IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.166 of 2007 Date of decision : November 30, 2010 Smt. Amarjeet Kaur …Appellant. Versus Smt. Promila Devi …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Karan Singh, Advocate. For the Respondent : Mr. Deepak Kaushal, Advocate. Surjit Singh, Judge (Oral) This Regular First Appeal, by the plaintiff, is directed against the judgment and decree dated 24th April, 2007, of learned District Judge, whereby her suit for recovery of a sum of `5,00,500/-, by way of damages, has been dismissed. 2. Plaintiff filed a suit for recovery of the aforesaid amount of money against the defendant-respondent, namely Promila Devi, pleading that she had set up a stone- crusher on land, measuring 5 bigha 14 biswa, and that she sold that land alongwith the stone-crusher to the defendant, for a sale consideration of `8,50,000/-. She alleged that she had been running the stone-crusher, in partnership with one Hari Singh in the name and style of M/s Amarjeet Stone Crusher. Also, she pleaded that after the sale of land and stone-crusher, though the defendant was authorised to run Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? …2… the crusher, she had no authority to use the name of her (plaintiff’s) partnership firm for running the crusher, but she had been using the said name unauthorisedly. She claimed special damages to the tune of `3,50,000/- and general damages to the tune of `1,50,500/-. 3. Defendant took the plea that she had purchased the land for a consideration of `8,50,000/- and the crusher for `5,00,000/- and she had been sold the right to run the crusher in the name and style, in which it was being run prior to sale. 4. Trial Court framed the following issues, on the pleadings of the parties: 1. Whether the defendant is using the name of the plaintiff unauthorisedly and the plaintiff is entitled for damages and the injunction as prayed for? OPP 2. Whether the suit of the plaintiff is not maintainable? OPD 3. Whether the suit is bad for non-joinder of the necessary parties? OPD 4. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 5. Whether the plaintiff is estopped from filing the present suit due to her own acts, conduct and acquiescences? OPD 6. Relief. At the end of the trial, findings on all the issues were returned against the plaintiff and consequently suit was dismissed. 5. I have heard learned counsel for the parties and gone through the record. …3… 6. Stone-crusher was being run on the land of the plaintiff, by a partnership firm, having two partners, namely the plaintiff and Hari Singh (DW-2), the father-in-law of the defendant. Hari Singh, while in the witness-box, stated that the defendant had been sold not only the land but also the crusher alongwith its goodwill and the name and style, in which it was being run, for a consideration of `13,00,000/-. Though it was suggested to the witness, in the cross- examination, that the land and the crusher machinery had been sold for `8,50,000/-, a look at the sale deed shows that the sale consideration of `8,50,000/- was only in respect of the land only and it did not include the value of crusher and its machinery. Therefore, there should be no reason to disbelieve the testimony of DW-2 Hari Singh that sale consideration of `8,50,000/- was only in respect of the land and in addition to that a sum of `4,50,500/- was paid, on account of value of the machinery and goodwill. Plaintiff also admitted that alongwith the land she had sold the crusher, but in sale deed Ex. PW-1/D, there is no reference to the crusher, which fact also implies that the sale deed was only in respect of the land and it was sold for `8,50,000/- and an additional amount of `4,50,500/- was received, on account of sale consideration of machinery of the crusher. 7. Now, when crusher had been separately sold for `4,50,500/-, it can legitimately be presumed that the alleged goodwill of the business had also been sold by the …4… plaintiff. In any case, the plaintiff did not have any other crusher nor did she set up one, after selling the stone- crusher, in question, to the defendant and, therefore, there cannot be any question of any damage or loss sustained by her, on account of the defendant using the name and style of plaintiff’s firm, for running the crusher. For the foregoing reasons, appeal is dismissed. November 30, 2010(sd) ( Surjit Singh ), J