M/S.G.S.V.Subba Rao v. M/S.Indian Oil Corporation
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.11.2017
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH O.P.No.909 of 2017 M/s G.S.V. Subba Rao, Rep., by its Proprietrix Mrs.Gunda Sivakumari, Rep., by her Power of Attorney Holder Mr.Gunda Sivakumar, Permanent Address: Door No.10/98/1, 3rd Floor, Janapadu Road, Behind KPL Temple, Piduguralla-522 413.
Present Address: R/o H.No.25-16-85, Rishi Valley Homes, B Block, Flat Nos.508 & 511, Opp. Tobacco Board, Srinivasarao Thota, G.T.Road, Guntur-522 004, Andhra Pradesh.
.. Petitioner Vs.
1.M/s Indian Oil Corporation Limited, Rep. by Mr.D.V.Ramana Roa, Chief General Manager(Retail Sales), 3-6-436 to 438, 2nd & 3rd Floor, Naspur House, Himayat Nagar, Hyderabad-500 029.
2.Mr.M.P.Nazirudeen, Previously worked as Executive Director, Hyderabad. Indian Oil Corporation Ltd., Andhra Pradesh State Office 3-6-436 to 438 2nd & 3rd Floor, Naspur House, Himayat Nagar, Hyderabad-500 029.
Now working as Director of Marketing-Mumbai, Indian Oil Corporation Ltd., Registered office at
G-9, All Yavar Marg, Bandra (East), Mumbai-400 051.
3. Mr.B.S.Canth, Previously worked as Executive Director, Hyderabad. Indian Oil Corporation Ltd., Andhra Pradesh State Office 3-6-436 to 438 2nd Floor, Naspur House, Himayat Nagar, Hyderabad-500 029.
4.The Executive Director, Indian Oil Corporation Ltd., Andhra Pradesh State Office 3-6-436 to 438 2nd & 3rd Floor, Naspur House, Himayat Nagar, Hyderabad-500 029.
5. The General Manager (Retail Sales), Indian Oil Corporation Ltd., Andhra Pradesh State Office 3-6-436 to 438 2nd Floor, Naspur House, Himayat Nagar, Hyderabad-500 029.
6. The Deputy General Manager (Retail Sales) Indian Oil Corporation Ltd., Andhra Pradesh State Office 3-6-436 to 438, 2nd Floor, Naspur House, Himayat Nagar, Hyderabad-500 029.
7. The Senior Manager(RS)/APSO Mr.S.Ansari, Indian Oil Corporation Ltd., Andhra Pradesh State Office 3-6-436 to 438, 2nd Floor, Naspur House, Himayat Nagar, Hyderabad-500 029.
8. The Law Officer, Mr.Ravi Banothu, Indian Oil Corporation Ltd., Andhra Pradesh State Office 3-6-436 to 438, 2nd Floor, Naspur House, Himayat Nagar, Hyderabad-500 029.
9. The Senior Divisional Manager Indian Oil Corporation Ltd.,GVR Towers, 5th Floor, Bharathi Nagar, Ring Road, Vijayawada-520 008.
10.The Divisional Manager Indian Oil Corporation Ltd.,GVR Towers, 5th Floor, Bharathi Nagar, Ring Road, Vijayawada-520 008.
11.The Sales Officer,(Palangadu Area), Indian Oil Corporation Ltd.,GVR Towers, 5th Floor, Bharathi Nagar, Ring Road, Vijayawada-520 008.
... Respondents Original Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, read with Order 14 Rule 8 of the Original Side Rules to set aside the Award passed in GSK/Arb. Dated 18.07.2017. For Petitioner : Mr.S.S.Swaminathan For Respondents : Mr.Mohamed Fayaz Ali for R1 & R9
ORDER
On 10.03.1989, a Memorandum of Agreement was entered into between the petitioner and the first respondent creating a Kerosene/LDO Dealership Agreement.
On 01.04.1996, the petitioner was asked to give an explanation for allowing unauthorised person to operate the dealership. Thereafter, an order of suspension was passed on 19.04.1996, which is extracted hereunder.
"We have perused the explanatory letter given in response to our letter of even reference dated 01.04.1996. Your reply is not at all satisfactory and there is still reason to believe that you are not operating or not involving yourself in the operation of the dealership. Further, we are receiving reports that your "J" from premises is continued to be kept under lock and key and you are utilizing other premises for storing SKO which is highly irregular and is violating of the J form licence and other licences. You are requested to produce your J form licence and B form licence and other relevant records for our perusal. Your SKO Suppliers will continue to remain suspended until you comply with rules and regulations of licences and relevant clauses of the dealership agreement."
2. The aforesaid order has not been put into challenge for more than eight years. A petition was filed in O.P.No.661 of 2015 under Section 11 of the Arbitration and Conciliation Act, 1996. Pursuant to the order dated 08.01.2016, the petitioner made a claim before the learned Arbitrator.
Number of prayers have been sought for before the learned Arbitrator including the change of the name in the dealership. The learned Arbitrator went into the issues raised and ultimately held that the contentions of the petitioner that the suspension order was not served, no prior notice issued, the documents marked as Exs.R3 to R5 were fabricated and the further contention that there is no violation of the agreement were not correct, as Clause 16 (b) and (c) of the Kerosene/LDO Dealership stood vitiated.
3. The learned counsel appearing for the petitioner would submit that the petitioner was not given any prior notice. The documents have been fabricated. The learned Arbitrator breached the period of limitation. Therefore, the petition will have to be allowed.
4. The learned counsel appearing for the respondents 1 and 9 would submit that the delay has occasioned because of the non cooperation of the petitioner. The suspension order was passed as an interim measure requiring the petitioner to produce Form-J and licence, which he did not do till now. There is a huge delay in invoking the arbitration clause. The petitioner did not raise any issue with respect to the stoppage. There was no fabrication involved as rightly held by the Tribunal. Thus, the original petition has to be dismissed.
5. The suspension order was passed on 19.04.1996. A perusal of the order as extracted above would clearly show that the explanation given by the petitioner was considered. The learned Arbitrator has given a factual finding that there is no fabrication involved. As rightly submitted by the learned counsel, this Court is at a loss to understand as to why the petitioner remained silent from 19.04.1996 onwards till 03.12.2014 - the date on which, the petition under Section 11 of the Arbitration and Conciliation Act, 1996, was filed. Therefore, it is nothing but clear after thought. When once a factual finding has been given that the documents are true and genuine, then it has to be taken that the petitioner has given a reply, which was considered. After all, the suspension order, as rightly submitted by the learned counsel for the respondent is an interim one. Even in the said order, the petitioner was asked to produce the document, which he did not do so.
6. On the question of limitation, the petitioner has not established that he was ready and willing to go on with the arbitration proceedings. The learned Arbitrator rightly took into consideration the legal opinion obtained and thereafter, proceeded with the matter. Therefore, Clause, 28 (b) of the agreement has to be read as per Section 43 of the Arbitration
and Conciliation Act, 1996, which provides for application of Limitation Act 1963. Therefore, looking from any perspective, this Court does not find any reason to interfere with the Award passed by the learned Arbitrator. Accordingly, the original petition stands dismissed. No costs. 28.11.2017 raa M.M.SUNDRESH,J.
raa
O.P.No.909 of 2017 28.11.2017