M/S Vikrant Oil Carrier Vs Hindustan Petroleum Corporation Ltd. and Another

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Arbitration Case No. 996 of 2023 Decided on: 10^th April, 2024 ____________________________________________________ M/s. Vikrant Oil Carrier ….Applicant. Versus Hindustan Petroleum Corporation Ltd. and others …..Respondents. ____________________________________________________ Coram_ Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice Whether approved for reporting?¹ For the Applicant: Mr. Kshitij Sharma, Advocate. For the Respondents: Mr. K.D Sood, Senior Advocate with Mr. Het Ram, Advocate.

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M.S. Ramachandra Rao, Chief Justice (oral)

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The applicant is a transporter, who is in the business of transporting fuel, such as motor speed/high speed diesel.

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The respondents-Hindustan Petroleum Corporation Limited is a Government of India enterprise. It issued a notice inviting tender on 28.07.2018 for award of contract for road transportation of bulk petroleum products up to 30.09.2023 w.e.f. 01.10.2018. The fuel was to be transported from Nalagarh IRD to

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locations within State and outside the State.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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On 17.01.2020, a show cause notice was issued to the

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applicant proposing to terminate the agreement entered into with him. After the applicant submitted a reply on 30.01.2021, an order was passed on 14.02.2020, giving certain reasons.

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This was challenged by the applicant by filing CWP no. 1080 of 2020, which was allowed and the order dt.14.02.2020 issued by the respondents was quashed and set aside, and a direction was given by this Court to the Director Marketing of the respondents to decide it afresh. Thereafter, a fresh order was passed by the respondents on 14.02.2022.

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Though the applicant initially challenged the said order in CWP No. 1071 of 2022 and the said Writ petition was dismissed on 19.09.2022, he subsequently filed a Review application, which was disposed of on 27.07.2023, permitting the applicant to withdraw the Writ petition and the judgment passed which was assented to by the respondents. It was made clear in the order dt.27.07.2023 that the judgment passed by the Court in CWP no. 1071 of 2022 would not come in the way of the parties, much less operate as res judicata and

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it would also not debar the parties from raising any other legal or factual plea in case occasion for the same arises in future.

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Thereafter the instant Arbitration application has been

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moved under Section 11(6) of the Arbitration and Conciliation Act for appointing an arbitrator to adjudicate the dispute i.e. the legality of the termination order dt. 14.02.2022 passed by the respondents against the applicant.

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Reply was filed by the respondents opposing this application. They contended inter alia that the dispute is beyond the scope of the arbitration agreement and the applicant had already exercised his remedies before the Courts of law and is re-agitating the same issue. These two contentions cannot be accepted in this application having regard to the amendment to Section 11 of the Arbitration and Conciliation Act, 1996 introducing sub Section 6(A) to Section 11 (A) which bars this Court from going into any aspect other than the examination of the existence of the arbitration agreement.

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Even the plea of bar of limitation raised by respondents

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in the facts and circumstances of the case, in my opinion, requires to be considered by the arbitrator since it is a mixed question of law and fact. Therefore I do not wish to express any opinion on the said aspect as well in the order.

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Since, there exists a dispute between the parties and there

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is an arbitration clause contained in the agreement signed by both the

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parties on 01.01.2019, Hon’ble Mr. Justice Davinder Gupta, former Judge of this Court and former Chief Justice of Andhra Pradesh, High Court, R/o A-61, 3^rd Floor, South Extension-II, New Delhi-110049 is appointed as an Arbitrator to adjudicate the dispute between the parties, after his disclosure in writing is obtained in terms of Section 11(8) of the Act and only after receipt thereof, his appointment, as an Arbitrator, shall come into force.

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On his giving consent to arbitrate the dispute between the parties as an Arbitrator, Hon’ble Mr. Justice Davinder Gupta, Chief Justice (Retd.), shall enter into reference, and shall pass an award in accordance with law.

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Copy of this order be furnished to the learned

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counsel for the parties and also furnished to the learned Arbitrator. The learned Arbitrator so appointed shall be entitled to fee as per stipulation contained in 4^th Schedule appended to the Arbitration and

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Conciliation Act, 1996. The application is disposed of accordingly.

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( M.S. Ramachandra Rao ) Chief Justice

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10^th April, 2024 (priti)

M/S Vikrant Oil Carrier v. Hindustan Petroleum Corporation Ltd. and Another

Case brief

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M/S Vikrant Oil Carrier v. Hindustan Petroleum Corporation Ltd. and Another

Case brief

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