denied the stand taken by the Company that 30,000 fully paid up shares had been issued by the Company in lieu of grant of monopoly rights, nor it ever asserted that these shares were issued by the Company in lieu of the price of goodwill of the agency sold to the Company by the State.
30. In this connection we may also refer to Ex. A. 7 the 14th Annual Report of the Directors of the Company, along with profit and loss account and the balance sheet for the year ending 31st July, 1951. Among the Directors were, Major His Highness Mahara-wal of Bundi. who was the Chairman, and Shri Kesari Singh Mehta, Collector, Bundi, nominee of the State, and also Shri Mehtab Chand, Officer on Special Duty, Finance Department, Jaipur, nominee of the State. The report of the Chairman is in Hindi, and the third paragraph of the report when translated into English reads as under:--
'As you all know shares of the Company of the value of Rs. 3,00,000 were goodwill shares issued to the Government in lieu of monopoly rights. The monopoly rights have come to an end on 1-4-1951 and the Motor Vehicles Act has been applied to Rajasthan. In these circumstances in the opinion of your Directors goodwill shares stand cancelled and this matter is also under the consideration of the Rajasthan State. The Board of Directors of the Company have, therefore, resolved in its meeting on 28-2-1952 that no dividend need be paid on these goodwill shares.'
It is argued by Mr. Bhargava on the basis of this report that among the Directors His Highness of Bundi was the Chairman, and the Collector, Bundi and Shri Mehtab Chand Offi-cer-on-Spccial Duty Finance Department, Jaipur were the nominees of the State Government. No objection was taken to the resolution of the Company referred to in the report of the Chairman. Thus it is argued that this report also lends support to the contention of the Company that the disputed shares of the value of Rs. 3,00,000 were issued by the Company in lieu of grant of monopoly rights. Mr. Bhargava went a step further and submitted that the State was estopped from challenging the position stated in the aforesaid Chairman's report. All that we need mention is that the report of the Chairman of the Board of Directors referred to above undoubtedly supports the stand taken by the Company before us but we find it difficult to hold that it operates as an estoppel against the State inasmuch as the essential ingredients of estoppel are not satisfied in the present case. It is obvious that the State has not by any declaration, act or omission intentionally caused or permitted the Company to believe this position to be true and to act upon such belief. Moreover the question whether the 30,000 fully paid up shares were issued by the Company as price of the goodwill of the agency or as price of the assets of the agency or in lieu of grant of monopoly rights by the State to the Company depends upon the interpretation of the various documents which passed between the Company and the State and is not a pure question of fact but a mixed question of fact and law, and therefore, there cannot be au estoppel in such a matter. We may, however, state that the learned Advocate General was not able to give any satisfactory reply to this part of the argument of Mr. Bhargava as to how this report emanated from His Highness of Bundi and the two nominees of the Government of Rajasthan who were on the Board of Directors of the Company?
31. There is another aspect of the matter which may be mentioned here. We have not been told what was the goodwill of the agency nor any explanation has been furnished to us at the Bar as to how the goodwill of the agency came to be valued three times the price of its assets? We find it difficult to accept that the price of the goodwill of the agency, without there being anything on the record was considered to be worth thrice its visible assets, For this reason also, we are not prepared to accede to the submission of the learned Advocate General that the price of the goodwill of the agency was settled as Rs. 3,00,000.
32. Before we take leave of this topic we would also refer to the balance sheets of the Company which have been placed on the record from the year 1944 i.e. for the year ending on 31st July, 1945 upto the year ending on 31-3-1951. In the balance sheets of all the years upto the year ending on 31-7-1950 an amount of Rs. 10721/-/1 has been shown to have been written off as the goodwill amount in each year. However, from the year ending 31-7-1951, nothing is shown to have been written off in the goodwill account and Rs. 2,51,930 has been shown as assets and property under the head goodwill. This shows that upto the period the monopoly rights were enjoyed by the Company i.e. upto the date of coming into force of the Motor Vehicles Act, 1939 on 1-4-1951, the goodwill amount was being written off as envisaged by Clause (e) of the Council Resolution (Ex. 5), and thereafter nothing was written off in the 'goodwill account'. This also shows that the 'goodwill amount' was nothing else but the amount of the monopoly rights granted to the Company by the former State of Bundi, which was treated by the Company as asset and was being written off by Rs. 10,000 each year upto the period the monopoly rights were enjoyed by the Company, It is true that the balance sheet of the Company and whatever is contained therein cannot bind the State but we cannot forget that on the Board of Directors of the Company, the Chairman during the year ending on 31-7-1951 was no other person than His Highness of Bundi and the Board also consisted of two nominees of the State Government. These balance sheets therefore also support the contention raised on behalf of the Company.
33. From whichever aspect we look at the matter, we feel convinced that the 30,000 fully paid up shares of the Company valued at Rs. 3,00,000 were issued by the Company in favour of the former State of Bundi not in lieu of the price of the assets or the goodwill of the agency but in lieu of monopoly rights granted to the Company by the former State of Bundi for a period of 30 years. This also disposes of the contention of the learned Advocate General that the monopoly rights were granted by the then Bundi Darbar to the Company ex-gratia, or as a bounty.
34. It would be relevant here to dispose of another contention of the learned Advocate General that the instrument Ex. 7 by which monopoly rights were granted by the former Ruler of the Bundi to the Company was law and not an agreement. In our opinion, it is too late in the day to put forth this argument in view of the pronouncement of their Lordships in Maharaja Shri Umaid Mills Ltd. v. Union of India, AIR 1963 SC 953. In that case the then Ruler of Jodhpur State agreed to exempt or remit the State or Federal Excise duty on goods manufactured in the Mill premises and State or Federal Income-tax or super-tax or surcharge or any other tax or income-tax. Their Lordships were pleased to hold inter alia that the agreement entered into by the then State of Jodhpur rested solely on the consent of the parties and it was entirely contractual in nature and was not law because it had none of the characteristics of law. Their Lordships were further pleased to lay down that any and every order of a sovereign Ruler who combines in himself all functions cannot be treated as law irrespective of the nature or character of the order passed. In the words of their Lordships:
'From this point of view there is a valid distinction between a particular agreement between two or more parties even if one of the parties is the Sovereign Ruler, and the law relating generally to agreements. The former rests on consensus of mind, and the latter expresses the will of the Sovereign. If one bears in mind this distinction, it seems clear enough that the agreement of April 17, 1941 even though sanctioned by the Ruler and purporting to be on his behalf, rests really on consent.
This view was further affirmed by their Lordships of the Supreme Court in a subsequent case Bengal Nagpur Cotton Mills Ltd. v. Board of Revenue M. P., AIR 1964 SC 888.
35. In the case in hand, it is plain that an agreement of the Ruler of the former State of Bundi was expressed in the shape of a contract which was signed by Shri Brij-narain on behalf of the Bundi Electric Supply Company and by the then Ruler of the Bundi Stale, Ishwari Singhji, G. C. I. E. Maharao Raja of Bundi and was attested by one Shri Kedarmal Accountant General, Bundi State. It is plain that such an agreement cannot be regarded as law. As observed by their Lordships in the case of Bengal Nagpur Cotton Mills Ltd., AIR 1964 SC 888 (supra):
'A law must follow the customary forms of law-making and must be expressed as a binding rule of conduct. There is generally an established method for the enactment of laws, and the laws, when enacted, have also a distinct form. It is not every indication of the will of the Ruler, however expressed, which amounts to a law. An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditional or specially devised for the occasion, results in a law but not an agreement to which there are two parties, one of which is the Ruler.'
36. Judged from this angle, it is quite obvious that the document dated 31-7-1944, was merely intended to bind consensually and not by a dictate of the Ruler. The document is not worded, as a law is ordinarily expected !to be. It records a contract and has been described as 'Motor Service Monopoly Licence, 1944'. The words used in this document are that 'the Company shall.....in consideration for and in lieu of the foregoing shall pay to the Bundi State a lump sum of Rs. 4.00.000' indicate that the State of Bundi was binding itself in consideration of certain payments made by the Company, and, therefore, the document Ex. 7 is an agreement.
37. We are, therefore, of opinion that the finding of the learned Senior Civil Judge, on Issue No. 3 that the purchase price of Rs. 4,00,000 paid by the Company was made up of Rs. 1.00,000 as the price for the stock of the agency and Rs, 3,00,000 for monopoly rights, is correct and does not call for any interference.
38. We now come to the second main contention raised on behalf of the State viz. that the Company having issued 30,000 fully paid up shares in favour of the former State of Bundi cannot question the consideration for the same and is bound to pay the dividends on all these shares and extend all other benefits due thereon to the State. We called upon the learned Advocate General to show to us whether there was any provision in the Company Law or any other law which debarred the Company from showing that the consideration for issuing particular shares was fictitious or had failed and become illusory and inoperative. We may state that the learned Advocate General expressed his inability to point out any such provision in the Company Law. But in support of his argument he placed reliance on paras 517 and 518 at pages 246 and 247 in Halsbury's Laws of England, Third Edition, Volume 6. Under the head 'Effect of share certificate', it has been observed by the author that a certificate under the common seal of the Company specifying any shares held by any member is prima facie evidence of the title of the Member to the shares. The certificate is the only documentary evidence of title in the possession of a snare-holder. It is not a negotiable instrument or a warranty of title by the Company issuing it. It declares to all the world that the person who is named in it is the registered holder of certain shares in the Company. Further on in para 518 under the Head 'Estoppel' it is mentioned that the Company is estopped from disputing the truth of any statement in a share certificate as against any person not knowing that the statement is untrue, who has acted or refrained from acting on the faith of and has thereby suffered loss. The ratio decidendi or all the cases cited by Lord Hals-bury under the head of 'Estoppel' is that a Company is estopped from denying that a share is fully paid as against a holder without a notice, and a person who by reason of the issue of a certificate is entitled to shares by estoppel and who acts on the certificate to his detriment may recover from the Company as damages the value of the share at the time of the refusal of the Company to recognise him as a share-holder together with interest from that date. In our view the observations made by Lord Halsbury in paras 517 and 518 referred to above do not at all help the State inasmuch as the State is not a transferee or holder of shares without notice and the principle of estoppel can have no application in the present case.
39. The learned Advocate General also relied on Cornbrook Brewery Co. Ltd. v. Law Debenture Corporation Ltd., 1903-2 Ch 527 and In re Wragg, 1897-1 Ch 796. We have looked into these authorities and it would be sufficient to state that they do not support the argument advanced by the learned Advocate General and deal with a different set of facts and circumstances with which we are not concerned.
40. On the other hand Mr. Bhargava, learned counsel for the Company has invited our attention to Trustee Corporation (India) v. Commissioner of Income-tax, Bombay, 57 Ind App 152 = (AIR 1930 PC 151). We have gone through this authority also and may state that this case has also no direct bearing upon the question which is being agitated before us. This was an appeal in the Privy Council arising out of a reference made to the High Court under the provision of the Indian Income-tax Act, 1922, and the question submitted for answer was whether in respect of super tax in year 1924-25 the appellant company was entitled to deduct the loss to them in respect of the transaction of the shares allotted to them from the English Companies at their nominal value of Rs. 200 each? It was found by the Commissioner that in 1920 each share in the appellant company was worth Rs. 95. It was held that no loss was proved as the English Companies were liable to the appellant Company for the amount by which the sum realised was less than the nominal value of the allotted shares. It was further held that apart from the above consideration the Commissioner was not bound in law to take as the price paid the nominal value of the shares allotted.
41. In absence of any rule of law on the point we find ourselves unable to accede to the contention of the learned Advocate General that the nominal or face value of the shares is conclusive, and that the Company cannot under any circumstances show that the consideration for the issue of shares had failed or that the transaction of particular shares had become illusory or inoperative.
42. This brings us to the last contention raised on behalf of the State that even though the monopoly rights granted to the Company came to an end on 1-4-1951 the State is not liable to restore any benefits or advantage to the Company under Section 56 or 65 of the Indian Contract Act or under any other provision of law.
43. The learned Advocate Geneial has argued that neither Section 56 or Section 65 of the Indian Contract Act would apply in the present case inasmuch as the act of the former Bundi State for granting monopoly rights to the Company was not impossible in itself nor it became impossible after the contract had been made and therefore Section 56 has no application, and consequently Section 65 also cannot apply as the agreement was neither discovered to be void nor became void. The contention raised by the learned Advocate General stands fully answered by their Lordships of the Supreme Court in Satya Brata Ghose v. Mugneeram Bangur and Co., AIR 1954 SC 44. Their Lordships said:
'The word 'Impossible' has not been used here (in Section 56) in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act which he promised to do.'
It is well established that if after the execution of the contract or at any stage during the operation of the contract its performance becomes impossible by any supervening event then each party is bound to restore to the other any advantage which he had taken under the contract. We may in this connection refer to Kishangarh Municipality v. Maharaja Kishangarh Mills Ltd., AIR 1961 Raj 6; Man Singh v. Khazan Singh, AIR 1961 Raj 277; Raja Mohan Manucha v. Manzoor Ahmed, AIR 1943 PC 29 and Mun-shi Lal v. Vishnu Das, AIR 1954 All 450. There is no doubt in our minds that with the coining into foree of the Motor Vehicles Act, 1939 into Rajasthan on 1-4-1951 which was not under the contemplation of the parties at the time they entered into it, the performance of the contract regarding enjoyment of monopoly rights became impossible. After the Motor Vehicles Act came into force it became impossible for the State to allow the Company the enjoyment of the monopoly rights to ply the buses and motor lorries exclusively in the territory of the former State of Bundi and thus the performance of the contract pertaining to the monopoly rights became impossible by a supervening event. Consequently, the State is bound to restore the advantage received by it with respect to grant of monopoly rights.
44. The learned Senior Civil Judge has held that in respect of 30,000 shares of the value of Rs. 3,00,000 given to the then State of Bundi by the Company, the State is entitled to dividend bonus and other benefits and rights accruing to it on shares representing the value calculated at the rate of Rs. 10,000 per year beginning from 11-1-1944 to 31-3-1951 but not on the remaining shares. The learned Advocate General, however, submitted that even though the Motor Vehicles Act had come into force on 1-4-1951 no permits were granted to other persons by the Transport Authorities till 31-3-1954 and therefore it is contended that the Company is not entitled to any relief with respect to the period prior to the grant of permits to other persons. This contention does not appear to be tenable because after coming into force of the Motor Vehicles Act, 1939 the Company obtained temporary permits in 1951 even though they were cancelled by the High Court. If for any reason the permits to other persons were not granted till 1954, the State cannot urge that the monopoly rights in favour of the Company remained in existence after 1-4-1951. It must be conceded that the monopoly in favour of the Company became void on 1-4-1951 and it follows as a necessary corollary that the liability of the State to restore the advantage it had received under the contract, arose on 1-4-51 when the monopoly became void. Thus there is no force in this contention of the learned Advocate General also.
45. No other point was argued before us,
46. The result is that we do not find any force in this appeal and dismiss it with costs.