TaxTMI 
TaxTMI 
2010 (2) TMI 1133
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....rom 30th August, 2003. However, both the parties would be at liberty to determine the Agreement without assigning any reason by giving three months' notice in writing to the other of its intention to terminate the Agreement and upon expiration of such notice, the Agreement would stand cancelled and revoked, without prejudice to the rights of either party against the other in respect of any matter or thing antecedent to such termination. It was also indicated that such liberty would not prejudice the rights of the Corporation to terminate the Agreement earlier on the happening of any of the events mentioned in Clause 58 of the Agreement. Clause 4 of the Agreement provided that the licence and permission granted for the use of the outfit would terminate immediately on the termination of the Agreement or on any breach of any of the terms thereof. The relevant portion of Clause 58 of the Agreement is reproduced hereinbelow :- "58. Notwithstanding anything to the contrary herein contained, the Corporation shall also be at liberty to terminate this agreement forthwith upon or at any time after the happening of any of the following events, namely:- (a) If the dealer shall commit....
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.... 27th May, 2008, sales and supplies of all the products from its outlet were suspended by the petitioner Corporation to the Respondent No.1 because of the sample failure. According to the petitioner Corporation, on the very next day on 28th May, 2008, the Respondent No.1 was given notice that a Nozzle Test of HSD was to be conducted at the Barauni Terminal on 29th May, 2008. According to the petitioner Corporation, the Respondent No.1's representative refused to acknowledge the notice. However, the Area Sales Manager of the petitioner Corporation is alleged to have informed the Respondent No.1 telephonically of the Nozzle Test to be conducted on 29th May, 2008, at its Barauni Terminal. Despite having been given notice, no one appeared on behalf of the said respondent when the comparison test was conducted in Barauni and the same was held at the Barauni Terminal on 29th May, 2008, in the presence of the representative of SGS India Pvt. Ltd. (the agent of the petitioner), the Manager, Barauni Terminal, Transporter's representative and the petitioner's Area Sales Manager. Further to the result of the test, the Respondent No.1 was served with a notice dated 14th July, 2008,....
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....e had caused severe prejudice to the Respondent No.1 and the order of termination of the Dealership Agreement dated 9th September, 2008, could not, therefore, be sustained. 6. Appearing for the petitioner Corporation, Mr. U.U. Lalit, learned Senior Advocate, submitted that the Nozzle Test had been conducted at site in the presence of the representative of the Respondent No.1 and also the transporter and samples had been drawn for testing at site and also for future testing, in the presence of the parties. Since the Respondent No.1 failed the Marker Test during the Nozzle Test, the samples taken earlier were sent to the Forensic Laboratory at Barauni for cross- checking. Mr. Lalit submitted that notice had been duly given to both the Respondent No.1 and the transporter, but that while the representative of the transporter was present, the Respondent No.1 chose to be absent during the Marker Test in the laboratory. Mr. Lalit submitted that the Show Cause Notice issued to the Respondent No.1 on 14th July, 2008, categorically indicated that the representative of the Respondent No.1 had refused to acknowledge the receipt of the notice dated 28th May, 2008, and that the petitioner Cor....
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....e and questions relating to the termination gave rise to serious questions of fact arising out of the contract between the parties, which, ordinarily the writ Court would not be entitled to go into. The Supreme Court went on further to hold that in such circumstances the writ petition was not the proper remedy and the refusal of the High Court to entertain the writ petition on the ground of existence of an alternative remedy should not be interfered with. Several decisions on the same lines, including that of Amritsar Gas Service's case, were taken into consideration while arriving at the said decision on being fully conscious of the fact that only if a question of public law character was involved, could a writ petition be entertained in the existing circumstances. 10. Mr. Lalit, however, pointed out that a differing view had been taken by this Court in State of Himachal Pradesh & Ors. vs. Gujarat Ambuja Cement Ltd. & Anr. [(2005) 6 SCC 499] in which the question as to whether the High Court should interfere under Article 226 of the Constitution, when an alternative remedy was available, fell for consideration and it was held that the power relating to alternative remedy is....
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....tative of S.G.S. India Pvt. Ltd. had come to the retail outlet on 26th May, 2008 in order to conduct a marker test of the nozzle sample of MS and HSD from the dispensing unit, such a test could not be conducted since the retail outlet was dry in respect of both MS and HSD, which made it impossible for samples to be drawn from the nozzles of the dispensing units of the said products. Similarly, the underground tanks were also dry and there was hardly any MS or HSD available in tank Nos.1 and 2 from which samples could be extracted through the nozzle. Mr. Bhatt also pointed out several other letters of protest written on behalf of the Respondent No.1 against the termination of supply of petroleum products to the said Respondent and requesting that the same may be restored immediately. 13. Mr. Bhatt then referred to the reply given on behalf of the Respondent No.1 on 25th June, 2008, to the show cause notice wherein again the above facts were reiterated and it was also asserted in no uncertain terms that the notice regarding the conducting of laboratory test at the Barauni Refinery of the petitioner had not been served upon the respondent. Referring in particular to the alleged not....
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.... very date on which the Marker Test was to be held in the Barauni Terminal at 3.00 p.m. Mr. Bhatt urged that the said notice was obviously manufactured for the purpose of termination of the dealership of the Respondent No.1. 16. Having carefully considered the submissions made on behalf of the respective parties and also having considered the various decisions referred to by learned counsel, we are of the view that the case made out on behalf of the Respondent No.1 is more probable. Although, the transporter's representative was present at the terminal at the stipulated time on 29th May, 2008, that by itself cannot give rise to a presumption that service had been effected also on the Respondent No.1, in the absence of any proof in that regard. Except for the endorsement on the hand-written notice said to have been given by Mr. Dash, there is nothing else on record to even suggest that notice had been sent to the Respondent No.1 and that the same had been refused. It is also rather difficult to accept that in respect of a test to be conducted on 29th May, 2008, at 3.00 p.m., an attempt was made to serve the said notice on the representative of the Respondent No.1 on the date ....