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2006 DIGILAW 344 (GAU)

Indian Oil Corporation Ltd. v. S. C. Podder

2006-04-07

A.B.PAL

body2006
A.B. PAL, J.— The order dated 26.08.2005 passed by Civil Judge (Sr. Division), Court No. 2, West Tripura, Agartala in T.S. 26/2005 has been put under challenge in the present Civil Revision Petition under Section 115 of the Code of Civil Procedure (for short 'CPC'). By that order, a petition under Section 21 of CPC filed by Indian Oil Corporation Ltd. (hereinafter referred to as the 'Corporation') and Deputy Manager (MKTG) of the said Corporation, the 6th and 7th defendants in the said suit, who are the petitioners herein disputing territorial jurisdiction of the said court to adjudicate the dispute between the parties was rejected. 2. The basic facts may be briefly noted below: M/S S.C. Poddar is a registered firm owned by Late Satish Chandra Fodder. The said firm was appointed as an agent of the Corporation, the first petitioner herein, for marketing of kerosene oil and petroleum products after the Director of Food & Civil Supplies, Govt. of Tripura (the 7th respondent herein) being the licensing authority issued licence in favour of that firm. After the death of Satish Chandra Fodder, his wife, sons and daughters became the owner of the said firm. However, it has been averred that the mother, three sisters and one brother relinquished their interest in the business of the said firm and thus, the remaining brothers who are plaintiff Nos. 2, 3, 4 & 5 and proforma defendant Nos. 8 & 9 came to deal with the business of that firm. It is stated in the plaint that the above four plaintiffs and proforma defendant No. 8 executed a partnership deed, to which the pro forma defendant No. 9 did not join. The internal dispute between the brothers came to the surface when proforma defendant No. 9 filed a title suit challenging validity of the partnership deed between the above noted brothers. In the said suit, the Civil Judge (Sr. Division), West Tripura, Agartala declared the partnership deed as illegal and restrained the parties from using the same in the business of the firm. Following that judgment, the Director, Food & Civil Supplies and Consumer Affairs issued a letter dated 5.7.2005 addressed to the petitioners herein for suspending supply of petroleum products to M/S S.C. Fodder, the first plaintiff-respondent herein. Aggrieved, the respondent Nos. Following that judgment, the Director, Food & Civil Supplies and Consumer Affairs issued a letter dated 5.7.2005 addressed to the petitioners herein for suspending supply of petroleum products to M/S S.C. Fodder, the first plaintiff-respondent herein. Aggrieved, the respondent Nos. 1 to 5 herein filed Title Suit No. 26/2005 calling into question the correctness and validity of the direction given by the Director, Food & Civil Supplies, the 7th respondent herein to suspend supply of petroleum products to that firm. In that suit, the two petitioners herein have been added as 6th and 7th defendants. 3. The two petitioners herein filed a petition as noted above under Section 21 of CPC contending inter alia that the plaintiff firm and the Corporation entered into an agreement for supply of kerosene and other petroleum products. Clause 68 of the agreement provides that any dispute between the parties would have to be agitated only before the court of competent jurisdiction situated in Tinsukia, Assam and, therefore, the dispute raised in the suit instituted by the said firm against the Corporation cannot be agitated by any court other than the court situated in the city of Tinsukia. Clause 68 of that agreement provides as follows: "68. This Agreement has been made in Digboi and all payments thereunder shall be due and made in Digboi, unless otherwise directed by the Corporation. The Courts in the city of Tinsukia alone shall have jurisdiction to entertain any suit, application or other proceeding in respect of any claim or dispute arising under this Agreement." On the basis of the above clause, the prayer of the petitioners herein before the learned trial court was for an order to return the plaint to the petitioners under Order 7 Rule 10 of CPC. 4. The said petition was, however, objected to by the plaintiff-respondents herein raising the plea that the subject matter of the suit was not a dispute arising out of the agreement between the plaintiff firm and the Corporation. As a matter of fact, the direction of the Director of Food & Civil Supplies to the Corporation to suspend supply of kerosene and petroleum products to the said firm was the subject matter of that suit and as an abundant precaution only the said Corporation and its official were added as 6th and 7th defendants in that suit. 5. As a matter of fact, the direction of the Director of Food & Civil Supplies to the Corporation to suspend supply of kerosene and petroleum products to the said firm was the subject matter of that suit and as an abundant precaution only the said Corporation and its official were added as 6th and 7th defendants in that suit. 5. By the impugned order dated 26.8.2005, learned trial court accepted the objection of the plaintiff-respondents herein and took a view that no dispute arising out of the agreement between the plaintiff firm and the Corporation was raised in the said suit and having regard to the subject matter of the dispute between the plaintiff firm and the Director of Food & Civil Supplies, the Court at Agartala has territorial jurisdiction. The relevant part of the observation made in the said order impugned herein reads as follows: "It appears that taking extra precaution, plaintiffs have impleaded the IOC as defendants and have sought relief against them in the form of mandatory as well perpetual injunction." * The admitted position noted in the said order is that the agreement between the plaintiff firm and the Corporation came into force following a licence issued by the Director of Food & Civil Supplies, being the licencing authority of essential commodities. If the said licence is cancelled, the said agreement would automatically become ineffective as the Corporation cannot continue to supply kerosene and petroleum products to the said firm without such a licence. Thus, it can safely gleaned from this admitted position that the outcome of the title suit on the question of the licence itv would automatically be binding upon the Corporation and, therefore, the dispute raised in that suit can be adverted to without the Corporation and its official being made party. 6. I have heard Mr. D. B. Sengupta, learned senior counsel for the petitioners, Mr. K. N. Bhattacharjee, learned senior counsel, Mr. D. K. Biswas, Mr. J. M. Majumder and Mr. S. Acharjee, learned counsel for the respondents. 7. The first question that has surfaced from the rival submission is whether a Civil Revision under Section 115 of CPC against the impugned order, which is interim in nature, is at all maintainable. Section 115 of CPC after amendment provides: "115. D. K. Biswas, Mr. J. M. Majumder and Mr. S. Acharjee, learned counsel for the respondents. 7. The first question that has surfaced from the rival submission is whether a Civil Revision under Section 115 of CPC against the impugned order, which is interim in nature, is at all maintainable. Section 115 of CPC after amendment provides: "115. (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears- (a) To have exercised a jurisdiction not vested in it by law, or (b) To have failed to exercise a jurisdiction so vested, or (c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, The High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the High Court. Explanation: In this Section, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding." It would appear from above provision that a revision petition is admissible for interference by the High Court with any order if it can be shown that if the order in question had been in favour of the party applying for revision, it would have finally disposed of the suit or other proceeding. As noticed above, the contention of the Corporation before the trial court was that the said court had no territorial jurisdiction to address the disputes raised in the said suit and, therefore, the plaint should be returned in terms of the relevant provisions of CPC. As noticed above, the contention of the Corporation before the trial court was that the said court had no territorial jurisdiction to address the disputes raised in the said suit and, therefore, the plaint should be returned in terms of the relevant provisions of CPC. If the said petition was allowed and an order was passed accordingly, it would have finally disposed of the said suit and in that view of the matter it can be safely held that a civil revision under Section 115 CPC against the order impugned herein rejecting the prayer of the said Corporation is legally maintainable. 8. The second question that has been canvassed is whether the learned trial court has really any jurisdiction to entertain disputes raised therein in view of the clear provision in Clause 68 of the said agreement that every dispute arising there from between the firm and the Corporation would be decided only by a court of competent jurisdiction situated in Tinsukia. 9. From the rival submissions of the parties, the admitted position that has surfaced is that the disputes projected in the said title suit has not arisen from the agreement between the firm and the Corporation, it has rather arisen from the letter in question issued by the Director, Food & Civil Supplies to the Corporation to suspend supply of kerosene oil and petroleum products. The learned trial court has correctly observed that it has the territorial jurisdiction as the dispute raised in the suit has not arisen from the agreement between the firm and the Corporation and that only by way of abundant precaution, the Corporation and its official have been added as defendants as they would be bound by the outcome of the said suit on the correctness and validity of the order of the Director, Food & Civil Supplies to suspend supply of kerosene oil and petroleum products. 10. Mr. Sengupta made strenuous effort to bring home the point that in view of the clear provision in Clause 68 of the agreement, the jurisdiction of the court at Agartala has been clearly ousted and to substantiate the submission he has placed reliance on the decision of the Supreme Court in Main Roland Druckimachinen AG Vs. Multicolour Offset Ltd. & Anr. reported in (2004) 7 SCC 447 . The relevant observation made in para-9 of the said judgment reads as follows: "9. Multicolour Offset Ltd. & Anr. reported in (2004) 7 SCC 447 . The relevant observation made in para-9 of the said judgment reads as follows: "9. Undoubtedly, when the parties have agreed on a particular forum, the courts will enforce such agreement. This is not because of a lack of ouster of its own jurisdiction by reason of consensual conferment of jurisdiction on another court, but because the court will not be party to a breach of an agreement. Such an agreement is not contrary to public policy nor does it contravene Section 28 or Section 23 of the Contract Act. This has been held in Hakam Singh Vs. Gammon (India) Ltd., A. B. C. Laminart (P) Ltd. Vs. A.P. Agencies and Modi Entertainment Network Vs. W.S.G. Cricket Pte. Ltd., SCC at P. 351. The decision of the Delhi High Court in Rajendra Sethia Vs. Punjab National Bank relied on by the Commission which holds to the contrary is, therefore, clearly erroneous." The decision does not, in my view, come to advance the contention of the petitioners herein about jurisdiction of this court in entertaining the dispute raised in the present suit in the context of clear admission by the parties that no dispute between the said firm and the Corporation has arisen from the agreement between them for being addressed to by the learned trial court in the said suit. 11. The next submission of Mr. Sengupta is that, as in the impugned order the learned trial court has come to the definite finding that no dispute arising out of the agreement between the firm and the Corporation has been raised in the said suit and only by way of abundant precaution the petitioners have been im pleaded as defendants, it is evident that the Corporation on its official is neither a proper party nor a necessary party and, therefore, they should have been deleted as parties from the said suit. This submission of Mr. Sengupta appears to have sufficient force particularly because in any event the Corporation and its official shall be bound by the outcome of the suit. This submission of Mr. Sengupta appears to have sufficient force particularly because in any event the Corporation and its official shall be bound by the outcome of the suit. In other words, if the direction of the Director of Food & Civil Supplies to the Corporation to suspend supply of kerosene oil and petroleum products to the firm is found to be not legally sustainable, the Corporation is bound to resume or continue to supply the same in terms of the agreement between the firm and the Corporation unless there are other reasons not to do so, and that being the position, the petitioners herein should not have been unnecessarily dragged in the present suit, which is purely between the plaintiff-respondents and the State-respondents arising out of the letter of the Director of Food & Civil Supplies and Consumer Affairs to suspend supply of kerosene and petroleum products to the said firm. But no such prayer in line with the present submission made by Mr. Sengupta was incorporated in the petition advanced by the petitioners herein before the learned trial court, which was rejected by the order impugned herein. 12. Thus, for the discussion made above, I am of the view that the learned trial court has clear territorial jurisdiction to entertain the suit and address the dispute raised therein. 13. Considering the scope of the present revision petition, which is only to focus on the correctness and validity of the order of the learned trial court impugned herein in terms of its parameter, I am not inclined to pass any order on the said submission of Mr. Sengupta for deletion of the petitioners herein from that suit. It is, however, provided that the petitioners herein shall be at liberty to make a prayer before the learned trial court for deletion of their names from the plaint and on receiving of such a prayer, the learned trial court shall delete them accordingly and proceed to decide the dispute between the remaining parties in accordance with law. 14. Subject to above, this revision petition being without merit is hereby dismissed leaving the parties to bear their own cost.