DBSAW No.572/2007 M/s. Hamera Pump Vs. HPCL & Ors. 1 D.B. Civil Special Appeal No.572/2007 M/s. Hamara Pump vs Hindustan Petroleum Corporation Ltd., & Ors. DATE OF ORDER : -27.5.2008 HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA, J. Mr.T. Gupta, for the appellant. Mr.Arun Bhansali, for the respondents. <><><> Heard learned counsel for the parties. Learned counsel for the appellant vehemently submitted that it is a case of total arbitrariness and also case of total malafide and because of those reasons, the petitioner's-appellant's dealership was cancelled. The appellant- petitioner challenged the notices dated 19th Nov., 2006 and 12th Jan., 2007 issued by the respondents nos. 2 and 4 and also challenged the order of suspension of its dealership dated 18th Oct., 2006 and also impleaded Senior Regional Manager Shri PK Gulati as party by name as there were some allegations against the said person in the writ petition. According to learned counsel for the appellant in gross violation to the procedure prescribed by the respondents, the respondent did not send the sample of the appellant-petitioner to the laboratory and flouted its procedure totally. It is also submitted that even during the pendency of DBSAW No.572/2007 M/s. Hamera Pump Vs. HPCL & Ors. 2 the writ petition, the petitioner's-appellant's dealership was cancelled and that clearly shows that the respondents tried to over reach the process of the court. The writ petition of the petitioner was dismissed by the learned Single Judge of this Court on the ground that controversy involved about the validity of the termination of dealership of the petitioner and other matters, which all can be decided by the arbitrator. The learned Single Judge directed the petitioner to submit to the company for appointment of the arbitrator. It appears from the facts of the case that there is allegation of breach of contract and that too by the authorities who have control over the some commodity. Be that as it may be, the fact is that the redressal can well be obtained and completely obtained by the process of arbitration as there may be claim of the damages apart from setting aside of the order of cancellation of dealership passed by the respondent. The apprehension of learned counsel for the appellant is that the appellant will not able to implead the person by name in the arbitration proceedings and, therefore, he may not get the relief from the arbitrator against the person who acted malafidely. Another apprehension of learned counsel for the appellant is that the arbitrator DBSAW No.572/2007 M/s. Hamera Pump Vs. HPCL & Ors. 3 will not act fairly because arbitrator will be the person of the respondent itself. The apprehension of the appellant has no valid foundation because of the reason that petitioner- appellant himself knowing it well that who will be the arbitrator in case of dispute covered by the arbitration clause signed the arbitration agreement. The said apprehension can be raised by any party after entering into arbitration agreement containing the clause for appointment of a particular arbitrator, who may be person of the respondent company. The contention of the appellant that the appellant cannot implead the person as party in the arbitration proceedings then if law does not permit it in the facts of the case then remedy lies in civil court against that person where only one can get the adequate relief, which can be of claiming damages against that person. If the subject is covered by the arbitration clause civil court may not entertain the suit on objection of the respondent, but if the subject is not covered by the arbitration clause, the civil court certainly can look into the matter, therefore, the said objection of the party also has no merit. However, this issue is not relevant here as petitioner-appellant has not claimed any damages from the private respondent. In substance, we are in agreement with the view taken by the learned Single Judge that the matter DBSAW No.572/2007 M/s. Hamera Pump Vs. HPCL & Ors. 4 well can be examined by the arbitrator in arbitral proceedings. At this stage, learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court delivered in Harbanslal Sahnia & anr. Vs. Indian Oil Corpn. Ltd. & Ors reported in (2003) 2 SCC 107 wherein the Hon'ble Supreme Court considered the objection of alternative remedy and exhaustion of remedies. The Hon'ble Supreme court held that the said rule is of discretion and not one of compulsion. In the said case, the petitioner's dealership was cancelled, which according to the facts of the said case was petitioner's bread and butter and dealership was found to be terminated for an irrelevant and non- existent cause then it has been held by the Hon'ble Supreme Court that petitioner should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings. Learned counsel for the appellant further relied upon the judgment of the Hon'ble Apex court delivered in the case of Sanjanam, WIG (Ms) Vs. Hindustan Petroleum Corpn. Ltd., copy of which has been taken from SCC On-line and case is reported in (2995) 8 SCC 242. Learned counsel for the appellant pointed out that the Hon'ble Apex Court in the said case took note of the earlier decision of the Hon'ble Apex Court delivered in he case of DBSAW No.572/2007 M/s. Hamera Pump Vs. HPCL & Ors. 5 Indian Oil Corpn. Ltd., Vs. Amritsar Gas Service reported in (1991) 1 SCC 533 and view taken in the case of E. Venkatakrishna Vs. Indian Oil Corpn. reported in (2000) 7 SCC 764 and observed that it is also true that, as has been held by this Court in Amritsar Gas Service and E. Venkatakrishna that the arbitrator may not have the requisite jurisdiction to direct restoration of distributorship having regard to the provisions contained in Section 14 of the Specific Relief Act, 1963. In the judgment of Sanjana M. Wing (Ms) (supra) thereafter, the Hon'ble Apex Court observed that but while entertaining a writ petition even in such a case, the court may not lose sight of the fact that if a serious disputed question of fact is involved arising out of a contract quo contract, ordinarily a writ petition would not be entertained. Thereafter, the Hon'ble Apex Court observed that a writ petition, however, will be entertained when it involves a public law character or involves a question arising out of public law functions on the part of the respondent. It is settled law that the alternative remedy is no bar against the exercise of jurisdiction by the High Court under Article 226/227 of the Constitution of India. It is a rule of self- restraint. There are so many guidelines already prescribed and given by the Hon'ble Apex Court in DBSAW No.572/2007 M/s. Hamera Pump Vs. HPCL & Ors. 6 what circumstances the court should not interfere in a writ jurisdiction when alternative remedy is available to the petitioner and petitioner has not exhausted that remedy, but at the same time, the Hon'ble Apex Court also laid down guidelines for entertaining the writ petition inspite of having the alternative remedy. In the present case, since there are serious allegations of the petitioner of violation of procedure as well as malafide of a person and the matter involves disputed questions of facts also and the arbitration is the procedure prescribed for speedy settlement and decision of the disputes and the learned Single Judge has took a view that it is a case where the decision through arbitrator is the proper remedy, we do not find any justification to interfere in appellate jurisdiction in the impugned order. Hence, the appeal of the appellant is hereby dismissed. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. c.p.Goyal/-