Jammu & Kashmir High Court - Srinagar Bench
Hindustan Petroleum Corporation And ... vs Ravinder Kapoor on 29 April, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
......
CR No. 06/2019
Reserved on: 18.02.2021
Pronounced on: 29.04.2021
Hindustan Petroleum Corporation and Ors.
......Petitioner(s)
Through: Mr. M. M. Dar, Advocate
V/s
Ravinder Kapoor
..... Respondent(s)
Through: Mr Rizwan-ul-Zaman, Advocate
Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. This civil revision petition is against the Order dated 06.11.2018, passed by the Sub Judge (Chief Judicial Magistrate), Anantnag, (for short "Trial Court") in case titled Ravinder Kapoor v. HPCL and others, whereby application of petitioners/petitioners, filed under Order VII Rule 11 of the Code of Civil Procedure (CPC), has been dismissed.
2. Succinctly put, facts of the case are that plaintiff - respondent herein has filed a civil suit before the Trial Court, imploring grant of decree for declaration, declaring him entitled to continue as dealer of petitioner- Corporation and further entitled to operate retail outlet under the name and style of M/s R. K. Auto Care at Bijbehara Anantnag; as also declaring order of termination inconsequential, misplaced, illegal and devoid of legal consequences and effects; and commanding petitioner-Corporation to restore suppliers of fossil fuels to the outlet for dispensation to customers by plaintiff/respondent at retail outlet, with a further direction to ensure uninterrupted supplies of fossil fuels and other commodities to plaintiff's retail outlet; and restraining petitioner-Corporation permanently by way of a permanent prohibitory injunction from resorting to any act which shall cause interference or has a tendency of interference 2 CR No. 06/2019 or cause interference with the operations of fossil fuel dispensation and other related items by plaintiff/respondent at his allotted outlet situated at Bijbehara Anantnag.
3. Defendants - petitioners herein moved an application under Order VII Rule 11 (a) & (d), CPC, before the Trial Court for rejection of plaint, stating therein that retail outlet dealership was awarded to one Shri Ravinder Kapoor as sole proprietor to run retail outlet dealership at Bijbehara, District Anantnag, vide dealership agreement dated 09.09.1983 and in terms thereof Shri Ravinder Kapoor was not authorized to assign or transfer dealership licence to any third person. Shri Ravinder Kapoor submitted a reconstitution proposal for induction of Shri Ravinder Kumar as minority partner with 49% share which was accepted by petitioner-Corporation in principle with a condition that outlet which was under a dealer owned category would be converted as Company Leased category by taking the retail outlet site on lease and, in this regard, dealership agreement dated 23.10.2003, was executed between Shri Ravinder Kapoor and Shri Ravider Kumar as partners of M/s R.K. Auto Care firm. Petitioner-Corporation also stated before the Trial Court in its application that however, later on it came to know that Shri Ravinder Kumar, newly inducted partner, was also a partner and signatory to a dealership agreement of SKO dealership, viz M/s Kathua Service Station, Kathua dated 01.09.2000. This fact, according to petitioner-Corporation, was not disclosed by partners at the time of reconstitution as a person who was already having SKO dealership, could not have retail outlet dealership in view of multiple dealership norms of the Corporation and, thus, vide letter dated 04.02.2008, the said reconstitution was cancelled and the dealership agreement dated 23.10.2003, was also cancelled. The said cancellation of reconstitution was never challenged by either Shri Ravinder Kapoor or Shri Ravinder Kumar and, therefore, the said decision of petitioner-Corporation has already attained finality.
4. Objections in opposition to application were filed by plaintiff/ respondent.
3 CR No. 06/20195. The Trial Court by impugned Order dated 06.11.2018, dismissed petitioners' application. It is this order of which petitioners are aggrieved and seek setting-aside thereof on the grounds made mention of in civil revision petition on hand.
6. Heard learned counsel for parties; perused the record on the file; and considered the matter.
7. It is submission of learned counsel for petitioner that the Trial Court was of the view that petitioner-Corporation has failed to show that plaintiff/ respondent has no cause of action in his favour. It is stated that when a person is not party to any agreement or when no right is created in his favour then how come he will have any cause of action with him for filing a suit. Plaintiff/respondent is stated to have never become dealer of petitioner-Corporation by following due process and, therefore, simply creating Power of Attorney in his favour will not give him any right with respect to dealership agreement, especially when such act is expressly restricted in dealership agreement. It is averred that petitioner- Corporation has terminated dealership agreement vide letter dated 26.09.2016. Once agreement has been terminated, then how any right may be created in favour of any other person. The Trial Court, while considering application, is stated to have improperly observed that in the face of termination of the contract by the petitioner-Corporation there existed no occasion for raising a plea about existence of arbitration clause for the purposes of constituting Arbitral Tribunal, who could determine the validity or otherwise of the act of termination. Learned counsel for petitioner-Corporation has also averred that Shri Ravinder Kapoor was advised vide letter dated 04.02.2008 to sign a fresh dealership agreement with the Corporation but he neither came forward to sign dealership agreement nor entered into lease agreement. Learned counsel for petitioner has pointedly urged that petitioner-Corporation was able to lay hands over a copy of Power of Attorney dated 26.07.1990 executed by Shri Ravinder Kapoor in favour of Shri Ravinder Kumar, whereby Shri Ravinder Kapoor had handed over the management and control of retail outlet to Shri Ravinder Kumar in utter violation of terms of dealership agreement and without seeking prior written permission of petitioner-
4 CR No. 06/2019Corporation. Not only that, the said fact of execution of Power of Attorney dated 26.07.1990, was never brought to the notice of the petitioner-Corporation at the time of reconstitution. In view of said facts, petitioner-Corporation served Shri Ravinder Kapoor with a Show Cause Notice dated 10.09.2015, calling upon him to explain the violation of terms of standard dealership agreement applicable to Dealer Owned Retail Outlet. It is contended that Shri Ravinder Kapoor in his response dated 25.02.2016 to Show Cause Notice admitted execution of Power of Attorney in the year 1990, thus, admitting contents of Show Cause Notice that since 1990 it was Shri Ravinder Kumar, who was running dealership, which was in gross violation of terms of dealership agreement. Not only that, Shri Ravinder Kapoor also admitted during personal hearing in 2016 that he was not running retail outlet and one person, namely, Shri Abdul Rashid Dagga, is running the dealership. He avers that dealership licence granted by petitioner-Corporation is non-assignable in nature. In view of admission on the part of Shri Ravinder Kapoor of violation of terms of dealership agreement, petitioner-Corporation vide its letter dated 26.09.2016, terminated dealership of Shri Ravinder Kapoor. The cancellation of reconstitution in favour of Shri Ravinder Kapoor and Shri Ravinder Kumar, was permitted vide letter dated 04.02.2008, which does not give any cause of action to plaintiff as the plaintiff was not privy to said reconstitution proposal. The fact that Shri Ravinder Kumar and Shri Ravinder Kapoor never challenged cancellation and, therefore, cancellation order dated 04.02.2008 has attained finality; besides the said order cannot be challenged being barred by law of limitation.
8. It is further contended by learned counsel for petitioner that Shri Zaffar Ahmad Dagga, Power of Attorney holder, is claiming the right to file the suit on the basis of General Power of Attorney dated 24.02.2016, wherein it is mentioned that General Power of Attorney is exclusively meant for applying to change dealership with HPCL of petrol pump, M/s R. K. Auto Care, in favour of Shri Zaffar Ahmad Dagga, with total exclusion of Shri Ravinder Kapoor. The existence of this General Power of Attorney, according to learned counsel for petitioner, is self-evident to the fact that Shri Ravinder Kapoor, has made unauthorized transfer/ 5 CR No. 06/2019 reconstitution of dealership which is not alienable as per terms and conditions of dealership agreement. In addition, dealership agreement is terminated, therefore, Shri Ravinder Kapoor is not authorized to transfer the business in any condition. Shri Abdul Rashid Dagga has filed another suit before the Trial Court. It is specifically pleaded in the said suit that Shri Ravinder Kumar Mahajan has executed Power of Attorney in his favour for operating the retail outlet, M/s R. K. Auto Care. Now the present suit has been filed by Shri Zaffar Ahmad Dagga, on the basis of General Power of Attorney dated 24.02.2016 and he has pleaded that Shri Ravinder Kapoor has authorized him to manage all the affairs of M/s R. K. Auto Catre and also to apply for change in dealership of M/s R. K. Auto Care with HPCL with total exclusion of Shri Ravinder Kapoor. The averments made in different suit clearly indicates that different persons are claiming for same dealership, but the underlining fact is that both these Power of Attorneys are unauthorized and at no stage Shri Ravinder Kapoor was entitled to issue such Power of Attorneys for transferring the business. Learned counsel has urged that Shri Zaffar Ahmad Dagga has filed an application for impleadment in a suit, which has been filed by Shri Abdul Rashid Dagga. The plaintiff/respondent having committed breach of stipulations of dealership agreement by creating third party interest in relation to subject retail outlet. The dealership agreement was terminated vide letter dated 04.02.2008. Till date Shri Ravinder Kapoor, has not challenged the termination. It is being challenged by different persons through unauthorized Power of Attorneys.
9. Having regard to facts and circumstances of the case as discussed herein above, it is to be seen as to whether plaintiff/respondent has any locus to file a Suit and whether he has any cause of action against defendants- petitioners herein, with respect of dealership in question.
10. It is evident from the record on the file that plaintiff is neither authorized dealer nor he had been authorized by petitioner-Corporation to run the petrol pump in question. He claims that he has been appointed as attorney by one Ravinder Kumar, who he claims was the owner/partner of the dealership company. The above facts by the plaintiff would show that Shri Ravinder Kapoor had given Power of Attorney dated 26.07.1990 in 6 CR No. 06/2019 favour of Shri Ravinder Kumar and thereafter he applied for reconstitution inasmuch as Shri Ravinder Kapoor admitted that he was not running dealership and it was in consequence of these facts that petitioner-Corporation terminated dealership of Ravinder Kapoor. There is substance in submission of learned counsel for petitioner that cancellation of reconstitution in favour of Shri Ravinder Kapoor and Shri Ravinder Kumar, does not give any cause of action to plaintiff as the he was not privy to said reconstitution proposal. The fact that Shri Ravinder Kumar and Shri Ravinder Kapoor never challenged cancellation and, therefore, cancellation order dated 04.02.2008 has attained finality. It also comes to fore from the record that two power of attorneys have been given with respect to one business/dealership. Shri Zaffar Ahmad Dagga claims to be attorney holder whereas simultaneously Shri Abdul Rashid Dagga also claimed to be attorney with respect to same dealership. Record on the file also reveals that Shri Ravinder Kapoor has authorized Shri Zaffar Ahmad Dagga to apply for change in dealership of M/s R. K. Auto Care with HPCL with total exclusion of Shri Ravinder Kapoor. Two civil suits have been filed by two attorneys, claiming same dealership. This Court or for that matter Trial Court cannot shed its eyes to the facts and circumstances of the case. Such a practice should be deprecated and taken care of with iron hand. In essence and core, the original licencee - Shri Ravinder Kapoor, or for that matter Shri Ravinder Kumar, has not thrown challenge to cancellation. So, plaintiff/respondent (Shri Zaffar Ahmad Dagga) has no locus standi vis-à-vis subject-matter of the suit. Once that being the position, the suit of plaintiff is not maintainable and the Trial Court has erred in dismissing the application of petitioner- Corporation seeking rejection of plaint under Order VII Rule 11, CPC. To maintain a suit, it is to be seen in a plaint that plaintiff has a cause of action against defendants and when there is no cause of action accrued to plaintiff against defendants, such a suit is to be rejected under Order VII Rule 11, CPC, which is reproduced hereunder:
"11. Rejection of plaint -- The plaint shall be rejected in the following cases: --
(a) where it does not disclose a cause of action;7 CR No. 06/2019
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
11. From the above it emerges that a plaint can be rejected in the event it, inter alia, does not disclose a cause of action or where the suit appears from the statement in the plaint to be barred by any law. In the present case, there is no denial to the fact that there is no dealership agreement between plaintiff/respondent and petitioner-Corporation. The dealership has long since been cancelled by petitioner-Corporation, which has not been challenged by original licencee - Shri Ravinder Kapoor or say Shri Ravinder Kumar. Though the Trial Court has discussed provisions of Order VII Rule 11 CPC, yet it has misdirected itself to dismiss petitioner's application for rejection of plaint.
12. It is germane to mention here that judicial time is precious and ought to be employed in the most efficient manner possible. Sham litigations, as is at galore in the present case as well, are one such menace that not only waste time of the courts, but also cause unwarranted prejudice and harm to parties arrayed as defendants in such litigations, thereby defeating justice. In order to deal with such a menace, the Code of Civil Procedure, under Order VII Rule 11 provides litigants option to pursue an independent and special remedy, empowering the courts to summarily dismiss a suit at threshold, without proceeding to record evidence, and conducting trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any grounds contained in this provision. The Supreme Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali, 2020 SCC Online SC 562, while dealing with an appeal against an order allowing rejection of a suit at the threshold, had 8 CR No. 06/2019 occasion to consider various precedents, discussing the intent and purpose of Order VII Rule 11, to set out the principles in relation to the same. The Supreme Court observed that if no cause of action is disclosed in the plaint, the court would not permit protraction of the proceedings.
In such a case, it would be necessary to put an end to the sham litigation, so further judicial time is not wasted. Placing reliance on Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253, the Supreme Court opined that the entire purpose of conferment of such powers under Order VII Rule 11, CPC, is to ensure that a litigation, which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the courts, and exercise the mind of the respondent.
13. In the backdrop of above legal position and facts and circumstances of the case, the Trial Court has not appreciated the facts in its right perspective while passing impugned order. In that view of matter civil revision petition requires to be allowed, impugned order is liable to be set-aside and the Suit of plaintiff/respondent warrants rejection.
14. For the reasons discussed above, the instant Civil Revision Petition is allowed and impugned Order dated 06.11.2018, passed by Sub Judge (Chief Judicial Magistrate), Anantnag, in a case titled Ravinder Kapoor v. HPCL and others, set-aside. As a corollary thereof, civil suit of the plaintiff/respondent titled Ravinder Kapoor v. HPCL and others is rejected and interim orders passed therein are vacated.
15. Copy of this judgement along with record, if summoned/received, be sent down.
(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 29.04.2021 "Manzoor"
Whether approved for reporting? Yes/No MANZOOR UL HASSAN DAR 2021.05.17 14:38