Important point
Ordinarily when a dispute between parties required adjudication of disputed question of facts wherefor parties were required to lead evidence, Court may not entertain a writ application but access of justice by way of public law remedy would not be denied when a lis involved public character and when the forum chosen by parties would not be in position to grant appropriate relief.

Headnote:Constitution of India—Article 226 —Writ jurisdiction—Scope and ambit of judicial review vis-a-vis availability of alternative remedy—Dealership agreement was terminated by respondent by a notice in term of clause of said agreement—Respondent was alleged to have ousted petitioner from business premises by force—Writ filed by appellant was dismissed in limine—Appeal—As a subsequent events, disputes and differences between parties were referred to arbitrator and consent award made by him—When a dispute between parties required adjudication of disputed question of facts which needed evidence and could be determined by domestic forum, writ jurisdiction might not be entertained—No case was made out for grant of relief of restoration of dealership—In a settlement before arbitrator, appellant agreed to pay certain amounts in instalments with interest—Appellant being defaulter in payment of dues and dealership agreement having come to an end, no case for interference was made out. (Paras 12 and 13)
       Held : The principal question which arises for consideration is as to whether a discretionary jurisdiction would be refused to be exercised solely on the ground of existence of an alternative remedy which is more efficacious. Ordinarily, when a dispute between the parties requires adjudication of disputed question of facts wherefor the parties are required to lead evidence both oral and documentary which can be determined by a domestic forum chosen by the parties, the Court may not entertain a writ application [See M/s Titagarh Paper Mills Ltd. vs. Orissa State Electricity Board and Another [(1975) 2 SCC 436] and M/s Bisra Stone Lime Co. Ltd etc. vs. Orissa State Electricity Board and Another [AIR 1976 SC 127] However, access to justice by way of public law remedy would not be denied when a lis involves public law character and when the forum chosen by the parties would not be in a position to grant appropriate relief. (Paras 12 and 13)
       But in a case of this nature, while exercising a plenary jurisdiction, we must take the supervening circumstances into consideration. The parties admittedly invoked the arbitration agreement before the arbitrator. They entered into a settlement. Pursuant to or in furtherance of the said settlement, the Appellant herein was to pay a sum of Rs. 4,64,586/- upto the Respondent in five installments with interest. The Appellant herein for violation of the terms of contract presumably prayed for award of damages but no reference thereto has been made in the award . In any event such claim of damages could have been made before the Arbitrator on the ground of alleged breach of contract. We are further of opinion that in this matter no case has been made out for grant of a relief of restoration of the dealership. The contract stood terminated on the death of the Appellant’s partner. No case of novation of contract has been made out. It is also not the case of the parties that any other or further agreement between the parties came into being. The arrangement was an ad hoc one. The Appellant did not derive any legal right to continue the business for an indefinite period. Moreover, she allegedly violated the terms of the contract. It may be true that the said award has been made without prejudice to the interest of the parties in this appeal; but keeping in view the admitted fact that the Appellant committed a default in payment of dues towards supplies made and having regard to the fact that the dealership agreement has come to an end, we are of the opinion that it is not a fit case where we would set aside the impugned order of the High Court and direct it to dispose of the writ petition afresh. (Paras 19 to 21)

Judgment

S.B. Sinha, J.—The scope and ambit of judicial review vis-a-vis availability of alternative remedy is in question in this appeal which arises out of a judgment and order dated 29-04-2004 passed by a Division Bench of the High Court of Bombay in Writ Petition No. 830 of 2004 where by and whereunder the writ petition filed by the Appellant herein was dismissed in limine.

2. The Appellant herein and one Smt. Bimladevi T. Obhan, who were partners in ‘M/s Tilak Automobiles’ and the Respondent herein entered into a dealership agreement. Admittedly the said agreement was terminated by the Respondent herein by a notice dated 19.03.2004 in terms of Clause 55 of the said agreement which reads thus :

“55 Notwithstanding anything to the contrary herein contained, the Corporation shall be at liberty to terminate this Agreement forthwith upon or at any time after the happening of any of the following, namely :-

(A) If the Dealer shall commit a breach of any of the covenants and stipulations contained in the Agreement, and fail to remedy such breach within four days of the receipt of a written notice from the Corporation in that regard;

(B) Upon

(i) The death or adjudication as insolvent of the Dealer, if he be an individual;

(ii) The dissolution of the partnership of the dealers firm or the death or adjudication as insolvent of any partner of the firm if the Dealer be a firm.

(iii) The liquidation, whether voluntary or otherwise or the passing of an effective resolution for the winding up, if the dealer be a company or a co-operative society.”

3. According to the Respondent, the said agreement came to an end on the death of the said Bimladevi. However, the dealership was allowed to continue having regard to a representation made by the Appellant herein that the firm had certain outstandings in the market which were in danger of becoming unrecoverable, if the supplies were suddenly stopped’. The Respondent agreed to continue supplies to the Appellant on purely ad hoc basis.

4. The Respondent alleging violation of various conditions of the said agreement, namely, (1) low sales volume of the dealership; (2) sales performance; (3) dry outs at the outlet: and (4) no active interest/participation in operation of the dealership, issued a show cause notice dated 20.12.2002 as to why suitable action should not be taken for gross violation of clauses 9, 42, 44 and 55(a) of the said dealership agreement dated 09.02.2000.

5. A further notice was issued to the Appellant by the Respondent on 7.11.2003 drawing its attention to the defaults made by her and warned that any future default would be viewed seriously and very stringent action will be taken. Thereafter, allegedly a further default occurred and, thus, on the grounds stated in the notice dated 20.12.2002 as also on the ground of default, the agreement was terminated in terms of a notice dated 19.03.2004.

6. The Appellant contended that on 19.03.2004 itself at about 5.00 p.m., the staff members of the Respondent along with the police authority forcibly entered the premises of the partnership firm and while handing over the said notice, the staff members thereof were forcibly ousted from the business premises.

7. The writ petition filed by the Appellant herein, as noticed hereinbefore, was dismissed in limine by the impugned order.

8. Mr. Uday Umesh Lalit, the learned Senior Counsel appearing on behalf of the Appellant, at the outset drew our attention to the subsequent events which took place, namely, that referral of the disputes and differences between the parties were referred to an arbitrator on 07.06.2004 and consequent passing of a consent award by him which reads as under:

“In terms of statement of settlement dated December 15, 2004, I pass the award as follows:

5.1 Net payable amount of Rs. 431416.39 as agreed to by both the parties plus interest of Rs. 33170/- from 1.4.04 till 31.12.04 aggregating to Rs. 464586/- shall be paid by the Respondent to the Claimant.

5.2 In view of the financial dif

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2005 Supreme(SC) 1189

Cases Referred (12)