Karnataka High Court
M S Venkatesh vs Bharat Petroleum Corporation Ltd on 17 June, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF JUNE 2013
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
R.F.A. No.1210/2011 (DEC)
BETWEEN:
M.S.Venkatesh,
S/o. Late M.S.Srinivasamurthy,
Representing M.S.Srinivasamurthy & Sons,
# 1142, Ashoknagar,
Mandya-1. ....Appellant
(By Sri.M.S.Venkatesh, Party-in-Person)
AND :
Bharat Petroleum Corporation Ltd.,
With its Registered Office at
4 & 6, Currimbhoy Road,
Ballard Estate, P.B.No.688,
Mumbai-1,
Represented by Mr.Madhusudhana Rao,
Territory Manager (Retail),
# 17, 7th Floor, Du-Parc Trinity,
M.G.Road, Bangalore-560 001.
(Non statutory servant of the
Public Sector & Not appointed by
Public Service Commission) ...Respondent
(By Sri.M.S.Narayan, Advocate)
This RFA is filed under Section 96 of CPC against
the judgment and decree dated 20.06.2011 passed in
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O.S.No.1223/2010 on the file of the XXXVII Additional
City Civil and Sessions Judge, (CCH-38), Bangalore City
dismissing the suit for declaration.
This Appeal coming for 'Dictating Judgment' on
this day, the court delivered the following:
JUDGMENT
This appeal by the unsuccessful plaintiff in O.S. No.1223/2010 on the file of the XXXVII Additional City Civil and Sessions Judge (CCH-38), Bangalore City, is directed against the judgment and decree dated 20.06.2011 dismissing the suit filed by him for the relief of declaration and consequential reliefs.
2) Certain undisputed facts which according to the plaintiff led him to file the suit, are as under:-
The paternal grand-father of the plaintiff was granted a dealership by then Asiatic Petroleum Company Limited to vend petroleum products in Mandya Town. Subsequently, the said Company was taken-over by Burmha Shell and later pursuant to nationalization of petroleum business, the Burmha Shell was merged with Bharath Petroleum Corporation Limited (for short 3 'Corporation'). However, the dealership licence to vend petroleum products in Mandya was continued in the name of the grand-father and later in the name of the father of the plaintiff. Subsequently, a dealership agreement was entered into between the plaintiff on the one hand and the Corporation on the other hand on 07.10.1993. Pursuant to the said agreement, the plaintiff continued to vend petroleum products in Mandya and he was running the said business in the name and style of M/s. M.S. Srinivasamurthy & Sons.
There were certain differences of opinion between the plaintiff and the Territory Manager of the Corporation stationed at Bangalore, some time during the year 2000- 2001. The Territory Manager issued a show-cause notice dated 09.05.2011 making several imputations against the plaintiff, to which the plaintiff replied. However, the Territory Manager passed an order dated 28.05.2001 terminating the dealership licence of the plaintiff. Pursuant to the said order, supply of Petroleum products was discontinued, as a result the retail out-let 4 was closed. The said order passed by the Territory Manager was assailed by the plaintiff by filing a writ petition before this Court in Writ Petition No.21910/2001. The said writ petition came to be allowed by order dated 28.05.2004, wherein this Court set-aside the order dated 28.05.2001 passed by the Territory Manager, permitted the plaintiff to file his additional objections, if any, to the show-cause notice dated 09.05.2001 issued by the Territory Manager before the General Manager (South), Chennai, within a month's time from that date and the General Manager was directed to consider the objections of the petitioner which have already been filed and also additional objections, if any and pass appropriate orders in accordance with law within a period of 45 days from the date of receipt of a copy of the said order. It was further made clear in the said order that the setting aside of the impugned order passed by the Territory Manager would not authorize the petitioner therein (plaintiff herein) to demand from the Corporation to permit him to continue with the business 5 till final order is passed by the General Manager (South), Chennai. Pursuant to such direction, the petitioner filed his additional objections. Ultimately, the General Manager (South) Chennai, passed order dated 21.07.2004, terminating dealership licence granted to the plaintiff. The said order of the General Manager was questioned before this Court by the plaintiff in Writ Petition No.14109/2005. The plaintiff also had filed two more writ petitions concerning running of the petroleum out-let in Writ Petition Nos. 21858/2005 and 23390/2005. All the three writ petitions were heard together and were disposed of by common order dated 11.03.2008, wherein all the three writ petitions were dismissed. However, liberty was reserved to the petitioner therein to initiate appropriate proceedings in the manner stated therein by keeping open all the contentions urged by the parties. In the said order, this Court was of the opinion that the facts urged by the petitioner therein are all disputed facts which cannot be decided in writ petition and therefore, the remedy open to 6 the petitioner therein was only to file a civil suit. During the course of the argument, it was also contended that the plaintiff herein has a right of appeal to the Additional Secretary (Marketing), Ministry of Petroleum, against the order of the General Manager. Therefore, it was urged that a direction be issued to the Additional Secretary (Marketing), Ministry of Petroleum, to consider the case afresh. Though this Court was of the opinion that such a direction cannot be issued, however it was made clear that if the Additional Secretary (Marketing), Ministry of Petroleum, has supervisory powers to examine the issue, though not in the nature of enquiry, it would always remain open dehors the manner of the present enquiry. In that view of the matter, the court observed that notwithstanding the present issue to be decided by a court of civil jurisdiction, it would always be open to the petitioner to make an appropriate representation to the Additional Secretary (Marketing) Ministry of Petroleum, who may chose to dispose of the same in accordance with 7 law or treat the same as an appeal, if it is permissible to do so in law.
3) After disposal of the writ petitions, the plaintiff submitted a representation to the Additional Secretary (Marketing), Ministry of Petroleum, requesting him to consider the case afresh and grant him the relief. The Additional Secretary (Marketing), Ministry of Petroleum, passed orders on 09.02.2009 dismissing the representation/appeal filed by the plaintiff. The said order passed by the Additional Secretary (Marketing), Ministry of Petroleum, was questioned before this court in Writ Petition No.4890/2009 by impleading only Union of India, Ministry of Petroleum and Natural Gas, represented by its Additional Secretary. The said writ petition came to be dismissed by order dated 13.10.2009. Against the said order, appeal in Writ Appeal No.3975/2009 was filed, which came to be allowed and the matter was remitted to Additional Secretary for fresh consideration within three months. Against the order of the Division Bench, the Union of India filed a Special 8 Leave Petition in SLP (Civil) No. 27685/2012 before the Supreme Court, which came to be dismissed. In the meanwhile, the plaintiff filed the suit on 24.02.2010 seeking the following reliefs:-
a) To set aside the termination order passed by the defendant-Corporation dated 28.05.2001 and the subsequent termination order passed by General Manager on 21.07.2004 and direct the defendant to restore back the dealership to the plaintiff and to declare the termination as null and void;
b) To decree the suit with cost and grant such other reliefs as the Hon'ble Court deems fit under the circumstances of the case.
4) In the plaint, the plaintiff inter alia set-out all the above facts and further contended that in the termination order passed by the Territory Manager and by the General Manager, they have not taken into consideration the statement of objection as well as Additional objections filed by him to the show-cause notice and that the General Manager has gone beyond 9 the imputations made in the show-cause notice, as such, the termination order passed by the Territory Manager and by the General Manager is bad in law. He also contended that he was not responsible for any of the acts pointed-out in the show-cause notice and that he is victim of corrupt and unethical acts on the part of the Territory Manager therefore, the said order passed by the Territory Manager as well as the General Manager terminating the dealership licence is bad in law and liable to be set aside.
5) The Corporation, arraigned as sole defendant in the case, entered appearance and filed its written statement admitting the undisputed facts regarding grant of dealership licence, passing orders, etc. However, it contended that the suit is not maintainable as the order of termination has been passed after taking into consideration the various misdeeds committed by the plaintiff and that the Civil Court cannot sit in appeal against such decision of non-statutory authorities passed on the basis of breach of several terms of contract 10 resulting in forfeiture of right. Corporation denied the allegations made in the plaint against the Territory Manager as well as General Manager. It also contended that the suit is barred by limitation. It was also contended that the period of licence having expired, even prior to the date of the suit, the plaintiff is not entitled for the reliefs sought in the suit. Therefore, the defendant sought for dismissal of the suit.
6) In the light of the pleadings of the parties, the trial court framed the following issues:-
i) Does the plaintiff proves that the order of termination of agency with respect to the defendant-Corporation passed by the defendant-Corporation on 28.05.2001 and 21.07.2004 are null and void for the reasons stated in the plaint?
ii) Does the plaintiff proves that the
defendant-Corporation is liable to
restore the dealership by withdrawing
its cancellation order for the reasons
stated in the plaint?
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iii) Does the plaintiff proves that suit is in
time?
iv) Does the plaintiff proves that this court
has got jurisdiction to try this suit?
v) What order or decree?
7) In support of his case, the plaintiff examined
himself as PW.1 and relied on documentary evidence-
Exs.P1 to 23. On behalf of the defendant, one of its officials was examined as DW.1 and relied on documentary evidence-Exs.D1 to D56.
8) After hearing both sides and on appreciation of oral as well as documentary evidence, the trial court by the judgment under appeal answered Issue Nos.1 & 2 in the negative and Issue Nos. 3 & 4 in the affirmative holding that the plaintiff has failed to prove that the orders of termination passed by the Territory Manager as well as the General Manager are null and void and that the plaintiff is not entitled for restoration of dealership. In that view of the matter, the suit of the plaintiff came to 12 be dismissed. Aggrieved by the said judgment and decree, the plaintiff filed this appeal.
9) At the first instance, this appeal was heard and disposed of by judgment dated 24.08.2011 wherein this court allowed the appeal, set-aside the judgment and decree passed by the trial court and remanded the matter to the trial court for disposal in accordance with law and also to consider the case of the appellant for further renewal of the dealership liecence. Against the said judgment, the defendant-Corporation filed appeal before the Hon'ble Supreme Court in Civil Appeal No.8985/2012. The said appeal came to be allowed by order dated 12.12.2012, whereunder the judgment of this court was set-aside and the matter was remanded to this Court for fresh consideration on the ground that the High Court has not examined the contentions raised by the parties on merits. This Court was requested to dispose of the matter as expeditiously as possible within six months from the date of receipt of copy of the order. The copy of 13 the said order was received by this Court on 16.01.2013 and thus, the appeal was restored on to the file.
10) I have heard Sri. M.S. Venkatesh (plaintiff), Party-in-person and Sri. M.S. Narayan, learned advocate appearing for the defendant.
11) Mr. Venkatesh, the plaintiff, submitted as under:-
The judgment under appeal is perverse being contrary to the evidence available on record and also on account of the non-consideration of the materials on record, therefore, the judgment under appeal is liable to be set-aside; that the trial court has gone on discussing the non-existing order passed by the Territory Manager though the same had been set aside by this court; that the order of the General Manager marked as Ex.D.39 would indicate that he has reiterated the orders of the Territory Manager without independently applying his mind to the objections filed to the show-cause notice as directed by this Court; that the General Manager has 14 considered several other factors which are not the part of imputations in the show-cause notice, in other words, the order of the General Manager traverses beyond the imputations made in the show-cause notice, though the plaintiff had no opportunity to meet those imputations, therefore, the order is contrary to the principles of natural justice; that the court below has failed to notice that the plaintiff was not responsible for drying-up of the petrol-pump for several days as alleged in the show- cause notice and in this regard, the General Manager has failed to properly appreciate the objections filed to the effect that the quantum of petroleum products indented by him was not supplied on an irrelevant ground that he should have placed orders for the 'full lorry load', though the terms of the agreement does not compel the dealer to place indent for 'full lorry load'; that the General Manager has failed to notice that though the plaintiff had tendered money by way of demand draft, for which, no acknowledgement had been issued and by suppressing tender of money through demand draft, the Territory 15 Manager with his sinister motive issued show-cause notice stating that money was not tendered at the time of placing indent for supply of the petroleum products; that the General Manager has filed to notice that the cheque which was returned un-paid was not on account of want of funds in the account, but, on account of stop payment instructions to the banker for having supplied lesser quantity of the petroleum products than the indented quantity; that the General Manager has failed to notice that the Territory Manager has manipulated the records about the purported inspection of the petroleum out-let run by the plaintiff and has created a false report about the plaintiff selling the products of other Petroleum Company; that there was absolutely no acceptable evidence before the General Manager to come to the conclusion that the plaintiff has sold adulterated petroleum products in the out-let; that the various imputations made in the show-cause notice are all concocted and created for the purpose of deliberately terminating the dealership licence of the plaintiff, since 16 he had not readily obliged the illegal demands made by the Territory Manager and therefore, the order passed by the General Manager without taking into consideration any of these factors is illegal and contrary to the principles of natural justice, as such, it is liable to be set aside and consequently his dealership licence is required to be restored; that though the period as mentioned in the dealership agreement marked as Ex. D-27 expired in the year 2008 i,e., before filing of the suit, since the plaintiff was kept out of the business for more than nine years, he is entitled for continuation of the dealership licence for the said period; that though, immediately before the expiry of the period mentioned in agreement- Ex.D27 plaintiff had requested the authorities concerned, namely Director (Marketing) of the Corporation seeking extension of the period of dealership licence by filing representation, till today no orders have been passed on the said representation, therefore, if for any reason this court were to come to the conclusion that the plaintiff cannot be restored with the dealership licence for the 17 period during which he was kept out of the business, necessary directions be issued to the concerned authority to consider the representation for renewal of the licence and to pass appropriate orders. With these contentions, the plaintiff sought for setting-aside the judgment under appeal and for grant of the reliefs sought in the plaint.
12) Per contra, Sri. M.S. Narayan, learned counsel appearing for the defendant would urge as under:-
The judgment under appeal is sound and reasonable regard being had to the evidence available on record and it does not suffer from any perversity or illegality warranting interference by this court; that the suit filed in the year 2010 after the expiry of the period of agreement was not maintainable and if at all, the plaintiff had any remedy, he should have filed a suit for damages for the period, during which he was stated to have been kept out of the business pursuant to the order passed by the authorities concerned; that the General Manager after taking into consideration the statement of objections filed by the plaintiff to show-cause notice, as 18 also the materials available on record and placed before him, has passed a reasoned order setting-out reasons on each of the imputations made against the plaintiff, as such, the order passed by the General Manager, which is in the nature of an administrative order cannot be lightly interfered by the Civil Court; that the imputations made in the show-cause notice is further supplemented by another corrigendum setting-out the other imputations, as such, the General Manager has not traversed beyond the imputations made in the show-cause notice; that the plaintiff had fullest opportunity of meeting the imputations made against him and the General Manager has considered the objections filed by the plaintiff in its right perspective, as such the orders do not suffer from any illegality or irregularity; that though in the terms of the agreement there was no obligation on the part of the plaintiff to place orders for 'full lorry load', the authorities, having regard to the economic viability as to the transportation of petroleum products, as stated in Clause 10(d) of the agreement, have right to insist the 19 dealers to place indent for 'full lorry load' and not for 'part lorry load' and it is pursuant to such power, the plaintiff was asked to place orders for 'full lorry load' and though there was potential and demand to an extent of 'full lorry load', the plaintiff deliberately went on placing orders for 'part lorry load' and thereby was unable to meet the requirement of the customer, as a result of which, the petroleum pump was kept dry for several days causing great inconvenience to the customer and thereby defeating the very purpose for which the licence had been granted, as such, the authorities are justified in terminating the dealership licence of the plaintiff; that the grant of licence to vend petroleum products is for the benefit of the customer in the locality and if the plaintiff who was granted such licence does not act in furtherance of the said object, he has no right to continue the business, as such, the termination of dealership licence is just and proper, and therefore, the suit of the plaintiff has been rightly dismissed by the trial court; that though the trial court has considered the validity of the order 20 passed by the Territory Manager, in spite of the said order having been set aside by this Court, that finding has not in any way prejudiced the case of the plaintiff since the trial court has considered the correctness of the order passed by the General Manager, which is marked as Ex.D39 in the case; that the trial court having regard to the evidence available on record and also more particularly in the light of the apology letters written by the plaintiff has come to the conclusion that the order passed by the General Manager is in accordance with law and the same cannot be held as null and void. Therefore, the judgment under appeal does not warrant interference by this Court. Therefore, he sought for dismissal of the appeal.
13) Learned counsel fairly submitted that the plea urged by the defendant in the written statement that the 'suit was barred by limitation' is not pressed in the light of the fact that the suit came to be filed pursuant to liberty granted by this Court in the writ petition. 21
14) In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for consideration in this appeal are,-
i) Whether the Judgment under appeal
suffers from perversity or illegality
warranting interference by this court?
ii) Whether the plaintiff is entitled for any of the reliefs sought in the suit ?
15) Perusal of the judgment under appeal indicates that the court below has elaborately considered the case of the plaintiff with reference to the order dated 28.05.2001 passed by the Territory Manager, a copy of which has been marked as Ex.P5 as also the order dated 21.07.2004 passed by the General Manager, a copy of which has been marked as Ex.D.39.
16) The court below appears to have considered the case of the plaintiff in relation to the order dated 28.05.2001 passed by the Territory Manager for the reason that the plaintiff sought for setting the said order 22 also though by the date of presentation of the suit, the said order was not in existence. As noticed supra, the order dated 28.05.2001 passed by the Territory Manager was challenged by the plaintiff in the writ petition filed before this Court in W.P. No.21910/2001 and the said order of the Territory Manager came to be set aside by this Court vide order dated 28.05.2004 and the General Manager was directed to consider the case afresh. The plaint was presented before the court below on 24.02.2010. Thus, by the date of presentation of the plaint, the order dated 28.05.2001 passed by the Territory Manager had already been set aside by this Court. Therefore, there was no occasion for the plaintiff to seek setting aside the order passed by Territory Manager. Even as on that date, it was a non-existing order. Nevertheless, the plaintiff sought setting aside the said order and this appears to have led the trial court to consider the case in that behalf. The trial court during the course of the judgment even after referring to the order passed by this Court in W.P. No.21910/2001, has 23 proceeded to consider the veracity of the order dated 28.05.2001 passed by Territory Manager. The trial court was not required to consider the correctness or otherwiseness of the order passed by the Territory Manager. Unnecessarily the trial court has recorded findings holding that the order cannot be set aside on any grounds. The trial court is not justified in recording any finding regarding the validity of the order dated 28.05.2001 passed by the Territory Manager as per Ex.P5. However, consideration of the validity of the order dated 28.05.2011 passed by the Territory Manager, during the course of the judgment under appeal, in my opinion, has not resulted in perversity or illegality of the entire judgment under appeal. In view of the fact that this court has set aside the order passed by the Territory Manager and directed the General Manager to consider the case afresh and in the light of the fact that the plaintiff sought setting aside the order passed by the General Manager and also restoration of dealership, the court below was required to consider the validity of the 24 order passed by the General Manager only. In this view of the matter, I shall proceed to consider the question as to whether the trial court is justified in upholding the order passed by the General Manager at Chennai.
17) As noticed supra, this Court in W.P. No.21910/2009 while directing the General Manager to consider the case afresh, permitted the plaintiff herein to file its additional objections, if any, to the show-cause notice dated 09.05.2001 before the General Manager and the General Manager was directed to consider the objections, which the plaintiff had already filed by then and also additional objections that to be filed. This court also made it clear that setting aside the order passed by the Territory Manager terminating the dealership of the plaintiff herein would not authorize him to demand the Corporation to permit him to continue with the business until the final order is passed by the General Manager. There is no dispute that the plaintiff pursuant to the opportunity given to him, filed his additional objections to the show-cause notice issued, The General Manager 25 however, after considering the case, came to the conclusion that the plaintiff by his own conduct has incurred forfeiture and has committed violations of terms and conditions of the dealership agreement, therefore, ordered termination of dealership licence, as such, the question of seeking restoration of dealership did not arise. That is the reason why the plaintiff in the suit sought the relief of setting aside the order passed by the General Manager and restoration of the dealership. A copy of the order passed by General Manager is marked as Ex.D.39.
18) Perusal of Ex.D.39, indicates that the General Manager after referring to the imputations made in the show-cause notice and the objections as well as additional objections filed by the plaintiff, has passed elaborate order. A copy of the show-cause notice is marked as Ex.P.9. In the said show-cause notice, after referring to several terms and conditions of the dealership agreement, it is alleged that the plaintiff has deliberately violated and contravened the conditions set- 26 out in the dealership agreement by allowing the retail out-let to go dry without making products available to the public and thereby violating the main purpose for which the plaintiff had been appointed as a dealer in Mandya. It is further alleged in the show-cause notice that several days the retail out-let had been kept dry and seeking supply 'part load' was only as an alibi to maintain dry-outs. It is further alleged that, though there was a demand, deliberately the indent was not placed for ' Full Lorry Load' with demand draft and thereby the retail out-let was kept dry for several days. It is further alleged that demanding for 'Part Lorry Load' irrespective of the Corporation incurring losses due to transportation of 'Part Loads', was without any reason but to cause shortage of petroleum products at Mandya causing great hardship to motoring public thereby resulting in disrepute of the name of the Corporation. It is also alleged in the show-cause notice that he has defaulted in payment terms and even caused the bouncing of cheque for Rs16,262/-. Therefore, the 27 plaintiff was called upon to show cause as to why the dealership licence granted to him should not be terminated.
19) To this show-cause notice, the plaintiff had filed his detailed objections. Perusal of Ex.D.39 indicates that the General Manager after referring to the imputations made in show-cause notice and also objections filed by the plaintiff, has come to the conclusion that the plaintiff is guilty of the acts alleged and therefore, the dealership licence is required to be terminated. With regard to several allegations made against the Territory Manager by the plaintiff in the objection statement and in other correspondences, the General Manager has held that the allegations made against the Territory Manager are all untenable.
20) It is necessary to note that the dispute relates to a non-statutory contract between the plaintiff and the Corporation. The terms and conditions agreed to between the parties have been set-out in the written 28 agreement duly signed by the parties. Upon due compliance of the terms and conditions, the plaintiff was entitled to continue the business for the period mentioned in the agreement. The Corporation which is one of the parties to the agreement, reserved right to terminate the licence in the event of violation of any of the terms and conditions of the agreement. In the case on hand, the dealership licence granted to the plaintiff has been terminated on the ground of the plaintiff having committed violations and breach of various terms and conditions of the agreement. It is in this background, the case of the plaintiff has been considered by the court below. The role of the court in a case of this nature is limited unless the order passed by the non-statutory authority is shown to be highly biased. The order passed by the Territory Manager was questioned before this court in the writ petition mainly on the ground of bias. Having regard to the apprehension expressed by the plaintiff as to the conduct of Territory Manager, this court after setting aside the order passed by the Territory 29 Manager directed the General Manager stationed at Chennai to consider the case. In the entire plaint filed by the plaintiff, there is no allegation of any personal bias on the part of the General Manager. The challenge to the order of the General Manager is that he has not considered the statement of objections filed in its proper perspective and that he has traversed beyond the imputations made in the show-cause notice. There is no serious dispute and it is also borne-out by records that for several days the retail out-let run by the plaintiff was kept dry. This is evident from the fact that the plaintiff has contended that he was not responsible for dry-out of the out-let. One of contentions raised in this regard is, there is no condition in the agreement that the plaintiff has to place indent for ' Full Lorry Load' and not 'Part Lorry Load'. It is his further contention that whenever he placed orders for 'Part Lorry Load' with necessary payments, supply was not made on the ground that the indent has not been placed for ' Full Lorry Load'. This according to the plaintiff led to non-supply of petroleum 30 products and this has resulted in drying-out of the retail out-let. The General Manager in his order has considered this aspect of the matter with reference to Clauses-10(b) and 10(d) of the licence.
21) According to Clause 10(b) of the licence, the licence holder should promote the sales of the Company's products to the satisfaction of the Company and achieve sales target as may be set by the Company from time to time. According to Clause 10(d), the licence holder should place orders orally or in writing as the circumstances require, for the purchase of Motor Spirit or H.S.D. from the Company at the Company's nett price as applicable for the time being at the time and place of delivery and, if in bulk, in quantities at a time for each pump not being in excess of the licensed capacity of the underground storage tanks. The said clause further provides that the Company shall, having regard to the availability of the product and transport, accept in writing such order or part thereof or act upon the same as may be possible and the order will be made in a 31 manner which will allow for economical deliveries being made.
22) Perusal of the dealership agreement marked as Ex.D.27 though indicates that there is no specific condition therein that the licencee should always place orders for ' Full Lorry Load', Clause-10(d) reserves a right in the Company to meet the request for supply of the products in the manner which will allow for economical deliveries being made. It is in the evidence on record that the plaintiff was repeatedly asked to place indent for ' Full Lorry Load' to make delivery more economical and in spite of such intimation, the plaintiff went on placing orders for 'Part Lorry Load' only. Certain discretion is vested in the Company in terms of Clause- 10(d) , therefore, it is not open to the plaintiff to contend that he is not required to place indent for ' Full Lorry Load' though he was asked to do so, on the ground that the agreement does not place such restriction on his part. As per the evidence placed by the defendant/ Corporation, there was a good demand for ' Full Lorry 32 Load' and in spite of the same, indent was not placed for ' Full Lorry Load'.
23) The General Manager having regard to the language of the Clause-10(d) and the evidence available on record, came to the conclusion that the plaintiff by his repeated act of placing orders for 'Part Lorry Load' has allowed the retail out-let to remain dry and thereby the very purpose for which the licence was granted got frustrated and thereby the plaintiff had committed breach and violation of the conditions of the agreement. It is also noticed by the General Manager that on certain occasions, the indent placed by the plaintiff did not accompany the demand draft for the value of the products sought. There is no dispute that the cheque issued by the plaintiff was not honoured may be on account of 'stop payment instruction', nevertheless it had resulted in not honouring the cheque. Having regard to these factors, the General Manager was of the opinion that the plaintiff has committed violation of the terms and conditions of the agreement, therefore, licence 33 granted to him is liable to be terminated. Therefore, he held that termination of the dealership licence is valid. The General Manager has also considered few other allegations made against the plaintiff in several correspondences which relate to the plaintiff stocking certain products supplied by other companies than the Corporation and also selling adulterated petroleum products in the retail out-let. Of course, as rightly contended by the plaintiff these imputations were not found in the show-cause notice dated 09.05.2001.
24) It is the further contention of the appellant that though in the show-cause notice dated 09.05.2001 it was alleged that the appellant has committed breach of the terms of the dealership agreement, in the corrigendum dated 22.05.2001 these aspects were not indicated. Therefore, it is deemed that the imputations made in the show-cause notice dated 09.05.2001 have been given a go-by and what the General Manager required to do was to consider the imputations in the corrigendum. This argument was canvassed before this 34 Court while arguing Writ Petition No.14109/2005 and connected matters and this court while rejecting the said argument has observed thus in Paragraph-12 of the order passed in the said writ petition, ".................. With regard to breaches committed by the petitioner in respect of the dealership agreement, even though the petitioner contends that in the corrigendum these aspects were not indicated, it is difficult to accept that the show-cause notice dated 09.05.2001 was given a go-by and only the corrigendum would arise for consideration since the penultimate paragraph of the order impugned would clearly indicate that both the show-cause notice dated 05.05.2001 and 22.05.2001 have been considered. Further this court in the earlier writ petition has directed consideration of the show-cause notice dated 09.05.2001 and the additional objection to be filed to the same. Therefore, the corrigendum dated 22.05.2001 cannot be considered to be in supersession of the notice dated 09.05.2001, but is an additional opportunity granted."
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25) In the light of the above, it is not open to the appellant to contend that the General Manager was required to consider only imputations made in the corrigendum dated 22.05.2001. Hence, the said contention is rejected.
26) Having regard to the facts and circumstances of the case and the undisputed facts, the order passed by General Manager as per Ex.D.39 cannot be termed as perverse warranting interference by the Court. Therefore, in my considered opinion, the court below is justified in holding that the order passed by the General Manager terminating the dealership licence granted to the plaintiff cannot be set aside. It is also necessary to note that as per the terms of the agreement-Ex.D.27, the period for which the licence was granted expired in the year 2008. The suit came to be filed in the year 2010. Thus, two years prior to the date of the suit, the period of licence had come to an end. Therefore, question of ordering restoration of the dealership of the plaintiff did not arise. Of course, as contended by the plaintiff, the 36 licence was terminated in the year 2001 and for nearly seven years prior to the expiry of the period mentioned in the agreement, the plaintiff was out of business. However, the civil court cannot direct the authorities to continue the dealership for that period even if the order of the General Manager is held to be illegal or improper for any reasons. As rightly contended, remedy of the plaintiff in such circumstances is only to file suit for damages. Having regard to the fact that the period of licence had expired two years prior to the date of the suit, the plaintiff is not entitled for the relief of restoration. Of course, the plaintiff was agitating the matter before the authorities and that has helped the plaintiff in over- coming the period of limitation. However, that would not help the plaintiff in seeking restoration of the dealership.
27) Having regard to the facts and circumstances of the case and the evidence available on record, in my considered opinion, the court below has not committed any error in dismissing the suit of the plaintiff. The findings recorded by the court below are sound and 37 reasonable regard being had to the evidence available on record. The judgment under appeal does not suffer from any perversity or illegality warranting interference by this Court. In this view of the matter, the appeal lacks merit and accordingly is dismissed.
SD/-
JUDGE KGR*