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2013 Supreme(Mad) 1691

High Court of Judicature at Madras
R.S. RAMANATHAN, J.
Indian Oil Corporation Ltd., Rep.By Its Chief Divisional Sales Manager & Others
Versus
Bhagawan Bala Sai Enterprises, Rep By Its Prop. S. Nirmala Sai & Others
O.P. Nos. 206 & 653 of 2008
Decided on: 22-04-2013

Advocates Appeared:
For the Appearing Parties:T.R. Rajagopalan, Senior Counsel, for M/s. Anand Abdul & Vinoth Associates, N.S. Nandakumar, Advocates.

Headnote:Arbitration and Conciliation Act, 1996 Section 34 Specific Relief Act, 1963, Section 14(1)(c) – Arbitral award challenged u/s 34 of the Arbitration & Conciliation Act- arbitration relates to a dispute of termination of a contract on the ground that there is contamination in the product and the retail outlet does not fit the specification- it was held that clause 61(h) prescribes the arbitrator with the power to adjudicate on the dispute- party can approach the court u/s 34 and challenge the award if it is against the public policy or there is an error on the face of it- Petition is hereby dismissed as the court finds that the arbitrator can grant the restoration of dealership under the powers conferred upon him by the arbitration agreement.

Judgment

1. Challenging the award, dated 27.02.2008, passed by the learned Arbitrator, the present Original Petitions are filed by the parties.

2. M/s. Bhagawan Bala Sai Enterprises, represented by its Proprietress, Ms. S.Nirmala Sai, viz., the petitioner in O.P.No.653 of 2008, is hereinafter referred to as 'the claimant' and the Indian Oil Corporation Ltd., viz., the petitioner in O.P.No.206 of 2008, is hereinafter referred to as 'the Corporation' throughout this judgement and order, for the sake of brevity and conciseness.

3. The facts of the case in a nutshell are as follows:-

a) The Corporation issued an advertisement, dated 21.02.2003, in the English daily 'The Hindu', for awarding retail outlet dealership, (Location at Velachery in Kancheepuram District, within Tamil Nadu). As per the said advertisement, the interested applicant, should furnish the details of land, which he/she may make available for the retail outlet.

b) The claimant, being the owner of the property, having an extent of 14,244 sq.ft., comprised in S.Nos.8/9, 8/10, 8/11, 8/12 and 8/13, applied for the award of retail outlet dealership to the Corporation.

c) The Corporation issued a letter of intent, dated 07.04.2004 to the claimant and entered into a land lease agreement, on 12.01.2005 with the claimant for occupying an extent of 7,200 sq.ft. of land, out of 14,244 sq.ft in the abovesaid survey numbers, comprised in Block No.23, in Vellachery Main road, Vellachery Village, Mambalam-Guindy Taluk, Chennai – 42, for a period of twenty years and the rent was initially fixed at Rs.29,000/- per month for the first three years and the rent will be increased for every three years, as stipulated in the agreement of lease.

d) As per the land lease agreement, the lessee and the Corporation has power to sublet, assign, appoint agents for doing business in the demised premises and the demised premises shall be used for the business of providing retail outlet of petroleum products of the Corporation.

e) Thereafter, the claimant was appointed as retail outlet dealer by the Corporation and a Dealership Agreement was entered into between the Corporation and the claimant, on 25.01.2005. The period of dealership was fixed for a period of 15 years and there is an arbitration clause in the Dealership Agreement, viz., clause 61.

f) As per clause 15 of the Dealership Agreement, the Corporation shall be at liberty upon breach by the dealer of any covenant in that agreement to stop and/or suspend forthwith, all supplies to the dealer and/or sales from the premises by the dealer for such period or periods, as the Corporation may think fit, and such right of stoppage and/or suspension of supplies shall be in addition to and/or without prejudice to any other right or remedy of the Corporation under that agreement or law.

g) As per clause 17 of the Dealership Agreement, the dealer is expected to take every possible precaution against contamination of the products by things injurious to their quality, and shall not in any way, directly or indirectly, adulterate or alter the specifications of the products as delivered. The Corporation shall have the right to exercise at its discretion at any time, and from time to time, quality control measure for products marketed by the Corporation, lying with the dealer. The opinion of the General Manager of the Corporation, as to whether any product of the Corporation has been contaminated and/or adulterated, shall be final and binding upon the dealer. In the event of the General Manager, finding that the contamination and/or adulteration of product has been due to any act or default or negligence of the dealer or of his servants or agents, the Corporation shall have the right, to remove the contaminated/adulterated products and to destroy or otherwise deal with the same, without making any payment, therefor, to the dealer and without prejudice to the Corporation's right to terminate this agreement forthwith.

h) As per clause 46 of the Dealership A



























































































































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