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Judgment
Debangsu Basak, J
The petitioners complain of police inaction. Learned Advocate appearing on behalf of the petitioners are the owners of an immovable property. The petitioners run a Company Owned Company Operated (COCO) Outlet from such property. The assistance of the private respondent was taken for the purpose of running such COCO outlet. The petitioner and the private respondents entered into an agreement. The agreement contained an arbitration clause. The agreement was terminated by the petitioners. The petitioners were not making over possession of such property to the petitioners. Arbitration proceedings ensued between the parties. Ultimately, an order dated September 3, 2018 was passed by the Appeal Court where the order of the Arbitrator passed on an application under Section 17 of the Arbitration and Conciliation Act, 1996 commented upon. It was held that, at the highest a dealer whose agreement has been terminated wrongfully can seek damages for such wrongful termination; but a dealer is not entitled to seek specific performance of the contract for the dealership to be continued indefinitely despite the principal not being happy with the functioning of the dealer.
It is in this factual matrix that, the petitioner seeks to have the property free from encroachers. There were number of vehicles parked at the property. The police were inactive.
Learned Senior Advocate appearing on behalf of the petitioners submits that, subsequent to the writ petition being taken up for consideration on the previous occasion, the police intervened to remove all the vehicles parked at the property. A major portion of the grievances of the petitioner stands redressed. Now the petitioner is facing difficulty in free ingress and egress to the property in view of number of vehicles that are parked immediately outside the boundary wall of the property. The police should ensure that, the petitioners have free ingress and egress to the property concerned. There is also a padlock on one of the rooms of the property. The same should be recovered.
Learned Senior Advocate appearing on behalf of the State submits that, the police would assist the petitioners in having the right of ingress and egress once. The police cannot keep a constant vigil over the property.
Learned Advocate appearing on behalf of the private respondents submits that, the petitioners approached the Arbitral Tribunal under Section 17 of the Arbitration and Conciliation Act, 1996. Such application is still pending. He relies upon (1977) 1 SCC 1 (Jai Singh vs. Union of India & Ors.), (2019) 2 CALLT382 (HC) (Vikram Jairath and Ors. Vs. Middleton Hotels Private Limited & Ors.), 2005 (4) AWC 3862 (S.B.K.A.G.I.L., Dholpura Firozabad vs. Union of India), 2006(4) Arb. LR 382 (Calcutta) (Shyam Sundar Goenka & Anr. Vs. The Hon'ble Chief Justice, High Court, Calcutta & Ors.) and ILR 2016 (2) Kerala 613 (Renju Varghese vs. H.D.F.C. Bank Limited) in support of his contentions that parallel proceedings are not maintainable.
On a query from the Court as to whether any padlock was put by his clients at the property or not, learned Advocate appearing on behalf of the private respondents on instructions submits that, his clients did not put any padlock at the premises concerned.
The first petitioner and the private respondent entered into a dealership agreement. Such agreement contains an arbitration clause. The petitioners terminated the dealership agreement. Disputes between the petitioners and the private respondent were referred to the Arbitral Tribunal. By efflux of time, the mandate of the Arbitral Tribunal stands terminated today.
In the Arbitral proceedings, the private respondent filed an application under Section 17. The Appeal Court in dealing with such an application, observed in the order dated September 3, 2018, as follows:-
"At the highest a dealer whose agreement has been terminated wrongfully can seek damages for such wrongful termination; but a dealer is not entitled to seek specific performance of the contract for the dealership to be continued indefinitely despite the principal not being happy with the functioning of the dealer."
The private respondent does not claim to be in possession of the property. The private respondent does not claim to have put any padlock over any part or portion of the property concerned. The Court is informed that, the petitioners applied under Section 17 of the Act of 1996 before the Arbitrator for similar relief as made herein. Since the mandate of Arbitral Proceeding stands expired, therefore, the petitioners at present, are not in a position to move such application.
The petitioners no doubt also have an alternative forum under Section 9 of the Act of 1996. However, since the private respondents do not claim themselves to be in possession and not to have put any padlock over any part or portion of the premises concerned and since the petitioners seek police protection to enter into its own property, and since the allegations are directed towards police inaction therefore, it cannot be said that, the petitioners must mandatorily move an application against the private respondent under Section 9 of the Act of 1996 for such purpose. It cannot be said that, the petitioners cannot approach the Court under Article 226 of the Constitution of India seeking enforcement of its right as against the police. The police are obliged to ensure that, the property of the petitioners stands protected, in accordance with law.
Jai Singh (supra) in the facts of that case found that, the same questions as raised in prior application were sought to be reagitated in the writ petition. In such circumstances, it held that, the writ petitioner cannot pursue parallel remedies in respect of the same subject matter at the same time. Vikram Jairath and Ors. (supra) expresses similar view. In the facts of that case, the Court found the plaintiff of the suit to be seeking similar reliefs simultaneously before two different forai. S.B.K.A.G.I.L., Dholpura (supra) noticed the differences between Section 9 and Section 17 of the Act of 1996. It refused to entertain a writ petition after returning a finding that, the petitioners have efficacious remedies under Section 9 of the Act of 1996. Shyam Sundar Goenka & Anr. (supra) is a writ petition questioning the decision of the Acting Chief Justice appointing a former Judge of the Hon'ble High Court as an Arbitrator in exercise of jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996. It is of the view that, a decision under Section 11 of the Act of 1996 cannot be questioned under the Writ Jurisdiction of the High Court. Renju Varghese (supra) considers a writ petition under Article 226 of the Constitution of India in respect of an interim order passed by an Arbitrator in an Arbitration proceeding. In such factual scenario, it finds that, the writ petition not to be maintainable.
As noticed above, the factual scenario in the present case, is different to the authorities cited. Here, the private respondent as dealer is not claiming to be in possession. The petitioners seek police assistance to enter into the property owned by the petitioners. The petitioner cannot move their petition under Section 17 of the Act of 1996 there is no Arbitral Tribunal presently. The petitioners need not be forced to apply under Section 9 of the Act of 1996, in the facts of the present case. Existence of alternative remedy is not a complete bar to the exercise of jurisdiction under Article 226 of the Constitution of India.
In such circumstances, particularly in view of the observations made by the Division Bench on September 3, 2019, the police will ensure that, the petitioners are granted free ingress and egress to the property concerned at least once. The police will also ensure that, no breach of peace takes place at the locale when the petitioners break open the padlock at the property concerned. The petitioners are at liberty to inventorise the articles found inside the room after breaking open of the padlock.
W.P. 17070 (W) of 2019 is disposed of without any order as to costs.
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