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2010 DIGILAW 380 (ORI)

Kasinath Mallick v. Hemalata Dalai

2010-05-22

SANJU PANDA

body2010
JUDGMENT S. PANDA, J. : In this writ application, challenge has been made to the order dated 24.9.2009 passed by the learned District Judge, Keonjhar in F.A.O. No. 15 of 2009 setting aside the order dated 21.8.2009 passed by the learned Civil Judge (Senior Divi¬sion), Anandapur in I.A. No. 23 of 2009 (arising out of C.S. No. 51 of 2009) filed by the petitioner under Order 39 Rules, 1 and 2, CPC. 2. The facts as narrated in the writ application are as follows: The petitioner as plaintiff filed C.S. No. 51 of 2009 for injunction against the opposite party-defendant not to interfere with his possession over the management and operation of the disputed petroleum pump till expiry of the lease period and refund of Rs.18,50,000/- by the defendant. He averred in his plaint that the opposite party is the proprietor of M/s. Dalai Filling Station situated near Chhenapadi Chhak under Nandipada Police Station in the district of Keonjhar. He further pleaded that the opposite party, being in need of money due to her acute financial crisis, proposed to lease out the said petrol pump in favour of the plaintiff to manage and run it for a limited peri¬od. Accordingly, the plaintiff agreed to the said proposal and mutually they decided to lease out the petrol pump for a period of three years with effect from 23.3.2008 and the plaintiff would pay Rs.5,000/- per month for maintenance of the building and assets. The plaintiff invested and managed the petrol pump. Accordingly, on the aforesaid date the plaintiff paid Rs.18,50,000/- to the defendant who delivered the possession in his favour. Thereafter, they entered into a written agreement on 1.11.2008 acknowledging lease of the said petrol pump in favour of the plaintiff as per the above terms. The defendant admitted that she received Rs.5,000/- per month towards maintenance charges (Rs.34,000/- till 1.11.2008, Rs.20,000/- till 30.2.2009 and Rs.10,000/- till 30.4.2009). Accordingly, he was entitled to run, operate and manage the said petrol pump till 23.3.2011 without any interruption and interference from the defendant as per the agreement and on repayment of Rs.18,50,000/- by the defendant to him on expiry of the lease period, he shall re-deliver the possession of the said petrol pump to her. 3. Accordingly, he was entitled to run, operate and manage the said petrol pump till 23.3.2011 without any interruption and interference from the defendant as per the agreement and on repayment of Rs.18,50,000/- by the defendant to him on expiry of the lease period, he shall re-deliver the possession of the said petrol pump to her. 3. While the matter stood thus, on 25.5.2009 the defendant took the original agreement from the plaintiff to show the same to one of her relatives stating to deliver the same to him next day, i.e., on 26.5.2009. However, next day she refused to return the original agreement and asked the plaintiff to vacate the petrol pump. Further the defendant gave threat to drive him out of the said petrol pump by using muscle-men and to take over management. Further, she refused to refund Rs.18,50,000/- to the plaintiff. It was pleaded that the written agreement dated 1.11.2008 had been executed before the notary public Sri R.C. Patra at Anandapur. As the defendant threatened the plaintiff to oust him from the petrol pump, the plaintiff was compelled to file the suit for the above relief. He also filed I.A. No. 23 of 2009 under Order 39, Rules 1 and 2 read with Section 151, CPC for temporary injunction against the defendant. 4. The defendant opposite party after receiving notice in the interim application filed her objection traversing the alle¬gations made by the plaintiff petitioner. She averred that Bharat Petroleum Corporation Limited granted the licence to her to run the petrol pump and in absence of the said Petroleum Corporation as a party, the suit is not maintainable and as pleaded by the plaintiff regarding agreement dated 1.11.2008, it was against the terms and conditions of the licence granted by the said Corpora¬tion. Further, the agreement which the plaintiff claims to have executed before the notary public not having been registered is void and illegal and not to be considered as genuine. The plain¬tiff is barred by the Law of Contract and the Specific Relief Act. On the aforesaid pleadings of the parties, on 21.8.2009 the trial Court came to the finding that the petitioner had a prima facie case and the balance of convenience was in his favour and if dispossessed, he would sustain irreparable injury. The plain¬tiff is barred by the Law of Contract and the Specific Relief Act. On the aforesaid pleadings of the parties, on 21.8.2009 the trial Court came to the finding that the petitioner had a prima facie case and the balance of convenience was in his favour and if dispossessed, he would sustain irreparable injury. On these findings, it directed the parties to maintain status quo over the petrol pump on the point of possession, management and payment of installment as per the agreement. 6. Being aggrieved by the said order, the opposite party filed F.A.O. No. 15 of 2009 before the learned District Judge, Keonjhar. On 24.9.2009, while setting aside the impugned order, the appellate Court came to a finding that the suit property does not belong to the plaintiff and the so-called agreement dated 1.11.2008 being for a period of three years was compulsorily registrable and the same not having been registered, the plain¬tiff was not entitled to any relief on the basis thereof. As the plaintiff is not the rightful owner of the petrol pump, he cannot claim injunction against the rightful owner and the agreement being between the defendant and Bharat Petroleum Corporation Limited and the defendant is being the licensee and she has no power to enter into any agreement with any 3rd Party in respect of the petrol pump. Since the said petrol pump deals with high speed diesel which is an essential commodity governed by the Orissa High Speed Diesel (Dealers’ Licensing) Order, 1979, the plaintiff cannot sell the same without a licence in his favour as per the said Licensing Order and without any materials available on record, it cannot be held that the plaintiff has a prima facie case. Rather balance of convenience is in favour of the defendant opposite party since she is the licence of the petrol pump. If she will dispossessed from the petrol pump, she will sustain irreparable loss and injury. Considering the same, the appellate Court set aside the order of the trial Court. 7. Learned counsel for the petitioner submitted that the petitioner invested Rs.18,50,000/- and was in possession of the petrol pump. The appellate Court while setting aside the order of status quo passed by the trial Court, did not consider these facts. He further submitted that the agreement was an unregis¬tered one and it can be looked into for collateral purpose. 7. Learned counsel for the petitioner submitted that the petitioner invested Rs.18,50,000/- and was in possession of the petrol pump. The appellate Court while setting aside the order of status quo passed by the trial Court, did not consider these facts. He further submitted that the agreement was an unregis¬tered one and it can be looked into for collateral purpose. Therefore, the petitioner has a prima facie case and balance of convenience is in his favour as he is running the petrol pump and will sustain irreparable loss and injury if he will be dispos¬sessed during the pendency of the suit. 8. Learned counsel for the opposite party submitted that the licence is in favour of the opposite party and the plaintiff admitted the fact that the defendant is the proprietor of the petrol pump. Therefore, rightly the learned District Judge al¬lowed the appeal by setting aside the impugned order passed by the trial Court granting temporary injunction as there was no error apparent on the face of it. Therefore, the impugned order need not be interfered with by this Court. 9. From the rival submission of the parties and the materials available on record, it appears that the plaintiff filed the suit for permanent injunction and recovery of Rs.18,50,000/- on the basis of an agreement made before the notary public. The term of the agreement was for a period of three years. 10. In course of argument, learned counsel for both the parties agreed that the licence was granted by the Bharat Petroleum Corporation Limited in favour of the opposite party, who is the proprietor of the petrol pump and the said licence is continuing till date. As per the terms and conditions of the agreement with Bharat Petroleum Corporation Limited, the licensee has no authority to enter into an agreement with regard to the said petrol pump with a 3rd Party, as the licesee is only liable to the Corporation under the licence and owes some responsibility to discharge and to supply genuine products to the customers on behalf of the Petroleum Corporation. Since the licensee has to assayable all these to the Petroleum Corporation, she cannot enter into an agreement with a 3rd Party which will manage the petrol pump outlet on her behalf. The dispute is between the plaintiff and defendant. Since the licensee has to assayable all these to the Petroleum Corporation, she cannot enter into an agreement with a 3rd Party which will manage the petrol pump outlet on her behalf. The dispute is between the plaintiff and defendant. While the plaintiff claimed that he was in possession and management of the said petrol pump outlet, the defendant is the proprietor and the licence is in her favour and she is disputing the delivery of possession of the petrol pump to the plaintiff and any agreement between them. In view of such a situation, the appellate Court rightly set aside the order of the status quo passed by the trial Court while considering an appli¬cation for interim injunction in the suit. As there is no error apparent on the face of the impugned order and the parties have not yet adduced any evidence in support their contentions in the suit, at this stage this Court is not inclined to interfere with the impugned order. 11. In view of the above finding, the writ application is dismissed. No costs. Application dismissed.