IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 28964 of 2010(U) -------------------------- PETITIONER(S): --------------- JALAJA. T., PROPRIETRESS, M/S.NEEDU FUELS, NEEDU DALE, PANNAKKAL THURUTHU, PUTHETHURA, NEENDAKARA, KOLLAM DISTRICT. BY ADV. SRI.K.N.CHANDRABABU SRI.P.R.SHAJI RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF PETROLEUM AND NATURAL GAS, SHASTRI BHAVAN, NEW DELHI-110 001. 2. THE DIRECTOR (MARKETING), HINDUSTAN PETROLEUM CORPORATION LTD., JAMSHEDJI TATA ROAD, MUMBAI-400 020. 3. THE GENERAL MANAGER (RETIAL), SOUTHERN REGION, HINDUSTAN PETROLEUM CORPORATION LTD.NO.1, RENGANATHAN GARDEN, ANNA NAGAR, CHENNAI-600 300. 4. THE SENIOR REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LTD., REGIONAL OFFICE, ERNAKULAM-682 018. 5. ASHRAF, SAFA FUELS, CHAKKUVALLY, SASTHANKOTTA, KOLLAM-691 001. BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1 BY ADV. SRI.E.K.NANDAKUMAR SC FOR R2-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No. 28964 of 2010 ------------------------------- Dated this the 4th day of October, 2010 J U D G M E N T The petitioner, a dealer appointed by the Hindustan Petroleum Corporation Ltd. to run a petroleum retail outlet at Mynagappally at Kollam District has filed this writ petition challenging Ext.P5 order passed by the fourth respondent terminating the dealership and Ext.P15 order passed by the third respondent on appeal declining to interfere with Ext.P5. Clause 40 of Ext.P1 which is the agreement governing the rights of parties provides for a resolution of all disputes arising under the agreement by way of Arbitration. Clause 40 of Ext.P1 agreement reads as follows:- “40. Arbitration (a) Any dispute or difference of any nature whatsoever any claim, cross-claim, counter- claim or set-off or regarding any right, liability, act, omission or account of any of the parties hereto arising out of or in relation to this agreement shall be referred to the Sole Arbitration of the Chairman & Managing Director of the Corporation who may either himself act as the Arbitrator or nominee some other Officer of the Corporation to act as the Arbitrator. The dealer will not be entitled to raise any objection to any such arbitrator on the ground that the Arbitrator is an officer of the Corporation. W.P.(C) No.28964 of 2010 2 (b) In the event of the Arbitrator to whom the matter is originally referred being transferred, he shall be entitled to continue the arbitration proceedings notwithstanding his transfer unless the Chairman & Managing Director at the time of such transfer or at any time thereafter, designates another Officer to act as Arbitrator in his place in accordance with the terms of this agreement. (c) In the event of the arbitrator, to whom the matter is originally referred vacating his office or being unable or refusing to act for any reason, the Chairman & Managing Director at the time of vacation of office or inability or refusal to act, shall designate another Officer to act as Arbitrator in accordance with the terms of this agreement. (d) The Arbitrator newly nominated by the Chairman & Managing Director under Clauses (b) or (c) above shall be entitled to proceed with the reference from the point at which it was left by his predecessor. (e) It is an express term of his contract that no person other than the Chairman & Managing Director or a Director nominated as aforesaid shall act as Arbitrator. If for any reason, Chairman & Managing Director is unable or unwilling or refuses or fails to act as an Arbitrator or nominate an Arbitrator then the matter shall be referred to the Director (Marketing) who shall appoint a Officer of the Corporation to act as an Arbitrator. It being fully understood and agreed by and between the parties hereto that the vacancy should not be supplied within the meaning of sub-section 1(b) of section 8 of the Arbitration Act, 1940 W.P.(C) No.28964 of 2010 3 (Act No.10 of 1940). (f) The award of the Arbitrator so appointed shall be final conclusive and binding on all parties to the agreement subject to the provisions of the Arbitration Act, 1940. (g) The award shall be made in writing and published by the Arbitrator within 12 months after entering upon the reference or within such extended time not exceeding one further year as the parties shall agree in writing. The parties hereto shall be deemed to have irrevocably given their consent to the Arbitrator to make and publish the award within the period referred to hereinabove and shall not be entitled to raise any objection or protest thereto under any circumstances whatsoever. (h) It is hereby expressly agreed that the powers of the Arbitrator appointed in the matter hereinbefore mentioned shall include the power to make interim award/awards as the circumstances of the case may justify to appoint a receiver, commissioner or custodian by whatever name called to take possession of the property in dispute during the pendency of the proceedings and subject to such final order as may be passed by the Arbitrator and shall also have the power to issue such further orders from time to time as he may deem fit, on an application being made to him by any of the parties to the dispute where it is apprehended that the property to which it relates is in danger of being wasted, damaged, deteriorated or parted with or rights of other parties are likely to be created thereon. W.P.(C) No.28964 of 2010 4 (i) The Arbitrator shall be at liberty to appoint, if necessary, any accountant or engineer or other technical person to assist him and to act on the opinion taken from such person. (j) The Arbitrator shall be entitled to direct anyone of the parties to pay the costs of the other party in such manner and to such extent as the Arbitrator in his discretion determine and shall also be entitled to require on or both the parties to deposit funds in such proportion to meet the Arbitrator's fees and expenses as and when called upon to do so. (k) The venue of the Arbitration shall be decided by the Arbitrator.” 2. It is evident from stipulations contained in Clause 40 of Ext.P1 agreement that the petitioner has an effective and meaningful remedy by way of Arbitration. In such circumstances, I am of the considered opinion that the petitioner is not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition fails and it is accordingly dismissed without prejudice to the right of the petitioner to invoke the Arbitration clause. Her contentions on the merits are kept open. P.N.RAVINDRAN, Judge. nj.