Order

17/03/2023

1. On account of the ongoing lawyers’ strike, the counsel for the parties are abstaining from work and not appearing in courts. However, in view of the Hon’ble Apex Court judgment of Harish Uppal vs. Union of India: (2002) 3 SCC 45, this Court is constrained to take up the matter as per the pleadings.

2. The present appeal is filed under Section 37 of the Arbitration and Conciliation Act, 1996 (for short “the Act of 1996”) for quashing and setting aside order dated 17.11.2022 passed by Commercial Court No.1, Jaipur Metropolitan-II, Jaipur in CMNC Application No.448/2022, refusing to grant any interim relief to the appellant-applicant under Section 9 of the Act of 1996 pending the appointment of an Arbitrator.

3. It is reflected that the appellant was allotted a dealership to operate IOCL fuel dealership/retail outlet/Kisan Seva Kendra for a period of 15 years vide agreement dated 01.07.2010. A show cause notice (for short “SCN”) dated 23.05.2022 was issued to the appellant by the respondents alleging that the appellant had made manipulations and committed serious irregularities with the dispensing unit.

4. Aggrieved with the SCN, the appellant filed an application under Section 9 of the Act of 1996 which was dismissed by the learned Court below after observing the following:

“48. The learned counsel also argued that, Balance of Convenience and Irreparable Loss also not in faovur of the applicant because if the application will be allowed then it will cause a serious damage to the will and reputation of the IOCL and thus Balance of Convenience is in favour of the OICL. So for remedy of termination is concerned in so many cases it has been held that the only remedy lies to get the compensation and the applicant can be compensated with the proper damages if the action of the OICL is found bad. It was therefore requested that the application should be dismissed.

49. After hearing the arguments of both the parties and perusal of the case filed this court is of the opinion that in this case the court already granted time to the applicant and its first section 9 application was allowed in following terms;

50. In such a circumstance the applicant was having time to get the arbitrator appointed but no step has been taken for appointment of the Arbitrator till now. This court while granting the interim relief vide its order dated 03.06.2022 specifically held that, “As discussed above, without commenting on merit or demerit of the case 15 days time is granted to the applicant to file its reply before the IOCL from the date of the order and thereafter the IOCL will proceed further as per law. The application under Section 9 of the Act of 1996, as well as the application seeking dismissal of the application under Section 9 of the Act of 1996, is disposed off accordingly. No orders as to costs.”

51. It is also admitted position that thereafter applicant has provided the opportunity of personal hearing as well. In such a circumstance no Prima facie case can be treated in favour of the applicant. This second application is not maintainable in the humble view of this court.

52. Balance of Convenience is also not in favour of the applicant because at this stage only show cause notice has been issued and reply has been asked for and personal hearing has been granted. The court should refrain itself from interfering in the working of a official, which is working under authority of law until and unless there is a valid reason to interfere. If any inconvenience is being caused due to any legal action, it cannot be treated inconvenience in the eyes of law.

53. So for Irreparable loss is concerned, in the humble view of this court. Though, loss occurred may be irreparable but if any loss is being caused because of any legal action it cannot be treated Irreparable Loss and as such this point is also found against the applicant because applicant has already been granted remedy under Section 9 earlier as well. Thereafter applicant has not taken a