Janatha Trading Co vs Indian Oil Corporation Ltd
2022 Latest Caselaw 7649 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                    &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944

                           RP NO. 549 OF 2022

    JUDGMENT DATED 28.10.2019 IN WA 1156/2009 OF HIGH COURT OF KERALA

REVIEW PETITIONER/1ST RESPONDENT:

           JANATHA TRADING CO.,
           IOC DEALERS, VADAKKENCHERRY, PALAKKAD - 678 683,
           REPRESENTED BY ITS MANAGING PARTNER, SUNIL GEORGE.
           BY ADVS.
           SRI.P.R.VENKATESH
           G.KEERTHIVAS


RESPONDENT/APPELLANT:

           INDIAN OIL CORPORATION LTD.,
           COCHIN DIVISIONAL OFFICE, PANAMPILLY AVENUE, PANAMPILLY
           NAGAR P.O., KOCHI - 36, REPRESENTED BY ITS GENERAL MANAGER.

      THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 28.06.2022,

     THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.P. No. 549 of 2022
in W.A. No. 1156/2009                :2:




                 Dated this the 28th day of June, 2022.

                               ORDER

S. MANIKUMAR,CJ.

Instant Review Petition is filed seeking to review the judgment

dated 28.10.2019 in W.A. No. 1156 of 2009. Operative portion of the

order sought to be reviewed is as follows:

"2. Inasmuch as, respondent No.1 is not functioning as on date, the question of testing the correctness of the order passed by writ Court, does not survive. The issue as to whether Indian Oil Corporation Ltd., Cochin Division, appellant herein is empowered to initiate action under the dealership agreement and to terminate the agreement, notwithstanding the marketing disciplines and guidelines, is left open to be decided in appropriate proceedings.

According to the above, this writ appeal is closed."

2. Materials on record discloses that O.P. No. 22544 of 2002 has

been filed in the year 2002 seeking to quash Ext. P6 order dated

23.07.2002 terminating the Review Petitioner's RO Dealership at

Vadakkancherry.

3. Adverting to the rival submissions, writ court, vide judgment

dated 14.01.2009 in O.P. No. 22544 of 2002, quashed Ext. P6 and R.P. No. 549 of 2022

directed the respondents therein to restart the supply and sales to the

Review Petitioner's retail outlet within one month from the date of

receipt of the judgment. Being aggrieved, Indian Oil Corporation Ltd.,

Cochin Divisional Office, Panampilly Avenue, Kochi, represented by its

General Manager, respondent No.1 in the Original Petition has filed

W.A.No. 1156 of 2009.

4. On the basis of the submission made by the learned counsel

for the appellant, Indian Oil Corporation Ltd., that respondent No.1 is

not functioning, this Court, vide judgment dated 28.10.2019, closed

the appeal holding that inasmuch as Review Petitioner/respondent

No.1 is not functioning as on date, the question of testing the

correctness of the order passed by the writ court does not survive.

5. It was also observed that the issue as to whether Indian Oil

Corporation Ltd., Cochin Division, appellant therein, was empowered to

initiate action under the dealership agreement and to terminate the

agreement, notwithstanding the marketing disciplines and guidelines,

is left open to be decided in appropriate proceedings.

6. Seeking reversal of the judgment dated 28.10.2019 in W.A.

No. 1156 of 2009, instant Review Petition is filed.

7. The grounds on the basis of which the Review Petition is filed R.P. No. 549 of 2022

are as hereunder:

"A. It is respectfully submitted that this Hon'ble Court was pleased to close the writ appeal without going into the merits or correctness of the judgment or order passed by the learned single Judge for the reason that the first respondent is not functioning as on date. It is respectfully submitted that pursuant to Ext. P6 order passed by the Deputy General Manager terminating forthwith the dealership agreement dated 12.04.1988 was implemented. A perusal of para 12 in the writ petition will clearly show the vindictiveness with which the appellant had acted against the 1st respondent. On the basis of Ext P6, the officials of the appellant company have taken away the dispensing pump from the retail outlet on 3.8.2002 even before the petitioner could sell out the stock already with him. It is further stated therein that even though Ext P6 is dated 23.7.2002, the appellant themselves released the load of diesel and petrol to the petitioner on 25.7.2002 and the petitioner could not effect payment of the said stock supplied on 25.7.2002 which is partly sold off. Thus it can be seen that the hasty manner in which Ext P6 order was terminated was with mala fide intention. So naturally when the original petition was moved, since EXt P6 had been_practically implemented, there was no scope for passing of any interim order staying the operation of Ext P6.

R.P. No. 549 of 2022

Then ultimately original petition was allowed and by the time the petitioner could move for any contempt of court proceedings, the writ appeal was brought into existence by serving copy of the writ appeal on the counsel for the appellant. So naturally petitioner has been waiting all these years for the disposal of the appeal before any action for implementation of the judgment of the learned single Judge could be taken up. The non­functioning of the outlet cannot be attributed to the petitioner. It is only due to the hasty implementation of Ext P6 by the appellant resulting in cessation of functioning of the outlet and not due to any voluntarily stopping of functioning of the outlet by the petitioner. Even after the implementation of Ext P6 order the petitioner has been retaining the land in the very same state as it was at the time of implementation of Ext Pó order.

B. Annexure­1 possession certificate dated 10.2.2020 which will go to show that about 75 cents of land is still remaining in the possession of the petitioner. Petitioner has not parted with the land. Any time the company comes forward for resumption of the outlet, the petitioner is prepared to make it available to them. Annexure­2 Location sketch will go to show that the original place where the outlet was functioning is very much available with the petitioner to be made use of for the revival and resumption of the outlet." R.P. No. 549 of 2022

8. From the above, it is clear that Ext. P6 has been

implemented. According to the Review Petitioner, non functioning of

the outlet cannot be attributed to the review petitioner and that it was

only due to the hasty implementation of Ext. P6 by the appellant,

Indian Oil Corporation Ltd., cessation of functioning of outlet

happened and not due to any voluntary stopping of the functioning of

the outlet by the review petitioner.

9. Original Petition was filed in the year 2002 and the same was

disposed of on 14.01.2009. Even though the writ appeal was pending

before this Court since 2019, Review Petitioner has not made any

submission before this Court that the closure was on account of the

implementation of Ext. P6 order. Further, the Review Petitioner has not

filed any contempt petition for implementing the directions contained

in the judgment dated 14.01.2009 in O.P. No. 22544 of 2002. The

Review Petitioner has not even made a complaint regarding the non-

supply of fuel to his outlet. Thus, for merely 10 years from the date of

disposal of the Original Petition, the Review Petitioner has not made

any efforts to enable him to continue the dealership of the said outlet.

10. Writ Appeal has been disposed of on 28.10.2019. Even

though the Review Petition is stated to have been filed on 16.12.2019, R.P. No. 549 of 2022

so far, no steps have been taken to bring the matter before this Court.

11. From the above narration of facts, it could be deduced that

no attempt was made by the Review Petitioner in reviving the

dealership and to run the outlet. Closure of the outlet, either by the

Indian Oil Corporation Ltd., respondent/appellant or by the writ

petitioner alone, cannot be a ground to review the judgment dated

28.10.2019 in W.A. No. 1156 of 2009.

For the above said reasons, we are not inclined to entertain this

Review Petition and accordingly, it is dismissed.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv R.P. No. 549 of 2022

APPENDIX OF RP 549/2022

PETITIONER'S ANNEXURES:

ANNEXURE 1 TRUE COPY OF POSSESSION CERTIFICATE DATED 10/2/2020.

ANNEXURE 2 TRUE COPY OF THE LOCATION SKETCH DATED 13/2/2020.

RESPONDENT'S ANNEXURES: NIL

/True Copy/

PS To Judge.

rv