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2006 DIGILAW 1130 (GAU)

Rajesh Kumar Agarwal v. Yan Tikhok

2006-12-21

ANIMA HAZARIKA, D.BISWAS

body2006
JUDGMENT D. Biswas, J. 1. This appeal is directed against the Judgment and Decree dated 10.12.1999 passed by the Deputy Commissioner cum District Judge, Changlang, Arunachal Pradesh in Title Suit No. 14/1996 and Misc. Case (8) No. 170/1996. 2. The appellant, as plaintiff, filed the aforesaid Title Suit praying for the following reliefs. (a) For a declaration that the stoppage of the Supply of petroleum products i.e. petrol, High Speed Diesel and other petroleum products to the M/s. Tikhok Auto Agency, Jairampur, by the defendant No. 3 on the basis of letter of the defendant No. 1 dated 14.8.96 is illegal and inoperative in law. (b) For Mandatory Injunction requiring the defendants to continue with the supply of the petroleum products to M/s. Tikhok Auto Agency. Jairampur as usual and also to maintain status-quo of the said firm M/s. Thikok Auto Agency as before 14.8.96 i.e. to continue to supply of the petroleum products to the said firm and also to restrain the defendants not to make any disturbances or interruptions in peaceful running of the said petrol pump : (c) Cost of the suit; and (d) For any other relief or reliefs to which the plaintiff be found entitled as per provisions of law, equity and justice. 3. The background of the case is that the defendant No. 1, an unemployed educated youth belonging to Tangsa Tribe, was awarded the agency to run a petrol depot at Jairampur by the Indian Oil Corporation against the quota meant for the tribes under the scheme. The defendant No. 1 carried with the business in the name and style of M/s Tikhok Auto Agency. The defendant No. 1 by executing a power of attorney authroized the defendant No. 2 to look alter the business. Plaintiff's case is that the Defendants No. 1 and 2 obtained financial assistance from him on consideration that the plaintiff would operate the business. In terms of the agreement, a registered power of attorney was executed by the defendant No. 2 in favour of the plaintiff. The petrol pump in question was also mortgaged against the loan amount of Rs. 25,00,000/- by an unregistered mortgaged deed. Defendant No. 1 filed a petition before the Deputy Sales Manager (Sales), Indian Oil Corporation i.e. the defendant No. 3 praying for stoppage of supply of petroleum products to the petrol pump. Accordingly, supply of petroleum products was stopped. The petrol pump in question was also mortgaged against the loan amount of Rs. 25,00,000/- by an unregistered mortgaged deed. Defendant No. 1 filed a petition before the Deputy Sales Manager (Sales), Indian Oil Corporation i.e. the defendant No. 3 praying for stoppage of supply of petroleum products to the petrol pump. Accordingly, supply of petroleum products was stopped. Being aggrieved, the appellant filed the title suit praying for the reliefs reproduced above. 4. The defendant No. 1 in his written statement denied the allegations made in the plaint. His case is that after he was awarded the agency for retail petroleum outlet, the IOC installed the underground tank, outlet pumps and other structures. The sales counter was constructed by him investing a sum of Rs. 40,000/-. As per terms and conditions of the licence, the petrol pump was made fully operational. In the meantime, he became a member of the Arunachal Pradesh Public Service Commission and he executed a power of attorney in favour of the defendant No. 2 authorizing him to run the agency on his behalf. On his resignation as a Member of the Arunachal Pradesh Public Service Commission, on 31.3.1994, he asked the defendant No. 2 to handover the petrol pump and to return the power of attorney. Defendant No. 1 could come to know that the plaintiff has been operating the petrol pump without his knowledge. Thereafter, he wrote a letter dated 24.8.1996 to the defendant No. 3 for stopping supply of the petroleum products to defendant No. 2. Accordingly, the supply was stopped. The plaintiff has been operating the agency after obtaining order of stay in Civil Revision No. 299/1996, since disposed of by the High Court. The defendant No. 1 also set up a counter claim for restoration of the possession of the petrol pump and prayed for restoration of the petrol pump. 5. The defendant No. 2 in his written statement submitted that it became difficult to run the agency due to financial hardship and he, along with defendant No. 1, approached the plaintiff for finance. Defendant No. 2 also invested huge amount for which he had taken loan from various persons. In order to repay the loan, the defendant No. 2 took a loan of Rs. Defendant No. 2 also invested huge amount for which he had taken loan from various persons. In order to repay the loan, the defendant No. 2 took a loan of Rs. 25,00,000/- from the plaintiff executing a deed of mortgage on 8.1.1996, duly authenticated by the Judicial Magistrate and, in pursuance of the terms and conditions of this mortgage deed, the plaintiff has been carrying on with the business of the petrol pump. 6. The defendant No. 3 in his written statement pleaded that the suit is not maintainable. His case is that the defendant Nos. 1 and 2 were not authroized either to mortgage the property to anybody or to transfer the same in any manner or to introduce any third party in the management of the dealership. It is specifically pleaded that the deed of mortgage is invalid as land in Arunachal Pradesh cannot be held by a non-tribal and the deed is not registered and properly stamped. It has also been pleaded that the petrol pump belongs to the Indian Oil Corporation and, as such, its transfer is invalid. 7. The learned Trial Judge framed the following issues on consideration of the pleadings: (1) Whether the suit is maintainable both in law as well as on facts ? (2) Whether the plaintiff has any right and title to file the suit ? (3) Whether the mortgage deed executed by Defendant No. 2 in favoaur of plaintiff has created any legal right to plaintiff in Arunachal Pradesh where the transfer of property Act is not applicable ? (4) Whether the plaintiff being a non-Arunachalec has any right to hold a Trade Licence of his own in any immovable property like land and building against the public policy of Arunachal Pradesh ? (5) Whether the transfer of allotment of petrol pump is valid beyond the letter of intent and whether the Defendant No. 3 can stop the supply of petroleum products to M/s Tikhok Auto Agency, Jairampur ? (6) Whether the Defendant No. 1 has executed a registered irrevocable Power of Attorney in favour of the Defendant No. 2 and whether the irrevocable Power of Attorney executed the Defendant No. 2 in favour of plaintiff has created any legal right to plaintiff in Arunachal Pradesh where power of Attorney Act is not applicable ? (6) Whether the Defendant No. 1 has executed a registered irrevocable Power of Attorney in favour of the Defendant No. 2 and whether the irrevocable Power of Attorney executed the Defendant No. 2 in favour of plaintiff has created any legal right to plaintiff in Arunachal Pradesh where power of Attorney Act is not applicable ? (7) Whether the plaintiff has invested the amount in the business of M/s Tikhok Auto Agency, Jairmampur entitled to continue with the business till realization of his amount invested for the business ? (8) Whether the plaintiff is entitled a decree as prayed in this Suit ? (9) To what relief or reliefs the parties are entitled to as per law, equity and justice ? 8. We have heard Mr. G.N. Sahewalla, learned senior counsel for the appellant, Mr. Devashis Baruah, learned Counsel for the Respondent No. 1 and Mr. S.N. Sarma, learned senior counsel for the Respondent No. 3. 9. Mr. Devashis Baruah, learned Counsel submitted that the Transfer of Property Act, 1882, the Indian Contract Act, 1872, the Power of Attorney Act, 1882, the Court Fees Act, 1870 and the Suit Valuation Act, 1887 are not applicable in the State of Arunachal Pradesh. In the State of Arunachal Pradesh, disputes arc resolved as per provisions of the Assam Frontier (Administration of Justice) Regulation, 1945. Civil proceedings are regulated as per Chapter IV of the said Regulation. Regulation 52 provides that the High Court, the Court of Deputy Commissioner and Assistant Commissioner shall be guided by the spirit of the Code of Civil Procedure, 1908. This matter was also clarified by a Constitution Bench of the Apex Court in the State of Nagaland v. Ratan Singh reported in 1967 CriLJ 265. This submission has not been disputed by Mr. Sahewalla, learned senior counsel. 10. After going through the pleadings as well as oral and documentary evidence on record, we find that the defendant No. 1 was appointed as dealer for the retail outlet by the Indian Oil Corporation against the quota fixed to uplift the tribal community in the State of Arunachal Pradesh. From the evidence on record, it appears that the petrol pump was constructed with the infrastructures provided by the Indian Oil Corporation. The underground tank, pumping station etc. From the evidence on record, it appears that the petrol pump was constructed with the infrastructures provided by the Indian Oil Corporation. The underground tank, pumping station etc. were installed by the Corporation on the land belonging to Defendant No. 1 Amongst various contentions, it has been provided in Clause-35 of the agreement that the dealer shall not sell, assign, mortgage charge or part with or otherwise transfer his interest in the dealership or any right or interest or benefit conferred by this Agreement or grant any licence in connection with the said premises and/or outfit or any part thereof to any person, firm or company nor allow any other person, or company to use the premises or the outfit or any part hereof except to the extent necessary under the terms of this Agreement and specifically permitted in writing by the Corporation. It would appear that such a transfer could be affected for a limited purpose only with prior permission of the Corporation in writing. In the instant case, the same has not been done. That apart, the property in question did not remain the exclusive property of the defendant No. 1. Therefore, the authority given by the defendant No. 1 to the defendant No. 2 to run the business is justifiable. But the defendant No. 2 in turn had mortgaged the property and handed over the agency to the plaintiff to run the business taking a loan of Rs. 25,00,000/-. This act on the part of the defendant No. 2 is contrary to the provisions of the terms and conditions of the contract executed between the defendant No. 1 and the Corporation and, therefore, such a transfer cannot be said to be legally valid, the defendant No. 2 appears to have admitted receipt of a loan of Rs. 25,00,000/- and this admission on his part would render him personally liable. For this transaction, it cannot be said that the plaintiff had acquired a right enforceable in a Court of law. 11. In so far the mortgage is concerned, it may be mentioned here that the mortgage of the petrol pump including the land to a non-tribal is also not permissible in the State of Arunachal Pradesh. The plaintiff's right, if any, arising out of the mortgage deed is limited to his right to recover the loan, if paid. He can never acquire title over the land in question. The plaintiff's right, if any, arising out of the mortgage deed is limited to his right to recover the loan, if paid. He can never acquire title over the land in question. 12. The contract in question is determinable. It is obvious from the terms and conditions embodied in the deed of agreement. Section 14(c) of the Specific Relief Act. 1961 provides that a contract which is determinable in nature cannot be specifically enforced. In the instant case, the agency was awarded subject to certain norms and upon violation of any of such of the norms, the Corporation reserves its right to determine the contract. Therefore, a contract which is determinable cannot be enforced in a Court of law in view of the provisions of Section 14(c). 13. The other important feature of the case, as pointed out by Mr. S.N. Sarma, learned Counsel for the Corporation, is that the Corporation has not been impleaded as a defendant in the suit. According to Mr. Sarma, any direction issued by this Court to defendant No. 3 would have no binding effect on the Corporation and, therefore, the Court should refrain from issuing any such order which cannot be enforced for non-joinder of essential party. 14. In the suit, the Deputy General Manger (Sales) has been impleaded as defendant No. 3 by name. The Corporation has obviously not been made a party. There cannot be any doubt that no direction in the nature prayed for could be issued by this Court since such a direction to defendant No. 3 would have no binding effect on the Corporation. In our considered opinion, the suit at hand is also not maintainable. For discussion above, we are of the opinion that the learned Trial Court has committed no error in law in dismissing the suit. 15. Mr. G.N. Sahewalla, learned senior counsel submitted that the counter claim for restoration of the petrol pump to defendant No. 1 should not have been decreed as it is not properly set up and no Court fees have been paid. Mr. Baruah, learned Counsel countering the argument submitted that the counter claim pleaded in his written statement is clear and categorical and, therefore, no dispute could be raised about the manner in which it has been pleaded. Mr. Mr. Baruah, learned Counsel countering the argument submitted that the counter claim pleaded in his written statement is clear and categorical and, therefore, no dispute could be raised about the manner in which it has been pleaded. Mr. Baruah further submitted that the provisions of the Court Fees Act, 1870 are not applicable in the State of Arunachal Pradesh and, therefore, question of payment of any Court fee against the counter claim does not arise. We are in full agreement to the submission of Mr. Baruah. We find that the defendant No. 1 has in his written statement clearly spelt-out the reason for which he is entitled to restoration of the petrol pump. There is also a specific prayer for restoration. The Court Fees Act, 1870 has not been brought into force in the State of Arunachal Pradesh by any resolution/notification by the state Government. In view of this, no Court fee is, therefore, required to be paid in any suit including counter claim. Therefore, the decree for restoration, as ordered by the learned Trial Judge, calls for no interference. 16. For reasons above, we find no merit in this appeal. Accordingly, the appeal is dismissed. Appeal dismissed.