Case: Mrs. Sanjana M. Wig Vs. Hindustan Petro Corp. Ltd

2. The Appellant herein and one Smt. Bimladevi T. Obhan, who were partners in M/s Tilak Automobiles and the Respondent herein entered into a dealership agreement. Admittedly the said agreement was terminated by the Respondent herein by a notice dated 19.03.2004 in terms of Clause 55 of the said agreement which reads thus:55. Notwithstanding anything to the contrary herein contained, the Corporation shall be at liberty to terminate this Agreement forthwith upon or at any time after the happening of any of the following, namely: -(A) If the Dealer shall commit a breach of any of the covenants and stipulations contained in the Agreement, and fail to remedy such breach within four days of the receipt of a written notice from the Corporation in that regard;(i) The death or adjudication as insolvent of the Dealer, if he be an individual;(ii) The dissolution of the partnership of the dealers firm or the death or adjudication as insolvent of any partner of the firm if the Dealer be a firm(iii) The liquidation, whether voluntary or otherwise or the passing of an effective resolution for the winding up, if the dealer be a company or a co-operative society3. According to the Respondent, the said agreement came to an end on the death of the said Bimladevi. However, the dealership was allowed to continue having regard to a representation made by the Appellant herein that the firm had certain out standings in the market which were in danger of becoming unrecoverable, if the supplies were suddenly stopped. The Respondent agreed to continue supplies to the Appellant on purely ad hoc basis4. The Respondent alleging violation of various conditions of the said agreement, namely, (1) low sales volume of the dealership; (2) sales performance; (3) dry outs at the outlet; and (4) no active interest/participation in operation of the dealership, issued a show cause notice dated 20.12.2002 as to why suitable action should not be taken for gross violation of clauses 9, 42, 44 and 55(a) of the said dealership agreement dated 09.02.20005. A further notice was issued to the Appellant by the Respondent on 7.11.2003 drawing its attention to the defaults made by her and warned that any future default would be viewed seriously and very stringent action will be taken. Thereafter, allegedly a further default occurred and, thus, on the grounds stated in the notice dated 20.12.2002 as also on the ground of default, the agreement was terminated in terms of a notice dated 19.03.20046. The Appellant contended that on 19.03.2004 itself at about 5.00 p.m. , the staff members of the Respondent along with the police authority forcibly entered the premises of the partnership firm and while handing over the said notice, the staff members thereof were forcibly ousted from the business premises7. The writ petition filed by the Appellant herein, as noticed hereinbefore, was dismissed in limine by the impugned order.

Reasoning:
Ordinarily, when a dispute between the parties requires adjudication of disputed question of facts wherefor the parties are required to lead evidence both oral and documentary which can be determined by a domestic forum chosen by the parties, the Court may not entertain a writ application13. However, access to justice by way of public law remedy would not be denied when a lis involves public law character and when the forum chosen by the parties would not be in a position to grant appropriate relief18. It may be true that in a given case when an action of the party is dehors the terms and conditions contained in an agreement as also beyond the scope and ambit of domestic forum created therefor, the writ petition may be held to be maintainable; but indisputably therefor such a case has to be made out. It may also be true, as has been held by this Court in Amritsar Gas Service (supra) and E. Venkatakrishna (supra), 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; but while entertaining a writ petition even in such a case, the court may not loose sight of the fact that if a serious disputed question of fact is involved arising out of a contract qua contract, ordinarily a writ petition would not be entertained. 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 respondent19. But in a case of this nature, while exercising a plenary jurisdiction, we must take the supervening circumstances into consideration. The parties admittedly invoked the arbitration agreement before the arbitrator. They entered into a settlement. Pursuant to or in furtherance of the said settlement, the Appellant herein was to pay a sum of Rs.4,64,586/- unto the Respondent in five installments with interest. The Appellant herein for violation of the terms of contract presumably prayed for award of damages but no reference thereto has been made in the award. In any event such claim of damages could have been made before the Arbitrator on the ground of alleged breach of contract20. We are further of opinion that in this matter no case has been made out for grant of a relief of restoration of the dealership. The contract stood terminated on the death of the Appellants partner. No case of novation of contract has been made out. It is also not the case of the parties that any other or further agreement between the parties came into being. The arrangement was an ad hoc one. The Appellant did not derive any legal right to continue the business for an indefinite period. Moreover, she allegedly violated the terms of the contract21. It may be true that the said award has been made without prejudice to the interest of the parties in this appeal;