Present writ petition has been filed by the petitioner before this court questioning the validity of the order dated 25.11.2009 passed by the General Manager U.P.S.O.-II Indian Oil Corporation Ltd., E-8 Sector-1 Noida canceling Retail Outlet Agency of the petitioner and order of its affirmance in appeal vide order dated 29.3.2010 passed by Executive Director (Retail Sales), Indian Oil Corporation Ltd. (Marketing Division) Indian Oil Bhavan, G-9, Ali Yavar Jung Marg, Bandra, (East) Mumbai. Civil Misc. Writ Petition No. 45358 of 2010 has been filed by Indian Oil Corporation refusing to refer the matter of Arbitrator by CivilJudge, Senior Division, Moradabad.
Brief background of the case is that petitioner has been dealer of the Indian Oil Corporation Ltd. at Site 'B' Majhola Delhi Road, Moradabad since 1967 and has been running his dealership in the name and style of M/s Auto Oil Company which is a sole proprietorship concern. The dispensing unit of the petitioner Make T-20 (Tokheim 2T Mix) machine with grade MS 3% was defective with respect to which the petitioner made a complaint to the local office of the respondents. On such complaint, inspection was done by the officials of the manufacturer, who found the actual problem of excess delivery of the meter assembly as meter assembly was reporting 25 M.L. to 90 M.L. excess. After the report was submitted and upon verification by the officials of the respondents themselves, it was found that the meter assembly unit required to be changed. Accordingly, meter assembly unit of the machine was arranged by the respondents on 15.9.2009. Petitioner has stated that for the purposes of changing the said part of the machine necessary permission was required from the Weights and Measures Department and petitioner in his turn completed necessary formalities and deposited requisite fee to the Weights and Measures Department vide receipt dated 16.9.2009, bearing receipt No. 400319 and 400305 for an amount of Rs. 500/- and Rs. 970/- respectively. Petitioner has stated that official of Weight and Measure Department on 18.9.2009 sealed the same and issue him certificate accordingly. Petitioner has further stated that after the sealing was done, the Anti-adulteration Cell of the respondent corporation visited the site and prepared an inspection report whereby, it verified that stock variation was within permissible limits and all the weights and measures certification were available at the time of inspection. It was further clarified that Weights and Measures seals on all the totalisers were found O.K. at the time of inspection and all the weights and measures seal of all the dispensing units were found intact at the time of inspection. Petitioner has stated during their inspection on 18.9.2009, the officials of the respondent corporation also mishandled the seals as put by the Weights and Measures Department. On 24.9.2009 the Weights and Measures Department again inspected the petitioners unit and found that their seals as put on the petrol dispensing unit had been tampered with. The said dispensing unit was thereafter sealed by the Weights and Measures Department and sales from the aforesaid unit was closed. The petitioner was accordingly issued a show cause notice by the Senior Inspector of the Weights and Measures Department of the State Government. The petitioner immediately replied the said show cause notice on 25.9.2009 and specifically stated that one Sri K.K. Verma, who was the Chief Manager of the Anti-adulteration Cell has tampered the seal put by the Weights and Measures Department and has pulled out the pin from the seal which was strongly objected to by Manager of the petitioners Sri N.K. Rastogi who was present on the spot. However, on such objection, Sri K.K. Verma prepared a false report about improper sealing and pressurized the Manager of the petitioners to put his signature, which was refused by Sri N.K. Rastogi and he said that he will not put the signature. Being convinced with the reply submitted by the petitioner, a show cause notice was issued to Sri K.K. Verma by the Weights and Measures Department on 1.10.2009 and a copy of the said show cause issued to Sri K.K. Verma. Said notice was replied by Sri K.K. Verma on 22.10.2009. Petitioner submitted that thereafter show cause notice was issued to the petitioner on 30.9.2009 whereby inter-alia, it was mentioned that sealing is improper and not tamper proof therefore, the petitioner must show cause against the same. This was replied by the petitioner on 12.10.2009 wherein the petitioner stated the information regarding seal being not tamper proof or otherwise, can be taken from the Weights and Measures Department and the petitioner is not concerned with the sealing part. This was supplemented by the petitioner vide his reply dated 27.10.2009. Petitioner has stated that during this period material was being supplied to him till 31.12.2009. Petitioner has stated that his supplies were stopped on 31.12.2009, then Suit No. 767 of 2009 was instituted before Civil Judge (Senior Division), Moradabad with the prayer that respondents may be restrained from causing any interference in the running of the retail outlet by the petitioner and further be restrained from causing any interference in the supplies to be made to the petitioner. Petitioner has also given details of initiation of the criminal proceeding against K.K. Verma before the court of Additional Chief Judicial Magistrate. On 11.12.2009, petitioner has stated that orders were passed for ensuring compliance of the order passed by court. Petitioner has thereafter stated that on 5.1.2010, the respondents filed an application under Section 8 of the Arbitration Act inter-alia praying that the suit be dismissed in view of the existence of the arbitration clause in the agreement and for the first time along with the said application, they enclosed the impugned order of termination dated 25.11.2009. Upon filing of the said application, the petitioner for the first time came to know about the passing of the order dated 25.11.2009 as against the petitioners. Prior to 5.1.2010, the petitioners had no knowledge about the order of termination passed against them. The aforesaid application filed by the respondents under section 8 of the Indian Arbitration and Conciliation Act was rejected by the Court of Additional Civil Judge (Senior Division), Moradabad on 8.1.2010. After coming to know about the passing of the orders dated 25.11.2009 on 5.1.2010, the petitioner filed an appeal before the respondent no.2 on 16.1.2010. The respondents were neither deciding the appeal nor resuming the supply to the petitioner. Compelled under such circumstances, the petitioner approached this Court by means of writ petition No. 6177 of 2010 which was disposed of by this Hon'ble Court on 5.2.2010 inter-alia commanding the respondent no.2 to decide the appeal within the period of stipulated. Pursuant of the said order passed by this court dated 5.2.2010, the respondents called the petitioner for hearing on 26.2.2010 and subsequently on 29.3.2010 the appeal filed by the petitioner had been dismissed. At this juncture Writ Petition No. 23194 of 2010 has been filed by petitioner and Indian Oil Corporation has also filed writ Petition No. 45398 of 2010. Both the petitioner have been clubbed.
Counter affidavit has been filed and therein action taken against the petitioner has been justified and it has been contended that petitioners have adequate efficacious alternative remedy to approach Arbitrator as provided in Clause 67 of the agreement and further petitioner has not approached the court with clean hand.
Rejoinder affidavit has been filed and thereafter, supplementary counter affidavit and supplementary rejoinder affidavit have been filed and thereafter present writ petition has been taken up for final hearing/disposal with the consent of the parties.
Sri. Manish Goel, Advocate appearing with Sri Ram Kaushik, Advocate and Ms. Priyanka Midha, Advocate, representing petitioners contended with vehemence that in the present case view point of the petitioners has not at all been taken into consideration specially on the factum that no point of time any sale whatsoever has been affected and whatsoever reading was there, same was only in reference to testing and not at all in reference to sale in such a situation and in this background such drastic action ought not to have been undertaken, as such this court in exercise of its authority of judicial review should grant requisite relief instead of relegating the petitioner to the remedy of arbitration or to remedy of suit and in the facts of case suit filed has to be accepted as withdrawn, and as such writ petition deserves to be allowed.
Countering the said submission, Sri Prakash Padia, Advocate, learned counsel for the respondents on the other hand contended that in the present case petitioners had filed Civil Suit and mere moving of application in Civil Suit for withdrawal will not amount to withdrawal of the suit ipso facto and petitioner should amend his suit by getting relief in question amended qua subsequent developments and once there is further remedy of arbitration, then this court should refuse to interfere with specially when the charges have been substantiated and large scale manipulation has been made by the petitioner and all sort of disputed question of fact are being raised as such writ petition deserves to be dismissed.
The issue involved in the present writ petition are being adverted to Accepted position is that before filing of the writ petition before this court, petitioners had filed Suit No. 767 of 2009 and therein application for interim injunction has also been moved and had been accorded also. In the said suit while matter had been on going, an application was moved under Section 8 of the Arbitration and Conciliation Act and said application has been rejected. Against the same Civil Misc. Writ Petition No. 45358 of 2010 had been filed by Indian Oil Corporation. Petitioner M/s Auto Oil Company Majhola claims that from the said application, they acquired knowledge of passing of the order of cancellation and then he preferred appeal and said appeal has also been dismissed. Petitioners thereafter, has moved an application for withdrawal of the suit and this is accepted position that till date on the said withdrawal application, no order whatsoever has been passed. Question that arises for consideration before this Court is that once application has been moved by the petitioners for withdrawal of the suit, can in such a situation it be accepted that said suit without there being any order of the Court, stands automatically withdrawn; petitioner be asked to peruse remedy of arbitration or writ petition be entertained, in the facts of the case and authority of judicial review be exercised.
This issue that once application has been moved for withdrawal of the suit, no further orders are required to be passed and suit has to be treated as withdrawn qua the same Sri Manish Goel relied on the Division Bench of this court in the case of Smt. Raisa Sultana Begum and others Vs. Abdul Qadir and others AIR 1966 Alld 318, wherein such a view has been taken.
Said judgment in question has again been followed by this court in the case of Prakash Chandra Mishra and another Vs. Rajendra Prasad Gupta 2004 (55) ALR-282, keeping in view of amendment which has been introduced in C.P.C.
Full Bench of this Court, in the case of Sunni Central Board Vs. Sri Gopal Singh Visharad 2010 ADJ (1) (SFB) LB) popularly known as Ram Janam Bhoomi matter, by majority opinion, has overruled. The view taken in the case of Raisa Sultana Begum, by holding in paragraph 1036, that same does not lay down correct law, and before coming to such conclusion, in paragraph 1035, precise view has been taken as follows. Paragraph 1035,1036 of the said judgment are being extracted below:-
1035. Once a suit is duly instituted, the Court would pass order issuing summons to the defendants to appear and answer the plaint. Such summons, vide Order V Rule 3, are required to be signed by the judge or such officer as he appointed, and also the seal of the Court. A suit one duly instituted and registered in the Court would not struck off from the record of the Court on the mere communication by the plaintiff orally or in writing that he intends to withdraw unless an order is passed by the Court to the said effect, which would have the legal consequences of bringing the proceedings set in motion by instituting the suit, to a half. Mere absence of any provision permitting withdrawal of the application filed by a plaintiff for withdrawing the suit does not mean that no such power is vested in the plaintiff. So long as an order is not passed by the Court, if the plaintiff informs the Court by moving an application that he intends to withdraw the application for withdrawal of suit, he can always request or inform the court that he does not want to press the application and the same may be dismissed as not pressed or withdrawn. It is only where the plaintiff press his application before the Court requiring it to pass the order for withdrawal of the Suit, the Court would pass the said order in accordance with law since it cannot compel a plaintiff to pursue a suit though he want to withdraw the same. It would thus be wholly unjust to hold that once an application to withdraw the suit is filed by a plaintiff, he cannot be withdraw the same and the suit would stand dismissed as withdrawn. This would have serious and drastic consequences in as much as he cannot file a fresh suit on the same cause of action.
1036. Moreover, the existence of a provision i.e. Rule 1(3), empowering the Court to consider as to whether the plaintiff should be saddled with the liability of payment of cost or not also contemplates that an application for withdrawal of suit by itself would not result in any consequences whatsoever unless the Court has applied its mind regarding the cost. It what has been held in Smt. Raisa Sultana Begam (supra) is taken to be correct, it would mean that there would be no occasion for the Court to apply its mind on the question of cost under Rule 1(3) since the suit would stand dismissed as withdrawn as soon as the plaintiff informs the Court about his decision for withdrawal of the suit either orally or in writing. This is nothing but making Rule 3(1) redundant. The earlier judgment of this Court in Raja Shumsher Bahadoor V. Mirja Mahmomed Ali, (1987) Agra HCR 158, wherein this view was taken that the withdrawal must be regard as terminating automatically the proceedings in the suit involving the suit's immediate dismissal was not found to be correct subsequently by the Division Bench in Ram Bharos Lall. We, therefore, find it appropriate in the entire fact and circumstances to take a different view and have no hesitation in holding though with great respect to the Bench, that the law laid down in Smt. Raisa Sultana Begam (supra) is not correct. In our view, the law laid down in Ram Bharos Lall (supra), Mukkammal Vs. Kalimuthu Pillay (supra), Raj Kumar Devi Vs. Nirtya Kali Debi (supra) and Yeshwant Govardhan Vs. Totaram (supra) law down the correct law. We also find that a Division Bench of Orissa High Court in Prema Chand Barik Vs. Prafulla Kumar Mohanty, AIR 1988 Ori 33, has also taken the same view and did not find itself agreeable with the Division Bench decision in Smt. Raisa Sultana Begam (supra). In fact a Division Bench of Calcutta High Court in Rameswar Sarkar Vs. State of West Bengal and others, AIR 1986 Cal. 19, has gone slightly further by observing that where there is no provision under the Code providing for withdrawal of application for withdrawal of suit, Section 151 C.P.C. would apply.
View to the similar effect has been taken by Hon'ble Apex Court, in th case of Rajednra Prasad Gupta Versus Prakash Chandra Mishra and others (2011)2 SCC 705.
"Heard the learned counsel for the appellant and Respondent nos. 1 to 3. No one appeared for respondent no. 4.
This appeal by special leave, has been filed against the impugned judgment of the High Court of Allahabad dated 6.2.2004 passed passed in F.A.F.O. No. 2103 of 2003. It appears that the appellant was the plaintiff in Suit No. 1301 of 1997 before the Court of the Civil Judge (Junior Division), Varanasi. He filed an application to withdraw the said suit. Subsequently, it appears that he changed his mind and before an order could be passed in the withdrawal application he filed an application praying for withdrawal of the earlier withdrawal application. The second application had been dismissed and that order was upheld by the High Court. Hence this appeal by special leave.
The High court was of the view that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn even without any order on the withdrawal application. Hence, the second application was not maintainable.
We do not agree. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawa application.
In Narsing Das V. Mangal Dubey, Mahmodd, J. the celebrated Judge of the Allahabad High Court, observed;
"Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed.
The above view was followed by a Full Bench of the Allahabad High court in Raj Narain Saxena Vs. Bhim Sen and we agree with this view. Accordingly, we are of the 0opinion that the application praying for withdrawal of the withdrawal application was maintainable. We order accordingly.
In the result, the impugned judgment of the High Court is set aside and the appeal is allowed. No costs. The suit shall proceed and to be decided on merits, expeditiously.
In this backdrop, automatic dismissal of suit on presentation of application for withdrawal, cannot be accepted,until and unless same is pressed before the Court, and the Court in its turn proceeds to pass order as is envisaged under law. Arguments advanced that on an application being moved for withdrawal of O.S. No. 767 of 2009, said suit automatically stood withdrawn, cannot be accepted and said suit has to be accepted as pending until and unless, orders are passed on the same in accordance with law. Consequently O.S. No. 767 of 2009 filed by petitioner of first writ petition, as till date no orders have been passed on withdrawal application in black and white, same has to be accepted as if the said suit is pending. Further issue is that accepting that the said suit is pending, can the petitioner of first writ petition be non suited to approach this court, merely on account of pendency of Civil Suit. At this juncture the view point as expressed by Apex Court qua election of remedies is being looked into namely in the case of S.J.S. Business Enterprises (P) Ltd. Vs. state of Bihar and others 2004(121) CC-99 and Arunima Baruah Vs. Union of India and others 2007 (6) SCC-120. Relevant para nos.10,11,12,17,18,19,20,21,22 are being extracted below
10. On the one hand, judicial review is a basic feature of the Constitution, on the other, it provides for a discretionary remedy. Access to justice is a human right. [See Dwarka Prasad Agarwal (D) by Lrs. and Another v B.D.Agarwal and Others (2003) 6 SCC 230 and Bhagubhai Dhanabhai Khalasi & Anr.v. The State of Gujarat & Ors., 2007 (5) SCALE 357] A person who has a grievance against a State, a forum must be provided for redressal thereof. [See Hatton and Others Vs. United Kingdom 15 BHRC 259. For reference see also Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649].
11.The court's jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands but to what extent such relief should be denied is the question.
12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.
17. In S.J.S. Business Enterprises (P) Ltd. (supra), it was stated:
"14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable ( sic ), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 5 . But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa 6 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 7 . Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits."
18. There is another doctrine which cannot also be lost sight of. The court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter. [See Jai Singh v. Union of India and Others, (1977) 1 SCC 1] But, where one proceeding has been terminated without determination of the lis, can it be said that the disputant shall be without a remedy?
19. It will be in the fitness of context to notice M/s. Tilokchand and Motichand & Others v. H.B. Munshi and Another [(1969) 1 SCC 110] wherein it is stated:
"6. Then again this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expr ession is some what inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarised as " interest reipublicae res judicatas non rescindi" but the motivating factor is the existence of another parallel jurisdiction in another Court and that Court having been moved, this Court insists on bringing its decision before this Court for review. Again this Court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this Court in a suitable case entertains the application before itself. Another restraint which this Court puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this Court 'has refrained from taking action when a better remedy is to move the High Court under Article 226 which can go into the controversy more comprehensively than this Court can under Article 32."
20.Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd. (supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts.
21.Ubi jus ibi remedium is a well known concept. The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this case, however, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact.
22. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the court's jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India.
On the parameters as laid down, the existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under article 226 but the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself, if it is in a position to do so on the basis of the affidavits filed. If however, a party has already availed of the alternative remedy while invoking the jurisdiction under article 226, it would not be appropriate for the court to entertain the writ petition and proceed, unless and until , one of the two remedies are elected to be pursued. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. Even in cases when an alternative remedy has been availed of by a party, the party could prosecute proceedings under article 226 for the same relief, and this court in a suitable case, entertain the writ petition under Article 226 instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under article 226. Here the suit, which had been so filed is injunction, and nothing beyond the same. In the suit, Indian Oil Corporation entered appearance, and informed the Court, that retail out let agency of petitioner has already been cancelled by order dated 25.11.2009 in such a situation, injunction cannot be accorded by any means. Against the cancellation order, under Marketing Discipline Guidelines,2005 remedy of Appeal has been provided for. The petitioner preferred Appeal, same has also been dismissed by Appellate forum on 29.3.2010, at this juncture, Writ Petition No. 23194 of 2010 has been filed. In the facts of present case mere pendency of aforementioned suit, would be of no consequence and has no material bearing, for the simple reason, that said suit as on the date, when order for cancellation of agency had been passed and affirmed in Appeal, and plaint of said suit, having not been amended , then in the absence of the same, by no stretch of imagination said suit can be decreed to the advantage of plaintiff-petitioner, as such mere pendency of of said suit will not come in the way of plaintiff-petitioner to peruse remedy under Article 226 of the Constitution. Following courses are open to petitioner (1) to amend plaint of O.S. No. 769 of 2009, by challenging the orders impugned in the writ petition (ii) to file fresh suit, challenging the action of Indian Oil Corporation impugned in writ petition (iii) to invoke the jurisdiction of this Court under Article 226 (iv) to go for Arbitration. Petitioner has chosen, the third alternative i.e. by filing writ petition, requesting this Court to exercise its authority of judicial review. Challenge made by petitioner thus cannot be non suited, on the ground of suit being there for the reason that as on date in the writ petition, challenge is order of cancellation of agency and order of its affirmance in Appeal, whereas the suit is merely for injunction and till the order of cancellation stands; same will stare on the face of it, and during its continuance and existence injunction prayer is force. The writ petition as such is competent and maintainable. Once petitioner has elected such remedy, then his claim has to be examined on the parameters of judicial review, it may be different issue, that writ court would not go into disputed questions of fact, as has been sought to be contended on behalf of Indian Oil Corporation. Therefore, the fact that a suit had already been filed by the petitioner for injunction is not such material fact which could have affected entertainment and the final disposal of the writ petition on the merits. In such a situation and in this background once petitioners have elected to chose remedy of writ petition, then merely because petitioners has filed Civil Suit in the past, same cannot be ground to non suit the petitioners. Next issue raised by Sri Prakash Padia is in respect of relegating the petitioner of first writ petition to the remedy of arbitration is now being adverted to in the facts of present case. In the present case during pendency of the suit in question, application was moved by the Indian Oil Corporation for relegating the plaintiffs-petitioners to the remedy of arbitration in view of arbitration clause being there in the agreement namely Clause 69. Said application has been non suited by the Court on the ground that it was not at all accompanied with original copy of the arbitration agreement or certified copy or original documents as same was not, in term of Section 8(2) of the Arbitration and Conciliation Act, as neither the certified copy nor the original agreement was filed in this background matter could not have been referred to the arbitrator. Hon'ble Apex Court in the case of Atul Singh Vs. Sunil Kumar Singh AIR 2008 SC 1016, has taken the view, that reference to arbitrator can be refused , where original arbitration agreement or duly certified copy is not filed, and same amounts to non compliance of mandatory provision of sub- section(2) of Section 8. During pendency of the suit, such an application was moved for referring the matter to Arbitrator but same has been turned down on this very ground that neither original copy of agreement nor certified copy of the order agreement had been filed, as such in the absence of the same matter could not have been referred to Arbitrator. Law on the subject as noted above is clear that matter should be referred to the Arbitrator by Civil Court only in the event when the original copy the agreement of the certified copy of the same is brought on record and same is sine-quo-non to exercise authority under Section 8(2) of Arbitration and Conciliation Act Act. View to the similar effect has again been reiterated in the case of Radha Krishna Vs. Mastero Engineer 2010 (1) SCC 72 In the present case, as accepted before the Civil Court , neither original agreement nor certified copy of the original agreement has been produced in this background Civil Court has not erred in rejecting the application. Prayer made thus cannot be accepted in the absence of their being original agreement or certified copy of the original agreement being produced before the court. Order passed by the Civil Court on this score is affirmed refusing to refer the matter to Arbitrator.
Petitioners of Civil Misc. Writ Petition 45358 of 2010, Indian Oil Corporation have tried to contend that there is agreement and in the said agreement, Clause 69 provides that any dispute or difference of any nature whatsoever or regarding any right, liability, act commission or account of any of the parties hereto arising out of or in relation to his agreement shall be referred to the sole Arbitration of the Director Marketing of the Corporation or of some officer of the Corporation who may be nominated by the Director Marketing. 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 or that he has to deal with the matter to which the contracts relates or that in the course of his duties or differences and as such petitioner should be related to the arbitration. Clause 58 of the said agreement, proceeds to mention that notwithstanding anything contrary contained, Corporation is at liberty to terminate the agreement forthwith upon or at any time, after the happening of any of the events. Clause 44 of the agreement clearly proceeds to mention, that dealer undertakes faithfully and promptly to carry out, observe and perform all direction or rules given or made from time to time by the Corporation, for the proper carrying on dealership of Corporation.
Violation of provisions, as contained under Marketing Discipline Guidelines, 2005, also falls within the fold of Clause 44 of agreement, wherein unequivocally it has been agreed to faithfully and promptly, carry out, observe and perform all directions or rule made from time to time by the Corporation, for proper carrying on dealership of Corporation. Marketing Discipline Guidelines, 2005 have been framed by Public Sector Oil Marketing Companies to enforce discipline amongst the dealership network. Hon'ble Apex Court, in the case of Hindustan Petroleum Corporation Ltd. Vs. Pink City Midway Petroleum 2003 (6) SCC 603, while considering more or less analogous provision and wherein also action has been taken as per Marketing Discipline Guidelines 2005, took the view that action taken is covered under the agreement, and the party should be relegated to Arbitrator.
In the present case, action has been taken for violating the provision as contained under Marketing Discipline Guidelines, and any violation thereof has to be accepted, as breach of agreement in term of Clause 44 of the agreement, and this fact is also fortified from the circumstances, that after agency has been terminated, right vested under Clause 57 of dealership agreement has been exercised, for taking over land and structure on negotiated terms. Action taken and as affirmed in Appeal under Marketing Discipline Guidelines, 2005, has to be treated as dispute arising out of agreement and same can be very well referred to Arbitrator as per the terms and condition of agreement. In normal course of business, this Court would have relegated the petitioner to go for arbitration, but in the backdrop of the case, and as the case requires detailed investigation and production of evidence, and serious allegations of manipulations, has been mentioned, this Court for following reason is not referring the matter to arbitrator and is neither proceeding to exercise its authority of judicial review under Article 226 of the Constitution. Hon'ble Apex Court, in the case of N. Radha Krishan Vs. Matero Engineers 2010 (1) SCC 72 has taken the view that where dispute requires detail investigation and production of elaborate evidence, such matter should be tried in court of law, which would be more competent and has the means to decide complicated matter. It is also equally well settled, that when matter can not be decided based on affidavits, then the matter has to be relegated to Civil Court as disputed question of facts cannot be decided in writ petition. High Court can exercise its writ jurisdiction, in spite of availability of alternative remedy in appropriate case (i) where the orders or proceeding are totally without jurisdiction (ii) where there is failure of Principle of natural justice (iiI) where enforcement of fundamental right is claimed (IV) relevant factor not considered and irrelevant factors considered (IV) decision was one which reasonable person would not have taken. While exercising power of judicial review, this Court under Article 226, is not acting as Appellate authority. Jurisdiction is confined and circumscribed to correct errors of law, procedural error if any, resulting in miscarriage of justice or violation of Principle of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence.
The decision making process can always be examined by this court on the parameter of judicial review as has already been discussed above, in the preceding part of this judgment. Factual situation which has emerged that inspection was carried out on 18.9.2009 by the Joint Inspection team which comprised of two senior officials of AAT ( Anti Adulteration Team) and the Field Officer, said inspection team most surprisingly prepared report. First page of the report proceeded to mention that all W&M seal was found intact and asterix marks was also there referable to Annexure-1, the last page of the aforementioned report proceeded to mention that W&M seal was broken for replacement of assembly of DU-3 of MS of MPD, the assembly was replaced and commissioned on 15.9.2009 and delivery was resumed, but new W&M seal not found at the point of time of inspection carried out, no evidence/certification was available. The only ground on which action has been taken is that of continuance of sale of MS from DU-3 of MPD without affixing W&M seals. There is serious issue of fact raised in the present writ petition, inasmuch as petitioners' contention has been that W&M Department affixed seal of dispensing unit at 9.00 A.M. in the morning and certificate has also been issued and same was produced and shown, but in spite of the same note had been made at page 3 of the inspection report. Specific case of Indian Oil Corporation has been that at the point of time when inspection had been carried out qua dispensing unit DU-3 of MPD there was no W&M seal affixed nor any certification was available. There are allegations and counter allegation and petitioners' son has appended his signature on the inspection report dated 18.9.2009 qua inspection proclamation undertaken at 10 a.m. in the morning and continuing till 1.15 p.m. in the afternoon accepting such factual situation, but thereafter has tried to wriggle out of the same by contending that son of petitioner has produced the said certificate before the inspecting team but same was not accepted. Once petitioners son who was representative of the petitioner had signed the inspection report, alongwith the officials of inspection team accepting therein that W &M seal not found, no evidence of certification available, then it is essentially pure question of fact, to be decided as to whether W&M seal was there and certificate was produced or not, when the inspection had been carried out. On this aspect of the matter, serious issue is also reflected from the circumstances that copy of the supplementary reply filed by the petitioner has been enclosed as Annexure-14 to the writ petition. Along with counter affidavit filed by Indian Oil Corporation, copy of the same reply dated 27.10.2009, has been enclosed as Annexure-CA-3. In both the replies filed there is material difference. Relevant extract of both the replies, Annexure14 and Annexure-CA-3 is being extracted below.
Annexure-14 of the Writ petition vkidks voxr djkuk gS fd ,e ih Mh e'khu dh Mh ;w 3 dh vlsEcyh cnyh x;h gS] ftldh lhy rksM+us dh vuqefr ysus ds ckn mlds ijh{k.k ,oa eqnzkadu gsrq jlhn la[;k 400305 ,oa 400319 fnukad 16-09-09 ds }kjk tek djk fn;k o dsyhcsz'ku djkdj lkfVZfQdsV izkIr fd;k tks fujh{k.k ds le; esjs cSp us , , lh vf/kdkjh dks fn[kk;k vkSj fujh{k.k vf/kdkjh us viuh fjiksZV ds vusDpj , esa Hkh ;gh mYys[k fd;k gS fd lfVZfQdsV ,foyscy ,V nh Vkbe vkQ bUlisD'ku blds vykok ftruh Hkh e'khu dh jhfMax vkxs c<+h gS og lc VSfLVax gS u fd fcØhA ;g dguk xyr gS fd geus fcuk LVSfiax ds fcØh djhA Annexure-13 of the Counter affidavit Øe la[;k 1 ds laca/k esa%& vkidks voxr djkuk gS fd ,e ih Mh e'khu dh Mh ;w 3 dh vlsEcyh cnyh x;h Fkh ftldh lhy rksM+us dh vuqefr ysus ds ckn mlds ijh{k.k ,oa eqnzkadu gsrq jlhn la[;k 400305 ,oa 400319 fnukad 16-09-09 ds }kjk tek djk fn;k Fkk mlds i'pkr fnukad 18-09-09 dks izkr% eqnzkadu ,oa ijh{k.k dj lkfVZfQdsV cuk;k x;kA vkfQl esa jcj LVSEi jg tkus ds dkj.k dgk x;k fd lkfVZfQdsV n¶rj ls eaxk ysukA jcj LVSEi yxuh jg x;h gSA , , lh ds fujh{k.k ds le; jlhnsa fn[kk;h x;h rFkk izek.k i= n¶rj ls eaxokdj fn[kk;k x;k ysfdu rc rd og viuh fjiksZV cuk pqds Fks dgk fd tokc ns nsukA ftruh Hkh e'khu dh jhfMax vkxs c<+h gS og lc VSfLVax gS u fd fcØhA ;g dguk xyr gS fd geus fcuk LVSfEiax ds fcØh djhA blls lacaf/kr MsaflVh jftLVj o Mh ,l vkj dh Nk;kizfr lR;kiu gsrq layXu gSA Petitioner is disowning the reply filed as Annexure-CA-13, and is insisting that reply filed by him is Annexure-14 of writ petition. Original record had been summoned and same has been produced by Indian Oil Corporation, and therein Annexure-14 is not at all available. Petitioner has tried to contend before this Court, that blank letter heads were taken by the Corporation, when there was no dispute and same has now been mis utilised by Respondents and words have been changed in order to falsely frame the petitioners. Petitioner has also proceeded to mention that he is not the author of letter dated 27.10.2009 Annexure-CA-3 to counter affidavit, and for this purpose has tried to bring on record, report of Hand Writing Expert A.K. Gupta. Such issues cannot be decided in writ petition based on affidavits and as serious allegations are being levelled against official of Indian Oil Corporation, it would be much more appropriate that independent forum decides such disputed questions of fact, instead of leaving the same in the hands of Arbitrator who is to be official of Indian Oil Corporation.
Petitioner has contended before this Court, for the first time, that said certificate was issued at 9 A.M. on 18.9.2009 . The certificate was issued by Sri R.K. Srivastava, Senior Inspector Weights and Measure Department, Moradabad. It has also been mentioned that alongwith R.K. Srivastava, Sri Shambhu Nath, Lab Attendant was also present on 18.9.2009. Certificate dated 9.2.2011 has been filed by petitioner to show that as per calibration records maintained same is 18.9.2009, and in records, at what point of time calibration is carried out, same is not recorded and is not the practice in vague followed by department. Reference has been given of Section 27 of Standard of Weights and Measures Act, wherein Inspector can carry out activities related to his official duties at all reasonable times, and same is in consumer interest, and calibration at 9 A.M. is not to be treated as exceptional case. Indian Oil Corporation is contending that after inspection has been carried out, short coming has been noted then all these documents have come into existence, and the fact of matter is that W &M seal was not there nor any certificate was produced. As to at what point of time calibration exercise was undertaken, and as to what point of time said certificate was issued on the said date, are all essentially question of fact, that cannot be decided in writ petition, based on affidavit based pleadings, and such question can be very well answered in suit specially when two Indian Oil Company and the officials of Weights and Measure Department are raising pure question of fact, taking contradictory stand vis-a-vis each other.
Apart from this, in the present case, meter assembly part was changed on 15.9.2009 by the maintenance contractor of the Corporation, and thereafter in orderer to start delivery of petroleum product, calibration is must and seal has to be put by Weights and Measure Department is necessary only then sale can be carried. Without putting seal of Weight and Measure Department, no sale can be done to the consumer and sale is strictly prohibited under Marketing Discipline Guidelines, 2005. In the rejoinder affidavit, in paragraph 18 this much has been admitted by petitioner, that sale of petroleum continued after the replacement of seal w.e.f 15.9.2009, as there was no bar or reason for discontinuing the same. Petitioner in his reply has proceeded to mention that increase in meter reading was due to testing and same was not sale. Qua this aspect of the matter reply submitted has been considered, and overwriting has been found in the reading, and variance has been found in DSR, which fully substantiates that w.e.f 15.9.2009, sale was being carried out without W & M seal. Not only this precise case of Indian Oil Corporation has been that Weights and Measures Department has been colluding with the petitioner, for the reason that this very person Sri R.R. Srivastava who has given the certificate to petitioner, in order to help out petitioner, had filed complaint against R.K. Verma, official of Indian Oil Corporation on 26.11.2009. Sri R.R. Srivatava from the weights and measures department is acting fairly or unfairly are all essentially question of fact . On account of all these peculiar characteristic of the case, the matter is not being relegated to Arbitrator , as official of Weights and Measures Department would be required to appear alongwith record and substantiate the factum of sealing at 9 a.m. in the morning of 18.9.2009 and why sealing exercise was undertaken in the absence of officials of Indian Oil Corporation is also a circumstances which has to be explained by them. Petitioners son has also to explain as to why he has signed and his subsequent stand can be accepted or not. Finding of forgery in record has also to be examined. All these questions of fact, in the facts of case, are warranted to be decided by Arbitrator, and such disputed question of fact cannot be decided in writ jurisdiction and here petitioner has been provided with show cause notice, his reply has been considered and for reasons mentioned same has not found favour of authority, in this background for furtherance of justice, the matter should be decided by Civil Court, who has the competence and means to decide such matter.
Consequently, both the writ petitions are dismissed.
No order as to cost.
Dt.13.05.2011 T.S.