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2022 Supreme(HP) 350

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
Veena Gupta Wife Of Sh. Ashok Gupta – Appellant
Versus
Indian Oil Corporation Limited Through Its Senior Divisional Retail Sales Manager – Respondent
Arbitration Case No. 55 of 2022
Decided on : 04-08-2022

Advocates:
Advocate Appeared:
For the Appellant :MR. B.C. NEGI, MR. UDIT SHOURYA KAUSHIK, ADVOCATE
For the Respondent:MR. K.D. SOOD, MR. HET RAM THAKUR, MR. SHRAWAN DOGRA, MR AJAY SIPAHIYA, ADVOCATE

Point of Law: The words 'Arbitral Tribunal' in Section 9(3) of Act have to take colour from all said provisions and thus have to be interpreted as Arbitral Tribunal constituted to adjudicate disputes which have arisen and been referred to arbitration and with respect whereto Arbitrators have been appointed and notified of their appointment.

Headnote:
Arbitration and Conciliation Act, 1996 – Section 9, 11(2) and 21 - Partnership Deed - Arbitration clause - Petrol pump/filling station in partnership - Interim measures, etc. by Court - Respondent no.1 may be restrained from supplying petroleum products to respondent no.2 in name of M/s Jai Hind Filling Station on his VAT no. TAN registration no., TIN no., Explosive License, Pollution, NOC/License, Calibration and Stamping License, personnel PAN Card, Bank Account showing him as a sole proprietor - And/or respondent no. 1 may be directed to supply petroleum products in name of partnership concern i.e. M/s Jai Hind Filling Station, situated at Village, P.O. consisting of both partners - All disputes that may be in existence when arbitration clause is invoked and one of parties to agreement gives arbitration notice to other"; it cannot be held that once arbitration clause is invoked, remedy of arbitration is no longer available in regard to other disputes that might arise in future. (Para 32)

Finding of the court: Since, petitioner did not make any application for modification of order nor pointed out discrepancy if any on the part of respondent No.2 in maintaining record coupled with fact that dispute inter se parties is already pending adjudication before learned Arbitrator, there appears to be no justification for this Court to intervene at this stage, to grant interim relief, while exercising power under S.9 of the Act - Since in case at hand, dispute if any in terms of Dealership Agreement was already in existence at time of filing of application by petitioner for appointment of an Arbitrator in terms of Clause 17 of the Partnership Deed and such fact was duly mentioned in application by petitioner as has been take note herein above, it is not open for petitioner to claim at this stage that since independent dispute has arisen on account of refusal on part of respondent No.1 to not make supply of petroleum products in name of dealership firm M/s Jai Hind Filling Station, it is entitled to invoke separate arbitration proceedings under Clause 62(a) of Dealership Agreement, especially when Tripartite Dealership Agreement was also made basis alongwith Partnership Deed by the petitioner while seeking appointment of an Arbitrator in terms of Clause 17 of Partnership Deed, which prayer of hers was duly accepted and learned Arbitrator was appointed.
Result: Petition dismissed

ORDER :

By way of instant petition filed under S. 9 of the Arbitration and Conciliation Act, 1996, petitioner has prayed for following main reliefs:

“It is, therefore, most respectfully prayed that this petition may kindly be allowed and the respondent no. 1 may be directed to supply the petroleum products in the name of partnership concern i.e. M/s Jai Hind Filling Station, situated at Village Kumarhada, P.O. Dharampur, Tehsil Kasauli, District Solan (H.P.) consisting of both the partners.

And/or

Further respondent no.1 may be restrained from supplying the petroleum products to respondent no.2 in the name of M/s Jai Hind Filling Station on his VAT no. TAN registration no., TIN no., Explosive License, Pollution, NOC/License, Calibration and Stamping License, personnel PAN Card, Bank Account showing him as a sole proprietor.

And/or

In the alternative a receiver may be appointed to take control of the aforesaid M/s Jai Hind Filling Station to maintain proper and true accounts or respondent no.1 may be directed to take control and possession of the aforesaid M/s Jai Hind Filling Station, Situate at Village Kumarhada, P.O. Dharampur, Tehsil Kasauli, District Solan (H.P.), in the interest of justice.”

2. For having a bird’s eye view of the matter, relevant facts necessary for the adjudication of the case are as under.

3. Vide Letter of Intent dated 16.1.2002, I.B.P. Co. Ltd., which subsequently merged with and was taken over by respondent No.1/Indian Oil Corporation Limited (hereinafter, ‘IOCL’) allotted a filling station in favour of respondent No.2. Respondent No.2 decided to set up a petrol pump/filling station in partnership with the petitioner, with equal investment. After aforesaid partnership, land was purchased to set up the petrol pump. Portion of land measuring 02-12 Bigha was purchased in the name of respondent No.2. Parcel of land measuring 01-11 Bigha was purchased in the name of the petitioner. Land so purchased by the petitioner and respondent No.2 comprised in Khasra Nos. 58 and 59 situate in Mauja Kumarhda was leased out to I.B.P. Co. Ltd. for an initial period of 15 years as per policy and guidelines of I.B.P. Co. Ltd.. On the said land, I.B.P. Co. Ltd. established its petrol pump by installing machinery and structure etc., and further appointed respondent No.2 as its authorized dealer on commission basis. As per policy of the oil company, no reconstitution was permitted for the initial five years as such, retail outlet/petrol pump was to remain in the name of the allottee i.e. respondent No.2. In the aforesaid background, petrol pump was set up and business was carried out in the name of M/s Jai Hind Filling Station. Petrol Pump became functional in the year 2006, vide Dealership Agreement dated 15.11.2006. In the year 2012, after completion of five years, process to induct the petitioner as dealer of respondent No.1/IOCL was initiated. After completion of necessary codal formalities, Partnership Deed dated 25.4.2013 duly registered with Sub Registrar, Solan was executed inter se petitioner and respondent No.2 with respect to functioning of the petrol pump and to avoid any future disputes (Annexure P-1). As per terms and conditions of Partnership Deed, assets and liabilities of the firm were brought forward on their book value as per balance sheet on the date of execution of the Partnership Deed and assets and liabilities of erstwhile firm were taken over by the new firm i.e. partnership firm. As per Partnership Deed, petitioner is partner to the extent of 49% alongwith respondent No.2, who is partner to the extent of 51% in M/s Jai Hind Filling Station.

4. Partnership firm as detailed herein above, is also registered with Registrar of Firms. Aforesaid partnership firm thereafter executed a Dealership Agreement dated 26.4.2013 (Annexure P-2) with IOCL to run the retail outlet as working partners. On execution of Dealership Agreement with the petitioner, respondent No.2 became authorized dealer of IOCL. Though, as per Cla

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Judicial Analysis

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2022 Supreme(HP) 350

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLASANDEEP SHARMA, J.Veena Gupta Wife Of Sh. Ashok Gupta – AppellantVersusIndian Oil Corporation Limited Through Its Senior Divisional Retail Sales Manager – RespondentArbitration Case No. 55 of 2022Decided on : 04-08-2022

Cases Referred (3)

Judicial Analysis

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
Veena Gupta Wife Of Sh. Ashok Gupta – Appellant
Versus
Indian Oil Corporation Limited Through Its Senior Divisional Retail Sales Manager – Respondent
Arbitration Case No. 55 of 2022
Decided on : 04-08-2022