Disposed

M.D. Confrate Fuels v. Bharat Petroleum Corporation Limited

Kerala HC6 Sept 2021WP(C)/15517/2020

Case brief

AI extract

What is this about?

In this writ petition, the High Court addressed a dispute between a partnership firm running a BPCL retail outlet and its individual partners/the company. The court directed the partners to appear before the Territory Manager by September 16, 2021, to resolve the disagreement. Pending this resolution, proceedings based on a termination notice were kept in abeyance.

What did the court decide?

Partners directed to appear before the 1st Respondent on 16.09.2021 to resolve the dispute; proceedings under Ext.P8 stayed pending resolution.

M.D. Confrate Fuels Vs Bharat Petroleum Corporation… — Service and Employment | Kerala HC (2021)

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WP(C) NO.15517/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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MONDAY, THE 6^TH DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943

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WP(C) NO. 15517 OF 2020

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PETITIONERS:

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1 M/S.M.D. CONFRATE FUELS 24/1733, MATSYAPURI, MATTANCHERY HALT, WILLIONGTON ISLAND, ERNAKULAM, KOCHI-682029, REPRESENTED BY ITS MANAGING PARTNER, BALAGOPALA B.PAI.

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2 BALAGOPALA B.PAI, AGED 68 YEARS S/O.J.B.PAI, VIII/36A, PRABHU BAG STREET, KOCHI682002. 3 REMA B. PAI, AGED 62 YEARS VIII/36A, PRABHU BAG STREET, KOCHI-682002. BY ADV M.JITHESH MENON

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RESPONDENTS:

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1 BHARAT PETROLEUM CORPORATION LIMITED ERNAKULAM TERRITORY (RETAIL OFFICE), IRIMPANAM INSTALLATION, KOCHI-682309, REPRESENTED BY ITS TERRITORY MANAGER.

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2 ARUN DAVID MOOKKEN, 1/668, BARON HOUSE, QUIROS STREET, FORT KOCHI, KOCHI-682001. 3 MRS. ANNA DAVID MOOKKEN, 1/688, BARON HOUSE, QUIROS STREET, FORT KOCHI, KOCHI-682001. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.JAGAN ABRAHAM M.GEORGE, R2 & R3 SRI.K.JOHN MATHAI

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WP(C) NO.15517/2020

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SRI.JAISON ANTONY SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.RAJA KANNAN SRI.PAULOSE C. ABRAHAM

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.15517/2020

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P.V.KUNHIKRISHNAN, J

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W.P.(C)No.15517 of 2020

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Dated this the 6^th day of September 2021

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JUDGMENT

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The 1^st petitioner is a partnership firm. Petitioners 2 & 3 and respondent Nos. 2 & 3 are the partners of the firm. As per Ext.P2, the 1^st petitioner is conducting a retail outlet of the 1^st

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respondent company. Ext.P2 is the original

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partnership deed executed between the 2^nd & 3rd petitioners along with respondent Nos. 2 & 3. Subsequently, Ext.P3 partnership deed was executed. Clause 9 of Ext.P3 partnership deed is extracted

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hereunder:

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“9. The net profit of the partnership business, after deduction of rent, rates and taxes, establishment charges, interest and / or remuneration to partners, if any, and all other expenses connected with the business of the firm shall be divided between the partners as follows:-

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ARUN DAVIND MOOKKEN – 1% BALAGOPALA B PAI - 50% ANNA DAVID MOOKEN - 1% REMA B PAI - 48%”

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2. Thereafter, Ext.P4 agreement was executed by the 1^st petitioner firm with the company. Subsequently, Ext.P5 letter was issued by the Company asking the partners to execute the renewal agreement. Respondent Nos.2 and 3 did not appear before the 1^st respondent. Ext.P6 is another letter issued by the 1^st respondent. Even then, respondents 2 and 3 did not appear before the 1^st respondent. Again another letter was issued by the 1^st respondent as evident by Ext.P7. Even then there is no appearance from respondent Nos.2 and 3, even though the petitioners 2 and 3 appeared and signed the agreement. In such circumstances, Ext.P8 was issued by the 1^st respondent Company. The relevant portion of Ext.P8 is extracted hereunder:

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“In view of the dispute among the partners, it is advised that the partners of the dealership to go on holiday for an initial period of 6 months which can be extended up to 2 years as per the prevailing guidelines to resolve their disputes. Once their disputes are resolved within the given time frame RO can be restored and handed over.

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You are hereby advised to avail the holiday scheme since there is a dispute among the

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WP(C) NO.15517/2020

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partners. If you are not willing to avail the holiday scheme as per the existing policy, we may constraint to take action which may include termination of the dealership.

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You are hereby advised to give your reply before 31.07.2020. In case if you are not giving any reply by 31.07.2020, it will be construed that you are not interested in the said dealership and the dealership would be terminated without any further notice.”

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3. Aggrieved by the same, this writ petition is

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filed. When this writ petition came up for consideration, this Court was pleased to stay all further proceedings consequent to Ext.P8 letter. The interim order is extended and even now in force. The matter was referred for mediation and even then the matter was not settled between the petitioners and the contesting respondents. Today the matter came up for final hearing.

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4. Heard the learned counsel for the

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petitioners, the learned Standing counsel for the 1^st respondent and the learned counsel for respondent Nos.2 and 3.

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5. The learned counsel for the petitioners

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WP(C) NO.15517/2020

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reiterated his contentions in the writ petition. The learned counsel submitted that the share of the respondent Nos.2 and 3 are only 2% where as the share of the petitioners 2 and 3 are 98%. Respondent Nos. 2 and 3 are not cooperating. The petitioners tried their level best to settle the matter. The learned counsel submitted that the retail outlet is functioning for about 10 years. Clause 26 of Ext.P3

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says that 'Any dispute or difference of opinion arising out of the partnership business among the partners during the continuance of the partnership business or after dissolution shall as far as possible be settled by arbitration. The arbitration shall be the Area Marketing Manager of the BPCL under whose jurisdiction the retail outlet is situated or persons nominated by him.' The learned counsel submitted that similar clauses are there in Ext.P2 also. The learned counsel also submitted that Clause 19(a) of Ext.P4 also says about an arbitration clause. The learned counsel submitted that there may be a direction to the 1^st respondent to resolve the

WP(C) NO.15517/2020

issue.

6. The learned counsel for the 1^st respondent submitted that the 1^st respondent company tried their level best to settle the issue. Several notices were issued to the petitioners and the respondent Nos.2

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and 3. The respondent Nos.2 and 3 refuse to appear before the 1^st respondent. The learned Standing counsel submitted that the Company wants to continue this dealership in this area. But even now, the renewal agreement is not signed by the parties. The company is in a difficult position to continue this dealership with the petitioner firm. In such circumstances, Ext.P8 was issued. The learned counsel submitted that, even in Ext.P8, it is only stated that the petitioners can avail the holiday scheme as per existing policy.

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7. The learned counsel for respondent Nos.2 and 3 submitted that there are several disputes between

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the petitioners and respondent Nos.2 and 3. The learned counsel submitted that, if this Court direct the respondent Nos.2 and 3 to appear before the 1^st

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WP(C) NO.15517/2020

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respondent, they will appear before the 1^st respondent.

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8. I do not want to make any observation about the merit of the case. Admittedly, there are some dispute between the petitioner Nos.2 and 3 on one side and the respondent Nos.2 and 3 on other side. This is a matter to be looked into by the 1^st respondent. Admittedly, the retail outlet is even now functioning. When this writ petition was admitted, there was an interim order also and based on that interim order, even now the dealership is continuing. It is also a fact that the renewal agreement is not signed by the parties. There is some difficulty on the part of the 1^st respondent company also. In such circumstances, there can be a direction to the petitioners 2 & 3 and respondent Nos. 2 & 3 to appear before the 1^st respondent on a particular date and the 1^st respondent will try to

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resolve the issue. If the matter can not be resolved, the 1^st respondent company is free to proceed based on Ext.P8.

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Therefore, this writ petition is disposed in the

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following manner:

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i) Petitioner Nos.2 & 3 and respondent Nos.2 & 3 will appear before the 1^st respondent on 16.09.2021. The 1^st respondent will hear the petitioners and respondent Nos.2 & 3 on that day and if necessary on subsequent dates fixed by the 1^st respondent and try to resolve the entire issue.

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ii) The above exercise should be completed within one month from 16.09.2021.

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iii) Till a decision is taken by the 1^st respondent, all further proceedings based on Ext.P8 are kept in abeyance.

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iv) If the issue is not resolved, the 1^st respondent is free to proceed based on Ext.P8.

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Sd/-

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P.V.KUNHIKRISHNAN JUDGE

WP(C) NO.15517/2020

APPENDIX OF WP(C) 15517/2020

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PETITIONER EXHIBITS

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EXHIBIT	P1	TRUE COPY OF THE ISSUED BY THE DI ERNAKULAM DATED	DISABILITY CERTIFICATE STRICT MEDICAL BOARD, 5.2.2015.
EXHIBIT	P2	TRUE COPY OF THE 12.9.2012.	PARTNERSHIP DEED DATED
EXHIBIT	P3	TRUE COPY OF THE 22.10.2012.	PARTNERSHIP DEED DATED
EXHIBIT	P4	TRUE COPY OF THE SELLING LICENSE PETITIONER DATED	DISPENSING PUMP AND GRANTED TO THE 1ST 9.11.2012.
EXHIBIT	P5	TRUE COPY OF THE RESPONDENT DATED	LETTER ISSUED BY THE 1ST 27.4.2018.
EXHIBIT	P6	TRUE COPY OF THE RESPONDENT DATED	LETTER ISSUED BY THE 1ST 29.5.2018.
EXHIBIT	P7	TRUE COPY OF THE RESPONDENT DATED	LETTER ISSUED BY THE 1ST 1.7.2020.
EXHIBIT	P8	TRUE COPY OF THE RESPONDENT DATED	LETTER ISSUED BY THE 1ST 18.7.2020.
EXHIBIT	P9	TRUE COPY OF THE PETITIONERS ON 1	REQUEST SUBMITTED BY THE 7/07/2020.
EXHIBIT	P10	TRUE COPY OF THE RESPONDENT DATED	MAIL SENT BY THE 1ST 11/11/2020.
RESPONDE	NT	EXHIBITS
EXHIBIT	R-2	(A) TRUE COPY OF LET THE RESPONDENTS	TER DATED 01-06-16,SENT BY 2 AND 3 TO THE AUDITORS
EXHIBIT	R-2	(B) TRUE COPY OF LET THE AUDITORS TO RESPONDENTS 2 AN	TER DATED 19-08-16 SENT BY THE PETITIONERS AND D 3

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EXHIBIT R-2(C)	TRUE COPY OF LETTER DATED 26-08-16,SENT BY THE RESPONDENTS 2 AND 3 TO THE AUDITORS
EXHIBIT R-2(D)	TRUE COPY OF LETTER DATED 15-12-17,SENT BY THE RESPONDENTS 2 AND 3 TO THE 1ST RESPONDENT.
EXHIBIT R-2(E)	TRUE COPY OF THE LETTER DATED 15.02.2018 SENT BY THE RESPONDENTS 2 AND 3 TO THE 2ND PETITIONER.
EXHIBIT R-2(F)	TRUE COPY LETTER DATED 15-10-2019, SENT BY THE 2ND RESPONDENT TO THE 2ND PETITIONER
EXHIBIT R-2(G)	TRUE COPY OF LETTER DATED 06-03-2020 SENT BY THE RESPONDENTS 2 AND 3 TO THE 2ND PETITIONER.
EXHIBIT R1(A)	A TRUE COPY OF THE LETTER DATED 12.6.2018 ISSUED BY THE 2ND AND 3RD RESPONDENTS
EXHIBIT R1(B)	A TRUE COPY OF THE LETTER DATED 14.7.2020 ISSUED BY THE 2ND AND 3RD RESPONDENTS
EXHIBIT R1(C)	A TRUE COPY OF THE LETTER DATED 31.7.2020 ISSUED BY THE 2ND AND 3RD RESPONDENTS

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//TRUE COPY//

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PA TO JUDGE

M.D. Confrate Fuels v. Bharat Petroleum Corporation Limited

Case brief

What is this about?

What did the court decide?

M.D. Confrate Fuels v. Bharat Petroleum Corporation Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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