bipin prithiani

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83-wp-5582.21.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 5582 OF 2021

M/s. Daulat Petroleum

…

Petitioner

Versus

General Manager, Indian Oil Corporation Ltd.

…

Respondent

******

Mr. Rajesh Tekale i/by M/s. Jay & Co. for the Petitioner.

None for the Respondent.

******

CORAM: S. V. GANGAPURWALA &

R. N. LADDHA, JJ.

DATE : 28^th SEPTEMBER, 2022

P.C. :-

.

The learned counsel for the petitioner submits that the

respondent terminated the dealership of the petitioner. Though, the

dealership has been terminated, the machinery and the equipments had

not been removed from the premises of the petitioner. The petitioner is

also not refunded the amount paid for booking of the petroleum and the

diesel products. The learned counsel for the petitioner submits that

because of the inaction on the part of the respondent, the petitioner is

suffering damages at the rate of Rs.1,00,000/- per month from the date

of termination. According to the learned counsel, though the dispute is

contractual one, this Court in its writ jurisdiction under Article 226 of

the Constitution of India can entertain the writ petition in as much as

respondent is the instrumentality of the State and it is expected that

they would be a model litigant. The learned counsel to buttress his

submission relies upon the judgment of the Apex Court in case of Food

BIPIN

DHARMENDER

PRITHIANI

Digitally signed by

BIPIN

DHARMENDER

PRITHIANI

Date: 2022.10.03

10:22:23 +0530

bipin prithiani

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83-wp-5582.21.doc

Corporation of India v/s. M/s. Kamdhenu Cattle Feed Industries,

(1993) 1 SCC 71.

2.

The present matter arises out of a contractual dispute. The

petitioner was dealer of respondent. The dealership has been

terminated by the respondent. The petitioner claims damages on

account of the acts of omissions on the part of the respondent. So also

seeks refund of the amount spent for booking the products.

3.

The damages claimed by the petitioner at the rate of

Rs.1,00,000/- per month would require evidence to be led. The

damages will have to be computed referable to Section 73 of the Indian

Contract Act, 1872. The various aspects will have to be considered

such as remoteness of damages, the theory of mitigating damages, etc.

As far as the amount for supply of product is concerned, the same is

also required to be proved. All these aspects will require evidence to

be recorded. The same cannot be considered in the writ jurisdiction.

In a case of Food Corporation of India (supra), the Apex Court was

dealing with a matter arising out of a tender. However, in view of the

disputed questions of facts involved, it will not be appropriate to

invoke the writ jurisdiction of this Court.

4.

The petitioner may avail the remedy before the Civil Court of

such as a forum, as may be permissible under law. In that event, all

contentions of petitioner are kept open.

5.

Writ Petition is disposed of. No costs.

[R. N. LADDHA, J.]

[S. V. GANGAPURWALA, J.]