M/S Moti Ram & Company vs Hindustan Petroleum Corporation ...
2011 Latest Caselaw 3307 Del

63
$~
*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+          W.P.(C) 4811/2011 & CM No.9778/2011 (for stay)

           M/S MOTI RAM & COMPANY                      ..... Petitioner
                         Through: Mr. Kailash Vasdev, Sr. Adv. with
                                  Mr. Chadra Ravi & Mr. Anurag
                                  Singh, Advcates.

                                    Versus

           HINDUSTAN PETROLEUM CORPORATION LTD. .... Respondent
                        Through: Counsel     for    the  respondent
                                 (appearance not given).
           CORAM:
           HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                                    ORDER

% 13.07.2011

1. The writ petition impugns the letter dated 1st July, 2011 of the

respondent to the petitioner terminating the "temporary arrangement" with

the petitioner for operation by the petitioner of the company owned retail

outlet at Manesar District-Gurgaon and calling upon the petitioner to hand

over the said outlet to the respondent.

2. The petitioner was as far back as in the year 1962 granted dealership

for operation of the retail outlet setup by the then predecessor of the

respondent on land procured by the respondent on lease at Mile 13/5, Delhi-

Gurgaon Border, Kapashera, New Delhi. The petitioner continued to

operate the said retail outlet of the respondent under agreements with the

respondent from time to time. Last such agreement was entered into

between the parties on 27th September, 2001 for a period of 15 years.

However the lease in favour of the respondent of the land underneath the

said outlet expired on 31st March, 2007 and the respondent was required to

vacate the same. Accordingly the respondent directed the petitioner to close

down the said outlet at Kapashera border and the said site was vacated.

3. The petitioner requested the respondent for resitement of its

dealership and informed the respondent that the petitioner/its partners were

the owners of a land near to the then existing Kapashera outlet. The

petitioner requested the respondent to grant dealership to the petitioner at its

said land. The said request was being actively considered by the

respondent.

4. The petitioner, however vide its letter dated 15th May, 2007 informed

the respondent that there was some litigation with respect to the land

aforesaid owned by the petitioner and as such it was not possible to

immediately obtain dealership with respect thereto. It was further

represented that the petitioner had to recover its old dues from its old

customers and which would become bad debts unless the petitioner was

allowed to continue in business by allowing the petitioner to as an interim

/temporary arrangement operate some other petrol pump. The petitioner as

such sought permission from the respondent to operate some other petrol

pump of the respondent for a period of six months only on ad hoc basis.

5. The respondent vide its letter dated 15th May, 2007 to the petitioner

appointed the petitioner as a temporary dealer to operate its Manesar outlet

aforesaid on temporary basis for eleven months only and subject to

termination by either party giving to other fifteen days notice.

6. It is in pursuance to the aforesaid, that the petitioner came to operate

the Manesar petrol pump with respect to which relief is claimed in the

present petition.

7. Though the Manesar petrol pump was allotted to the petitioner for

eleven months only on ad hoc/temporary basis but on the request of the

petitioner, the said arrangement was extended from time to time. It is the

said arrangement which has now been terminated by the respondent.

8. It has as such been enquired from the senior counsel for the petitioner

as to what is the right of the petitioner to continue with the Manesar outlet.

9. The senior counsel for the petitioner has contended that the term of

fifteen years of the agreement dated 27th September, 2001 between the

parties is not yet over; that the respondent is obliged under the said

agreement to continue with the petitioner. However a perusal of the

agreement dated 27th September, 2001 shows that the same was with respect

to the Kapashera land only. The senior counsel for the petitioner is unable

to show any clause therein under which the respondent is obliged to

accommodate the petitioner at any other site. The petitioner is also not

found to have made any such claim against the respondent in the past. It

cannot be lost sight of that the cessation of the Kapashera outlet was owing

to the expiry of the lease of the land underneath the same. It cannot thus be

said that such cessation was owing to the respondent. The petitioner who

had been operating the outlet on the said site since the year 1962 is deemed

to have known that the lease of the said land was due to expiry in the year

2007.

10. Moreover, the agreement dated 27th September, 2001 is found to be

determinable in nature, Clause 3 whereof permits termination thereof by

three months notice in writing without giving any reasons even. Attention

of the senior counsel for the petitioner is invited to Indian Oil Corporation

Ltd. Vs. Amritsar Gas Service (1991) 1 SCC 533 whereof Apex Court has

held that such agreements are not specifically enforceable and the claim

even if any can be for damages only. In view of the said position, the

argument of the senior counsel for the petitioner of no default, on happening

of which also the agreement was terminable having been attributed to the

petitioner, is of no avail.

11. The petitioner has chosen not to produce before this Court the letter

dated 20th April, 2007 referred to in the correspondence on record. The

counsel for the respondent appearing on advance notice has during the

course of hearing handed over a copy of the same. The same unequivocally

shows that the petitioner obtained the temporary arrangement with respect

to the Manesar outlet by representing that the same was necessary to tide

over the delay in the petitioner getting its land in Kapashera cleared from

litigation and to enable the petitioner to recover its outstanding dues. The

petitioner cannot now be heard to contend otherwise.

12. No merit is thus found in the claim for retaining the Manesar outlet.

13. The writ petition also claims a direction to the respondent to

permanently re-site the petitioner at any other location. As aforesaid, no

such right has been found under the agreement dated 27 th September, 2001.

The senior counsel for the petitioner contends that it is the policy of the

respondent to in the matter of allotment of other retail outlets, give priority

to the dealers as per seniority. However no such policy has been placed on

record.

14. The senior counsel for the petitioner requests for the matter to be

taken up on 15th July, 2011 for the said limited purpose.

15. List on 15th July, 2011 as requested.

RAJIV SAHAI ENDLAW, J JULY 13, 2011 bs..