Madhya Pradesh High Court

M/S/ Shukla Filing Center ... vs Bharat Pertoleum Corporation ... on 12 October, 2022

Author: Anand Pathak

                                                                  1

           IN THE HIGH COURT OF MADHYA PRADESH
                            AT GWALIOR


                               BEFORE

                 HON'BLE SHRI JUSTICE ANAND PATHAK


                 WRIT PETITION No. 4284 of 2019

     Between:-
     M/S SHUKLA FILING CENTER RATANPURA
     DEALER       BHARAT        PERTROLEUM
     CORPORATION    LIMITED   THROUGH    ITS
     PROPRIETOR ANOOP SHUKLA S/O A.K.SHUKLA
     AGED 42 YEARS, OCCUPATION -BUSINESS R/O
     LAHAR DISTRICT BHIND (MADHYA PRADESH)


                                                    .....PETITIONER
     (BY SHRI SANJAY BAHIRANI        AND   SHRI   HARSHAD
     BAHIRANI- ADVOCATES)

     AND

1.   BHARAT PERTOLEUM CORPORATION LIMITED
     THROUGH GENERAL MANAGER BHARAT
     BHAWAN 4 AND 6 CURRIMBHOY RAOD
     BALLARD     ESTATE    MUMBAI      400001
     (MAHARASHTRA)
2.   THE    TERRITORY   MANAGER,     BHARAT
     PETROLEUM COPORATION LIMITED, NEAR
     RAIRU RAILWAY STATION RAIRU DEPOT POST
     BARUA, GWALIOR (MADHYA PRADESH)
3.   THE SALES MANAGER, BHARAT PETROLEUM
     COPORATION LIMITED, NEAR RAIRU RAILWAY
     STATION, RAIRU DEPOT, POST BARUA,
     GWALIOR (MADHYA PRADESH)


                                                  .....RESPONDENTS
     (BY SHRI K.N. GUPTA -SENIOR ADVOCATE WITH MS.
                                                                                               2

       AYUSHI POPHLI -ADVOCATE)

                     WRIT PETITION No. 8131 of 2019

       Between:-
       M/S SHUKLA FILING CENTER RATANPURA
       DEALER       BHARAT        PERTROLEUM
       CORPORATION    LIMITED   THROUGH    ITS
       PROPRIETOR ANOOP SHUKLA S/O A.K.SHUKLA
       AGED 42 YEARS, OCCUPATION -BUSINESS R/O
       LAHAR DISTRICT BHIND (MADHYA PRADESH)


                                                                        .....PETITIONER
       (BY SHRI SANJAY BAHIRANI                     AND      SHRI     HARSHAD
       BAHIRANI- ADVOCATES)

       AND

1.     BHARAT PERTOLEUM CORPORATION LIMITED
       THROUGH GENERAL MANAGER BHARAT
       BHAWAN 4 AND 6 CURRIMBHOY RAOD
       BALLARD     ESTATE    MUMBAI      400001
       (MAHARASHTRA)
2.     THE    TERRITORY   MANAGER,     BHARAT
       PETROLEUM COPORATION LIMITED, NEAR
       RAIRU RAILWAY STATION RAIRU DEPOT POST
       BARUA, GWALIOR (MADHYA PRADESH)
3.     THE SALES MANAGER, BHARAT PETROLEUM
       COPORATION LIMITED, NEAR RAIRU RAILWAY
       STATION, RAIRU DEPOT, POST BARUA,
       GWALIOR (MADHYA PRADESH)

                                                                     .....RESPONDENTS

       (BY SHRI K.N. GUPTA -SENIOR ADVOCATE WITH MS.
       AYUSHI POPHLI -ADVOCATE)
-----------------------------------------------------------------------------------------------
               Reserved on                    :      12-07-2022
               Delivered on                   :       12-10-2022
-----------------------------------------------------------------------------------------------
                                                                               3

                                ORDER

1. Regard being had to the similitude of controversy, both the writ petitions

referred above were heard analogously along with A.C.No.66/2019

preferred by respondents Company and decided by this common order.

2. Regarding Writ petition No.4284/2019;

Instant petition has been preferred seeking restoration of Dispensing

Pump and Selling License Agreement dated 24-04-2013 and refund of

50% of the amount deposited by the petitioner at the time of filing of

appeal before the Dispute Resolution Panel. Relief claimed in the said

writ petition is reproduced as under:

"i) That, the respondent be commanded to restore the dispensing pump and selling license agreement dated 24- 04-2014 within a specified period and the respondent be further directed to pay an amount of Rs.2.50 Lacs as per the terms of filing of appeal before DRP and the same be paid alongwith interest @ 15% p.a., in the interest of justice.

ii) Cost of the petition be awarded or any other order or direction deemed fit in the circumstances of the case be issued in the favour of the petitioner."

3. In Arbitration Case No.66/2019 which was also pending between the

same parties, was heard analogously with these two writ petitions and a

detailed order has been passed on 12-10-2022 in which the prayer for

appointment of arbitrator by respondents/Bharat Petroleum Corporation

Ltd. has been turned down because it is found that once the remedy

under clause 8.9 of Marketing Discipline Guidelines has been invoked

by the dealer (present petitioner) before the appellate authority -Dispute

Resolution Panel consisting of a retired High Court Judge and two

expert members and said remedy is as per Motor Spirit and High Speed

Diesel (Regulation of Supply, Distribution and Preservation of

Malpractice) Order, 2005 and Marketing Discipline Guidelines

(Executive Instructions) applicable in the case, thus it is imperative that

appellate order be given sanctity and due compliance.

4. Discussions made in the order dated 12-10-2022 passed in

A.C.No.66/2019 would also be treated as part and parcel of both these

writ petitions because for brevity facts/discussions have not been

elaborately reiterated. Both these orders may be read conjointly to get

better glimpse of the dispute.

5. It is the submission of learned counsel for the petitioner that after

passing of the order dated 18-12-2018 by the Dispute Resolution Panel

(DRP), earlier an Arbitration Case vide No.61/2019 preferred by the

respondents/company which was later on withdrawn with liberty to seek

the remedy as per clause 18 of the agreement dated 24-04-2013 and

thereafter another application under Section 11(6) of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as "the Act") was

preferred by way of A.C.No.66/2019.

6. Since this Court held in the order dated 12-10-2022 passed in

A.C.No.66/2019 that application for appointment of arbitrator cannot be

made as appellate proceedings for nullifying the effect of order dated 18-

12-2018 passed in the appeal preferred by the petitioner under clause 8.9

of the Marketing Discipline Guidelines and therefore, with the dismissal

of said application preferred under Section 11(6) of the Act, order dated

18-12-2018 passed in appeal by the Dispute Resolution Panel is staring

at the respondents with full vehemence and obviously so because that

order has not been challenged in any manner and thus attained finality.

7. Division Bench of Allahabad High Court in the case of M/s Kamal

Kant Automobiles and another Vs. Hindustan Petroleum

Corporation Ltd. and 2 others passed on 18-02-2019 in Writ -C

No.25127/2018 discussed the identical issue in detail and while relying

upon the judgments of Apex Court in the matter of Allied Motors

Limited vs. Bharat Petroleum Corporation Limited (2012) 2 SCC 1

and E. Venkatakrishna vs. Indian Oil Corporation and another,

(2000) 7 SCC 764 held that termination of dealership of the then

petitioner was bad in law and termination order was thus set aside and

directed the Oil Company to restore agreement and to restore supply

within two months from the date of passing of order. Cost of Rs.1 lac

was also imposed over the Corporation in the said facts and

circumstances of the case. It is not noteworthy to mention that question

of appointment of arbitrator was also discussed in the said order and

thereafter rejected.

8. In view of the different pronouncements of Apex Court, discussions

made in A.C.No.66/2019 vide order dated 12-10-2022 as well as

discussion as surfaced in the case of M/s Kamal Kant Automobiles

and another (supra), it appears that once the appellate authority

considered contours of the controversy in detail and thereafter passed the

order which is still existing then respondents have to honour the order so

passed by their own appellate authority and in absence of any document

of submission challenging the constitution of said forum, respondents

are duty bound to comply the same.

9. Resultantly, respondents are directed to comply order dated 18-12-2018

passed by the appellate authority -Dispute Resolution Panel in letter and

spirit while restoring the dealership and agreement dated 24-04-2013

and restore supply of MS and HSD if petitioner is otherwise eligible for

the same. If petitioner is legally found eligible for refund of 50% of the

amount deposited at the time of appeal, then same shall be refunded/paid

to him.

Writ petition No.4284/2019 stands disposed of in above terms.

10. Regarding Writ Petition No.8131/2019:

Petitioner in the instant petition is seeking quashment of notice

Annexure P/1 issued for appointment of arbitrator by the respondents

-Oil Company wherein petitioner is seeking following reliefs:

"i) That, the steps taken by the respondents vide letter Annexure -P/1 for appointment of Arbitrator may kindly be declared illegal and void ab -initio and the same be quashed.

ii) That, the respondents be further commanded not to appoint arbitrator until and unless the judgment passed by the 'DRP' is not questioned before competent Court of Law.

iii) Cost of the petition be awarded or any other order or direction deemed fit in the circumstances of the case be issued in the favour of the petitioner."

11. In view of the discussions made in A.C.No.66/2019 whereby application

preferred under Section 11(6) of the Act has been rejected and prayer for

appointment of arbitrator has been rejected, thus, purpose of filing of

this petition appears to be over because no arbitration proceeding is

found to be valid after passing of the order dated 18-12-2018 by the

Dispute Resolution Panel. Therefore, notice for appointment of arbitrator

Annexure P/1 pales into oblivion and has no significance.