TMI Blog1983 (1) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 . 2. The suit had been filed for possession of a shop bearing No. 4 and situated in House No. 159 of Navipeth at Jlgano. The said shop, hereinafter referred to as the suit premises , was tenanted by defendants No. 1. By a registered document, which is at Exhibit 77, dated 5th of Feb. 1973 defendants No. 1 assigned the business that was carried on in the suit premises of defendants No. 2 as an incident to that transfer he also assigned his tenancy rights in the suit premises. By giving what can be briefly called a quire notice on 7th of May 1973 respondent Nos. 1 to 7, hereinafter called the plaintiff , filed the aforesaid suit for possession of the suit premises on the ground that defendants No. 1 had unlawfully assigned his interest in the suit premises in contravention of S. 15 of the Bombay Rent Act, and was thus liable of eviction under S. 13(1)(e) of the Act. 3. Both the defendants resisted the suit by contending that the assignment dated 5th Feb. 1973 was saved by the notification issued by the State Government under the proviso sub-section (1) of S. 15 of the Bombay Rent Act. According to the defendants, defendant No. 1 has assigned the business carried on in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold interest by the tenant is prohibited under the provision of the Bombay Rent Act except where there is a contract to the contrary. In particular, S. 15 of the Bombay Rent Act mentioned that notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. The proviso to sub-section (1) S. 15, however, empowers the State Government to permit in any area the transfer of interest in the premises held under such leases or class of leases and to such extent as may be specified in the notification. In exercises of this power the State Government has issued a notification, being Notification No. 5975/33, Health and Local Government Department, dated 21st Sept. 1948, under which it has permitted in all areas in which part II of the Act operates, all transfer and assignments by lessees of their interest in the leasehold premises as and to the extent specified in the Schedule annexed to the said notification. Clause. (2) of the Schedule to the said notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of regularity were not being carried on. According to her, there were certain assets in the suit premises. Those assets along with the goodwill of the business which had been carried on by the first defendant were assigned to the second defendant. Admittedly there is evidence to show, says Mrs. Shenoi, that at some time in the past the first defendant was carrying on business in cotton seed and cotton-seeds cakes. If this is so it could not be said that there was no business of the first defendant which could not have been assigned by him to the second defendant. 9. It is not possible to accept what is being suggested by Mrs. Shenio. Under Clause (2) of the Schedule of the notification, what is to be assigned is not a mere business in the abstract sense but a business as a going concern with the stock-in-trade and the goodwill thereof. On the admission of the first defendant himself which admission has been notification by the learned District Judge in para 9 of the standstill. In other words, there was no business at all. If there was a business it was not a business which was being carried on as a going concern as required under Clause (2) of the Schedule to the Government not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sist the conclusion that there was no stock-in-trade at all in suit premises which could have been transferred as has been purportedly done under Exhibit 77. 12. One test of determining as to whether the business is a going concern is to find out whether the assignee after the assignment would be in a position to carry on the business which was being carried don in the suit premises by the assignor. If there was a stock-in-trade in the premises, business in would provided which is sought to be transferred, it would provide some indication that there was a business which was a going concern. Ultimately whether a business was a going concern or not is a question of fact. On the facts of this case, we have no manner of doubt on the evidence which has been led by the defendants in the Court below that there was no business as a going concern which could have been transferred by the first defendant to the second defendant. 13. In Shah Co., v. State of Maharashtra, AIR 1967 SC 1877, S. 15(1) of the Bombay Rent Act and the notification issued by the Government pursuant to the power given by the proviso to the said Section were considered. In that case the petitioner before the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll formed a part, has also been transferred. In our opinion, the judgment of the Calcutta High Court in Dauladas's case does not indicate anything of the kind mentioned by Mrs. Shenio. There the narrow question for determination before the Court was whether the goodwill in that case included the right of the tenant to occupy the shop room. It was held that goodwill necessarily included the monthly tenancy right or whatever right of occupation the occupant had in his room. 15. Mrs. Shenoi then suggested that the Rent Act being a beneficial piece of legislation it should be interpreted in such manner as would given protection to the tenant. In support of this proposition she relied upon some judgment which need not be cited because we agree with the proposition that a statute which is meant for the protection of the tenant must be so interpreted as to given protection to the tenants unless the language of the statute of apart of it clearly indicates otherwise. In the instate case, though it may be said that the Bombay Rent Act as a whole is meant for the protection of the tenants. S. 15 of the said Act is in fact meant to suppress a possible mischief by the tenant of transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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