CIVIL WRIT PETITION NO. 13467 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO. 13467 of 2009 DATE OF DECISION: APRIL 29, 2011 Sohan Lal .....Petitioner VERSUS Hindustan Petroleum Corporation Limited & another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. M.S. Sindhu, Advocate, for the petitioner. Mr. Anil Malhotra, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner was appointed as a dealer by the respondent-Corporation at Amritsar on 12.2.1983. A dealership agreement containing various terms and conditions was entered into between the petitioner and the respondent-Corporation. The agreement was for sales and supplies of HP domestic LPG Gas in the areas mentioned in the dealership agreement. The agreement was valid for a period of 10 years, which expired on 11.2.1993. The parties voluntarily agreed to continue the dealership on the same terms and conditions vide agreement dated 12.2.1983. Thereafter, CIVIL WRIT PETITION NO. 13467 of 2009 -2- the parties agreed to continue the agreement for another period of 5 years in pursuance of the subsequent agreement dated 7.3.2005. On account of certain allegations of irregularities, a show cause notice dated 25.2.2008 was issued to the petitioner for appropriate action and termination of distributorship agreement dated 7.3.2005. This was under Clause 29B(a)(h) (n) for violation of Clause Nos.2B (iii), 6, 12, 24 (a) (c) and 29B (a) (h) (n) of the said dealership agreement. It is the case of the petitioner that after issuance of this show cause notice, the respondents executed a fresh agreement dated 4.3.2008 in favour of the petitioner. In the meantime, the petitioner filed reply to show cause notice by pleading that he is a poor man and belongs to Scheduled Castes category and have no means of livelihood to sustain himself and his family. The petitioner, accordingly, prayed for taking lenient view and for continuance of the Agency. The petitioner had also prayed for the appointment of an Arbitrator vide letter dated 28.3.2008 (Annexure P-6). On this request, Shri B.Mukherjee, Director (Finance) of the respondent- Corporation was appointed as a Sole Arbitrator on 11.6.2008 to adjudicate the dispute between the parties. The Arbitrator was to act in terms of the provisions of the dealership agreement and under the Arbitration and Conciliation Act, 1996 (for short the 'Arbitration Act”) . The Arbitrator entered into the arbitration on 16.6.2008. Statement of Claim was filed. On completion of proceedings, the petitioner had also submitted his claim statement before the Sole Arbitrator, copy of CIVIL WRIT PETITION NO. 13467 of 2009 -3- which has been annexed with the petition as Annexure P-9. The grievance of the petitioner is that without his consent, respondent No.2 through letter dated 9.7.2008 had enlarged the scope of arbitration. The respondents referred the issue of termination of the agreement, which was done on 4.3.2008. The petitioner had submitted an application before the Sole Arbitrator for restoration of the Gas supply and had submitted additional claims, after the scope of arbitration was enlarged. A copy of the same has been annexed on record as Annexure P-16. After considering the facts and circumstances of the case, the Arbitrator has given the following award:- “a. Termination of the Dealership Agreement dated 4.3.2008 carried out by the Respondent Corporation vide letter dated 01./07/2008 is proper, valid & legal. b. The claim of the Claimant seeking restoration of the Dealership is accordingly rejected. c. The claim of the Respondent for shortage/imbalance of cylinders of 177 cylinders and 322 regulators is granted and the claimant is directed to pay amount of Rs.21,84,245/- per calculation given above within a period of 3 months for the date of receipt of this award. d. The claim of the Claimant seeking reinstatement of the Dealership Agreement dated 4/3/2008 by stating set aside the Termination Order dated 01/07/2008 is accordingly rejected. e. The prayer of the Claimant for CIVIL WRIT PETITION NO. 13467 of 2009 -4- restoration of supply of LPG and refill cylinder to the Claimant is also rejected. f. The other prayers of both Claimant & Respondent are rejected. g. Both the parties are bear their own cost of arbitration.” The petitioner instead of invoking his remedy available to him in law under the Arbitration Act, has chosen to file this writ petition. Counsel for the petitioner has made reference to Indian Oil Corporation Ltd. Versus Amritsar Gas Service and others, (1991) 1 SCC 533 and E. Venkatakrishna Verus Indian Oil Corporation and another, (2000)7 SCC 764, to plead maintainability of the writ petition on the ground that arbitration has no jurisdiction to restore the distributorship. Counsel would also make reference to ABL International Ltd. and another Versus Export Credit Guarantee Corporation of India Ltd. and others, (2004) 3 SCC 553, to plead that the petitioner would be entitled to maintain the writ petition even for enforcement of a contractual obligation. Notice of motion was issued. Reply is filed. A few preliminary objections have been raised. It is pointed out that the petitioner is seeking quashing of the order terminating his LPG agency. It is urged that the petitioner has invoked this jurisdiction wrongly and in support reference is made to CWP No.14573 of 2007 Munish Gupta Versus Union of India & others, decided on 12.9.2008. The respondents would also plead that writ jurisdiction of the Court cannot be invoked for enforcement of contractual disputes. The CIVIL WRIT PETITION NO. 13467 of 2009 -5- respondents would also join issues with the petitioner for placing reliance on the various judgments. Reference is made to Hindustan Petroleum Corporation Ltd. versus Pink City Midway Petroleum (2003) 6 SCC 503 and Harbans Lal Sahnia & another Versus Indian Oil Corporation Ltd. and others, (2003) 2 SCC 104, to plead that a writ petition is not maintainable and the jurisdiction has been wrongly invoked. As per the respondents, the present writ petition involves serious disputed question of fact, which has already been adjudicated by the Arbitrator on the basis of evidence, which was led by the respective parties. It is pointed out that the claim made by the petitioner is purely private and an inter se dispute between the parties. The grant of LPG distributorship to the petitioner, does not involve any public law function. It is purely commercial transaction and does not involve any public law function, which may entitle the petitioner to invoke the writ jurisdiction. The respondents would also highlight that the petitioner himself has sought appointment of an Arbitrator by writing letter dated 28.3.2008 and this was as per the clause of the agreement. This resulted in a matter being referred to and adjudicated by the Arbitrator, where the petitioner has participated without any protest. It is claimed that the petitioner has acquiesced to the jurisdiction of the arbitration. The award is passed and the same by now has acquired finality as the petitioner till date has not impugned or challenged the same. The petitioner instead of invoking his remedy under the Arbitration Act, has chosen to file this writ CIVIL WRIT PETITION NO. 13467 of 2009 -6- petition to challenge the very termination order which was a subject matter of adjudication before the Arbitrator. The respondents would, accordingly, point out that the petitioner at the most could pursue his remedy under the Arbitration Act instead of invoking the writ jurisdiction of this Court. The respondents, accordingly, would term this action of the petitioner to be a misuse of the process of the Court. The plea on merits has also been contested. Since it is a purely legal question raised in regard to the maintainability of the petition, I need not go into the merits of the claim as raised to challenge the order of termination. The foremost issue, which would require adjudication is whether the petitioner can maintain the present writ petition after having invoking the alternative remedy of arbitration. To my mind, the petitioner had voluntarily sought arbitration against the issuance of a show cause notice. During the pendency of show cause notice, the dealership agreement stood terminated. The scope of the arbitration, accordingly, was enlarged by the respondents. If the petitioner had any grievance against that order or this was being thrust upon him, as stated, he was required to object to the same either before the Arbitrator or before any other forum in accordance with law. Rather the petitioner is seen to have submitted to the jurisdiction of the Arbitrator for going into the termination order as well and had also filed a claim before the Arbitrator even after the order of termination was communicated to him and was referred for arbitration. In view of these facts, there would not be any need to go into the law cited before me about the maintainability of the writ petition. The CIVIL WRIT PETITION NO. 13467 of 2009 -7- contractual liability may in appropriate case be gone into in exercise of writ jurisdiction, if issue involved relates to public functions, but in a pure simple case of commercial agreement normally the writ may not be maintainable. The action of the petitioner in not pursuing his remedy against the arbitration award and then approaching this Court, apparently is not justified in law. Having himself invoked the remedy of arbitration and after getting a unfavourbale decision, the petitioner can be heard or permitted to change track and approach this court with writ jurisdiction. The award passed by the Arbitrator can not certainly be interfered with through writ. The petitioner appears to have failed to take appropriate remedy against the arbitration award and seems to be making mends to correct his failure to take proper action. He can not be permitted to do so either in equity or in law. The writ petition is clearly not maintainable and is, accordingly, dismissed. April 29, 2011 ( RANJIT SINGH ) monika JUDGE