SURENDRA AGARWAL Vs. MANAGING DIRECTOR, HPCL

JUDGEMENT

(1.) THE applicant is proprietor of M/s R.K.Filling Center and is having retail outlet for sale of Motor Spirit (MS) and High Speed Diesel (HSD) under the dealership granted by the Hindustan Petroleum Corporation Limited. A memorandum of agreement dated 5.12.2005 was executed between the parties for the purpose. Clause 66 of the agreement aforesaid provides for arbitral proceedings to resolve any sort of dispute arising between the Hindustan Petroleum Corporation Limited and the applicant dealer. Clause 66 aforesaid reads as under: -

(2.) THE Senior Retail Sales Manager, Jodhpur Region of the Hindustan Petroleum Corporation Limited by an order dated 5.2.2010 terminated the agreement, thus, the applicant under a notice dated 16.2.2010 requested the respondents to invoke clause 66 of the arbitration agreement to adjudicate the dispute relating to termination effected under the letter dated 5.2.2010. After receiving the notice dated 16.2.2010 no arbitrator was appointed but under letter dated 5.3.2010 the Senior Regional Manager, Hindustan Petroleum Corporation Limited, Jodhpur Region conveyed to the applicant that a decision was taken by the Hindustan Petroleum Corporation Limited to change the arbitration clause existing to extend freedom to the appointing authority to appoint a retired officer of the corporation also as sole arbitrator. The applicant was advised to given his consent latest by 9.3.2010. The applicant in his turn conveyed to the respondents that he desires to get appointed some independent person as arbitrator. He also proposed names of certain persons to be appointed as arbitrator. No action thereon was taken, thus, this application was presented on 22.3.2010.

(3.) ON the other hand the stand of the applicant is that after lapse of 30 days from the date of giving notice for appointment of arbitrator by invoking clause 66 of the agreement, the appointing authority forfeited its right for appointment of arbitrator, thus, the appointment of Mr. Hota as arbitrator was without jurisdiction. It is further submitted that the applicant has not participated actively in the arbitral proceedings. With regard to other submission of the respondents, it is submitted that the applicant in its notice in quite specific terms made a request to invoke arbitral proceedings as per clause 66, therefore, the notice is in accordance with the requirements of the agreement and also in consonance with provisions of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act of 1996").