WPMS/2576/2019
2021 Latest Caselaw 808 UK

                    Judgment Reserved on 01.03.2021
                    Judgment Delivered on 10.03.2021


IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
       ON THE 10TH DAY OF MARCH, 2021
                        BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
       Writ Petition (M/S) No. 2576 of 2019
BETWEEN:

M/s Shree Jagdamba Oil Carrier           ...Petitioner
     (By Mr. S.P.S. Panwar, Senior Advocate assisted by Mr.
     Ajay Veer Pundir, Advocate)

AND:

Hindustan Petroleum Corporation Ltd.
& others                          ... Respondents
     (By Ms. Menka Tripathi, Advocate)

                     JUDGMENT

This writ petition has been filed by M/s Shree Jagdamba Oil Carrier through its proprietor. The relief sought in the writ petition are as follows:-

(i) Issue a writ, in the nature of certiorari quashing the impugned termination order dated 13.04.2019 and impugned order dated 02.07.2019 (contained as Annexure no. 4 & 6) to this writ petition.

(ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent no. 2 to permit the operation of 15 T.T. of petitioner in pursuance to contract agreement dated 08.01.2018 and to compensate the loss incurred to the petitioner during this period.

2. According to the petitioner, he was granted a contract for transportation of bulk petroleum

products. The Transport Agreement executed between the petitioner (M/s Shree Jagdamba Oil Carrier) and the respondent (Hindustan Petroleum Corporation Ltd.) is on record as Annexure CA-1. The agreement was executed on 08.01.2018. As per Clause 17 of the Agreement, it was valid upto 31.12.2022 w.e.f 01.01.2018.

3. A show cause notice was issued to petitioner on 28.08.2018 alleging that there has been violation of Clause 10(d), Clause 14(b) and Clause 17(i) of the Agreement, inasmuch as, the tank truck was locked by the crew of the petitioner by a duplicate key, while the Master Key was still in possession of the Officer of HPCL. By the show cause notice, petitioner was asked to submit his reply within ten days. Petitioner submitted his reply to the show cause notice, denying the allegations.

4. Hindustan Petroleum Corporation Ltd. (in short "HPCL") ultimately passed an order on 13.04.2019 terminating the Transport Agreement dated 08.01.2018 and all the 15 Tank Trucks of the petitioner were blacklisted for two years, on industry basis.

5. Thus, feeling aggrieved, petitioner has approached this Court challenging the termination order dated 13.04.2019. A communication dated 02.07.2019, issued by Executive Director (Operation), Hindustan Petroleum Corporation Ltd. to Ministry of Petroleum & Natural Gas, Government of India, New Delhi has also been challenged in the writ petition.

6. A counter affidavit has been filed by Mr. Arun Kumar Gupta, Chief Regional Manager, Hindustan Petroleum Corporation Ltd. on behalf of the respondents in which a preliminary objection has been raised that the writ petition is not maintainable in view of the arbitration clause in the Transport Agreement, which can be invoked by the petitioner for resolving the dispute. The action taken against the petitioner has also been sought to be justified with reference to various clauses of the Transport Agreement executed between the parties.

7. Mr. S.P.S. Panwar, learned Senior Advocate appearing for the petitioner submits that the Transport Agreement has been terminated by the respondent corporation in order to give undue benefit to a rival transport company and the allegation levelled for terminating the Agreement is absolutely false. He further submits that that the tank truck of the petitioner bearing registration No. UK07 CC 3108 was locked by the officer of the respondent corporation and the allegation that petitioner's tank truck crew locked the tank truck with a duplicate key, is baseless.

8. Per contra, Ms. Menka Tripathi, learned counsel appearing for the HPCL submits that the tank truck crew had admitted possession of duplicate key in the Panchanama. Thus, according to her, the Transport Agreement was rightly terminated in terms of Clause 17(i) of the Transport Agreement dated 08.01.2018. She has drawn attention of this Court to Clause 17(a) of the Transport Agreement in support of her contention that respondent corporation was

justified in forfeiting the amount of security deposited by petitioner.

9. Ms. Menka Tripathi, further submits that Clause 18 of the Transport Agreement executed between the petitioner and the respondent corporation provides that all disputes and differences between the parties shall be referred for adjudication to Sole Arbitrator.

10. Relevant extract of Clause 18 of the transport agreement, which provides for arbitration, is reproduced below:-

"18. All disputes and differences of whatsoever nature, whether existing or which shall at any time arise between the Parties hereto touching or concerning the agreement, meaning, operation or effect thereof or to the rights and liabilities of the Parties or arising out of or in relation thereto whether during or after completion of the contract or whether before after determination, foreclosure, termination or breach of the agreement (other than those in respect of which the decision of any person is, by the contract, expressed to be final and binding) shall, after written notice by either Party to the agreement to the other of them and to the Appointing Authority hereinafter mentioned, be referred for adjudication to the Sole Arbitrator to be appointed as hereinafter provided."

11. Ms. Menka Tripathi, Advocate further submits that another transporter, with whom respondent corporation had entered into a similar Transport Agreement, filed WPMS No. 1857 of 2019, challenging termination of his Transport Agreement; the said writ petition was dismissed in-limine by a Co-ordinate Bench of this Court vide order dated 27.06.2019 by holding that in view of Clause 18 of

the Transport Agreement which contains an Arbitration Clause, it will not be proper for a writ court to entertain and decide the dispute.

12. Learned counsel for the HPCL further submits that against dismissal of his writ petition, the transporter (M/s Salman Carrier Khempur) filed SPA No. 716 of 2019, which too was dismissed by Division Bench of this Court vide judgment dated 15.10.2019. She, thus, submits that in view of the judgment rendered in the case of M/s Salman Carrier (supra), this writ petition is also liable to be dismissed on the ground of alternative remedy.

13. This Court finds substance in the contention raised by learned counsel for the respondent corporation. Since there is an arbitration clause in the Agreement executed between the parties and as per the respondent corporation, Transport Agreement has been terminated in terms of the conditions mentioned in the Agreement, therefore, it will not be proper for this Court to invoke extraordinary jurisdiction available under Article 226 of the Constitution for adjudicating such private dispute between the parties, which arises out of a contract.

14. In such view of the matter, writ petition is dismissed on the ground of alternative remedy with liberty to the petitioner to seek remedy before the appropriate forum.

(MANOJ KUMAR TIWARI, J.) Aswal