1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.340 OF 2009 Ramesh P. Mehta ..Applicant V/s Hindustan Petroleum Corporation ..Respondents ---- Mr. Firdoze Pooniwala alongwith Manoj Bhatt for the applicant. Minoo Siodia i/by Rustamji & Ginwala for the respondents. ---- Coram : R.S.MOHITE,J Date : 17th September, 2009. PC 1 This is a revision filed by the original plaintiffs impugning an order dated 4.7.2009 passed below Exhibit-10 and Exhibit-13 in Regular Civil Suit No.39 of 2006. The plaintiffs’ suit was filed for the following main reliefs :- (a) Declare that, order/notice of the defendant dated 13.11.06 is illegal, arbitrary and require to be set aside ; (b) Declare that, defendant have no right to terminate the dealership of plaintiff No.1, without following due procedure of Defendant Company and declare that appointment of a new dealer by its order dated 13.11.06 is illegal and require to be set aside ; (c) Declare that, defendants have no right to take possession of retail outlet as per order/notice dated 13.11.06 and declare that defendants has no right to stop the 2 supply of petrol and diesel to the plaintiff No.1 and declare that defendant has no right to restrain the plaintiff No.1 from running the retail outlet as dealer of Defendant Company ; (ci) That the Defendants be directed by a mandatory order and injunction of this Hon’ble Court to forthwith start supply of the materials such as petrol and diesel to the plaintiff No.1 so that the Plaintiff No.1 can run the petrol pumps ; (cii)................................... (d).................................... (e) Direct the Defendant to purchase suit land at market value from plaintiff No.2. 2 It may be stated here that the cause of action between the plaintiffs and the defendants admittedly arose out of a letter dated 13.11.2006 terminating the petrol pump adhoc dealership granted to plaintiff no.1. It was admitted by the plaintiffs in the plaint that petrol pump was erected and running on a land belonging to plaintiff no.2 who according to them was the uncle of plaintiff no.1. It was an admitted position in the plaint that the land on which petrol pump was erected was leased out by plaintiff no.2 to defendant no.1 under an agreement dated 20.11.2003 for a period of 30 years. It was further admitted by the plaintiffs in their plaint that the plaintiff no.2 had by his Advocate’s letter dated 29.1.2008, terminated the said lease agreement. It is further not in dispute that under the dealership agreement executed between the defendant no.1 and plaintiff no. 1 there was an arbitration clause which require the parties to refer their disputes to an Arbitrator. 3 3 As stated aforesaid, the plaintiffs filed their suit and as can be seen from the prayers as reproduced above, the only relief sought by plaintiff no.2 in the plaint was a direction to the defendants to purchase suit land at market value from plaintiff no.2. Admittedly, the averments on the basis of which this prayer was sought was contained only in paragraphs-3, 4 & 10 of the plaint. On reading these averments contained in these paragraphs, it is abundantly clear that it was the case of the plaintiffs that plaintiff no.1 had represented to the defendants that if they want to appoint new dealer, plaintiff no.2 was ready to sell his land to the defendants at the market rate but this was denied by the defendants. It is seen that in this case, admittedly a lease deed dated 20.11.2003 has been executed by defendant no.2 in favour of defendant no.3. The case sought to be made out by the plaintiffs that there was an obligation on the part of defendant no.2 to purchase the land in case the dealership of plaintiff no.1 was terminated, is nowhere to be found in the lease deed. On perusing the lease deed, I find that the same contains a covenant of purchase being covenant no.2(d) in the following terms :- “2(d) That the Lessors will not sell or agree to sell their title and interest in the demised premises until the expiration of 90 days after they shall have given to the lessee notice of their intention to sell which notice shall state the price at which the lessors shall intend to sell and such other particulars as the lessee may require and shall given an option to the lessee to purchase the demised premises at the said price such option to be exercised within a period of 90 days from the date of receipt of such notice” 4 That covenant is however not pleaded as a part of cause of action in the plaintiffs’ suit. Paragraph-12 of the plaint which relates to the cause of action is as under :- 4 12 Cause of Action Defendant has assured and promised to present plaintiff No.1 that, if plaintiff No.1 purchase a suitable land for retail outlet at Daman, defendant will appoint the plaintiff No.1 as a dealer to run the retail outlet. Relying on assurance and promise plaintiff No.1 has purchased the land and accordingly Defendant Company has appointed the present plaintiff No.1 a temporary dealer for 1 year on 12.02.04. After that, it has been renewed for 1 year that is 05.01.05 to 04.01.06 after that, without any renewal plaintiff No.1 is running the retail outlet. However, defendant has issued a illegal and arbitrary order (notice) for taking possession of R.O from plaintiff No.1 and for appointment of new dealer in place of plaintiff No.1, cause of action has been arise for the present suit. It is seen that plaintiffs have not mentioned or referred to any cause of action which can be made the basis of the defendants being compelled to purchase the property of plaintiff no.2. On a full reading of the plaint, no such cause of action can be gathered. Advocate for the applicants strongly relied upon the judgment of the Apex Court in the case of Sukanya Holdings (P) Ltd. V/s Jayesh H.Pandya & Anr. Reported in (2003) 5 Supreme Court Cases 531. In that case the Apex Court held that where a suit was commenced in respect of a matter which falls partly within the arbitration agreement and partly outside and which involves parties, some of whom were parties to the arbitration agreement while some were not so, section 8 was not attracted. The Apex Court held that the entire subject matter of the suit should be the subject of the arbitration agreement. 5 We now find cases coming up where some additional persons are introduced as 5 plaintiffs and some relief is sought on behalf of such plaintiff, which would not fall within the ambit of the arbitration agreement. In the present case, I find that there is absolutely no cause of action mentioned to justify prayer to compel the defendants to purchase the land of the plaintiff no.2. There is no averment whatsoever to indicate that any such legally binding obligation was accepted by the defendants. The plaint does not mention that there was any offer to sell the property made by plaintiff no.2 or that there was any acceptance of any such offer. On the contrary, reference in the plaint is to a representation made by plaintiff no.1 who was not the owner of the suit land and who had not executed the lease in respect thereof in favour of the defendants. A prayer of the sort which is made to compel the defendants from purchasing the lease plot from plaintiff no.2 can only be granted if there was a contract to this effect and specific performance of any such contract was sought. No such contract has been pleaded and in the contract of lease there was no such obligation. In my view, the judgment of the Apex Court in the case of Sukanya Holdings (supra) was clearly given to avoid multiplicity of proceedings and it can be seen from the facts of that case that the plaintiffs had sought the adjudication of the dispute which was genuine and which arose from the facts of the case, a part of which is beyond the arbitration agreement. In my view, the ratio of the said judgment cannot be used to evade the provisions of the Arbitration Act by introducing non grantable reliefs. In view of the findings as aforesaid, I am not inclined to entertain this Revision Application. Civil Revision Application is therefore, summarily rejected. (R.S.MOHITE,J) 6