Supreme Court - Daily Orders
Opendra Singh vs Hindustan Petroleum Corporation Ltd. on 2 September, 2022
Bench: D.Y. Chandrachud, Hima Kohli
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 5936-5937 of 2022
(Arising out of SLP(C) No 38217 of 2016)
Opendra Singh .... Appellant(s)
Versus
Hindustan Petroleum Corporation Ltd ....Respondent(s)
ORDER
1 Leave granted.
2 A retail dealership was granted by the respondent – Hindustan Petroleum
Corporation Limited1 to the appellant on 14 March 2005. Following an inspection on 25 June 2007 in which allegedly certain irregularities were noticed, the dealership was terminated after a notice to show cause on 24 September 2007. In terms of the agreement between the parties, an arbitrator was appointed. The arbitral award dated 21 October 2011 upheld the termination. The award was called into question under Section 34 of the Arbitration and Conciliation Act Signature Not Verified Digitally signed by CHETAN KUMAR 19962 by the appellant. By a judgment dated 17 August 2015, the Additional Date: 2022.09.07 18:21:38 IST An appeal 3 under Reason:
District Judge No 1, Udaipur set aside the arbitral award.
1 “HPCL” 2 “1996 Act” 3 SB Civil Miscellaneous Appeal No 2439 of 2015 2 Section 37 has been filed by HPCL. On 9 December 2015, a Single Judge of the High Court admitted the appeal and stayed the operation of the order dated 17 August 2015 of the Additional District Judge No 1, Udaipur in Arbitration Petition No 25 of 2015. An application under Section 9 of the 1996 Act is stated to have been moved by HPCL before the ADJ No 3, Udaipur. It appears that the appellant moved an application4 under Section 9 to the effect that during the pendency of the appeal before the High Court, HPCL ought not to interfere with the possession of the appellant (the respondent to the appeal before the High Court); no ad hoc dealer should be appointed and no third party rights should be created; and the status quo should be maintained.
3 The Single Judge of the High Court rejected the application filed by the appellant under Section 9 on the ground that the application under Section 9 filed by HPCL was pending before the trial court. However, HPCL was directed to supply a copy of that application and the appellant was granted liberty to raise all objections before the trial court.
4 At this stage, it would be material to note that on 30 January 2017, a Single Judge of the High Court considered an application filed by the appellant for recall of the order dated 9 December 2015 granting a stay of the judgment of the trial court dated 17 August 2015 on the ground that despite a caveat, an ex parte order had been passed. The Single Judge, by the order dated 30 January 2017, declined to vacate the stay and confirmed the interim order dated 9 December 2015 till the final disposal of the appeal.
4 SB Civil Misc Application No 1794 of 2016 3 5 During the pendency of the proceedings, the application under Section 9 of the 1996 Act which was filed by HPCL was dismissed by the Commercial Court, Udaipur, by an order dated 30 July 2020. A copy of the order dated 30 July 2020 passed by the Commercial Court, Udaipur has been placed on the record. 6 In view of the above development, Ms Christi Jain, counsel appearing on behalf of the appellant, submits that the impediment which weighed with the High Court in declining to consider the application filed by the appellant under Section 9 would no longer survive and the application under Section 9 may be directed to be considered by the High Court.
7 On the other hand, Mr Parijat Sinha, counsel appearing on behalf of HPCL, has relied upon a two-Judge bench decision of this Court in Rahul Yadav v Indian Oil Corporation Limited5. In paragraph 20 of the decision, it has been observed as follows:
“20. On a plain reading of the aforesaid agreement, it is clear as noon day that it has no connection whatsoever with the lease agreement. Both the agreements are independent of each other. The appellant was a dealer under the lessee, that is, the Corporation. The dealership is liable to be cancelled on many a ground. In case there is a termination, dealership is bound to be cancelled and at that juncture, if the lease deed is treated to have been terminated along with the dealership, it will lead to a situation which does not flow from the interpretation of the instruments. The dealership agreement has been terminated because of the decision rendered by this Court in Mukund Swarup Mishra (supra). The consequence of cancellation of the dealership is a sequitur of the judgment. The inevitable consequence of that is the appellant has to vacate the premises and the Corporation has the liberty to operate either independently or through another dealer. The appellant 5 (2015) 9 SCC 447 4 cannot be allowed to cause obstruction or create an impediment. The submission that the appellant entered into the lease agreement at a monthly rent of Rs.10,000/- as it was given the dealership is a mercurial plea, only to be noted to be rejected. The dealership was availed of as has been held by this Court in an inapposite manner. In such a situation, consequences are to be faced by the appellant.”
8 Ms Christi Jain, counsel appearing on behalf of the appellant, has sought to distinguish the decision of this Court in Rahul Yadav (supra) on the ground that the terms of the dealership agreement in the present case are not on all fours with the dealership agreement which formed the subject matter of the above decision.
9 The High Court, by its impugned order dated 19 December 2016, held that it could not consider the application under Section 9 which was moved by the appellant on the ground that an application under Section 9 filed by HPCL was pending before the trial court. The application filed by HPCL has since been rejected by the trial court on 30 July 2020. At this stage, counsel for HPCL is not in a position to state before the Court whether any further proceedings have been initiated by HPCL.
10 Hence, we order and direct that in view of the subsequent developments, the impugned order of the High Court dated 19 December 2016 shall stand set aside. The application filed by the appellant under Section 9 of the 1996 Act shall be considered afresh by the High Court.
511 Since we have restored the application which has been filed by the appellant under Section 9 for afresh consideration by the High Court, it does not become necessary for this Court to express any opinion on the merits of the rival submissions.
12 The appeals are accordingly allowed by directing that the application instituted by the appellant under Section 9 of the 1996 Act shall stand restored to the file of the High Court for a fresh decision.
13 Pending application, if any, stands disposed of.
…..…..…....…........……………….…........J. [Dr Dhananjaya Y Chandrachud] …..…..…....…........……………….…........J. [Hima Kohli] New Delhi;
September 02, 2022
-S-
6
ITEM NO.32 COURT NO.2 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).38217/2016
(Arising out of impugned final judgment and order dated 19-12-2016 in SBCMA No. 2349/2015 and APP No. 1794/2016 passed by the High Court of Judicature for Rajasthan at Jodhpur) OPENDRA SINGH Petitioner(s) VERSUS HINDUSTAN PETROLEUM CORPORATION LTD. Respondent(s) Date : 02-09-2022 This petition was called on for hearing today. CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MS. JUSTICE HIMA KOHLI For Petitioner(s) Ms. Christi Jain, AOR Mr. Puneet Jain, Adv.
Mr. Yogit Kamat, Adv.
Mr. Mann Arora, Adv.
Mr. Umang Mehta, Adv.
Ms. Shruti Singh, Adv.
Ms. Shipra Singh, Adv.
Mr. Abhinav Deswhal, Adv.
For Respondent(s) Mr. Parijat Sinha, AOR
Mr. Devesh Mishra, Adv.
Ms. Reshmi Rea Sinha, Adv.
Ms. Pallak Bhagat, Adv.
UPON hearing the counsel the Court made the following O R D E R 1 Leave granted.7
2 The appeals are allowed in terms of the signed order.
3 Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
DEPUTY REGISTRAR COURT MASTER
(Signed order is placed on the file)