Judgment O.A.NO.577 OF 2014: This Original Application praying that this Hon’ble Court be pleased to pass an order of interim protection by granting injunction restraining the respondents, their agents, or any persons or persons authorised by them from suspending or cancelling or terminating the Dispensing Pump and Selling Licence Memorandum of Agreement, dated 30.06.2012 pending preferring an Arbitral Claim before the Arbitral Tribunal. A.No. 4644 of 2014: This Application praying that this Hon’ble Court be pleased to appoint an Advocate Commissioner who shall take the assistance of the officials of GILBARCO Veeder-Root Pvt. Ltd., Lakshmi Nivas, No.87/2, Avadi Poonamallee Road, Moorthy Nagar, Chennai 600071 and anyone of the official attached to the of Weights and Measurements Department, St. Thomas Mount, Chennai to inspect the MPD located in the outlet of the applicant at NO. 230/25-A, Ottiambakkam Main Road, Sithalapakkam, Chennai 600 126 and to submit a report in a sealed cover with regard to the alleged malpractice, tampering or wrongful calibration of meeting unit purported to have taken place in the unit fixed in the outlet of the applicant pending consideration of the main O.A. These Applications coming on this day before this court for hearing the court made the following order: 1. Proprietor of M/s. Sivaya Nama Agencies, has filed this application for an interim injunction, restraining the respondents, their agents, or any person or persons, authorised by them, from suspending or cancelling or terminating the Dispensing Pump and Selling Licence Memorandum of Agreement, dated 30.06.2012, pending preferring an Arbitral Claim, before the Arbitral Tribunal. 2. Pending disposal of the above same, the applicant has also filed Application No. 4644 of 2014, for appointment of an Advocate Commissioner to take the assistance of the officials of GILBARCO Veeder-Root Pvt. Ltd., Lakshmi Nivas, No. 87/2, Avadi-Poonamallee Road, Moorthy Nagar, Chennai 600 071 and anyone of the official attached to the office of the Weights and Measurements Departments, St. Thomas Mount, Chennai, to inspect the MPD located in the outlet of the applicant at No.230/25-A, Ottiambakkam Main Road, Sithalapakkam, Chennai 600 126 and to submit a report in a sealed cover with regard to the alleged malpractice, tampering or wrongful calibration of metering unit MPD (Multi Product Dispenser) purported to have taken place in the unit fixed in the outlet of the applicant, pending consideration of the above application. 3. 3. In the supporting affidavits to the abovesaid applications, the retailer has submitted that pursuant to a letter of intent, dated 17.01.2012, a lease agreement, dated 21.06.2012, was executed between the applicant and the Territory Manger (Retail), Bharat Petroleum Corporation Ltd., Chennai, 2nd respondent, for 29 years, commencing from 01.07.2012 and ending with 30.06.2041. After obtaining necessary permission/certificate from competent authorities, petrol outlet became operational from 15.02.2013. There was no complaint, whatsoever, from any quarters, regarding petroleum products, marketed/supplied by the applicant. Periodical visits have also been made. The new age MPDS used to dispense fuel, is technically advanced and comes with several functions, viz., [1] recording of the last calibration date, (2) tampering of MPDS for short delivery and (iii) more delivery of products than the purchased quality from the respondents-Corporation. According to the applicant, tampering or malpractice is not possible in the present age MPDS and any tampering of the dispensing unit would be found by the K Factor recorded in the MDPS. 4. While the matter stood thus, Quality Control Cell (QCC) of the respondents-Corporation conducted an inspection of the retail outlet, on 13.06.2014 and submitted a report, dated 13.06.2014. Based on the said report, the 2nd respondent has issued a letter, dated 21.06.2014 (received by the applicant on 26.06.2014), calling for an explanation, with regard to the alleged deviations, viz., “(i) GVR Model MPD – GU244AKG913301LHE with S.No.1203P03304 4 MS nozzles) : W & M Seal in metering unit on B1 side found broken. (ii) 2 HSD nozzles (N2 & N3) of MPD Midco SFA 2422 with S.No. 12FB-0825-V were found to be delivering 30 ml. short for 5 litres of product delivered.” 5. Explanation, dated 07.07.2014, was submitted by the applicant and thereafter, the applicant has continued to run the outlet, without any hindrance. According to the applicant, there is no adulteration or stock variation. Measurements were under permissible limits and there was no malpractice and tampering. While the applicant was under the bona fide impression that the explanation, dated 07.07.2014, was accepted, shockingly, he came to understand that the respondents were contemplating to terminate the dealership agreement, arbitrarily, without considering the explanation in proper perspective and without reference to the Marketing Discipline Guidelines. According to the applicant, Marketing Discipline Guidelines issued, are binding on the dealers and the public sector marketing companies, which includes the respondents. According to the applicant, Marketing Discipline Guidelines issued, are binding on the dealers and the public sector marketing companies, which includes the respondents. In the above said circumstances, Application No. 577 of 2014, has been filed for an injunction, stated supra. 6. The applicant has contended that it has not tampered with MPDS and committed any of the irregularities, viz., critical, major and minor, nor violated any of the Marketing Discipline Guidelines. It has further contended that all the seals in the metering units and nossils, were intact, but the wires have given away due to nature of vagaries and in the abovesaid circumstances, when the applicant had incurred huge expenses, for commissioning and running the retail outlet and if termination is effected, contrary to the terms of the agreement, it would have far reaching civil consequences, causing irreparable hardship and no money compensation would be adequate. In order to protect and preserve the subject matter of arbitral agreement, the applicant has sought for an appointment of Advocate Commissioner, who shall take the assistance of Gilbarco. 7. On the above pleadings, Mr.R. Thiyagarajan, learned counsel for the applicant invited the attention of this Court to Clause 5.1.2 of the Marketing Discipline Guideline, 2012, which is as follows: “5.1.2. SHORT DELIVERY OF PRODUCTS:- a) With Weights & Measures Department Seals Intact Sales through the concerned dispensing unit to be suspended forthwith and recalibration and re-stamping to be done before recommencement of sales. b) With Weights & Measures Department Seals Tampered W & M Department seals are put on Metering Unit and Totaliser Unit with the help of a sealing wire and a lead seal which is embossed by W & M Inspector. The Seal would be deemed tampered in the following cases also: 1. Seal itself is missing. 2. Different seal has been put other than embossed by W & M Inspector. 3. Sealing wire is broken and not in one piece. In addition other situations which can lead to manipulation of delivery/quantity/totaliser may also be treated as tampering. Penal action to be taken even if the delivery is found to be correct or excess. In case of this irregularity sales from the concerned dispensing unit to be suspended, DU sealed. 3. Sealing wire is broken and not in one piece. In addition other situations which can lead to manipulation of delivery/quantity/totaliser may also be treated as tampering. Penal action to be taken even if the delivery is found to be correct or excess. In case of this irregularity sales from the concerned dispensing unit to be suspended, DU sealed. Samples to be drawn of all the products and sent to lab for testing.” B. Learned counsel for the applicant also drew attention of this Court to Chapter 8, which deals with the action to be taken by OMC under the Marketing Discipline Guidelines, wherein, irregularities have been classified into three categories, viz., critical, major and minor and the said Chapter reads as follows: “8.2 Critical Irregularities: The following irregularities are classified as critical irregularities: i. Adulteration of MS/HSD (5.1.1.) ii. Seals of the metering unit found tampered in the dispensing pumps. {5.1.2 (b)} iii. Totalizer seal of dispensing unit tampered or deliberately making the totalizer non functional or not reporting to the company if totalizer is not working. (5.1.3 read with 5.1.2) iv. Additional/Unauthorized fittings and gears inside the dispensing units/tampering with dispensing units. (5.1.4) v. Unauthorised storage facilities (5.1.5) vi. Unauthorised purchase / sales of products. (5.1.6) vii. Tank lorry carrying unauthorized product found under decantation at the RO (5.1.7) Action: Termination at the FIRST instance will be imposed for the above irregularities. 8.3 Major Irregularities: The following irregularities are classified as major irregularities: i. Refusal by the dealer to allow drawl of samples/carry out inspections. (5.1.8) ii. Non availability of reference density at the time of inspection. (5.1.9) iii. Selling of normal MS/HSD as branded fuels. (5.1.10) iv. Stock variation beyond permissible limits but sample passing quality tests. (5.1.11) v. Non maintenance of records since last inspection. (5.1.12) vi. Overcharging of MS/HSD/CNG Auto LPG (5.1.13) vii. Dealer operating the automated RO in manual mode without authorization. (5.1.16) Action: Except in case of (iii) Suspension of sales and supplies for 15 days for the first irregularity, 30 days for the second irregularity, and a third offence would lead to termination of the dealership. Action in case of (iii) above would be as under:- In the first instance OMC would impose a penalty of recovery of differential price since last inspection. Termination will be the action in case of 2nd instance. Action in case of (iii) above would be as under:- In the first instance OMC would impose a penalty of recovery of differential price since last inspection. Termination will be the action in case of 2nd instance. 8.4 Minor Irregularities: The following irregularities are classified as minor irregularities: i. Short delivery with Weights & Measure Departments’ seals intact where the dealer has not informed the OMC of this defect. {5.1.2(a)} ii. Non maintenance of specified records where records from last inspection are maintained but prior records are not available. (5.1.12) iii. Non provision of facilities like air, clean Toilet, Telephone and first aid box. (5.1.14) iv. Miscellaneous. a) Non display of authorized Retail Selling prices of MS/HSD/CNG/AUTO LPG. (5.1.15) b) Non display of density, opening stock of the day, sticker ensuring Zero before delivery on dispensing unit, name of product on each nozzle of MPD, contact details of authorized persons to be contacted in case of Complaint/ Grievance/Emergency. (5.1.17) c) Non maintenance of complaint book or not providing the same when demanded by the customer. (5.1.17) d) Poor housekeeping. (5.1.17) e) Driveway Salesmen at the ROs not in uniform/wearing badges. (5.1.17) (One or more irregularity under the above category a, b, c, d or e will be considered as one irregularity only for the purpose of taking action). Action: (except in case of (i) above): - Warning-cum-guidance letter in the first instance, Rs. 10000/- per irregularity on second instance and Rs. 25000/- per irregularity on third instance onwards. Action in case of (i) above would be as under:- First instance: Warning letter to be issued Second instance within one year of 1st instance: Rs. 10000/- per nozzle found delivering short. Third and subsequent instances within one year of 1st instance: Rs. 25000/- per nozzle found delivering short.” 9. Learned counsel for the applicant also referred to the Inspection Report of the Retail Outlet, by the Quality Control Cell, wherein, at Column No. 5, against the condition of Weights and Measure Seals, the Inspecting Team has reported as “not intact”. He therefore submitted that the seals were not broken, but they were observed as “not intact”. It is the contention of the learned counsel for the applicant that merely because it was “not intact”, it cannot be construed that the seal of the meter unit was broken or tampered. 10. He therefore submitted that the seals were not broken, but they were observed as “not intact”. It is the contention of the learned counsel for the applicant that merely because it was “not intact”, it cannot be construed that the seal of the meter unit was broken or tampered. 10. Learned counsel for the applicant further submitted that when the 2nd respondent caused a notice, dated 21.06.2014, alleging W & M seal in Metering Unit on B1 side, was broken and that there was shortage of 30ml for petro product delivered, a detailed explanation was given to the said authority, contending inter alia that the applicant hails from a rural family, he is not aware of any technicalities and it was also brought to the notice of the authorities that MPDs were provided by BPCL and keys were given to the dealers and that the said keys would be collected by MPD technicians, viz., officials of GILBARCO, who clean the filters, after opening the metering unit and inasmuch as filters are located near the seal, there is always a possibility for the technicians or officials of GILBARCO to damage the wire, while cleaning the filters. 11. Learned counsel for the applicant also submitted that the seal is affixed in a thin iron wire prone to rust, arising out of natural causes and therefore, when the Inspection Team had tried to check the seal, even a small thrust could have damaged the seal. According to him, Quality Control Cell (QCC) ought to have requested the Weights and Measures Department, to check the seal, to arrive at a prima facie conclusion, as to whether, it was broken and if so, any malpractice was done intentionally. 12. Laying stress that there was no tampering or wrongful calibration done in the meter unit, HT nossils, were within permissible limits, there was no adulteration and no complaints, whatsoever from the customers, who had experienced good satisfaction with the outlet, reflected in the Inspection report of the Quality Control Cell, learned counsel for the applicant submitted that the proposed unilateral action of the respondents, taking steps to terminate the agreement, would cause irreparable injury and in the abovesaid circumstances, prayed for an interim order to protect the interest of the applicant. In this context, reference was also made to the Arbitration and Conciliation Act, 1996, in particular, Section 9(ii) (e), which reads as follows: “(ii) for an interim measure or protection in respect of any of the following matters, namely:- ......... (e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.” 13. On the objection of the respondents-Corporation to Section 14 of the Specific Relief Act, 1963, to the effect that no injunction can be granted, in relation to a contract, which is in its nature determinable, learned counsel for the applicant reiterated that huge investments have been made for commissioning and running MPDs outlet and in this context, pointed out the length of contract, between the parties. That apart, he also submitted that if any termination is effected, reputation of the applicant would be affected. 14. Inviting the attention of this Court to Section 94(e) of the Civil Procedure Code, learned counsel for the applicant submitted that in order to prevent ends of justice from being defeated, the Court may, if it is so prescribed, make such order interlocutory orders as may appear to the Court to be just and convenient. Provision to Order XXVI Rule 9 of the Code of Civil Procedure Code was also pressed into service to support the contention that if local investigation is a requisite or proper for the purpose of elucidating any mater in dispute, the Court may issue a commission to such person as it thinks fit, directing the him to make such investigation and to report thereon to the Court. 15. Emphasis the words, “for the purpose of elucidating any matter in dispute” in the abovesaid provision, learned counsel for the applicant submitted that when no critical, major and minor irregularities have been noticed, by the Quality Control Unit and appointment of an Advocate Commissioner, would only facilitate the Corporation to arrive at a correct position, with regard to the physical condition of the meter unit. 16. 16. It is also his further contention that from the report, if the applicant is able to convince that he was not responsible for the defects noticed, there is no need for any reference to arbitration and it is his further contention that no prejudice would be caused to the Corporation, if an Advocate Commissioner is appointed. According to him, this Court, in exercise of powers under Section 9(ii)(e) of the Arbitration and Conciliation Act read with Order XXVI Rule 9 of the Civil Procedure Code, can issue any interim orders, as an interim protection. In the above said circumstances, he prayed for appropriate orders. 17. On the aspect, as to whether, a matter relating to suspension of supplies, to a dealer, on the ground of short delivery of motor spirit and high speed diesel, were stopped from all nozzles of the dispensing unit of the dealer, can be referred to an Arbitrator, in the light of any specific clause in the agreement, contemplating resolution of disputes, whatsoever nature, by arbitration, learned counsel for the applicant referred to a judgment in Hindustan Petroleum Corporation Ltd., v. M/s. Pinkeity Midway Petroleum reported in 2003 (3) CTC 438. In the said case, a dealer filed a suit, challenging the decision of the Corporation. The petitioner-Corporation has filed an application under Section 8 of the Arbitration and Conciliation Act, 1996. Setting aside the order of the Trial Court as well as the High Court, declining to refer the dispute to arbitration, the Supreme Court directed the parties to proceed, in accordance with said law. 18. Referring to a decision of the Delhi High Court in Vikrant Filling Station v. Union of India, learned counsel for the applicant submitted that on the identical facts of termination of dealership, on the grounds that a seal of W & M in metering unit, found broken and that there was a short delivery of 40 ml in 5 litres, the Delhi High Court interfered with the termination of licence. 19. He also referred to another decision of the Andhra Pradesh High Court in Ranjith Filling Station v. Indian Oil Corporation. 19. He also referred to another decision of the Andhra Pradesh High Court in Ranjith Filling Station v. Indian Oil Corporation. In the said case, when the dealer was found to be performing his dealership, with responsibilities and that when there was no complaint, whatsoever, particularly, variation in the delivery of seal from the dispensing unit, the Andhra Pradesh High Court found fault with the finding recorded against the dealer and accordingly, set aside the order of termination of dealership. Paragraphs 20 and 22 of the judgment were referred. 20. Though there was an arbitration in the dealership agreement, yet when a termination was effected, the Supreme Court, interfered with the same, in Harbanslal Sahnia v. Indian Oil Corporation reported in 2003 (2) SCC 107 , holding that the High Court can still exercise its discretion under Article 226 of the Constitution of India. Attention was also invited to a decision made in W.P. (C) No. 1503 of 2012, wherein, the Chattisgarh High Court has quashed the termination of dealership agreement. 21. Referring to the decision in Dua Supplies V. Indian Oil Corporation reported in 2006 (2) AWC 1126 (All.), learned counsel for the applicant submitted that when a dealer, had apprehended cancellation of dealership and filed an application under Section 9 of the Arbitration and Conciliation Act, 1996, the Court, after considering the merits of the case and the clauses of the agreement, granted an interim order, from cancelling the dealership. 22. Referring to the detailed explanation submitted by the applicant, apprehension on the part of the dealer and the need for appointment of an Advocate Commissioner, to find out, as to whether, the seals, fixed with the meter, are broken or not, due to nature of vagaries and further submitting that the said appointment would in no away prejudice the respondents, learned counsel for the applicant prayed for suitable orders. 23. Per contra, Mr. O.R. Santhanakrishnan, learned counsel for the respondents, by referring to the inspection report of the retail outlet, dated 13.06.2014, by the Quality Control Cell, submitted that the W & M Seal was found to be broken in the metering unit on B1 side of GVR, MPD. He further submitted that in the said report, the Inspection Team has observed, as follows: “1. He further submitted that in the said report, the Inspection Team has observed, as follows: “1. In the MPD GVR Model – GU244AKG 913301LHE with S.NO.1203P0330, all 4 nozzles delivering MS, it was found that W & M seal was broken in Metering Unit on B1 side. When enquired with the dealer, Mr.V.Ramkumar, he said that he does not know about the same. Similar was the reply from the supervisor, Mr.Chandrasekar. The delivery from all 4 MS nozzles were within permissible limits as all the nozzles were found delivering 20ml short per 5 ltr of product dispensed from each nozzle. In view of the above, sales were suspended in the DU GVR MPD with S.No.1203P0330. The totaliser readings A1 – 0429752, A2 – 0409731, B1 – 0254702 & B2 – 0326575 The above DU is duly sealed with seal numbers: A1 – 4104029, A2 – 5538895, B1 – 4104055, B2 – 5538833 TM (Retail) Chennai to take necessary action for the above, as per MDG/DPSL Agreement. 2. In the MPD Midco SFA2422 BSSPL with S.No.12FB-0825-V, having four nozzles delivering MS in 2 nozzles and HSD in 2 nozzles, it was observed that both the HSD nozzles, were delivering 30ml short for 5 ltr of product delivered in all three consecutive checks. These nozzles to be rectified and restamped by W & M.” 24. Learned counsel for the respondents submitted that the inspection and observation was done in the presence of the dealer and other officials. Attention of this Court was also invited to the Signatures of the Quality Control Cell (South), Chennai. When a show cause notice, dated 21.06.2014, was issued, the applicant has submitted his reply. Thus, when the Quality Control Cell, Chennai, has noticed that W & M seal was broken, in the Metering Unit on B1 side and short delivery of the product dispensed from the nozzles, after three consecutive checks made by the Quality Control Cell (South), it is not open to the applicant to contend that the seals were not broken. When the authorities have clearly noticed that the seal was broken and when the applicant himself was present and signed the report, it is not necessary to engage an Advocate Commissioner, as prayed for in Application No. 4644 of 2014. 25. When the authorities have clearly noticed that the seal was broken and when the applicant himself was present and signed the report, it is not necessary to engage an Advocate Commissioner, as prayed for in Application No. 4644 of 2014. 25. Learned counsel for the respondents further submitted that before filing an application, under Section 9 of the Arbitration and Conciliation Act, intention of the party, seeking recourse to arbitration, is a sine quo non, for invoking Section 9 of the said Act. According to him, neither in the explanation, dated 07.07.2014, nor in the supporting affidavit, filed under Section 9 of the Act, the applicant has expressed his intention to take recourse to arbitral proceedings. He submitted that even when the basic requirement itself is absent, both the applications deserve to be dismissed in limini. Reliance was placed on a decision of this Court in Apple Finance Ltd., v. Gayathri Sugar Complex Ltd., reported in 2004 (2) CTC 412 . 26. Referring to Sections 14 and 41 of the Specific Relief Act, 1963 and the terms and conditions of the contract, learned counsel for the respondents submitted that no injunction can be granted, arising out of a contract, which is in its nature, determinable and therefore, submitted that when the applicant is not entitled to specific performance of the contract, the Original Applications filed under the Arbitration and Conciliation Act, 1996, are not maintainable. He further submitted that when the High Court cannot interfere with the specific performance of the contract, in the light of the above provision, Section 9 application is not maintainable. 27. Taking this Court to Clauses 6, 7(a), 9, 10(J & K) and 12 of the Dealership Agreement and the provisions of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, learned counsel for the respondents submitted that when the dealer has agreed to abide by the conditions of the agreement and also the provisions of the Petroleum Act, 1934 and the Rules framed thereunder, the respondents-Company is entitled to take appropriate action, as per the statutory provisions and also the terms and conditions of the dealership agreement, which is in its nature, determinable. In this context, he also invited the attention of this Court to Clause 12 of the Agreement, which gives right to the respondents to terminate the agreement, without assigning any reasons, under certain circumstances. 28. Referring to Clause 5.1.2 of the Marketing Discipline Guidelines, 2012, learned counsel for the respondent submitted that the guidelines stipulate, as to when, there is tampering of seal, i.e., “(1) Seal itself is missing; (2) Different seal has been put other than embossed by W & M inspector; (3) Sealing wire is broken and not in one piece. In addition other situations which can lead to manipulation of delivery/quantity/ totaliser may also be treated as tampering”. According to him, in the case on hand, the seal was broken. As per Clause 8.2 of the said Guidelines, when seals of the metering unit are found tampered in the dispensing pump, it is a critical irregularity. The dealer has agreed to abide by the Petroleum Act, 1934 and the Rules framed thereunder, for the time being in force. He submitted that the explanation submitted by the applicant would be considered. For the abovesaid reasons, he prayed for dismissal of the application. 29. Heard the learned counsel for the parties and perused the materials available on record. 30. Dispensing Pump and Selling Licence Memorandum of Agreement, dated 30.06.2012, has been entered into between the Bharat Petroleum Corporation and the applicant. Clauses 6, 7(a), 9, 10(j) & (k), 11(C) and 12 of the Agreement are as follows: “6. The Company shall at its own expenses keep the said facilities in good repair but the Licensees shall be responsible to the company for all damage to the said facilities caused by the negligence or default of the Licensees or any of their employees or customers and shall make good the cost of repair of all such damage on demand, failing which it shall be recoverable by the Company from the licensees as Licence Fee in arrears. A certificate of General Manager for the time being in Chennai (name of the city) or of any other person nominated by the Company, as to the liability of the licensees to pay and as to the cost and charge incurred shall be final and binding between the parties. A certificate of General Manager for the time being in Chennai (name of the city) or of any other person nominated by the Company, as to the liability of the licensees to pay and as to the cost and charge incurred shall be final and binding between the parties. 7(a) The licensees shall be responsible to see that full and proper measure is delivered from the pumps installed by the company on the said premises and shall have no recourse against the Company from any loss, damages, cost, charge or expenses which the Licensees may at any time suffer by reason of the pumps delivering wrong measure or by reason of the Motor Spirit or HSD or any other petroleum products becoming contaminated in any way. If at any time the pumps shall be delivering wrong measure or shall develop any other defect the Licensees shall forthwith report such defect in writing to the Company and subject to sub-clause (b) hereunder shall not operate the defective pump or pumps further until the defect shall have been remedied. “9. Neither the licensees nor the licensees’ servants or agents shall interfere in any way with the working parts of the pumps or other equipment provided by the Company. 10(j). Not to do or permit to be done on the said premises any act or thing which may (i) endanger the grant or continuance of the Government Licence under the authority of which Motor Spirit or HSD or other petroleum products may be stored, or sold upon the said premises, or (ii) be contrary to the terms and conditions in which the said premises are held by the Company. 10(k). To abide by the Petroleum Act, 1934 and the rules framed thereunder for the time being in force as also any other laws, rules or regulations, either of the Government or of any local body as may be in force. 11. The Company hereby covenants and agrees with the Licensees as follows: (c) Provided the licensees faithfully observe and perform all stipulations in the agreement required of them hereunder will do its best at all times to supply the licensee with their requirements of the Motor Spirit or HSD and other Petroleum products. 11. The Company hereby covenants and agrees with the Licensees as follows: (c) Provided the licensees faithfully observe and perform all stipulations in the agreement required of them hereunder will do its best at all times to supply the licensee with their requirements of the Motor Spirit or HSD and other Petroleum products. The Company however, shall be under no liability of prevented from supplying Motor Spirit or HSD or any other petroleum products by any cause beyond its control or for stoppage of supplies under the terms hereof. 12. This Licence may be terminated without assigning any reason whatsoever by either party giving to the other not less than ninety days notice in writing to expire at any time of its intention to terminate it and upon the expiration of any such notice this Licence shall stand cancelled and revoked. The requisite period of notice may be reduced or waived by mutual consent. 13(a) Notwithstanding anything to the contrary herein contained the Company shall be at liberty to terminate this agreement forthwith upon or at any time on the happening of any of the events following: (vi) If the Licensees fail to make payment of their outstandings (vii) If the Licensees shall be guilty of a breach of any of the covenants and stipulations on their part contained in this Agreement.” 31. Reading of the abovesaid Clauses makes it abundantly clear that the licencee has agreed, not only to abide by the conditions of the agreement, but also the provisions of the Petroleum Act, 1934 and the rules framed thereunder, for the time being in force and also any other laws, rules or regulations, either of the Government or of any local body, as may be in force. 32. Dealership Agreement provides for termination, without assigning any reason whatsoever by either party giving to the other not less than ninety days notice in writing to expire at any time of its intention to terminate it and upon the expiration of any such notice. Marketing Discipline Guidelines, 2012, have been framed by the RO/SKO Dealership of Public Sector Marketing Companies, with effect from 8th January, 2013. Guidelines deal with several aspects like procedure for handling of products at retail outlets by dealers, stock/price controls, testing the employees, critical irregularities/minor irregularities/major irregularities, in respect of SKO dealers and many other things. Marketing Discipline Guidelines, 2012, have been framed by the RO/SKO Dealership of Public Sector Marketing Companies, with effect from 8th January, 2013. Guidelines deal with several aspects like procedure for handling of products at retail outlets by dealers, stock/price controls, testing the employees, critical irregularities/minor irregularities/major irregularities, in respect of SKO dealers and many other things. Clause 5.1.2 (b) deals with the tampering of seals and it reads as follows: “b) With Weights & Measures department Seals tampered:- W&M department seals are put on Metering unit and Totaliser unit with the help of a sealing wire and a lead seal which is embossed by W&M inspector. The seal would be deemed tampered in the following cases also: 1. Seal itself is missing 2. Different seal has been put other than embossed by W&M inspector. 3. Sealing wire is broken and not in one piece. In addition other situations which can lead to manipulation of delivery/quantity/totaliser may also be treated as tampering. Penal action to be taken even if the delivery is found to be correct or excess. In case of this irregularity sales from the concerned dispensing unit to be suspended, DU sealed. Samples to be drawn of all the products and sent to lab for testing.” 33. Clause 8.2, speaks about seals of the metering unit found tampered in the dispensing pumps. Irregularities mentioned in Clause 5.1.2(b) have been classified as critical irregularities. Action to be taken, if there is any critical irregularity, is termination, at the first instance. Clauses 8.5.6, 8.5.7, 8.5.8, 8.6, 8.7, 8.8 and 8.9 are as follows: “8.5.6 In respect of all cases of irregularities, a show cause notice, within 30 days from the date of inspection will be issued to the dealer indicating all the irregularities. However, in case samples of MS/HSD were drawn during inspection then the show cause notice will be issued within 30 days of test results. The show cause notice should be issued along with all reports and other documents, etc. which forms the basis of the notice. 8.5.7 The dealer would have a period of 15 days to reply from the date of receipt of show cause notice. The show cause notice should be issued along with all reports and other documents, etc. which forms the basis of the notice. 8.5.7 The dealer would have a period of 15 days to reply from the date of receipt of show cause notice. 8.5.8 Upon receipt of the reply to the show cause notice, the authorized officer of the OMC will review the charges levelled and the reply received and pass a speaking order preferably within a period of 45 days from the receipt of the reply. The speaking order shall indicate complete details of the irregularities committed the reply of the dealer and detailed reasons as to why the reply is acceptable/not acceptable to the official. 8.6 In case of Critical irregularities leading to termination, the Head of the State office/Regional office/Zonal office of the concerned OMC or their nominee before recommending/approving the termination of dealership will provide a personal hearing to the signatories to the dealership or their nominee(s). However, if signatories to the dealership or their nominee (s) fail to attend the hearing on an appointed date, one more chance will be given and after that the case may be processed ex party based on available facts. 8.7 in the case of all critical major and minor offences committed by the RO dealers under the Marketing Discipline Guidelines, other than the offences where the sales and supplies are to be stopped, sales and supplies to the RO will continue during the investigation period upto the time the appeal is disposed off. Under existing laws, Control Orders etc., various authorities, Acts / Rules of Central Government/State Government – in addition to Oil Company Officers – are empowered to carry out checks of the dealership for determining and securing compliance with such laws/Control Order. If any “malpractice or irregularity” is established by such authorities after checking, the same would also be taken as a “malpractice or irregularity” under these guidelines and prescribed action would be taken by the Oil Company, on receipt of advice from such authority. In cases of action taken for some of Major/Minor irregularities where there is only fine and no suspension of sales and supplies involved, such fine should be paid by the concerned dealers within a period of 30 days from the date of notice by the company. In cases of action taken for some of Major/Minor irregularities where there is only fine and no suspension of sales and supplies involved, such fine should be paid by the concerned dealers within a period of 30 days from the date of notice by the company. If not paid within this period, the action of suspension of sales and supplies would be taken from the 31st day for a period of 15 days. The fine should be paid within this suspension period failing which the suspension would be extended for another 15 days. If fine is not paid within the extended suspension period, the dealership would be terminated. 8.8 Authority to take action: i) The action of termination and all other critical irregularities will be approved by Regional head/State head/Zonal head of the concerned oil company (General Manager and above). However, in respect of SC/ST category dealerships termination will be approved by the Director (Marketing) HQ. ii) In respect of major irregularities, the approving authority would be an authorised officer not below the rank of Dy. General Manager at State/Region/Zonal level. iii) In respect of minor irregularities the approving authority would be the head of Territory/Regional/Divisional office. 8.9 Appellate proceedings: 1. In case of orders in critical irregularities, the dealer will have the right to appeal within a period of 30 days from the date of receipt of order, before the appropriate authority who will be empowered to decide the matter and the appeal shall be disposed off preferably within 90 days from the date of filling the appeal in the office of the appellate authority. 2. For all appeals in case of critical irregularities, except termination in case of SC/ST dealership, the appellate authority will be the ED (Retail) in the Head Quarters or any other ED level officer at the Head Quarter so nominated by the company. For all cases of termination of SC/ST dealerships, the appellate authority will be a Director other than Director (Mktg.) of the OMC.” 34. For all cases of termination of SC/ST dealerships, the appellate authority will be a Director other than Director (Mktg.) of the OMC.” 34. In the counter affidavit, Bharat Petroleum Corporation Ltd., respondent herein, has stated as follows: “(h) As regards Paragraph 8, I state it is wholly unnecessary to appoint an expert to find out the truth or otherwise with regard to the MPD seals allegations made against him or that this Hon’ble Court will not be in a position to appreciate whether the allegations made against the Applicant is true or not, whether the explanation offered by the Applicant is in coincidence with the unit which is available at the site, whether there is malpractice or tampering or wrongful calibration of the metering unit in the retail outlet of the applicant and unless the physical features of the unit provided at the outlet is secured or gathered this Hon’ble Court will not be in position to arrive at a conclusion. On the other hand, I state there is no need to appoint an Advocate Commissioner. The admitted fact is that the Weight and Measuring Seals in the metering unit of B1 side was found broken and 2 High Speed Diesel Nozzles were found to be delivering 30ml short for 5 litres of product delivered as seen from the Inspection report, dated 13.06.2014, signed by the dealer without protest. Therefore, there is no need to hold a roving enquiry to appoint an Advocate Commissioner to seek the assistance of the Officials of the Vendor of the Pump supplied to the Corporation and any of the Officials attached to the Office of the Weights and Measuring Department to inspect the MPD located in the outlet of the Applicant and to submit a report with regard to malpractice or tampering or wrongful calibration pending disposal of the main O.A. In fact it is not the case of the Corporation there is malpractice or tampering or wrongful calibration but it is a case where the Weights and Measures seal was found broken. The petitioner is trying to prove admitted facts which is not required to be proved and is bent on twisting the issue before this Hon’ble Court. The petitioner is trying to prove admitted facts which is not required to be proved and is bent on twisting the issue before this Hon’ble Court. Whileso there is no need to note the physical features of the unit, much less to secure so as to enable this Hon’ble Court to arrive at a conclusion by seeking the assistance of the Officials attached to the Weights and Measuring Department to inspect the Multi Product Dispenser in the retail outlet of the Applicant and to submit a report in a sealed cover with regard to the alleged malpractice, tampering or wrongful calibration of metering unit (MPD) (Multi Product Dispenser) in the unit fixed in the retail outlet of the applicant pending consideration of the main O.A.” 35. Material on record discloses that on 13.06.2014, inspection has been conducted by the Quality Control Cell (South), Bharat Petroleum. Against the Column 5 of the report, “Weights and Measures”, it is recorded as “Not Intact”. Observations of the Inspection Team, are as follows: “Joint observations made at the Retail Outlet M/s. Sivaya Nama Agencies, Sithalapakkam, by the Inspecting Officer from Quality Control Cell, and the Dealer/Dealer’s representative on 13.06.2014. HSO (N2) Nozzle of Dispensing Unit bearing Sr.No.12 FB 0825V was checked three times and it was observed that the said Nozzle was found to be delivering short delivery of i) 30 ml, ii) 30 ml & iii) 30 ml against the calibrated five litre measure. The Totaliser Reading is 920431 (Plastic Seal No., is 4104059) HSO (N3) Nozzle of Dispensing Unit bearing Sr.No.12 FB 0825V was checked three times and it was observed that the said Nozzle was found to be delivering short delivery of i) 30 ml, ii) 30 ml & iii) 30 ml against the calibrated five litre measure. The Totaliser Reading is 791784 (Plastic Seal No., is 553857)” 36. In the report enclosed at Page 123 of the typed set of papers and signed by the applicant himself, the following observations have been recorded, “1. In the MPD GVR Model – GU244AKG 913301LHE with S.No. 1203P0330, all 4 nozzles delivering MS, it was found that W & M Seal was broken in Metering Unit on B1 side. When enquired with the dealer, Mr.V.Ramkumar, he said that he does not know about the same. Similar was the reply from the Supervisor, Mr. Chandrasekar. In the MPD GVR Model – GU244AKG 913301LHE with S.No. 1203P0330, all 4 nozzles delivering MS, it was found that W & M Seal was broken in Metering Unit on B1 side. When enquired with the dealer, Mr.V.Ramkumar, he said that he does not know about the same. Similar was the reply from the Supervisor, Mr. Chandrasekar. The delivery from all 4 MS Nozzles were within permissible limits as all the nozzles were found delivering 20 ml short per 5 ltr of product dispensed from each nozzle. In view of the above, sales were suspended in the DU GVR MPD with S.No.1203P0330. The Totaliser readings: A1 – 0429752, A2 – 0409731, B1 – 0254702 & B2 – 0326575 The above DU is duly sealed with Seal numbers: A1 – 4104029, A2 – 5538895, B1 – 4104055, B2 – 5538833 TN (Retail) Chennai to take necessary action for the above, as per MDG/DPSL Agreement. 2. In the MPD Midco SFA2422 BSSPL with S.No.12FB-0825-V, having four nozzles delivering MS in 2 nozzles and HSD in 2 nozzles, it was observed that both the HSD nozzles, were delivering 30ml short for 5 ltr of product delivered in all three consecutive checks. These nozzles to be rectified and restamped by W & M.” 37. Though Mr. R. Thiagarajan, learned counsel for the applicant submitted that nozzles were intact and that therefore, there is no critical tampering of the meter, perusal of the report of the Quality Control Cell (South), made in the presence of the applicant, makes it clear that that in all the four nozzles, delivering MS, it was found that W & M Seal was broken in the Metering Unit on B1 side. Pursuant to the Inspection Report, the respondent has taken the following action, “(a) Samples of MS (Motor Spirit) and HSD (High Speed Diesel) were drawn from the retail outlet and sent to BPCL Tondiarpet Quality Assurance Lab for testing. (b) Sales of Motor Spirit and High Speed Diesel were stopped from all nozzles of the dispensing unit in which seal was found broken (GVR Dispensing Unit). Sales were also suspended in the nozzles of Midco MPD found delivering short measure.” 38. Show cause notice, dated 21.06.2014, has been issued to the applicant on the following deviation. “1. (b) Sales of Motor Spirit and High Speed Diesel were stopped from all nozzles of the dispensing unit in which seal was found broken (GVR Dispensing Unit). Sales were also suspended in the nozzles of Midco MPD found delivering short measure.” 38. Show cause notice, dated 21.06.2014, has been issued to the applicant on the following deviation. “1. GVR Model MPD – GU244AKG 913301LHE with S.No.1203P0330, (with 4 MS nozzles): W & M seal in Metering Unit on B1 side found broken. 2. 2 HSD Nozzles (N2 and N3) of MPD Midco SFA2422 with S.No.12FB-0825-V were found to be delivering 30ml short for 5 Ltr of product delivered.” 39. The applicant has been directed to submit his explanation within 15 days from the date of receipt of the show cause notice. The applicant has also submitted his explanation on 07.07.2014 and apprehending termination of the dealership agreement, he has filed the present application under Section 9 of the Arbitration and Conciliation Act, 1996. In his explanation, the applicant has mainly contended that there was no adulteration and stock variation, measurements were within the permissible limits and that there was a no malpractice and tampering. He has further contended that there is no violation of any Marketing Discipline Guidelines and all the seals in the metering units and nossils, were intact, but the wires have given away due to nature of vagaries. Keys were collected by MPD technicians, viz., officials of GILBARCO, who had cleaned the filters, after opening the metering unit and that when the filters are located near the seal and there is always a possibility for them to damage the wire, while cleaning the filters. According to him, there was no complaint from any customers. In the abovesaid circumstances, he has submitted that appointment of Advocate Commissioner would only elucidate the matter in controversy, with regard to the alleged violation of the conditions of dealership agreement and Marketing Discipline Guidelines, 2012. 40. As the terms and conditions of the Dealership Agreement and the relevant Marketing Discipline Guidelines, extracted supra, let me consider the legal objections as to the maintainability of the present applications, on the grounds, inter alia, as to whether, the party to the agreement, for taking recourse to Section 9 of the Arbitration and Conciliation Act, 1996, has expressed his intention for any reference to arbitration. Clause 19(a) of the Dealership Agreement, deals with arbitration and it reads as follows: “Any dispute or difference of any nature whatsoever, any claim, cross-claim, counter-claim or set off of the Company against the Licensee or regarding any right, liability, act, omission or account of any of the parties hereto arising out of or in relation to this agreement shall be referred to the Sole Arbitration of the Director (Marketing) of the Company or of some Officer of the Company who may be nominated by the Director (Marketing). The Licensee will not be entitled to raise any objection to any such arbitrator on the ground that the arbitrator is an officer of the Company or that he has dealt with the matters to which the contract relates or that in the course of his duties as an Officer of the Company, he had expressed view on all or any other matters in dispute or difference. In the event of the arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, the Director (Marketing) as aforesaid at the time of such transfer, vacation of office or inability to act may in the discretion of the Director (Marketing) designate another person to act as arbitrator in accordance with the terms of the agreement to the end and intent that the original Arbitrator shall be entitled to continue the arbitration proceedings notwithstanding his transfer of vacation of office as an officer of the Company if the Director (Marketing) does not designate another person to act as arbitrator on such transfer, vacation of office or inability of original arbitrator. Such person shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also a term of this contract that no person other than the Director (Marketing) of the Company or a person nominated by such Director (Marketing) as aforesaid shall act as arbitrator hereunder. Such person shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also a term of this contract that no person other than the Director (Marketing) of the Company or a person nominated by such Director (Marketing) as aforesaid shall act as arbitrator hereunder. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the agreement subject to the provisions of the Arbitration & Conciliation Act, 1996 or any statutory modification or re-enactment thereof and the rules made thereunder for the time being in force shall apply to the arbitration proceedings under this clause.” Clause 19(g) of the Dealership Agreement, deals with jurisdiction of this Court. 41. Record of proceedings shows that in Application No.577 of 2014, filed for interim injunction, notice and private notice has been ordered on 23.07.2014. 42. In M/s. Sundaram Finance Limited v. M/s. NEPC India Limited reported in AIR 1999 SC 565 , the Apex Court, at Paragraph 19, held as follows: “19. When a party applies under Section 9 of the 1996 Act it is implicit that it accepts that there is a final and binding arbitration agreement in existence. It is also implicit that a dispute must have arisen which is referable to the arbitral tribunal. Section 9 further contemplates arbitration proceedings taking place between the parties. Mr. Subramaniam is, there-fore, right in submitting that when an application under Section 9 is filed before the commencement of the arbitral proceedings there has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings if, at the time when the application under Section 9 is filed, the proceedings have not commenced under Section 21 of the 1996 Act. In order to give full effect to the words “before or during arbitral proceedings” occurring in Section 9 it would not be necessary that a notice invoking the arbitration clause must be issued to the opposite party before an application under Section 9 can be filed. In order to give full effect to the words “before or during arbitral proceedings” occurring in Section 9 it would not be necessary that a notice invoking the arbitration clause must be issued to the opposite party before an application under Section 9 can be filed. The issuance of a notice may, in a given case, be sufficient to establish the manifest intention to have the dispute referred to arbitral tribunal, but a situation may so demand that a party may choose to apply under Section 9 for an interim measure even before issuing a notice contemplated by Section 21 of the said Act. If an application is so made the Court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration. Once it is so satisfied the Court will have the jurisdiction to pass orders under Section 9 giving such interim protection as the facts and circumstances warrant. While passing such an order and in order to ensure that effective steps are taken to commence the arbitral proceedings, the Court while exercising jurisdiction under Section 9 can pass conditional order to put the applicant to such terms as it may deem fit with a view to see that effective steps are taken by the applicant for commencing the arbitral proceedings. What is apparent, however, is that the Court is not debarred from dealing with an application under Section 9 merely because no notice has been issued under Section 21 of the 1996 Act.” 43. In Firm Ashok Traders v. Gurumukh Das Saluja reported in 2004 (3) SCC 155 , the Supreme Court, at Paragraphs 17 and 18, held as follows: “17. There are two other factors which are weighing heavily with us and which we proceed to record. As per the law laid down by this Court in M/s. Sundaram Finance Ltd.,‘s (cited supra) an application under Section 9 seeking interim relief is maintainable even before commencement of arbitral proceedings. What does that mean? In M/s. Sundaram Finance Ltd.,’s (cited supra) itself the Court has said- “It is true that when an application under Section 9 is filed before the commencement of the arbitral proceedings there has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings”. What does that mean? In M/s. Sundaram Finance Ltd.,’s (cited supra) itself the Court has said- “It is true that when an application under Section 9 is filed before the commencement of the arbitral proceedings there has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings”. Section 9 permits application being filed in the Court before the commencement of the arbitral proceedings but the provision does not give any indication of how much before. The word ‘before’ means inter alia, ‘ahead of; in presence or sight of; under the consideration or cognizance of. The two events sought to be interconnected by use of the term ‘before’ must have proximity of relationship by reference to occurrence; the later event proximately following the preceding event as a foreseeable or ‘within sight’ certainty. The party invoking Section 9 may not have actually commence the arbitral proceedings but must be able to satisfy the Court that the arbitral proceedings are actually contemplated or manifestly intended (as M/s Sundaram Finance Ltd. puts it) and are positively going to commence within a reasonable time. What is a reasonable time will depend on the facts and circumstances of each case and the nature of interim relief sought for would itself give an indication thereof. The distance of time must not be such as would destroy the proximity of relationship of the two events between which it exists and elapses. The purposes of enacting Section 9, read in the light of the Model law and UNCITRAL Rules is to provide ‘interim measures of protection’. The order passed by the Court should fall within the meaning of the expression ‘an interim measure of protection’ as distinguished from an all-time or permanent protection. 18. Under the A & C Act 1996, unlike the predecessor Act of 1940, the arbitral tribunal is empowered by Section 17 of the Act to make orders amounting to interim measures. The need for Section 9, in spite of Section 17 having been enacted, is that Section 17 would operate only during the existence of the arbitral tribunal and its being functional. The need for Section 9, in spite of Section 17 having been enacted, is that Section 17 would operate only during the existence of the arbitral tribunal and its being functional. During that period, the power conferred on the arbitral tribunal under Section 17 and the power conferred by the Court under Section 9 may overlap to some extent but so far as the period pre and post the arbitral proceedings is concerned the party requiring an interim measure of protection shall have to approach only the Court. The party having succeeded in securing an interim measure of protection before arbitral proceedings cannot afford to sit and sleep over the relief, conveniently forgetting the ‘proximately contemplated’ or ‘manifestly intended’ arbitral proceedings itself. If arbitral proceedings are not commenced within a reasonable time of an order under Section 9, the relationship between the order under Section 9 and the arbitral proceedings would stand snapped and the relief allowed to the party shall cease to be an order made ‘before’ i.e. in contemplation of arbitral proceedings. The Court, approached by a party with an application under Section 9, is justified in asking the party and being told how and when the party approaching the Court proposes to commence the arbitral proceedings. Rather, the scheme in which Section 9 is placed obligates the Court to do so. The Court may also while passing an order under Section 9 put the party on terms and may recall the order if the party commits breach of the terms.” 44. In Apple Finance Ltd., V. Gayathri Sugar Complex Ltd., reported in 2004 (2) CTC 412 , on the facts and circumstances of case, at Paragraph 5, held as follows: “5. As already noted, the applicant is yet to commence the arbitral proceedings. It is, true that not much time had elapsed from the date of the order (i.e.) 22.12.2003 passed in this case, till date. But however, the fact remains that this application was filed before this Court on 3.4.2003 and listed before this Court on 7.4.2003. Even at that time itself the applicant had expressed that he is proposing to take steps to invoke arbitration. Therefore he had expressed his manifest intention to go before the arbitrator. But however, the fact remains that this application was filed before this Court on 3.4.2003 and listed before this Court on 7.4.2003. Even at that time itself the applicant had expressed that he is proposing to take steps to invoke arbitration. Therefore he had expressed his manifest intention to go before the arbitrator. The Supreme Court in M/s. Sundaram Finance Limited v. M/s. NEPC India Limited, AIR 1999 SC 565 , has held that the Court can even pass a conditional order on the applicant to see that he taken effective steps for commencing the arbitral proceedings. I extract hereunder the relevant portion from that judgment. “If an application is so made, the Court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration. Once it is so satisfied, the Court will have the jurisdiction to pass orders under Section 9 giving such interim protection as the facts and circumstances warrant. While passing such an order and in order to ensure that effective steps are taken to commence the arbitral proceedings, the Court while exercising jurisdiction under Section 9 can pass a conditional order to put the applicant to such terms as it may deem fit with a view to see that effective steps are taken by the applicant for commencing the arbitral proceedings.” Therefore reading both the judgments tougher, it is possible to hold that the applicant has a duty to commence arbitral proceedings as expeditiously as possible once he seeks the intervention of the Court under Section 9 of the Act. If the case on hand is viewed in the light of the materials referred to above, it is clear that there is total inaction on the part of the applicant from April, 2003 till date in commencing arbitral proceedings and I see no reason as to why this inaction on his part from 7.4.2003 till 22.12.2003 and from 22.12.2003 till date cannot be taken note of to decide whether the applicant has any intention at all to go for the arbitral proceedings. On the facts noted, my answer is that the applicant has no intention at all to commence the arbitral proceedings. No reasons are available as to why the applicant has not commenced arbitral proceedings till now. On the facts noted, my answer is that the applicant has no intention at all to commence the arbitral proceedings. No reasons are available as to why the applicant has not commenced arbitral proceedings till now. Therefore, the judgment of the Supreme Court referred to supra namely, Firm Ashok Traders v. Gurumukh Das Saluja reported in 2004 (3) SCC 155 , squarely applies to the case on hand. Holding that the inordinate delay in commencing the arbitration proceedings has snapped the order already passed in the case, this application stands dismissed.” 45. In Wescare (I) Ltd., Chennai v. Subuthi Finance Ltd., Chennai reported in 2011 (5) MLJ 569 , after considering Firm Ashok Traders’ case (cited supra) and Apple Finance Ltd.,’s case (cited supra) and on the facts and circumstances of the case that the applicant had not taken any steps for reference to the Arbitrator, though an interim order was obtained, this Court held as follows: “In the light of the above discussions and decisions, if the present application is considered, it is not in dispute that the applicant approached this Court in May 2007 and obtained an interim order under Section 9 in three of the above four applications filed by them. But till today, no steps have been taken to commence arbitration proceedings and it was only submitted by the learned counsel for the applicant that the application filed by them under Section 11 of the Act for the appointment of arbitrator is in SR stage and the application is yet to be numbered. This only shows that there is no manifest intention on the part of the applicant to commence arbitration proceedings. Their promptness and eagerness in filing Section 9 (sic 11) applications and numbering them is not reflected in numbering the Section 9 (sic 11) application. Therefore, this delay in numbering the Section 9 application is to be held against the applicant.” 46. In yet another decision made in Sundaram Finance Ltd., v. M.K. Khunhabdulla reported in 2014 (3) CTC 159 , this Court held as follows: “At the outset, this Court pertinently points out that to invoke the ingredients of Section 9 of the Arbitration and Conciliation Act, 1996, there ought to be a dispute which had arisen with respect to the subject matter of the agreement and referable to an arbitration. There must be a manifest intention on the part of applicant to take recourse to the arbitral proceedings at the time of filing an application under Section 9 of the Act. It cannot be brushed aside that in the instant case, as per Article 22 of the Loan Agreement, the Appellant/Applicant is empowered to initiate arbitral proceedings by having a sole arbitrator upon its Managing Director and further, it is specifically averred by the Appellant/Applicant in the Application that it undertakes to initiate arbitration proceedings within a reasonable time. In reality, the issue of a notice in a particular case would suffice to establish a manifest intention to have the dispute referred to an Arbitration. An Application under Section 9 can be entertained before a court of Law only if in a given case, the subject matter of Arbitration comes within its ambit of original civil jurisdiction both in terms of pecuniary and territorial ones.” 47. Now, let me consider the decisions relied on by the learned counsel for the applicant. 48. In Hindustan Petroleum Corporation Ltd., v. M/s. Pinkeity Midway Petroleum’s reported in 2003 (3) CTC 438, at Paragraphs 23 and 24, held as follows: “23. Therefore, in our opinion, the courts below have erred in coming to the conclusion that the appellant did not have the legal authority to investigate and proceed against the respondent for its alleged misconduct under the terms of the Dealership Agreement. We are also of the opinion that if the appellant is satisfied that the respondent is indulging in short-supply or tampering with the seals, it will be entitled to initiate such action as is contemplated under the agreement like suspending or stopping the supply of petroleum products to such erring dealer. If in that process any dispute arises between the appellant and such dealer, the same will have to be referred to arbitration as contemplated under Clause 40 of the Dealership Agreement. 24. This brings us to consider the last question involved in this appeal, namely, the maintainability of the revision petition before the High Court under Section 115 of the CPC. 24. This brings us to consider the last question involved in this appeal, namely, the maintainability of the revision petition before the High Court under Section 115 of the CPC. The High Court by the impugned order has come to the conclusion that its jurisdiction to entertain a revision petition would only be available if the order impugned is such that if it is allowed to stand, it would occasion failure of justice or cause an irreparable injury to a party against whom the said order is made. In support of this finding, the High Court has relied upon certain judgments of this Court. Having perused the said judgments, we are of the opinion that the findings given in those judgments do not apply to the facts of this case at all. We have come to the conclusion that the Civil Court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. Therefore, we are of the opinion that the trial court failed to exercise its jurisdiction vested in it under Section 115 of the C.P.C. when it rejected the application of the appellant filed under Sections 8 and 5 of the Act. In such a situation, refusal to refer the dispute to arbitration would amount to failure of justice as also causing irreparable injury to the appellant. For the said reason, we are of the opinion that the High Court has erred in coming to the conclusion that the appellant was not entitled to the relief under Section 115 CPC.” 49. The decision relied on by the learned counsel for the applicant in Vikrant Filling Station v. Union of India, has been rendered in a Writ Petition, challenging the order of termination of dealership. The other decision, relied on by the learned counsel for the applicant in Ranjith Filling Station v. Indian Oil Corporation, also relates to challenge to an order of termination of dealership in writ jurisdiction. Decisions made in Harbanslal Sahnia v. Indian Oil Corporation reported in 2003 (2) SCC 107 and Agarwal Fuels v. Indian Oil Corporation [W.P.No.1533 of 2012, dated 17.06.2013], are also on the same footing. 50. Decisions made in Harbanslal Sahnia v. Indian Oil Corporation reported in 2003 (2) SCC 107 and Agarwal Fuels v. Indian Oil Corporation [W.P.No.1533 of 2012, dated 17.06.2013], are also on the same footing. 50. Though the decision of Allahabad High Court in Dua Supplies v. Indian Oil Corporation reported in 2006 (2) AWC 1126 (All.), held that, “it is the duty of the Court, while exercising jurisdiction under Section 9 to pass an order granting interim protection in cases where notice under Section 21 of the Act, has not been issued to the applicant to take effective steps for commencing the arbitral proceedings.”, the said judgment is persuasive in nature. 51. As rightly contended by the learned counsel for the respondent-Corporation, though notice has been ordered as early as on 23.07.2014, there is no manifest intention, on the part of the applicant, for commencement of arbitration proceedings. Therefore, decisions made in Sundaram Finance’s case (cited supra) and Firm Ashok Traders’ case (cited supra), are squarely applicable to the case on hand. 52. Section 14 of the specific Relief Act, 1963, deals with contracts not specifically enforceable and it reads as follows: “(1) The following contracts cannot be specifically enforced, namely:- (a) a contract for the non-performance of which compensation in money is an adequate relief; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) a contract which is in its nature determinable; (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. (2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit. (3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases:- (a) where the suit is for the enforcement of a contract, - (i) to execute a mortgage or furnish any other security for security for securing the repayment of any loan which the borrower is not willing to repay at once: Provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or (ii) to take up and pay for any debentures of a company; (b) where the suit is for, - (i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or (ii) the purchase of a share of a partner in a firm, (c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land: Provided that the following conditions are fulfilled, namely:- (i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building of work; (ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and (iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.” 53. Section 41 deals with injunction when refused. Section 41(e) states that an injunction cannot be granted to prevent the breach of a contract, the performance of which, would not be specifically enforced. 54. Reading of the terms and conditions of the Dealership Agreement, makes it clear that the contract is determinable in nature. Parties have agreed for termination of the contract, by issuance of notice. In Parveen Travels (P) Ltd., v. Visteon Automotive Systems India (P) Ltd., v. Visteon Automotive Systems India (P) Ltd., reported in 2002 (Suppl.) Arb. 54. Reading of the terms and conditions of the Dealership Agreement, makes it clear that the contract is determinable in nature. Parties have agreed for termination of the contract, by issuance of notice. In Parveen Travels (P) Ltd., v. Visteon Automotive Systems India (P) Ltd., v. Visteon Automotive Systems India (P) Ltd., reported in 2002 (Suppl.) Arb. LR 386 (Madras), this Court has considered, as to whether, an order of injunction can be granted, when there is a breach of contract, which provides for termination, at the instance of either party, by giving notice. At Paragraph 10, this Court held as follows: “10. In my view, the decisions relied on by the learned senior counsel are clearly distinguishable having regard to the terms and conditions of the agreement between the parties in the present case. Clause 22 clearly provides that the agreement could be terminated by either party by giving not less than a month’s time to the other party. The clause further provides as follows: “Notwithstanding anything contained in any other clause, Visteon reserves the right to terminate the contract at any time without notice, due to any failure on the part of the contractors in discharging his obligations under the contract or in the event of his becoming insolvent or going into liquidation. The decision of Visteon about the failure on the part of the contractor shall be final and binding on the contractor.” It is not necessary to interpret the latter portion of Clause 22. So far as Clause 22 first sentence is concerned, there is clear right given to either party to terminate the agreement by giving not less than a month’s notice in writing to the other party. Even with regard to this, I do not want to express any opinion except to say that the prayer for injunction cannot be granted at this stage. No doubt, it is argued by the learned senior counsel that what is contemplated is one of prevention and not restoration. Having regard to the provisions of Sections 14(1)(a), (c) and 41(e) of the Specific Relief Act, an interim order in favour of the applicant cannot be granted. As regards the application of Section 14(1) and 41(e) of the Specific Relief Act and on the facts and circumstances of the case, at Paragraphs 13, this Court held as follows: “13. Having regard to the provisions of Sections 14(1)(a), (c) and 41(e) of the Specific Relief Act, an interim order in favour of the applicant cannot be granted. As regards the application of Section 14(1) and 41(e) of the Specific Relief Act and on the facts and circumstances of the case, at Paragraphs 13, this Court held as follows: “13. No doubt, as pointed out by the learned senior counsel, this is not a case of restoration, but one of termination. But, as already noticed, the clause governing the parties in the case decided by the Bench in Secretary of State v. Volkart Brothers [ AIR 1927 Mad. 513 ] clearly provided for renewal on payment of some specified money and the terms to be agreed upon. That is not the case here. By its very nature the contract is terminable and Section 14(1) and 41(e) of the Specific Relief Act are clearly attracted.” At Paragraph 14, this court has also referred a decision made in Rajasthan Breweries Ltd., v. Stroh Brewery reported in AIR 2000 Del. 450 = 2000 (3) Arb.L.R. 509 (Delhi), which is as follows: “In Rajasthan Breweries Ltd.’s case (supra) the Delhi High Court has referred to the decision of India Oil Corporation Ltd.’s case (supra) and followed the same. In that case also the agreements between the parties were terminable by the respondent on happening of certain events and from the very nature of the agreements, which were private commercial transactions, they could be terminated even without assigning any reason by serving a reasonable notice. It was further observed by the Bench of the Delhi High Court that, in case ultimately it was found that the termination was bad in law or contrary to the terms of the agreement or of any understanding between the parties or for any other reason the remedy of the appellants would be to seek compensation for wrongful termination but not a claim for specific performance of the agreement and therefore there could be no injunction, particularly when there was statutory prohibition for grant of injunction with respect to a contract determinable in nature.” 55. Similar view has been expressed by a learned single Judge made in Glory Jeeva Rita v. Executive Director, Bharat Petroleum Corporation, Mumbai, reported in 2008 (4) MLJ 1236 . Similar view has been expressed by a learned single Judge made in Glory Jeeva Rita v. Executive Director, Bharat Petroleum Corporation, Mumbai, reported in 2008 (4) MLJ 1236 . In the reported judgment, Bharat Petroleum Corporation has terminated LPG Dealership of the applicant therein, after considering her explanation. Application under Section 9 of the Arbitration and Conciliation Act, 1996, was filed and an interim order was obtained. In the supporting affidavit filed for vacating the interim order, Territory Manager of the Corporation has stated that as per the distributorship agreement, dated 13.7.2004, the agreement is determinable by its very nature and therefore, she is not entitled to specifically enforce the agreement, as per Section 41 of the Specific Relief Act. It was also submitted that even if the applicant therein succeeds before the Arbitrator, she is only entitled to compensation and not restoration of agency. Upon perusal for LPG Distribution Agreement, subject matter of the said application, filed under Section 9 of the Arbitration and Conciliation Act, 1996, at Paragraph 19, this Court observed as follows: “19. A perusal of the distributorship agreement reveals that Clause 28 of the agreement deals with the termination of the agreement under sub clause (e) of Clause 28, the Corporation is at liberty in its entire discretion to terminate the agreement if any information given by the distributor in her application for appointment as a distributor shall be found to be untrue or incorrect in any material particular. This right of the corporation to terminate the agreement shall be without prejudice to the rights or remedy against the distributor. In the event of the Corporation terminating the agreement, it shall not be liable to pay for any loss or compensation in respect of such termination. Further, Clause 29 enables both the parties namely, the corporation or distributor to terminate the agreement on giving 30 days notice to the other party without assigning any reason for such termination. Clause 38 deals with referring the dispute to arbitration to the sole arbitration of the Director (Marketing) of the corporation or some other officer of the corporation who may be nominated by the Director (Marketing). At Paragraph 30, this Court has reproduced the principles laid down in Modi Rubber Ltd., v. Guardian International Corporation reported in 2007 (2) Raj. 556 (Del.), which are as follows: “208. At Paragraph 30, this Court has reproduced the principles laid down in Modi Rubber Ltd., v. Guardian International Corporation reported in 2007 (2) Raj. 556 (Del.), which are as follows: “208. The next issue which deserve to be considered is the nature of relief to which a party may be entitled. Section 9 confers a discretionary power on the Court which has to be exercised sparingly and cautiously, the object of the statutory provision is to be found in the words of the Section itself which confers jurisdiction on a Court to pass orders of interim measures of protection for the preservation, interim custody or sale of goods which are the subject matter of the arbitration agreement; securing the amount in dispute in the arbitration proceedings; detention, preservation or inspection of a property which is the subject matter of the dispute in arbitration; authorise any person to enter upon a land or building; taking of samples or making of observation or experiment to be tried as may be necessary or expedient to be tried as may be necessary or expedient for the purpose of obtaining full information or evidence. The Court is empowered to even appoint a receiver in respect of the property which is the subject matter of the arbitration and take such interim measures of protection as may be just and convenient. The powers granted on the court are far reaching. The statute has specifically mandated that the Court would have the same power for making such orders as it has for the purposes and in relation to any proceedings before it. 209. It is also necessary to examine the parameters within which the Court shall exercise such power. The manner and limits of exercise of such discretion have fallen for consideration in several judicial pronouncements and the principles laid down can be usefully called out thus: (i) Even though Section 9 does not embody the ingredients of Order 38 Rule 5 of the Code of Civil Procedure, 1908 nor the conditions of the Order 38 Rule 5 can be read into it, however for the exercise of discretion thereunder, the Court can take guidance from the provisions of Order 39 as well as Order 38 of the Code of Civil Procedure, 1908. (Ref: 2004(111) DLT 816 : 2004(4) AD (Delhi) 618 : 2004 (75) DRJ 104 ; 2004(2) R.A.J. 484 (Rite Approach group Ltd. v. Rosoboron Export) (ii) The scope of Section 9 of the Arbitration & Conciliation Act, 1996 is in pari materia with the provisions of Order 39 of the Code of Civil Procedure, 1908. The power vested in the Court by virtue of Section 9 must be exercised in consonance with equity which tempers the grant of discretionary relief as the relief of interim injunction is wholly equitable in nature. (Ref: Gujarat Bottling Co. Ltd. v. Coca Cola and Others Gujarat Bottling Co. Ltd. v. Coca Cola and Others Gujarat Bottling Co. Ltd. v. Coca Cola and Others (1995) 5 SCC 545 ; Reliance Infocomm Ltd. v. Bharat Sanchar Nigam Ltd. Reliance Infocomm Ltd. v. Bharat Sanchar Nigam Ltd. Reliance Infocomm Ltd. v. Bharat Sanchar Nigam Ltd. 2004 (115) DLT 219 : 2004 (8) AD (Deli) 361 : 2005 (1) RAJ 52) (iii) The intention of the defendant is a sine qua non for invoking Section 9 where the claim is to secure the amount in dispute in arbitration, The Court can take guidance from Order 38 Rule 5 of the C.P.C. And Sections 18 and 41 of the Arbitration Act, 1940, for considering – whether such a relief as has been prayed for in the petition under Section 9 deserves to be granted. (Ref: Global Co. v. National Fertilisers Ltd. Global Co. v. National Fertilisers Ltd. Global Co. v. National Fertilisers Ltd. AIR 1998 Delhi 397 : 1998 (3) RAJ 278 , Malakumar Engineers Pvt. Ltd. (MKE) v. B. Seenaiah and Co. (Projects) Ltd. Malakumar Engineers Pvt. Ltd. (MKE) v. B. Seenaiah and Co. (Projects) Ltd. Malakumar Engineers Pvt. Ltd. (MKE) v. B. Seenaiah and Co. (Projects) Ltd. 2005 (117) DLT 183 : 2005 (2) AD (Delhi) 592 : 2005 (1) RAJ 327) (iv) Protection under Section 9 can be granted only when a prima facie case is made out and balance of convenience and possibility of irreparable loss and injury to the petitioner is made out. Section 23 of the Specific Relief Act, 1963 provides that the provision of liquidated damages is not a bar to the specific performance of the contract. Section 23 of the Specific Relief Act, 1963 provides that the provision of liquidated damages is not a bar to the specific performance of the contract. The general rule of equity is also that if a thing is agreed to be done, though there is a penalty attached thereto secure its performance, yet the Court in its discretion enforces specific performance thereof. The jurisdiction of the Court is discretionary and must be exercised on such judicial principles when balance of convenience and possibility of irreparable loss and injury is shown to the plaintiff (Ref: Geep Batteries (India) Pvt. Ltd. v. Gillette (India) Ltd Pvt. Ltd. v. Gillette (India) Ltd Pvt. Ltd. v. Gillette (India) Ltd 2005 (120) DLT 387 : 2005 (2) RAJ 592.; Techno Construction v. Kunj Vihar Cooperative Group Housing Society Techno Construction v. Kunj Vihar Cooperative Group Housing Society Techno Construction v. Kunj Vihar Cooperative Group Housing Society 2005 (118) DLT 591 : 2005 (81) DRJ 233 : 2005 (1) R.A.J. 640) (v) The discretionary power of the Court under Section 9 has to be exercised by the Court sparingly and cautiously, bearing in mind that the objective of the Court is to create an alternative dispute redressal mechanism and consequently, the interference by the Court is not required at every stage. Whenever the powers of the Courts are invoked under Section 9 with the objective of supporting the arbitration, the Court must act with alacrity. However, this would not justify grant of interim orders and relief on the mere asking. The scope and object of Section 9 of the statute is to grant such relief by way of interlocutory injunction so as to mitigate the risk or injustice to the petitioner during the period before that uncertainty can be resolved. Its object is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages which would be recoverable in the action if the uncertainty were resolved in his favour at the trial. (Ref: AIR 1955 SC 2372 ; 2006 (4) AD (Delhi). 38; 2006 (2) RAJ 414). Its object is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages which would be recoverable in the action if the uncertainty were resolved in his favour at the trial. (Ref: AIR 1955 SC 2372 ; 2006 (4) AD (Delhi). 38; 2006 (2) RAJ 414). In Shaw v. Him Neel Brewaries Ltd. Shaw v. Him Neel Brewaries Ltd. Shaw v. Him Neel Brewaries Ltd. 2996 133 DLT 153: 2996 (3) Raj 575, learned single Judge of this Court held that the interim orders are calculated to ensure that the assets of the party are not dissipated or frittered away and that such orders do not fall within the moratorium of Section 22. (Vii) The application seeking interim measures of protection under Section 9 of the Arbitration & Conciliation Act, 1996 pertaining to the preservation, interim custody of sale of equipment which is the subject matter of the agreement would be covered under Section 9 (ii) (a) as also under Section 9 (ii)(c), (d) and (e) of the Act. (Ref: 2006 (3) AD (Delhi) 168 : 2006 (87) DRJ 225 : 2006 (127) DLT 776 : AIR 2006 Delhi 134 : 2006 (1) RAJ 261) (viii) The Court has the power to pass an o4rder under Section 9 during the pendency of the arbitration or even after the arbitral award but before the award is enforced in accordance with Section 36. Such order can be passed for preservation, interim custody of sale of any goods which are the subject matter of the arbitration agreement or securing the amount in the dispute and the like. (Ref: Sanzachna (India) Inc. v. AB Hotels Ltd. Inc. v. AB Hotels Ltd. Inc. v. AB Hotels Ltd. Inc. v. AB Hotels Ltd. 2006 (12E) DLT 694 : 2006 (2) RAJ 511 ; CREE Finance Ltd : v. Puri Construction and Others CREE Finance Ltd : v. Puri Construction and Others CREE Finance Ltd: v. Puri Construction and Others 2008 (87) DLT 449 : 2000 (3) R.A.J. 276 ) (ix) The power under Section S to grant interim relief is available to the Court while under Section 17, such powers to make interim measures are made available to the Arbitral Tribunal. Even though there may be some degree of overlap between the two provisions, however, the powers under Section 9 are much wider in as much as they extend to the pre and post award period as well as with regard to the subject matter and the nature of the orders which the Court is empowered to pass. Therefore, pendency of an application under Section 17 before the Arbitral Tribunal does not denude the Court of its power to make an order for interim measure under Section 9 of the statute. (Ref: 2006 (3) AD (Delhi) 168 : 2006 (87) DRJ 225 : AIR 2006 Delhi 134 : 2006 (127) DLT 766 : 2006 (1) RAJ 261) (x) It has been held that though Section 9 enables a party, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced under Section 36 of the Act, may apply to the Court for an interim order under Section 9, however, without a substantive move for reference or declaration on the petitioner’s stand on the substantive relief by an appropriate forum, Section 9 cannot be invoked for grant of interim relief. (Ref: (1994) 3 SCC 155 : 1994 (1) RAJ 279 ; AIR 1999 SC 565 : 1999 (1) RAJ 365 : 1998 (1) AD (Delhi) 513 : 1998 (44) DRJ 399 : 1998 (1) RAJ 549. (xi) So far as the questions which can be considered in a petition under Section – 9 of the Arbitration & Conciliation Act, 1996 are concerned, certainly issues which are to be decided in the substantive arbitration proceedings cannot be gone into in a petition under Section 9 of the statute. Thus, a question as to whether the agreement between the parties was validly entered into or whether it was validity terminated has to be determined only in the arbitration proceedings and cannot be determined in a petition under Section 9 of the statute. (Ref: 1992 (8) AD (Delhi) 617 ; 1993 (66) DRJ 239 ; 1993 (1) RAJ 119 A similar question had arisen before this Court in D. R. Sondhi v. Hella K.G. Hueck and Co. D. R. Sondhi v. Hella K.G. Hueck and Co. D. R. Sondhi v. Hella K.G. Hueck and Co. 1992 (2) RAJ 28. (Ref: 1992 (8) AD (Delhi) 617 ; 1993 (66) DRJ 239 ; 1993 (1) RAJ 119 A similar question had arisen before this Court in D. R. Sondhi v. Hella K.G. Hueck and Co. D. R. Sondhi v. Hella K.G. Hueck and Co. D. R. Sondhi v. Hella K.G. Hueck and Co. 1992 (2) RAJ 28. In para 14 of the judgment, it was held by this Court that the question as to whether the material breach has been committed or not or if there is any breach at all was agitated but it was not gone into for the reason that it is not the question for determination at present. 210. This Court while considering the petition under Section 9 of the Arbitration & Conciliation Act, 1996 does not have the jurisdiction to return a finding on the merits of a claim made or a dispute raised by the parties before the arbitrator. However, there can be no dispute that this Court is required to examine the existence of a prima facie case on the assertions of the petitioner with regard to the termination of the agreement in the facts and law applicable and as to strength in the petitioner’s case as to the bindingness and subsistence of the SHA. Irreparable Injury & the Balance of Convenience consideration. 211. In a judgment at Sociedade de Foemnto Industrial Ltd. v. Ravidranath Subraya Kumat and Others Sociedade de Foemnto Industrial Ltd. v. Ravidranath Subraya Kumat and Others Sociedade de Foemnto Industrial Ltd.v. Ravindranath Subraya Kumat and Others 1999 (4) Bom CR 809, the expression used in clause 4 of the contract which was being considered prohibited the respondent No. 1 from undertaking any business activity competing with the business of the plaintiff-company. The Court noticed the case of the plaintiff that the activities of the defendant’s business were of a similar nature to that of the plaintiff and that it was in competition with the business of the plaintiff. However, no other material was placed on record to show that there was any act of competition in the business with the plaintiff-company by the defendant. The plaintiffs had urged that the business of the defendant-company was in competition with the plaintiffs, and that they were not required to produce any further proof of such competition. This contention was rejected by the Court holding thus: “14. The plaintiffs had urged that the business of the defendant-company was in competition with the plaintiffs, and that they were not required to produce any further proof of such competition. This contention was rejected by the Court holding thus: “14. While appreciating the above referred contentions of the appellants, one cannot forget that this is a matter pertaining to equitable relief being sought by the appellants. No amount of weakness on the part of defence case can ensure to benefit of the plaintiffs to obtain the equitable reliefs. It is the duty of the plaintiffs seeking the assistance of the Court for equitable relief, to disclose all the facts which can entitle the plaintiffs to justify the grant of the relief asked for. Once it is not disputed that Clause 4 clearly provides that what is sought to be restrained is the competition by the defendant No. 1 with the business of the plaintiff’s company and the grievance of the plaintiff is that there is a violation or breach of the defendant No. 1 of Clause 4 in that regard it is primarily for the appellant company to plead and prima facie established that there is violation by the defendant No. 1 in respect of Clause 4 in as much as there has been a business by the defendant No. 1 in competition with the business of the plaintiffs companies. It cannot be said that similar business will always amount to competing with each other. Whether one party is competing with another in similar business is a matter of fact and is to be established by producing sufficient material to establish such fact. In order to establish such fact, there must be pleadings on record. Competition will certainly involve doing something with the intention or purpose of gaining upper hand on someone else. Such an act can be done in different ways and methods. Each of such methods can constitute a bundle of facts giving rise to a cause of action to somebody who is aggrieved by the act of competition. But in order to succeed in such suit, it is necessary to plead and prove all such facts which constituted the act of competition Mere allegation that similar business started by the defendants amounts a competition with the business of the plaintiff’s company cannot amount to a statement of fact pertaining to the competition. But in order to succeed in such suit, it is necessary to plead and prove all such facts which constituted the act of competition Mere allegation that similar business started by the defendants amounts a competition with the business of the plaintiff’s company cannot amount to a statement of fact pertaining to the competition. It would be rather a submission on the part of the plaintiff. For example, in the case of claim of adverse possession it is not just, sufficient to state that the plaintiff is in peaceful possession of the land for over 12 years. It is necessary to state when it became adverse, nature of possession, the fact of the possession being to the knowledge of the owner, etc. Similarly, it is not sufficient to merely allege that the defendants have entered into competition-with the plaintiffs by starting similar business. It is necessary to disclose the facts which constitute the competition with the business of the plaintiffs by the defendants. This will include not only the nature of the business started by the defendants but also the different methods those may be adopted by the defendants for the purpose of competition with the plaintiffs in the similar business.” With reference to the Clauses permitting the respondent-Corporation, as well as the party to the agreement, to terminate the agreement and the applicability of Specific Relief Act, 1963, this Court at Paragraphs 38 to 40, held as follows: “38. As already narrated the clauses contained in the distributorship agreement especially Clause 28 and 29 permit the corporation as well as to any party to the agreement to terminate the agreement. If such being so, the provisions of Specific Relief Act will hold the field and this Court under Section 9 of the Act 1996 cannot enforce the Specific performance of the Contract by directing the corporation to continue the agency till the arbitration proceedings are completed. 39. Further, I do not find a prima facie case in favour of the applicant as she herself admitted that the agreement of sale entered into with her by S.M. Farooq is for a property which was already sold and she came to know about that only later on and at the time of submitting the copy of the agreement of sale, she did not know whether the vendor has got legal title or not. 40. 40. Apart from that she alleged the illegal activities of the first empanelled person and her estranged husband in creating documents to take vengeance on her.” Ultimately, this Court dismissed the application filed by the dealer therein. 56. In Executive Director, Indian Oil Corporation Ltd., v. Sudha Moulee Indane Gas Service reported in 2011 (5) MLJ 231 (SC), the Hon’ble Supreme Court confirmed the order of the Hon’ble Division Bench that once all the contents of the show cause notice as to the irregularities, are disputed, it has to be decided by the arbitral proceedings and held as follows: “2. Aggrieved by the order of the High Court the petitioner came to this Court. We were prima facie of the view that in case of this nature the grant of interim injunction in favour of the respect was not a proper exercise of jurisdiction under Section 9 of the Arbitration Act. Hence, on the previous date while issuing notice to the respondent we stayed the operation of the impugned order of the High Court. 3. Today, we are informed that the Corporation has terminated the distributorship granted to the respondent and the respondent has filed an application under Section 11 of the Arbitration Act for appointment of arbitration. The controversy in this special leave petition, thus, no longer survives. The special leave petition is disposed of with the observation that the parties shall be free to canvass their respective cases in the proceeding under Section 11 of the Act. Needless to say that any observation made by the High Court while dealing with the respondent’s petition under Section 9 of the Act shall have no effect on the future proceedings.” 57. As rightly contended by the learned counsel for the respondents-Corporation, Clause 12 of the Dealership Agreement, provides for termination of the licence, without assigning any reason whatsoever by either party, giving to the other, not less than ninety days notice in writing, to expire at any time of its intention to terminate it and upon the expiration of any such notice this Licence shall stand cancelled and revoked. Clause 13 of the Dealership Agreement, also gives right to the Corporation to terminate the agreement forthwith, upon or at anytime on the happening of the events, such as (vi) if the Licencees fail to make payment of their outstandings and (vii) if the Licencees shall be guilty of a breach of any of the covenants and stipulations on their part contained in this Agreement. 58. Hence, in the light of the terms and conditions, stated supra, the contract is determinable in nature. Therefore, as rightly contended by the learned counsel for the respondents-Corporation, the applicant is not entitled to enforce specific performance. Decisions relied on by the learned counsel for the respondents-Corporation are applicable to the facts of this case. Hence, applications for injunction and for appointment of Advocate Commissioner, are not maintainable, as per the provisions of the Specific Relief Act. 59. In the light of the above discussion and decisions, reliefs prayed under Section 9 of the Arbitration and Conciliation Act, 1996, cannot be granted. The contention that appointment of Advocate Commissioner would only facilitate the Corporation to arrive at the correct position, with regard to the physical condition of the metering unit, cannot be countenanced. 60. Hence, both the applications are dismissed and the respondents-Corporation are permitted to consider the explanation, dated 07.07.2004 and pass appropriate orders.