SARJOO PROSAD, C. J.: (10-6-1958)

This appeal relates to a money claim for reco­very of a sum of Rs. 22,500/- on account of refund of licence, fees, paid in advance to the defendant. Added to it is a claim for Rs. 1,500/- as compen­sation for illegal detention of the money.

(2) Three liquor shops for retail sale of country spirit, situate in Laban, Mawkhar and Police Bazaar in the town of Shillong were settled by the i defendant, the State of Assam, with the plaintiff-appellant for the year 1948-49, under different licen­ces. The aggregate licence fee payable for all the three shops in question amounted to a sum of Rs. 2,70,000/-, while the proportionate monthly fee came to Rs. 22,500/-. The terms of the licence will be adverted to at a later stage as they naturally have an important bearing on the decision of the case.

But an essential term in the licence was that I the plaintiff had to depend for his supply of liquor for sale in the retail shops aforesaid upon certain licensed still owners of Umjajew, about 29 in num­ber; and in order to get the supplies, the plaintiff had to deposit the price thereof at rates specified by the Government in the office of the Deputy Commissioner on the third of every month. The plaintiff was prohibited from selling liquor of any other variety except the kind of liquor locally called kiad thnam, supplied by the said licensed distillers. The plaintiff claimed that the licence fee payable by the plaintiff was determined on the basis of the average supply of liquor by each of the distillers at the rate of 200 to 300 bottles of liquor per month and that the plaintiff's position under the licences was that of a Government Agent for the sale of liquor, the liquor being supplied by the Government through their other agents, the still owners.

These claims as mentioned in paragraphs 2 and 3 of the plaint were categorically admitted in para­graph 7 of the defendant's written statement. On the grant of the licences, the plaintiff had also to deposit by way of security, a sum of Rs. 22,5007-equal to the monthly statement of the fees payable and also deposit a similar amount by way of one month's fees in advance on the first of each month. These deposits were made in pursuance of the terms of the licences, failure to comply with which involved the penalty of forfeiture.

It is stated that during the material period, Shillong was a rationed area in respect of rice, among other commodities, and the said distillers of Umjajew used to receive their supply of rice for purposes of distillation from an authorised permit-holder of the Government. In June, 1948, the Gov­ernment failed to supply rice to the distillers owing to scarcity of rice in the locality and on that ac­count from 19th June, 1948, to 21st July, 1948, the distilleries ceased to function and did not supply any liquor to the plaintiff for sale in the shops in question.

As a result of this non-supply of liquor, the plaintiff had no alternative but to close his shops in the aforesaid period after giving due notice to the Government. The plaintiff alleges that the State Government was solely responsible for the non-sup­ply of liquor to the plaintiff's shops through the distillers, their agents, which resulted in the closure of his business during the period in question. He accordingly made repeated prayers to the Govern­ment for remission of the licence fee to which the plaintiff was entitled, but the prayer was eventually rejected on 22-11-1949 and the defendant realised the entire licence fee out of the security amount and the advance deposits. The plaintiff, therefore, instituted the suit for the above reliefs after serving a notice on the defendant under section 80 of the Code of Civil Procedure. The original plaintiff died after the institution of the suit and his heir under the customary law has been substituted.

(3) The suit was resisted by the defendant main­ly on the ground that there was neither any condi­tion in the licence nor any understanding gi

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