: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.449 OF 2007 IN THANE SPECIAL CIVIL SUIT NO.230 OF 2006 Pritish Jayprakash Chhajed ..Appellant. Vs. Indian Oil Corporation Ltd. & Anr. ..Respondents. Mr.V.A.Thorat, Senior Counsel with Mr.A.R.Pande for the Appellant. Mr.G.Joshi with Mr.N.Engineer i/b.M/s.R.M.G.Law Associates for Respondent No.1. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : 27TH JUNE, 2008 DATED : 27TH JUNE, 2008 DATED : 27TH JUNE, 2008 P.C. : P.C. : P.C. : Admit. Heard finally. 2. This is an Appeal against the order passed by the learned Civil Judge, Senior Division dismissing the Plaintiff’s Application for interim reliefs. The suit is filed for a declaration that the Appellant had made substantial efforts to get the land allotted and to get various licences upon the promise of Defendant No.1 to grant a dealership of the suit outlet on a renewable basis and Defendant No.1 is bound by the principle of promissory : 2 : estoppel and that the contract between Defendant No.1 and the Plaintiff in respect of the suit outlet is valid and subsisting. The Appellant has also sought a declaration that the Defendant’s act of advertising the suit outlet for re-allotment is illegal and contrary to law and in breach of the alleged promise. In the alernative, the Appellant has prayed for an order declaring the selection of Defendant No.2 as null and void and contrary to law and for re-assessment of the Appellant’s marks. In the further alternative, a decree for damages in the sum of Rs.22,00,000/- is claimed. 3. By the interim application, the Appellant has sought an order restraining the Defendants from dispossessing him without due process of law and for an injunction restraining Respondent No.1 from stopping supplies of petroleum products to the Appellant so long as the Appellant pays the market price for the same as a contractor. 4. The interlocutory application is, to say the least, misconceived. Final reliefs in terms thereof have not even been prayed for. Despite the same, I have considered the application for interlocutory reliefs even on merits. : 3 : 5. As far as the contention based on the alleged representation and the policy guidelines for selection of the dealers are concerned, I find no merits. The Appellant’s case does not fall within the same even assuming that the same is binding on Respondent No.1. To say the least, there is considerable dispute as to whether Respondent No.1 obtained the land by virtue of its own efforts or whether the Appellant’s procured the same for Respondent No.1. In any event, it is admitted that the plot stands in the name of Respondent No.1 having been allotted the same by the MIDC. 6. The next question is whether the Appellant is entitled to possession based on the contract for maintenance and haulage dated 21.12.2005 entered into between the Appellant and Respondent No.1. 7. The third recital of the contract states that Respondent No.1 is the owner/lessee of the plot of land and that it desires to run the retail outlet at the premises on a Company Owned and Company Operated basis ("COCO basis") by its own officials. Clauses 1, 3 and 4 of the contract read as under :- : 4 : "1. The Corporation hereby appoint the Contractor for performing various contractual jobs at the said COCO RO (to enable the Corporation to provide services to the public at large). 3. The Contractor shall have the right only to enter the premises for the purpose of performing the jobs stated in Clause 2 at the said premises and shall have no right, title or interest in the said premises or outfits and it is agreed by the Contractor and declared in particular that the contractor shall not be deemed to be exclusive possession of the said premises. 4. The agreement will be for a period of 1 year effective from 30.09.04 subject to an extension by one year at the Corporation’s option on the same rates, terms and condition. However, the agreement can be terminated at the option of the Corporation at any time before the expiry of the contract, by giving one month notice in writing without assigning any reasons whatsoever. In case of breach of contract, the Corporation reserves the right to terminate the contract forthwith." 8. It is clear therefore that the Appellant was merely a contractor for performing the jobs mentioned in the contract, for and on behalf of : 5 : Respondent No.1 to enable Respondent No.1 to provide the services to the public. Thus, even in the absence of Clause 3 it is clear that the Appellant cannot be said to be in possession much less settled possession of the suit premises. 9. Mr.Joshi’s reliance upon the judgment of the Supreme Court in Rame Gowda (dead), by Lrs. v. M. Varadappa Naidu (dead) by Lrs. & Anr., (2004) 1 Supreme Court Cases, 769 in support of his contention that occupation of property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession, is well founded. The Appellant’s possession in the present case is no higher. 10. Mr. Joshi’s reliance upon clause 10 of the declaration signed by the Appellant and on clause 5 of the affidavit executed by the Appellant are unnecessary in view of what I have held above. By clause 10 of the declaration, the Appellant had agreed and undertaken that upon the determination of the agreement he would remove all his employees from the first Respondents premises and that they shall be deemed to be trespassers and that Respondent No.1 would be entitled to prevent them, if necessary, by : 6 : use of force, from entering upon the premises. 11. There is no question of directing Respondent No.1 by a mandatory order, specially at the interlocutory stage, to continue making supplies of the petroleum products to the Appellant. Mr.Joshi’s reliance in this regard upon the judgment of the Supreme Court in Indian Oil Corporation Ltd. v. Amritsar Gas Service & Ors., (1991) 1 Supreme Court Cases, 533 is also well founded. Moreover, the agreement has already come to an end by efflux of time. 12. The Appellant’s grievance regarding appointing Respondent No.2 as a dealer no longer survives. Mr.Joshi stated that his appointment with Respondent No.2 upon further investigation by Respondent No.1 has not been confirmed. Mr. Joshi stated that as at present advised, Respondent No.1 is likely to appoint a dealer and the Appellant is one of the candidates being considered. 13. Mr.Thorat, the learned counsel appearing on behalf of the Appellant submitted that till a dealer is appointed, it would be in the interest of both the parties if the contract continues and Respondent : 7 : No.1 supplies its product to the Appellant at the market rates. He further submitted that such an arrangement could continue even till Respondent No.1 takes a decision whether to appoint a dealer or whether to conduct the said business on its own. Mr.Thorat states that such an arrangement if continued would be on the express undertaking that it is only an interim measure, that based thereon, the Appellant would not claim any rights whatsoever and further, if such an arrangement was agreed to, the Appellant would withdraw the suit. 14. I see the commercial wisdom and efficacy of such a course being adopted by Respondent No.1 for otherwise it would only lead to a loss to Respondent No.1. There appears to be no logical reason for the Respondent not to do so. It can only benefit Respondent No.1 and not prejudice it in any way. That however is a business decision which Respondent No.1 must take. 15. The Appellant further undertakes that irrespective of anything, even if the Appellant desires to challenge the appointment of any other dealer or the decision of Respondent No.1 to carry on the operations itself, they would first comply : 8 : with the undertaking of removing all their articles from the premises. 16. In the circumstances, the Appeal from Order is dismissed. The ad-interim order to continue till 31st December, 2008 or till the appointment of a dealer or Respondent No.1 deciding to carry on the operations on its own. ***