Bhikhiben Ramjibhai Chaudhari ­ Defendants

1. The present First Appeal has been filed by the appellant­IOCL­original defendant challenging the impugned judgment and order passed by the Learned Judge, Court no.10, City Civil & Sessions Court, Ahmedabad City in Civil Suit No.765 of 2010 dated 08.04.2011 regarding the grant of dealership pursuant to the advertisement given by the appellant­original defendant.

2. The facts briefly summarized as reflected in detailed discussion in the impugned judgment are that the respondent­original plaintiff applied for the dealership pursuant to the advertisement at Annexure­A in respect of the area Vijapur, District : Mehsana and the advertisement was for the purpose of dealership by appointing distributors in respect of the locations specified in the advertisement subject to the terms and conditions specified in the advertisement as well as other material like browser, policy etc. However, the application of the respondent­ plaintiff was turned down on the ground that the respondent­plaintiff is not covered in the location as per the advertisement and what has been referred to is Vijapur (Rural) is for the purpose of rural marketing according to the policy of the Company. It is on that ground the application was turned down. The respondent­ plaintiff filed aforesaid Civil Suit No.765 of 2010. The Learned Judge, City Civil Court after appreciation of material and evidence and considering the rival submissions decreed the Suit by impugned judgment and order dated 08.04.2011, which is assailed in the present First Appeal on the grounds stated in the memo of Appeal.

3. Heard learned Sr. Counsel, Mr.Manish R. Bhatt with learned counsel, Mr.Sohil Bateriwala for the appellant­Corporation and learned counsel, Mr.Sahil M. Shah for the respondent.

4. Learned Sr. Counsel, Mr.Bhatt has referred to the advertisement and submitted that what was provided was the location Vijapur and admittedly the place of the respondent­plaintiff is outside the Vijapur, for which, he has referred to the certificate produced by the Vijapur Municipality, Nagarpalika Bureau and Talati. He therefore contended that the location is not covered in as much as the respondent­plaintiff is having the showroom at Govindpur and it is also stated according to the certificate given by the Govindpur Gram Panchayat that it is outside the municipal limit of Vijapur Municipality. Mr.Bhatt, therefore, submitted that the advertisement is in respect of Vijapur area and if the application is in respect of the location other than that, the appellant­original defendant were justified in turning down any such application which has not been considered by the Court below. He strenuously submitted that the Court below has failed to appreciate the material and evidence on record. Therefore, the present Appeal may be admitted. He further referred to the impugned judgment including operative part and submitted that it could not have been directed to enter into an agreement even if the decision is set aside. Therefore, learned Sr. Counsel, Mr.Bhatt submitted that the present Appeal may be allowed.

5. Learned counsel, Mr.Shahil Shah for the respondent referred to the papers and submitted that the advertisement, browser and the policy have to be read in harmonious way and as discussed in the impugned judgment, the advertisement refers to Vijapur but it has to be read in context of the entire browser for which he referred to Annexure­ C. He pointedly referred to Clause 8.1, which reads as under :­ “8.1 GODOWN FOR STORAGE OF FILLED LPG CYLINDERS.

Godown approved by Chief Controller of Explosives is required for storage of filled cylinders.

Godown/land for construction of Godown will be suitable, if it is located within about 15 kms or in the area of operation (trading area) of the advertised location, freely accessible through all weather motor able approach road. The plot should be plain, in one contiguous lot, free from overhead power transmission or telephone lines. Pipelines / Canals / Drainage / Nallahs / Public Roads should not pass through the plot.”

6. Therefore, learned counsel, Mr.Shah submitted that the area provided is about 15 Kms. area of the operation and what has been emphasized is area of operation, which is 15 Kms. Therefore, the place of the respondent­original plaintiff which is just 1 Km. away could not have been considered for turning down such application. He has also submitted that even in the written statement filed by the appellant­Corporation, it has been specifically stated that the distributorship may cover trading area of the advertisement location as well as nearby area. He, therefore, submitted that the present Appeal may not be entertained.

7. In view of these rival submissions, the moot question, which is required to be considered is whether the impugned judgment and order calls for any interference and can it be said that there is any error in appreciation of material and evidence as sought to be canvassed.

8. The advertisement at Annexure­A has been given for the distributorship in respect of various areas including Vijapur. Much discussion has been made referring to Vijapur and Rural area. On one hand, it is contended by learned counsel, Mr.Shah as an entire rural area of the Vijapur, where learned counsel, Mr.Bhatt has stated that it refers to the type of marketing which has nothing to do with the area or location for the distributorship but the emphasis on the type of marketing or the market sought to be covered. Be that as it may, the crux of the matter is whether the respondent­plaintiff can be said to be outside the area of location as per the advertisement and browser. Though the advertisement refers to Vijapur and the place of the respondent­plaintiff is at Village : Govindpur, which is outside the boundaries of Vijapur Municipality and whether it can be said to be a place outside the Vijapur and not covered by the specification of the advertisement. A close look at the entire record including the browser with regard to the distributorship makes the position clear, which has been pointedly referred to by the learned counsel, Mr.Shah referring to Clause 8.1. The clause as stated above has focused on the area of the operation and area of the operation (trading area) refers to 15 Kms. of the advertisement location. Admittedly, the advertised location is Vijapur and the area of operation/trading area around 15 Kms. would be covered which in turn will also cover the respondent­plaintiff. In fact, the advertisement cannot be read in isolation and it has to be read in context of the entire policy, which is much detailed document with regard to the underlying policy of the Corporation. It is required to be mentioned that even in written statement filed by the appellant­Corporation, though contentions have been raised, it is also clearly stated that in Para B of that ”A Distributorship may cover trading area of advertised location as well as nearby area. In case of Distributorship for Vijapur trading area is Vijapur Municipal Limit which is advertised location as well as area in the radius of 15 KMS from Vijapur”. Thus according to this own stand in the written statement, the area in radius of 15 Kms. from Vijapur would be covered. Therefore, the findings arrived at by the Court below on the basis of the appreciation of evidence after considering the rival submissions cannot be said to be erroneous, which would call for any interference in the present Appeal.

9. Normally the First Appeal is required to be admitted for hearing, however, as the issue involved is in narrow compass as discussed above, same has been considered and the Appeal has been decided. Therefore, this Court is in complete agreement with the findings arrived at by the Court below on the basis of material and evidence, which does not call for any interference. Therefore, the present First Appeal deserves to be dismissed in limine and accordingly stands dismissed.

10. In view of dismissal of main First Appeal, Civil Application for stay does not survive and stands disposed of accordingly.

11. It is, however, clarified that the direction with regard to entering into the contract will have to be considered as part of the relief, which has been moulded and the appellant­Corporation will take appropriate steps within a period of one month.

Sd/­

(RAJESH H.SHUKLA, J.)

/patil