The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C ) No. 6464 of 2016 M/s Chittarmal Nathumal and sons through its proprietor Nathu Kumar Jain, son of late Chhitarmal Jain, resident of Harna, P.O. & P.S.- Baghmara, Dist.- Dhanbad ........... Petitioner Versus 1. Hindustan Petroleum Corporation Limited, through its Director having its registered office at 17, Jamshedji Tata Road, Mumbai 2. Senior Regional Manager and duly constituted Attorney, Hindustan Petroleum Corporation Limited, Ranchi Retail Regional Office, Maru Tower, (5th Floor) Kanke Road, P.O. and P.S.-Gonda, Dist.- Ranchi 3. State of Jharkhand 4. Deputy Commissioner, P.O. and P.S. and Dist.- Dhanbad 5. Additional District Manager (supply), P.O. & P.S. and Dist.- Dhanbad ........... Respondents For the Petitioner For the Respondent 1 & 2 : Mr. Ashutosh Anand, Adv. : Mr. Jitendra Kr. Pasari , Adv. Ms. Mohini Gupta, Adv. For the Respondent 3 to 5 : Mr. Anuj Burman, AC to GA IV P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. Learned counsel for the petitioner submits that this writ petition has been filed invoking the jurisdiction of this Court under Article 226 of the Constitution of India for quashing the letter / order dated 28.09.2010 whereby and where under, the respondent no. 2 has terminated the kerosene oil / industrial diesel dealership agreement dated 13.11.1989 of the petitioner on the ground that the petitioner has violated the clause nos. 14, 17 (c) (i) and 17 (c) (ii) of the said agreement dated 13.11.1989 and consequential relief. 1 W.P.(C) No. 6464 of 2016 3. The brief fact of the case is that the petitioner is a proprietorship firm and it was authorised dealer of Hindustan Petroleum Corporation Limited. Consequent upon being granted a dealership for kerosene oil / industrial diesel in respect of the same, an agreement dated 13.11.1989 was entered into between the parties. The respondent no. 5 suspended the trade licence of the petitioner granted under Bihar Trade Articles Licence (Unification Order) 1984, on 30.04.1998 and subsequently cancelled the same on 17.09.1998. the petitioner preferred the Trade Appeal before the Commissioner, and the Commissioner, set aside the order and remanded the case to the Deputy Commissioner and the Deputy Commissioner, again dismissed the case of the petitioner. The petitioner again challenged the order of the Deputy Commissioner, before the Commissioner and the Commissioner again set aside the order of the Deputy Commissioner, and thereafter on 12.09.2007, the trade licence of the petitioner was restored and renewed up to 2009. The petitioner entered into a partnership agreement on 06.11.2006 with Rajesh Jhalani during the period, his trade licence was not operative. The proprietor of the petitioner through his advocate, issued the notice to Rajesh Jhalani that he does not want to carry on with the partnership business. The name of Rajesh Jhalani has been deleted from the trade licence vide the order dated 27.03.2008 passed in WPC No. 6256 of 2007. After the renewal of the licence, the petitioner informed the respondent no. 2 on 15.04.2009 to resume supply of kerosene oil / industrial diesel with the petitioner firm but respondent no. 2 did not resume the supply. The petitioner gave a reminder but instead of resuming the supply, the respondent no. 2 issued show-cause on 07.07.2010 for cancellation of the partnership agreement dated 13.11.1989 on the ground of violation of the clause no. 14 read with clause 17 (c) (i), 17 (c ) (ii) of the partnership agreement. The petitioner gave four reminders to the respondent no. 2 between 15.06.2011 to 18.03.2016. 2 W.P.(C) No. 6464 of 2016 4. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Haryana State Electricity Board v. State of Punjab and Others reported in (1974) 3 SCC 91, para 5 of which reads as under :- “5. On the question of laches, various representations and petitions which B.K. Puri had been making consistently were referred to by the High Court and it was considered that it was not a case where relief could be declined on the ground of laches or delay. The High Court quashed the order dated June 27, 1963, confirming B.K. Puri in Class I with effect from April 7, 1957 and issued a writ of mandamus to consider the case for confirmation in Class I with effect from September 1, 1956 or a date earlier than that and refix his seniority vis-a-vis Respondents 3 to 9 in Class I and that of Executive Engineers in the light of interpretation of Rule 7-A as given in the judgment. It may be mentioned that this interpretation was the same as has been accepted by us as correct in the connected appeal i.e. CA No. 456 of 1970*.” It is submitted by learned counsel for the petitioner that since the petitioner has been making consistent representations and petitions, hence, the writ petition is not bad for delay or laches on the part of the petitioner, hence, it is submitted that the
Decision
prayer as prayed for in the writ petition, be allowed. 5. Learned counsel for the respondent no. 1 and 2, on the other hand, vehemently opposes the prayer of the petitioner and submits that since there is alternative remedy of arbitration, as has been mentioned in clause 29 of the dealership agreement, the petitioner ought to have invoked the arbitration clause and the petitioner ought to have made his partner, Rajesh Jhalani, a party in the instant proceeding. Drawing attention of the Court, to clause 14 and 17 (c ) of the dealership agreement dated 13.11.1989 which reads as under :- Clause 14- "The dealer shall not sell, assign, mortgage or part with or otherwise transfer his interest in the dealership or the right, interest or benefit conferred on him by this agreement to any person in the event of the dealer being a partnership firm any change in the constitution of the firm, whether by retirement, introduction of new partners or otherwise howsoever will not be permitted with-out the previous written approval of the corporation notwithstanding that the corporation may have dealings with such reconstituted firm or impliedly waived or condoned the breach or default mentioned hereinabove by the dealer In the event of the death of any of the partners, the dealer shall immediately inform the corporation giving the necessary particulars of the heirs and legal representatives of the deceased partner and it shall be the option of the corporation either to continue the dealership with the said 3 W.P.(C) No. 6464 of 2016 firm or to have a fresh agreement of dealership with any reconstituted firms or to terminate the dealership agreement and the decision of the corporation in that behalf shall be final and binding on all the parties concerned. No claim on premature termination for compensation or otherwise will be made or sustainable against the corporation on account of such termination." Clause 17 C- "(i) except with the previous written consent of the corporation the dealer shall not enter into any arrangement, contract or under- standing whereby the operations of the dealer hereunder are or may be controlled carried out and/or financed by any other person firm or company, whether directly or indirectly and whether in whole or in part. (ii) the dealer (if it be a firm or a co-operative society) shall not effect any change in its constitution whether, in the identity of its partners or members or in the terms of the deed of partnership or of the bye-laws as the case may be.” 6. It is submitted by learned counsel for the respondent nos. 1 and 2 that since there is specific prohibition in the agreement for the petitioner in order to part with or transferring his interest in the dealership or the right, interest or benefit conferred on him and undisputedly the writ petitioner entered into the partnership with Rajesh Jhalani, having only 25% interest whereas Rajesh Jhalani was having 75 % interest, hence, the petitioner having violated the clause 14 and 17 (c ) of the dealership agreement dated 13.11.1989, no illegality has been committed by the then respondent nos. 1 and 2 in terminating the dealership agreement, hence, it is submitted that this writ petition, being without any merit be dismissed. 7. Learned counsel for the respondent no. 3 to 5, on the other hand, submits that after conducting discreet investigation and no objection certificate issued to the petitioner, the licence has been cancelled vide Memo No. 3250 dated 27.09.2011 by the respondent no. 4 and as the petitioner is not having any No Objection Certificate otherwise also, his claim is not valid, hence, it is submitted that this writ petition, being without any merit be dismissed. 8. Learned counsel for the respondents by relying upon the judgment of the Hon’ble Supreme Court of India in the case of 4 W.P.(C) No. 6464 of 2016 Mrinmoy Maity v. Chhanda Koley and Others reported in 2024 SCC OnLine SC 551, para 9 of which reads as under :- “9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and latches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.” submits that law is well settled that the delay or laches is one of the factors which is to be borne in mind by the High Court while exercising the discretionary power under Article 226 of Constitution of India and in this case, in view of inordinate delay of more than six years in filing the writ petition, after termination of kerosene oil / industrial diesel dealership agreement, this writ petition is bad for delay and laches on the part of the petitioner also. It is lastly submitted that this writ petition being without any merit be dismissed. 9. Having heard the submissions made at the bar and after going through the materials in the record, it is pertinent to mention here that the undisputed fact remains that there is prohibition in the mutual agreement entered into between the parties dated 13.11.1989 that the petitioner cannot part with or transfer any of his interest in the dealership and the undisputed fact remains that the same is binding upon the petitioner and also that the petitioner has transferred 75% of his entire share to a third party namely Rajesh Jhalani. 10. Under such circumstances, in the considered opinion of this Court, entering into the partnership by the petitioner with Rajesh Jhalani without the consent of the respondent, in the considered opinion of this Court, amounts to violation of the clause nos. 14 and 17 (c) of agreement entered into between the parties. Thus no 5 W.P.(C) No. 6464 of 2016 illegality has been committed by the respondent nos.1 and 2 in terminating the kerosene oil / industrial diesel dealership agreement dated 13.11.1989 of the petitioner on the ground that the petitioner has violated the clause nos. 14, 17 (c) (i) and 17 (c) (ii) of the said agreement dated 13.11.1989. 11. So far as the judgment in the case of Haryana State Electricity Board v. State of Punjab and Others reported in (1974) 3 SCC 91 (supra) is concerned, the facts of that case are entirely different from the facts of this case. Thus, in the considered opinion of this Court, the judgment of Haryana State Electricity Board v. State of Punjab and Others reported in (1974) 3 SCC 91 (supra) will be of no help to the petitioner in this case. Therefore, otherwise also, considering the delay and consequential laches in filing the writ petition, this Court is of the considered view that this is not a fit case where the prayer of the writ petitioner is to be allowed. 12. Accordingly, this writ petition being without any merit is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 14th May, 2024 Smita /AFR 6 W.P.(C) No. 6464 of 2016