TMI Blog1962 (3) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasise the point that the amount of ₹ 6,000 p.m. was regarded by' them as reasonable and intended that it should not be reduced by the court in its discretion. When the remuneration and salary were equated in el. 12 nothing else was meant but ₹ 6,000/-and when the word salary was used in el. 14 we have no doubt that only that amount was meant and no other. It may be that under el. 10 the appellant was entitled to additional remuneration in case the profits were high upto a limit of 10% of the gross profits. That was a right to claim something over and above ₹ 6,000/-and could be characterized properly as additional remuneration and not fixed or normal remuneration which alone was apparently in the minds of the parties when they drew up el. 14. In our opinion, therefore, the High Court was right in the construction placed by it upon the clause. Appeal dismissed. - Civil Appeal No. 417 of 1957 - - - Dated:- 5-3-1962 - MUDHOLKAR, J.R., SINHA, BHUVNESHWAR P., KAPUR, J.L., HIDAYATULLAH, M. AND SHAH, J.C., JJ. JUDGMENT A. Palkhiwala, J. B. Dadachanji, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant M. C. Setalvad, Attorney Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this appeal. It is not disputed before us that the question raised by the appellant in the appeal is one of law because, which the, appellant is challenging is the interpretation placed upon certain clauses of the managing agency agreement which are the foundation of the claim in suit. Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law. The next question is whether the interpretation of a document of the kind referred to above raises a substantial question of law. For, Art. 133(1) provides that where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub-cl. (c) an appeal shall lie to this Court if the High Court certifies that the appeal involves some substantial question of law. To the same effect are the provisions of s. 110 of the Code of Civil Procedure. In the old Judicial Commissioner's Court of Oudh the view was taken that a substantial question of law meant a question of general importance. Following that view its successor, the Chief Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of law as between-the parties in the case involved. But hero again it must not be forgotten that what is contemplated is not a question of law alone; it must be a sub- stantial question. One can define it nega- tively. For instance, if there is a well established principle of law and that principle is applied to a given set of facts, that would certainly not be a substantial question of law. Where the question of law is not well settled or where there is some doubt as to the principle of law involved, it certainly would raise a substantial question of law which would require a final adjudication by the highest Court. One of the points which the learned judges of the Bombay High Court had to consider in this case was whether the question of construction to be Placed upon a decree was a substantial question of law. The learned Judges said in their judgment that the decree was undoubtedly of a complicated character but even so they refused to grant a certificate under s. 110 of the Code of Civil Procedure for appeal to the Federal Court because the construction which the Court was called upon to place on the decree did not raise substantial question of law. They have observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misapplication of principles of law does not raise any substantial question of law so as to attract the operation of s. 1 10.......... There can be no doubt that that is a view which has been held by various High Courts in India, but the decision cited' omit to consi- der two decisions of' their Lordships of the Privy Council on this very point which. in our opinion, very largely modify the views taken in the cases cited and which of course it is impossible for us to ignore. (p. 226) Referring to the Privy Council case the learned Chief Justice observed as follows : In the Lucknow case the only question was whether the defendant there obtained an absolute interest or a limited interest under a will. That again was a question which was of no interest to anyone outside the parties to the suit. Nevertheless, their Lordships considered in both cases that the questions were substantial questions of law because they were substantial as between the parties. We can only consider this to mean that a question of law is substantial as between the parties if the decision turns one way or another on the particular view taken of the law. If it does not affect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular fact of the case it would not be a substantial question of law. We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by. the Bombay High Court is rather narrow the. one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general. principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. Applying the tests it would be clear that the question involved in this appeal, that is, the construction of the Managing Agency agreement is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, be desirable to reproduce the two earlier clauses cls. 10 and 12. They run thus 10. The Company shall pay to the Firm by wry of remuneration for the services to be performed by the Firm as such Agents of the Company under this Agreement a monthly sum of Rs. 6,000/- provided that if at the close of any year it shall be found that the total 0remuneration of the firm received in such year shall have been less than 10 per cent of the gross profits of the Company for such year the Company shall pay to the Firm in respect of such year such additional sum by way of remuneration as will make the total sum received by the Firm in and in respect of such year equal to 10 per cent of the gross profits of the Company in that year. The first payment of such remuneration , shall be made on the first day of August 1933. 12. The said monthly remuneration or salary shall accrue due from day to day but ,shall be payable by the company to the Firm monthly, on the first day of the month immediately succeeding the month in which it shall have been earned. The learned trial judge upon the interpretation placed by him on el. 14 awarded to the, appellant a sum of Rs. 2,34,000/-, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of liquidated damages there can be no presumption that they, at the same time, intended to allow the party who has suffered by the breach to give a go-by to the sum specified and claim instead a sum of' money which was not ascertained or ascertainable at the date of the breach. Learned counsel contends that upon this view the words not less than would be rendered otiose. In our opinion these words, as rightly-pointed out by the High Court, were intended only to emphasise the fact that compensation will be computable at an amount not less than Rs. 6,000 p.m. Apparently, they thought it desirable to emphasise the point that the amount of Rs. 6,000 p.m. was regarded by' them as reasonable and intended that it should not be reduced by the court in its discretion. Mr. Palkhivala argued that what the appellants were entitled to was remuneration and remuneration meant nothing but salary. The two words, according to him, have been used interchangeably in the various clauses of the agreement. If, therefore, salary in el. 14 is the same as remuneration, which according to him it is, then as indicated in el. 10 it would mean 10% of the gross profits of the Company subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the parties clearly there was no need whatsoever of providing for compensation in cl. 14. If that clause had not been there the appellant would indeed have been entitled to claim damages at the rate of 10% for the entire period subject to minimum of Rs. 6,000/- p.m. On the other hand it seems to us that the intention of the parties was that if the appellants were relieved of the duty to work as Managing Agent and to put in their own money for carrying on the duties of managing agents they should not be entitled to get anything more than Rs. 6,000/- p.m. by way of compensation. Clause 14 as it stands deals with one subject only and that is compensation. It does not expressly or by necessary implication keep alive the right to claim damages under the general law. By providing for compensation in express terms the right to claim damages under the general law is necessarily excluded and, therefore, in the face of that clause it is not open to the appellant to contend that that right is left unaffected. There is thus no substance in the alternative contention put forward by the learned counsel. Accordingly we affirm the decree of the High Court and dismiss the appeal with cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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