Gujarat High Court
Bharatbhai Prabhudas Parekh vs Indian Oil Corporation Limited. on 11 April, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, A.C. Rao
C/LPA/1673/2016 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR LEAVE TO APPEAL) NO. 1 of 2016
In F/LETTERS PATENT APPEAL NO. 1673 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 9975 of 2016
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BHARATBHAI PRABHUDAS PAREKH Versus INDIAN OIL CORPORATION LIMITED.
========================================================== Appearance:
MR NIRZAR S DESAI for the PETITIONER(s) No. NOTICE SERVED BY DS for the RESPONDENT(s) No. MR MANISH R. BHATT, SENIOR ADVOCATE WITH MR MUNJAL BHATT ADVOCATE FOR THE RESPONDENT9s) No.1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date : 11/04/2019 IA ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This is an application at the instance of a third party seeking Leave to Appeal against the judgment and order passed by a learned Single Judge of this Court dated 27/06/2016 in the Special Civil Application No.9975 of 2016.
2. The case of the applicant in his own words as pleaded in his application is as under:
2.1 The applicant herein is the son of deceased Prabhudas Mafatlal Parekh who died at the age of 90 years on 14/07/2016. It is respectfully submitted that Late Shri Prabhudas Mafatlal Parekh had three son and his wife Indumati P. Parekh also died on 27/10/1988.
Page 1 of 8C/LPA/1673/2016 IA ORDER 2.2 Out of his three son i.e. Bharatbhai Prabhudas Parekh, Yogesh
Prabhudas Parekh and Dilipbhai Prabhudas Parekh, Yogesh Prabhudas Parekh and Dilipbhai Prabhudas Parekh have waives their respective rights from all the movable and immovable properties of late Shri Prabhudas Mafatlal Parekh vode tjeor se[arate respective deeds dated 05/12/2008. Therefore, the applicant is the only legal heir who is entitle to have inheritance of all the movable and immovable properties of late Shri Prabhudas M. Parekh who happens to be the petitioner of Special Civil Application No.9975 of 2016.
2.3 By way of Special Civil Application No.9975 of 2016 the Respondent No.2 herein was the original petitioner of Special Civil Application No.9975 of 2016 had challenged the order of termination of distributorship of M/s. Yogikrupa Gas Agency which was a proprietorship firm owned by Mr. Prabhudas M. Parekh and the distributorship of L.P.G. Gas which the father of petitioner was having since April1994 was terminated by termination order dated 17/06/2016 which was a subject matter under challenge in Special Civil Application No.9975 of 2016.
2.4 However, Special Civil Application No.9975 of 2016 was preferred by Dilipbhai Prabhudas Parekh who happens to be brother of the petitioner, but who has relinquished his rights vide deed dated 05/12/2008. Moreover, as the father of the petitioner Mr. Prabhudas Mafatlal Parekh died on 14/07/2016 and therefore, the status of Mr. Dilipbhai Prabhudas Parekh of Power of Attorney holder of Mr. Prabhudas M. Parekh also ceased to exist as the person who has given the Power of Attorney himself is no more and therefore, the power of attorney cannot exercise his rights on his behalf.
2.5 Special Civil Application No.9975 of 2016 was heard by this Hon'ble
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C/LPA/1673/2016 IA ORDER
Court and this Hon'ble Court vide order dated 27/06/2016 dismissed the said Special Civil Application against which Power of Attorney holder of deceased Prabhudas M. Parekh Mr. Dilipbhai P. Parekh has preferred Letters Patent Appeal No.635 of 2016 which is pending before this Hon'ble Court and is coming up on 11/11/2016. However, it is pertinent to note that neither in the Special Civil Application, nor in the Letters Patent Appeal the applicant was joined as a party though the applicant is the only person who has substantial stake in the Yogikrupa Gas Agency as Mr. Dilipbhai P. Parekh had relinquished his rights as back as in the year 2008.
2.6 The aforesaid facts goes to show that since order of termination dated 17/06/2016 was challenged by the brother of the petitioner Mr. Dilipbhai P. Parekh, who was not authorized to challenge the said order of Special Civil Application No.9975 of 2016 and which is dismissed by this Hon'ble Court vide it's order dated 27/06/2016 and since now there is a judicial pronouncement in respect of order dated 17/06/2016 and Letters Patent Appeal No.635 of 2016 is pending before this Hon'ble Court, the petitioner crave leave of this Hon'ble Court to grant the applicant the leave to challenge the order dated 27/06/2016 passed by this Hon'ble Court in Special Civil Application No.9975 of 2016.
2.7 The applicant states that since the applicant was not a party either to Special Civil Application No.9975 of 2016 or was not joined as legal heir of deceased Prabhudas M. Parekh even after his death on 14/07/2016 Letters Patent Appeal No.635 of 2016 the applicant was totally unaware of about the fact that the order dated 17/06/2016 passed by Indian Oil Corporation was challenged by way of Special Civil Application No.9975 of 2016 and even the same was also dismissed vide order dated 27/06/2016, the applicant has preferred present application for seeking Leave to Appeal Page 3 of 8 C/LPA/1673/2016 IA ORDER immediately after the applicant came to know about dismissal of Special Civil Application No.9975 of 2016.
3. It appears from the materials on record that the father of the applicant herein viz.Prabhudas Mafatlal Parekh (since deceased) preferred the Special Civil Application No.9975 of 2016 before this Court as a dispute arose between him and the Indian Oil Corporation with regard to the distributorship. The Special Civil Application No.9975 of 2016 was in fact preferred by Prabhudas Mafatlal Parekh through his power of attorney and that power of attorney was one of his sons. The Special Civil Application No.9975 of 2016 came to be heard by a learned Single Judge of this Court and vide order dated 27/06/2016 the same came to be rejected. The order reads thus:
1. Notice for final disposal. Learned advocate Mrs. Mauna appears on caveat and waives service of notice for the respondent. With the consent of learned advocates for respective parties, the matter is taken up for final disposal today.
2. By way of this petition under Article __ of the Constitution of India, the petitioner made following prayers.
(B). This Honble Court may kindly be pleased to issue writ of mandamus and/or any other writ/order/direction to direct the respondent to quash and set aside the Termination Letter dated 17.6.2016 terminating the distributorship entered into 1994 and continued till date.
(C). That this Honble Court may kindly be pleased to stay the effect, implementation and execution of the Termination Letter pending this petition.
3. Briefly stated, the petitioner was allotted distributorship of gas agency way back in 1994 in pursuance of written distributorship agreement entered and executed between the parties on 31.3.1994. The petitioner was operating LPG distributorship under freedom fighter category at Bhavnagar in the name and style of M/s Yogikrupa Gas Agency and on the basis of online annul return, various documents which were required to be uploaded by the petitioner, were verified by the respondent corporation as per the Rules and based on Page 4 of 8 C/LPA/1673/2016 IA ORDER such document, the respondent corporation issued show cause notice dated 20.2.2016 and observed following discrepancies.
A. Current Bank Account No.66008923157 at SBI Shashtrinagar, Bhavnagar Branch is operative in the name of M/s Yogikrupa Gas Agency, Bhavnagar in name of proprietor Shri Prabhudas Mafatlal Parekh. However, the certificate of person operating the bank account obtained from the SBI bank reference SL/61 dated 26.10.2015 shows that account is operated by the power of attorney in name of Shri Dilipbhai Prabhudas Parekh, who is not a signatory of distributorship agreement as per available records which is clear cut violation of distributorship agreement under clause number 23 b), c). B. While verifying documents for Show Room, it is observed that Showroom, which is situated at shop No.21 and 22, Madhav Complex, Opp Vijaraj Nagar, Shashtrinagar, Bhavnagar is sold to one person named Shri Satyadevsinh Krushndevsinh Jadeja vide document No.4447 and 4448 dated 7.12.2009. The person mentioned as Shri Satyadevsinh Krushndevsinh Jadeja is not a signatory of distributorship agreement with IOCL.
The shop is sold to the person thru power of attorney made in the name of Shri Satyadevsinh Krushndevsinh Jadeja by Shri Prabhudas Mafatlal Parekh vide the power of attorney reference 7402/2009 dated 22.10.2009.
C. Firm M/s Yogikrupa Gas Agency, Bhavnagar has been registered as as partnership firm vide registration of firms vide Application No.387/2009/2010. The name of partners appearing in the ROF is 1. Shri Prabhudas Mafatlal Parekh 2. Shri Atul Himmatlal Shah. As per IOCL records, the firm is proprietorship firm and induction of partner in the firm M/s Yogikrupa Gas Agency, Bhavnagar has been carried out without prior written approval of IOCL which is clear cut violation of distributorship agreement under clause number 21, 23 b) and 23 c).
4. In response to the said show cause notice, the petitioner gave reply to the respondent on 11.3.2016.
5. Thereafter, the respondent by impugned order dated 17.6.2016 came to the conclusion that the bank account of the gas agency was operated by one power of attorney holder and he was not the signatory of the distributorship agreement. The show room, in which gas agency was run came to be sold to one Mr. Satyadevsinh Krushndevsinh Jadeja and further, the petitioner inducted one Mr.Atulbhai Himmatbhai Shah as partner without the permission of the respondent and accordingly, the respondent terminated the agreement with immediate effect for violation of clause Nos.21, 23(b) and 23(c) of the distributorship agreement dated 31.3.1994.
6. Having heard the submissions made at bar, learned advocate Mr. Upadhyaya for the petitioner would contend that the respondent has Page 5 of 8 C/LPA/1673/2016 IA ORDER not extended any opportunity to the petitioner before passing the impugned order. According to him, the grounds of show cause notice shown were duly replied with justifiable explanation and therefore, there was no reason on the part of the respondent to take extreme steps. In support of his submissions, learned advocate Mr. Upadhyaya has pressed into service decision rendered in case of Sushila Kumar Vs. Indian Oil Corporation Limited and others reported in (2014) 14 SCC 411 and more particularly, para 15 thereof. In the said case before the Honble Apex Court, the appellant took 14 visit to New Zealand in a span of 13 years as her only daughter was residing at New Zealand at the relevant time. According, the Honble Apex Court found and observed that such absence of short term duration cannot lead to an inference that the appellant has abandoned the distributorship or that she will not be able to effectively perform the task of supply of LPG to the consumers. In case on hand, the factual facts are altogether different and distinct. It is an admitted fact that the petitioner appointed power of attorney though his son to operate the bank account and he is not a signatory of the distributorship agreement and such appointment of power of attorney holder was without prior permission and also without any medical evidence of illness of the petitioner. Secondly, the showroom wherein the distributorship was run/operated by the petitioner came to be sold out to one Mr. Satyadevsinh Krushndevsinh Jadeja vide document Nos.4447 and 4448 dated 7.12.2009. The said person was not a signatory of the distributorship agreement with the respondent nor any permission was obtained from the respondent corporation. In addition to it, the petitioner has also introduced one partner, namely Mr. Atulbhai Himmatlal Shah and thus, converted proprietaryship firm into partnership firm without prior written approval of the respondent and thus, committed clear cut violation of the clause Nos. 21, 23(b) and 23(c) of the distributorship agreement.
7. Learned senior advocate Mr. M.R. Bhatt pressed into service the decision in case of Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan and others reported in AIR 2002 SC 2598, wherein the Honble Apex Court found violation of the terms of the agreement by the plaintiff changing the structure of the firm without permission of the corporation is an illegal act and therefore, grant of interim injunction was unsustainable and accordingly, appeal preferred by the HPCL was allowed.
8. So, looking to the overall facts and circumstances of the case, the Court do not find any reason to interfere with the impugned order as the petitioner has committed breach of distributorship agreement and committed breach of clause Nos.21, 23(b) and 23(c) and therefore, there is no substance in the petition warranting interference at the hands of this Court and the same stands dismissed. Notice discharged.
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4. We take notice of the fact that after the writapplication came to be rejected, a Letters Patent Appeal No.635 of 2016 was filed. On 31/01/2017, a Division Bench of this Court disposed of the Letters Patent Appeal in the following terms: Mr. Sahil Thakore, learned counsel representing Mr. C.B. Upadhyaya, learned advocate on record for the appellant, seeks permission to withdraw the appeal. In view of the request, both the appeal as well as civil application stand dismissed as withdrawn.
5. In this application seeking Leave to Appeal, Mr. Desai, the learned counsel pointed out that in fact before the Letters Patent Appeal could be filed, Prabhudas Mafatlal Parekh had already passed away and in such circumstances, his son i.e. the brother of the applicant herein could not have preferred any appeal in his capacity as the power of attorney. He further pointed out that in such circumstances, he could not have sought permission to withdraw the appeal. It is his case that so far as the applicant herein is concerned, he has inherited certain rights in the properties left behind by Prabhudas Mafatlal Parekh. He submitted that there is a family arrangement in this regard reduced into writing. In such circumstances, the applicant is here before this Court seeking Leave to Appeal so that he can pursue the litigation against the Indian Oil Corporation so far as the distributorship is concerned.
6. Mr. M.R. Bhatt, the learned senior counsel appearing for the Corporation has vehemently opposed this application. He submitted that the applicant has nothing to do with the original litigation. Prabhudas Mafatlal Parekh lost the litigation before the learned Single Judge. The appeal also in fact stood abated with the demise of Prabhudas Mafatlal Parekh. According to Mr. Bhatt, the Indian Oil Corporation has nothing to do with the interse family arrangement that might have been arrived Page 7 of 8 C/LPA/1673/2016 IA ORDER at between the legal heirs of Prabhudas Mafatlal Parekh. The distributorship came to an end almost 07 years back. In such circumstances, there is no question of granting any Leave to Appeal.
7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that there is no scope of granting any Leave to Appeal to the applicant. Mr. Bhatt is justified in his submission that the corporation has nothing to do with the family arrangement. The issue with regard to the distributorship of the same has come to an end. In such circumstances, we decline to grant the Leave to Appeal as prayed for by the applicant.
At this stage, Mr. Desai submitted that if his client has any other legal right of his own of any nature so far as the distributorship is concerned, then he may initiate appropriate proceedings before the appropriate forum in accordance with the law. Well, that is up to the applicant to look into. We do not express any opinion in this regard.
8. With the above, this application stands disposed of.
(J. B. PARDIWALA, J) (A. C. RAO, J) aruna Page 8 of 8