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Judgment
B.S. Verma, J.
(Stay Application No. 819 of 2011)
Heard learned Counsel for the parties on stay application and perused the record.
By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari quashing the order dated 23-12-2011 passed by the District Judge, Nainital in Miscellaneous Appeal No. 48 of 2010, Rishi Kumar Agarwal v. Indian Oil Corporation Limited, whereby the appeal, filed by the Respondent was allowed and the interim relief application paper No. 6-C moved under Order 39, Rules 1 and 2 CPC was also allowed as mentioned in the impugned order.
Learned Counsel for the Petitioner, Mr. V.K. Kohli, Senior Advocate drew the attention of this Court to Clause 1(c) of the dealership agreement, which is quoted hereunder:
the Dealer will during the continuance of this agreement confine himself to selling in the area or territory specified in sub Clause (a) above and such other points as may from time to time be authorized by the Corporation in writing PROVIDED ALWAYS that the Corporation may from time to time, and at any time at its absolute discretion increase, reduce, restrict or otherwise alter the said area or territory and at any time as its absolute discretion increase, reduce or otherwise alter the said area or territory and nothing herein contained will be deemed to restrict the right of the Corporation to appoint other Dealers for the whole or part of the said area or territory. The Corporation will be entitled to make direct or indirect sale to any person whomsoever and for appointing other Dealer for the purpose of direct or indirect sale in which event the Dealer would not be entitled to any claim for commission or allowance for any such direct or indirect sales not made through the Dealer.
Learned Counsel for the Petitioner therefore contended that the Corporation may at any time at its absolute discretion increase, reduce, restrict or otherwise alter the said area or territory and at any time as its absolute discretion increase, reduce or otherwise alter the said area or territory and nothing herein contained will be deemed to restrict the right of the Corporation to appoint other Dealers for the whole or part of the said area or territory.
Learned Counsel for the Petitioner further submitted that the Respondent has also filed affidavit before the Petitioner for seeking extension of time stating therein that the Respondent will not claim for permanent extension point at Gairsen, District Chamoli and that the Indian Oil reserves the right to terminate the extension point of Gairsen at any point of time. It was further contended that this affidavit was before the appellate Court but note of this affidavit was not taken by the appellate Court and agreement Clause 1(c) was not considered.
Learned Senior Advocate appearing for the Petitioner next contended that the agreement Clause 29 contains arbitration clause in case of any dispute.
In reply thereto, Mr. Navneet Kaushik, learned Counsel for the Respondent has informed the Court that no such plea was taken by the Petitioner before the trial court in the written statement or in the objection filed by the Petitioner against the interim relief application and no such ground has been taken in appeal.
Briefly stated the facts giving rise to the writ petition are that the Respondent has filed Civil Suit No. 67 of 2010 against the Petitioner for the following relief:
(a) To declare the order for stopping supplies of kerosene to the Plaintiff for Block Gairsain in District Chamoli as indicated by letter dated 28-9-2010 as illegal and not enforceable.
(b) To issue an injunction against the Defendant, its employees and agents not to act upon letter dated 28-09-2010 and to continue supplies of kerosene to Plaintiff for Gairsain Block to the tune of at least 204 Kilo Litres per month.
A perusal of the record shows that the letter dated 28-9-2010 (Annexure-9 to the petition) whereby the SKO Extension point of the Respondent was permanently closed by the Petitioner and information was sent to the State Government to that effect.
Mr. Navneet Kaushik, Advocate, learned Counsel for the Respondent has vehemently contended that the trial Court has also found a prima facie case and balance of convenience in favour of the Plaintiff-Respondent, but on the ground of irreparable loss the application for interim relief was rejected vide order dated 3-11-2010. It has not been pleaded that irreparable loss cannot be compensated in terms of money.
Aggrieved by the order dated 3-11-2010 passed by the Civil Judge (Junior Division) Ramnagar, the Plaintiff-Respondent preferred Misc. Civil Appeal No. 48 of 2010 before the learned District Judge Nainital. The appellate court has allowed the appeal and also allowed the application under Order 39, Rules 1 and 2 CPC and directed the Defendant-Petitioner to supply 204 Kilolitres of kerosene per month to the Plaintiff-Respondent.
In the above facts and circumstances, prima facie unless and until the effect of the order dated 28-9-2010 is not stayed, the impugned order directing supply of kerosene oil to the Respondent would be bad in law. It is pertinent to mention that the effect of the order dated 28-9-2010 was not stayed by the District Judge and furthermore, the Corporation has a right to increase or reduce the area of operation. As an interim measure, therefore, till the next date of listing, the operation of the impugned order dated 23-12-2010 passed by the District Judge Nainital shall remain stayed. (Stay Application No. 819 of 2011 is disposed of._
The Petitioner is directed to file by way supplementary affidavit by the next date the decision of the High Power Committee on the basis of which the decision had been taken in the matter.
Learned Counsel for the Respondent prays for and is granted one week''s time to file counter affidavit. The Petitioner may file rejoinder affidavit within ten days thereafter.
List the petition in the week commencing 14-3-2011.