Andhra Pradesh High Court - Amravati
Keerthika Filing Station vs Bharat Petroleum Corporation Ltd., on 7 February, 2020
Author: Kongara Vijaya Lakshmi
Bench: Kongara Vijaya Lakshmi
THE HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI
Writ Petition No.20299 of 2019
Order:
This Writ Petition is filed to declare the action of the respondents in
not supplying the MS and HSD products to the petitioner's retail outlet, in
spite of payment of advance amount towards supply of products as
arbitrary and illegal.
The case of the petitioner is that originally the retail outlet
dealership of the respondent - Corporation was allotted to M/s. Keerthika
Filling Station, a partnership firm and, subsequently, the same was
converted into a proprietorship on the very same name vide proceedings
of the second respondent dated 01.02.2019; the outlet was handed over
to the petitioner in June 2019; the petitioner received a letter dated
08.11.2019 from the second respondent stating that there is a mismatch
in the digital transaction data for the financial year 2018-19 and that there
is a variation in the total value of the sales and asked the petitioner to
explain the same and the supplies were stopped from 08.11.2019; one
official from the respondent Corporation by name Mr. Murali Krishna
visited the outlet on 11.11.2019 and stated that there is a big scam
involving the bank officials, BPCL officials and earlier dealer and that he
coerced the petitioner to write a letter as per his dictates; the officials of
the respondents have inspected the outlet on 17.11.2019; as the supplies
were stopped, the petitioner sent an e-mail on 19.11.2019 requesting to
send the stock; as the supplies were not being made, the petitioner filed
W.P.No.18938 of 2019; when the said Writ Petition came up for
admission, a copy of letter dated 23.11.2019 was furnished; when the
petitioner was contemplating to challenge the same, another letter dated
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02.12.2019 was received from the third respondent claiming an amount of
Rs.22,33,471/-; the petitioner submitted a reply to the said two letters on
05.12.2019 stating that the letter dated 11.11.2019 was obtained under
threat and coercion; failure to supply the products is arbitrary and illegal,
hence the Writ Petition.
Counter affidavit is filed by the second respondent stating, inter
alia, that it has come to the knowledge of the Corporation that there had
been some mismatch between actual sales and sales from Bank POs for
the financial year 2018-19 and for the current financial year up to October
2019 and that for May 2019 the percentage of POS sale vs. total sale is
999%, for June 2019 and July 2019 it is 868% and 2021% and for August
it is 955% and in view of the same, a letter dated 08.11.2019 was issued
to the petitioner seeking explanation for the above mentioned variations
and the petitioner responded vide letter dated 11.11.2019 stating that he
has obtained the POS machines from Axis Bank, HDFC Bank and ICICI
Bank and except one machine, six machines are not being used at retail
outlet and the same are being used at Hyderabad; the petitioner also
stated in his letter that a mistake has been committed and agreed to pay
the amounts for the damage incurred by the Corporation; the contention
of the petitioner that the said letter was obtained by coercion is without
any basis; Mr. Murali Krishna is an employee of the Corporation and has
accompanied the concerned Sales Officer to know the details of the
matter on the instructions from the State Office; the said letter was
addressed by the petitioner out of his free will; in the previous Writ
Petition which was filed by the petitioner i.e., WP No.18938 of 2019 there
is no mention about the letter dated 11.11.2019 at all and hence the same
is an afterthought; the said Writ Petition was subsequently withdrawn by
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the petitioner; initially a letter dated 23.11.2019 was addressed to the
petitioner asking him to pay an amount of Rs.24,21,342/- based on the
statement received from the HDFC Bank; a further letter dated
02.12.2019 was issued to the petitioner demanding an additional amount
of Rs.22,33,471/- in view of the information which was received at a later
stage from the HDFC, Axis and ICICI Banks; even the POS machine
bearing MEID 037144041640027 of Axis Bank, which got activated from
July 2019 onwards, and ICICI Bank MEID 470000050825146 as
mentioned by the petitioner reflected abnormal percentage of card
transactions which points out the financial irregularities committed by the
petitioner; a complaint was also given to the Sub-Inspector of Police,
Naidupet and an FIR bearing No.14 of 2020 was also registered on
17.01.2020; the amount claimed by the Corporation from the petitioner
pertains to the period of his tenure; the petitioner has played fraud on the
Corporation and that it is a case of money laundering of enormous
magnanimity and prayed to dismiss the Writ Petition.
The contention of the learned counsel for the petitioner is that
having issued the show cause notice on 23.11.2019 asking the petitioner
to give his explanation, without passing any final orders, the respondents
have taken the punitive action of non-supply of stock to the petitioner.
Learned counsel further submits that the letter dated 11.11.2019 was
obtained by the Corporation by coercing the petitioner and relies upon the
Marketing Discipline Guidelines, according to which, action can be taken
by the Oil Company after conducting an enquiry. Learned counsel also
relies upon the decision of the Hon'ble Supreme Court reported in
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Hindustan Petroleum Corporation Limited v. Super Highway
Services1.
On the other hand, Sri O. Manohar Reddy, learned Standing
Counsel appearing for the respondents Corporation, submits that the
contention that the letter dated 11.11.2019 was obtained by coercion is
an afterthought and that the matter is at the stage of enquiry and that
they would complete the enquiry within a period of eight (8) weeks.
As seen from the record, the Corporation has addressed a letter to
the petitioner on 08.11.2019 intimating about the mismatch in actual sales
and the sales from loyalty and Bank POS/Wallet sales and was asked to
give reasons for variation of Bank POS amounts and actual upliftment
from BPCL for the said period. The petitioner filed copy of the letter dated
11.11.2019 which is alleged to have been obtained from the petitioner by
coercion. The said letter reads as follows.
"I, Mr. Ch. Balaji Kumar, Dealer of Keerthika Filling Station
herewith mention that I have the following MID - Swiping machine
udner the name of Keerthika Filling Station.
1. Axis Bank - MID - 37144001521127 - Using at HYD
2. Axis Bank - 37144041640027 - Using at HYD
3. HDFC - K 20716 - Using at HYD
4. HDFC - K88620 - Using at HYD
5. ICICI - 470000050825146 at outlet, Naidupet.
6. ICICI - 470000050834753 - Using at HYD
7. ICICI - 470000075886949 - Using at HYD
I am aware that the above swiping machines except "fifth"
one, are not being using at outlet, and are used at Hyderabad by
Mr. Kiranbabu who is my relative. I accept my mistake of giving
the above machines outside outlet and I agree to pay any amount
of damage caused (or) incurred to BPCL (or) any agencies. In this
regard, as a dealer, I take the responsibility of these transaction
happened in the name of Keerthika Filling Station through swiping
and I am liable to pay back whatever they amounts calculated and
furnished to pay.
1
(2010) 3 SCC 321
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I requested you to kindly forgive my mistake and as I
ready to correct myself.
I am ready to co-operate inquiring officer, ready to submit
documents required and ready to give statement as and received
by the officials at any point of time during the investigation."
The petitioner sent three e-mails on 16.11.2019 to the Depot
Manager, Tada, Sales Officer, Nellore and Territory Manager, Nellore
asking for allotment of load to the outlet. None of these three e-mails
refer about the alleged coercion in obtaining the letter dated 11.11.2019.
Again on 19.11.2019 e-mails were sent to the Territory Manager, Nellore,
Sales Officer, Nellore and Depot Manager, Nellore giving a complaint with
regard to non-allotment of the load. Even the said e-mails do not refer to
the said letter dated 11.11.2019. In the counter affidavit it is stated by
the Corporation that in the previous Writ Petition No.18938 of 2019 also
there is no recital with regard to letter dated 11.11.2019 alleged to have
been written by the petitioner by coercion and the said Writ Petition was
subsequently withdrawn. Even this letter dated 11.11.2019 is subsequent
to the letter dated 08.11.2019. After the show cause notice dated
23.11.2019 and the letter of the Corporation dated 02.12.2019 asking the
petitioner to pay an amount of Rs.24,21,342/- and Rs.22,33,471/-, a letter
has been addressed by the petitioner on 05.12.2019 alleging for the first
time that the letter dated 11.11.2019 was obtained by threat, coercion
and undue influence. It is also stated in the said letter that the petitioner
has nothing to do with any other POS used by any other party anywhere
else and that the petitioner never obtained any POS from HDFC Bank. By
the said letter the petitioner requested to furnish the details of
transactions that took place after the license was granted to the petitioner
in June 2019 to enable the petitioner to respond. The details of mismatch
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which are given in the counter affidavit are not denied by the petitioner by
filing a reply affidavit.
In Hindustan Petroleum Corporation Limited's case (supra),
relied upon by the learned counsel for the petitioner, the dealership
agreement was terminated on the ground that the product supplied by the
Corporation was contaminated by the dealer, but the copy of laboratory
report was not served on the dealer and as per the guidelines given by
the Corporation, the dealer should be given prior notice regarding the
test, so that he or his representative can be present when the test is
conducted and the notice given to him did not give him adequate time to
arrange for the presence of himself or his representative during the test
and in those circumstances termination of the dealership was held to be
arbitrary.
In the instant case, the allegation is that the petitioner himself
addressed a letter dated 11.11.2019 admitting the mistake, but the same
has been denied by the petitioner alleging that the said letter was
obtained by threat and coercion. However, the record shows that the
Corporation addressed a letter to the petitioner on 08.11.2019 intimating
about the mismatch in actual sales and the sales from loyalty and Bank
POS/Wallet sales and was asked to give reasons for variation of Bank POS
amounts and actual upliftment from BPCL for the said period. The
petitioner addressed a letter on 11.11.2019 admitting the mistake,
according to the Corporation, but according to the petitioner the said
letter was obtained by coercion. Thereafter, a show cause notice has
been issued to the petitioner on 23.11.2019 and for the first time the
petitioner has addressed a letter on 05.12.2019 stating that the letter
dated 11.11.2019 was obtained by coercion and even in the previous e-
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mails which are addressed to the various authorities on 16.11.2019 and
19.11.2019, there is no mention with regard to coercion exercised by the
Corporation in obtaining the letter dated 11.11.2019. In the previous Writ
Petition filed by the very same petitioner, there is no reference to the
letter dated 11.11.2019 at all and the said Writ Petition was withdrawn.
In view of the facts and circumstances of the case, as already a
show cause notice was issued to the petitioner and as explanation was
already submitted by the petitioner, I deem it appropriate to direct the
appropriate authority of the respondent - Corporation to conduct enquiry
after affording reasonable opportunity to the petitioner herein and take
suitable action in accordance with law, as expeditiously as possible,
preferably within a period of four (4) weeks from the date of receipt of a
copy of this order.
With the above direction, the Writ Petition is disposed of. There
shall be no order as to costs.
As a sequel thereto, the miscellaneous petitions, if any, pending in
this Writ Petition shall stand closed.
_____________________________
KONGARA VIJAYA LAKSHMI, J.
Date: 07.02.2020 Nsr 8 THE HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI Writ Petition No.20299 of 2019 Date: 07.02.2020 Nsr