M/S Nes Digboi Bogapani Vs Bharat Petroleum Corporation Limited

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GAHC010093852025

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2025:GAU-AS:5721

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2369/2025

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M/S NES DIGBOI BOGAPANI

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(177804), A DISPENSING PUMP (RETAIL OUTLET), REPRESENTED BY IT PROPRIETOR, MRS. RANJITA DHANOWAR, WIFE OF SRI GAUTAM DHONWAR, LACHIT NAGAR, P.O. AND P.S. - DIGBOI, DIST. - TINSUKIA - 786171, ASSAM

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VERSUS

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BHARAT PETROLEUM CORPORATION LIMITED

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REPRESENTED BY TERRITORY MANAGER, RETAIL, FIRST FLOOR, NEXIA PARK, GMCH ROAD, ANANDA NAGAR, CHRISTIANBASTI, GUWAHATI, ASSAM, PIN-781005.

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Advocate for the Petitioner : MR. BHASKAR DUTTA, SENIOR ADVOCATE, MS K BHATTACHARYYA,MS. S. TODI,MS T J SAHEWALLA,MR M SAHEWALLA,MR G N SAHEWALLA,MR. SAILENDRA DEKA,MR JITENDRA DAS,MS L RONGPIPI

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Advocate for the Respondent : SC, BPCL,

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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09.05.2025

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Heard Mr. G.N. Sahewalla, learned Sr. Counsel for the petitioner and Mr. S.

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Borthakur, learned counsel for the sole respondent.

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2. The petitioner has prayed for setting aside the termination letter dated 12.04.2025, by which the petitioner’s dealership agreement dated 28.03.2023, has been terminated. The petitioner’s counsel submits that the petitioner has been running a petrol pump at Tingrai Gaon, Tinsukia since the year 2008, on the basis a dealership granted to the petitioner by the Numaligarh Refinery Limited. The Numaligarh Refinery Limited was taken over by the BPCL in the year 2012, whereupon a fresh agreement was entered into between the petitioner and the BPCL, for running the petrol pump. In the year 2023, there was persistent malfunctions in the dispensing unit in the petitioner’s petrol pump, installed and maintained by M/s Gilbarco Veeder Root (GVR), a 3^rd party vendor appointed by the BPCL, who supplied the dispensing unit for the petrol pump. The internal parts of the dispensing unit were sent to GVR for testing, wherein it was found that the dispensing unit had been manipulated and tampered with.

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3. The petitioner’s counsel submits that, on the other hand, the Legal Metrology Department, Government of Assam, had inspected the dispensing unit as a whole and issued a certificate, ruling out any irregularity or tampering in the dispensing unit. The petitioner’s counsel submits that subsequent to the above facts, a show-cause notice dated 22.01.2024 (page 203) was issued by the BPCL to the petitioner, asking to show cause as to why his dealership agreement should not be cancelled, as there had been tampering and manipulation of the petitioner’s dispensing unit. The petitioner thereafter submitted his reply dated 05.02.2024, denying the allegations made by the BPCL.

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4. The petitioner’s counsel submits that the petitioner thereafter approached the Court of the Civil Judge, Senior Division-cum- Commercial Court, Kamrup (M) under Section 9 of the Arbitration and Conciliation Act, 1996, i.e., Misc. Arbitration Application No. 40/2024, praying for an interim protection, restraining the BPCL from terminating the dealership agreement. The Commercial Court thereafter issued an interim order dated 03.07.2024, restraining the BPCL from taking any coercive action against the petitioner.

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5. The petitioner’s counsel submits that after the interim order dated 03.07.2024 was issued, the petitioner submitted a letter/notice dated 15.07.2024 to the BPCL for appointment of an Arbitrator, for resolution of the disputes between the parties, in terms of Section 21 of the Arbitration Act. As the BPCL did not appear before the Commercial Court on subsequent dates, the Commercial Court made the interim order absolute, vide order dated 07.09.2024.

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6. The BPCL thereafter approached the Appellate Commercial Court, i.e. the Court of the Addl. District Judge No. 2, Kamrup (M), vide Misc. Arbitration Appeal No. 9/2024 under Section 13(1) of the Commercial Courts Act, 2015, whereupon the Appellate Commercial Court stayed the order dated 07.09.2024 passed by the Commercial Court, vide order dated 05.12.2024.

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7. The petitioner thereafter filed Arbitration Petition No. 6/2025 for appointment of an Arbitrator, in terms of Section 11(6) of the Arbitration Act and vide order dated 06.02.2025, notice was issued by the Gauhati High Court. The petitioner’s counsel submits that the Arbitration Petition No. 6/2025 is still pending in this Court.

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8. The petitioner also approached the Commercial Appellate Division Bench of the Gauhati High Court, vide Commercial Application Division No. 1/2025, on the basis of the High Court notification No. 62 dated 26.09.2024 issued by the Registrar General, challenging the order dated 05.12.2024 passed by the Appellate Commercial Court, Kamrup (M). The Commercial Appellate Division Bench of this Court thereafter issued an order dated 13.02.2025, fixing 27.02.2025 for further hearing and in the meantime stayed the order dated 05.12.2024 passed by the Appellate Commercial Court. On 27.02.2025, hearing was held and the Commercial Appellate Division reserved the case for judgement.

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9. The petitioner’s counsel submits that taking the advantage of the fact that the interim order passed by the Commercial Appellate Division Bench of this Court on 13.02.2025 was up to 27.02.2025 only, the BPCL issued the impugned termination order dated 12.04.2025, terminating the dealership agreement between the parties.

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10. The Commercial Appellate Division of this Court thereafter issued judgment and order dated 23.04.2025, holding that the appeal was not maintainable, i.e., the challenge made to the decision of the Commercial Appellate Court, without expressing any opinion on the merits of the petitioner’s case. Commercial Application Division No. 1/2025 was thus dismissed.

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11. The petitioner’s counsel submits that in terms of the judgment of the Constitution Bench of the Supreme Court in High Court Bar Association, Allahabad vs. State of Uttar Pradesh and others , reported in (2024) 6 SCC 267 , the validity of the interim order dated 13.02.2025 would have

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automatically continued till the date of dismissal of Commercial Application Division No. 1/2025, inasmuch as, the judgment on the case was reserved, vide order dated 27.02.2025. Para 19 of the above-mentioned Supreme Court decision, which states as follows:-

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“III. Whether an Interim Order can come to an end automatically only due to the lapse of time.

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Interim order of stay can come to an end: -

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(a) By disposal of the main case by the High Court, in which the interim order has been passed. The disposal can be either on merits or for default or other reasons such as the abatement of the case; or

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(b) by a judicial order vacating interim relief, passed after hearing the contesting parties on the available grounds, some of which we have already referred to by way of illustration.”

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12. Due to the judgment and order dated 23.04.2025 passed by the Commercial Appellate Division Bench dismissing Commercial Application Division No. 1/2025 and as the only alternative left to the petitioner was to approach the Supreme Court, against the Court of Addl. District Judge No.2/Commercial Appellate Court order dated 05.12.2024, the petitioner approached the Supreme Court, vide SLP(C) 22359/2025. However, the Supreme Court declined to interfere with the order dated 05.12.2024. Instead, it observed that if a request was made by the petitioner for expeditious disposal of the appeal before the concerned Commercial Appellate Tribunal, the said request was to be considered in accordance with law.

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13. The order dated 30.04.2025 passed by the Hon’ble Supreme Court in

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SLP(C) No.22359/2025 states as follows:-

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“Delay in filing is condoned.

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We are not inclined to interfere in the matter.

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The Special Leave Petition is hence dismissed.

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If a request is made by the petitioner herein for expeditious disposal of the appeal filed by the respondent before the concerned Commercial Appellate Court, the said request shall be considered in accordance with law and an endeavour shall be made to dispose of the appeal as expeditiously as possible.

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Pending application(s), if any, shall stand disposed of.”

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14. The petitioner has now come to this Court against the termination order dated 12.04.2025, stating that the said order could not have been passed during the pendency of the arbitration cases, pending before the Addl. District Judge/Commercial Appellate Court and this Court.

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15. The petitioner’s counsel submits that the issue raised by the petitioner can be decided under Article 226 of the Constitution even though there may be an alternative remedy available, in terms of the judgment of the Supreme Court in Harbanslal Sahnia and anr. vs Indian Oil Corpn. Ltd. and others , reported in (2003) 2 SCC 107 .

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16. On considering the events that have unfolded, it is quite clear that the petitioner had approached the Supreme Court with all the facts stated in the foregoing paragraphs. It is quite apparent that the Supreme Court was aware of the termination of the petitioner’s Dealership Agreement dated 12.04.2025, as the Supreme Court order dismissing the SLP had been made on 30.04.2025. As the SLP filed by the petitioner has been dismissed, with liberty being given to the petitioner for expeditious disposal of the appeal filed by the respondent, i.e.,

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Misc. Arbitration Appeal No.9/2024, this Court is of the view that it would not be proper for this Court to entertain this writ petition, as it would only lead to multiplicity of proceedings, which would not be in consonance with the direction passed by the Supreme Court.

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17. In view of the fact that the Supreme Court has dismissed the SLP, with liberty being given to the petitioner to approach the Commercial Appellate Court for early disposal of the appeal, the writ petition stands dismissed.

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JUDGE

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Comparing Assistant

M/S Nes Digboi Bogapani v. Bharat Petroleum Corporation Limited

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M/S Nes Digboi Bogapani v. Bharat Petroleum Corporation Limited

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