2011 Supreme(Raj) 241
[Citation : 2011(3) RLW 2140 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Guru Kripa (M/s.) Vs. H.P.C. Ltd. & Anr. (Kothari, J.)
HON'BLE S.S. KOTHARI, J.
Guru Kripa (M/s.)
Versus
Hindustan Petroleum Corporation Ltd. & Anr.
S.B. Civil Misc. Appeal No. 603 of 2011, decided on 23.03.2011
Subject
Contract Law - Specific Performance
Act Referred
ARBITRATION AND CONCILIATION ACT : S.9
SPECIFIC RELIEF ACT : S.14, S.41(e)
Headnote
Arbitration and Conciliation Act, 1996, Sec. 9; Specific Relief Act, 1963, Secs. 14, 41(e); The Motor Spirit and High Speed Diesel (Regulation of supply, Distribution and Prevention of Malpractices) Order, 2005 — The sample of Motor Spirit and High Speed Diesel were taken during inspection — The sample of M.S. was found to be adulterated — Suspended supply of M.S., H.S.D. and other petrolium products and issued show cause — Instead of submitting reply to the notice and taking recourse of arbitration proceedings, filed application u/S. 9 of the Act — Rejected — Subsequently filed reply — Considered and terminated dealership agreement — Held — The dispute that samples were not taken in accordance with the provisions of Order, 2005 can be decided by Court/Arbitral Tribunal and not in these proceedings — Already appointed ad-hoc dealer — Application for interim relief u/S. 9 of the Act, 1996 has become infructuous — The prayer sought virtually amounts to grant of mandatory injunction for restoration of dealership which cannot be granted being barred as loss suffered can be compensated in money — No prima facie case in favour of appellant.
Appeal dismissed. (Paras 10 to 16)
ek/;LFke ,oa lqyg vf/kfu;e] 1996] /kkjk 9( fofufnZ"V vuqrks"k vf/kfu;e] 1963] /kkjk 14] 41¼e½( eksVj fLijhV ,oa gkbZ LihM Mhty ¼vkiwfrZ o forj.k dk fu;eu rFkk nqjkpj.k fuokj.k½ vkns'k] 2005 & fujh{k.k ds nkSjku eksVj fLifjV vkSj gkbZ LihM Mhty ds uewus fy;s x;s & eksVj fLifjV dk uewuk vifefJr gksuk ik;k x;k & ,e-,l-] ,p-,l-Mh-] vkSj vU; isVªksfy;e mRiknksa dh vkiwfrZ fuyfEcr dh vkSj dkj.k crkvksa uksfVl tkjh fd;k & uksfVl dk tokc is'k djus dh ctk; ek/;LFke dh dk;Zokgh dk voyEcu fy;k] tks fo|eku Fkh] vkSj vf/kfu;e dh /kkjk 9 ds rgr vkosnu nk;j fd;k & fujLr gqvk & i'pkr~orhZ tokc nk;j fd;k & fopkj fd;k vkSj Mhyj'khi djkj lekIr fd;k & vfHkfu/kkZfjr & ;g fookn fd uequs 2005 ds vkns'kksa ds izko/kkuksa ds vuqlkj ugha fy;s x;s] dk fofu'p; U;k;ky;@ek/;LFk vf/kdj.k }kjk gh fd;k tk ldrk gS u fd bu dk;Zokfg;ksa esa & igys ls gh rnFkZ Mhyj fu;qDr fd;k tk pqdk gS & 1996 ds vf/kfu;e dh /kkjk 9 ds rgr vUrfje vuqrks"k gsrq vkosnu fu"izHkkoh gks pqdk gS & pkgh xbZ izkFkZuk oLrqr% Mhyjf'ki ds izR;korZu gsrq vkKkid fu"ks/kkKk iznku djus dh Js.kh esa vkrh gS tks oftZr gksus ds dkj.k ugha nh tk ldrh D;ksafd Hkqxrh xbZ {kfr dk eqnzk esa izfrdj iznku fd;k tk ldrk gS & vihykFkhZ ds i{k esa dksbZ izFke n`"V;k ekeyk ughaA ¼in la[;k 10 ls 16½
vihy [kkfjt dhA
Advocates Appeared
A.K. Sharma, Sr.Adv. with Rachit Sharma, for Appellant;
S. Kasliwal, Sr.Adv. with K. Verma & Gaurav Sharma, for Respondents
Hon'ble KOTHARI, J.—The appellant submitted an application under Section 9 of Arbitration and Conciliation Act, 1996 (hereinafter called "the Act") alleging that the appellant is a partnership concern and a retail outlet dealership agreement was executed between it and the respondent No. 1 on 8.4.2010 for a period of 15 years w.e.f. 29.3.2009. In consequence of the said agreement, the appellant started selling Motor Spirit (for short "MS") and High Speed Diesel (for short "HSD") and other petroleum products of HPCL as its dealer with honesty. There was no complaint against it. Thee respondent No. 1 intimated the appellant vide letter dated 3.11.2010 that the sample of MS obtained from its retail outlet during inspection on 4.9.2010 was found adulterated after analysis. Simultaneously, the respondent No. 1 suspended supply of MS, HSD and other petroleum products and asked the appellant to show cause why the dealership agreement may not be terminated. The appellant alleged that the samples of MS and HSD were obtained in complete disregard of the rules applicable for the purpose and, as such, the alleged report cannot be relied upon. Even according to show cause notice, out of the samples of MS and HSD being tested, the sample of HSD was found to be as per prescribed norms. It was further mentioned that there is provision for arbitration in the agreement and as such, the respondent No. 1 cannot terminate the agreement and the matter is required to be adjudicated by the Arbitrator. Therefore, the appellant prayed that an interim order may be issued restraining the respondents from obstructing supply of MS, HSD and other petroleum products to the appellant's outlet. The application was contested by the respondents by submitting a reply. It was mentioned therein that on 4.9.2010 samples were obtained according to three tier sample procedure in the presence of the representative of the appellants, Shri Dinesh Kumbaj, who signed on all the relevant papers. An analysis of the samples was obtained and the sample of MS contained excess sulfur and was not in accordance with the prescribed standard. Hence, show cause notice dated 3.11.2010 was issued. The operation of retail outlet is subject to conditions contained in the agreement which are governed by Marketing Discipline Guidelines. As the sample was found adulterated, the sale was stopped to prevent supply of adulterated material to the general public. The appellant was indulging in illegal activities by selling adulterated material to the public and causing economic loss to the respondents. It was also submitted that condition No. 66 of agreement contains provision for adjudication of disputes through arbitration, but the appellant has not taken any steps for invoking the same. It was also submitted that the agreement executed between the parties is determinable and as such, it cannot be specifically enforced under Section 14 of Specific Relief Act, 1963 (hereinafter called "Act 1963"). In view of provisions of Section 41(e) of Act, 1963, no injunction can be issued and the application is liable to be dismissed. After hearing the parties, the learned Court below rejected the application of the appellant by the impugned order which has been challenged by the appellant in this appeal filed under Section 37 of the Act.
2. I have heard the learned Senior Advocates for the parties at length.
3. It has been contended on behalf of the appellant that while drawing samples of MS and HSD, the provisions of The Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices), Order, 2005 (hereinafter called "the Order") were violated inasmuch as no information was given to the appellant before conducting inspection and taking samples. Consequently, nobody on behalf of the appellant was present at that time. Two samples of MS were taken by emptying the containers in which samples of HSD were taken earlier. It is further contended that the information about th
Back
