Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 446-19 in S.C.SUIT no.7114-06
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 446 OF 2019
(CNR no. MHCC01-001129-2019)
IN
SHORT CAUSE SUIT NO. 7114 OF 2006
(CNR no. MHCC01-010218-2006)
HIGH COURT SUIT NO. 2874 OF 2006
Bharat Garage
a duly registered partnership Firm having its office
at 651, Chirag Nagar, L.B.S. Marg,
Ghatkopar (W), Mumbai – 400 086.
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Plaintiff
Versus
1. Indian Oil Corporation Limited
A Company registered under Companies Act
1956, having registered office at Indian Oil
Bhavan, G-9, Ali Yawar Jung Marg,
Bandra(E), Mumbai 400 051.
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2. The Mahanagar Gas Limited
having its office at City Gate Station, Opp. Anik
Bus Depot, Sion, Mumbai and also having its
office at MGL House, G-33 Block, Bandra-Kurla
Complex, Bandra (East), Mumbai – 400 051.
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Defendants
Appearances:-
Ld. Advocate Mr. Sachin Mandlik for the Plaintiff.
Ld. Advocate Ms. Aditi Phatak for Defendants
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 14th February, 2020.
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2 NM no. 446-19 in S.C.SUIT no.7114-06
O R A L O R D E R
1. This is Notice of Motion by the plaintiff having following
prayer clauses:
a) This Hon’ble Court be pleased to strike off the defence
of Defendant No.1 for non compliance and breach of
order dated 17.10.2006 passed in the above matter.
b) This Hon’ble Court be pleased to order and direct the
Defendant no.1 to pay to the Plaintiff sum of
Rs.1,26,62,804/- (Rupees One Crore Twenty Six Lakhs
Sixty Two Thousand Eight Hundred Four only) as per
the statement annexed at Exhibit-D to the affidavit in
support of Notice of Motion with interest thereon @
12% p.a. from 08.06.2018 till the payment is made.
c) This Hon’ble Court be pleased to order and direct the
Defendant No.1 to issue the tax invoices for every
calendar month within 10 to 15 days of the expiry of
the month, for the sale of CNG effected during each
month from the outlet of Plaintiff.
The plaintiff is not pressing prayer clause (a). Therefore,
in effect the Notice of Motion is for prayer clauses (b) and (c).
2. It is contended in the affidavit in support of Notice of
Motion that the Defendant No.2 pays commission i.e. trade margin
for sale of CNG if CNG is supplied through any Oil Company, such
commission is shared between the Oil Company and dealer, who is
running the outlet. In this case the plaintiff is dealer and defendant
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3 NM no. 446-19 in S.C.SUIT no.7114-06
no.1 is Oil Company.
Due to disagreement and disputes between the plaintiff
and defendant no.1 regarding the commission sharing ratio, the
instant suit came to be filed. In this suit the Order dated 17.10.2006
was passed by Hon’ble Justice S. J. Vazifdar in terms of minutes of
Order. In terms of that Order out of total commission receivable
from the defendant no.2 on sale of CNG from the plaintiff’s outlet,
an amount equivalent to 5% of the total commission received per
Kg. was to be paid to defendant no.1 during pendency of the suit.
In compliance of the said Order plaintiff paid to the defendant no.1
the arrears of commission amount @ 5% of the total commission
received from the defendant no.2 and since then plaintiff has been
paying at the same rate to the defendant no.1.
The rate of commission paid by the defendant no.2 was
revised from time to time in terms of the Order as and when the
commission was revised by the defendant no.2 and plaintiff paid
purported share in commission @ 5% on such revised amount to the
defendant no.1. In the same manner the defendant no.1 passed on
95% arrears of revised commission to the plaintiff.
The defendant no.2 has increased the commission and
paid revised commission from 01.01.2013 to 16.06.2015 to the
defendant no.1. The defendant no.1 paid 95% of the said amount to
the plaintiff along with letter dated 24.08.2015 of Chief Divisional
Retail Sales Manager of defendant no.1.
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The plaintiff has now come to know that the defendant
no.2 has released and paid the arrears of revised trade margin from
01.01.2015 to 31.03.2018 and the CNG commission is being paid by
defendant no.2 from 01.01.2018 at the revised rate of Rs.4.05 per
Kg. However, plaintiff has not received any amount toward its share
in the arrears of the revised trade margin although defendant no.2
has paid the same to defendant no.1 in June 2018. The defendant
no.1 has prepared challans/invoices at old rate of Rs.2.74 per Kg.
Although the revised CNG commission is Rs.4.05 per Kg. w.e.f.
01.01.2018. Therefore, the plaintiff is entitled for his 95% share in
the above arrears from 01.01.2015 to 31.03.2018 and thereafter. The
plaintiff is entitled for Rs.1,17,97,564/- (Rupees One Crore Seventeen
Lakhs Ninety Seven Thousand Five Hundred Sixty Four only) with
interest @ 12% p.a. from 08.06.2018 till the payment is made.
3. The defendant no. 1 has filed affidavit in reply
contending
inter alia as under:-
Notice of Motion is barred by limitation as the same is
filed after delay of 4 years. The contents of this Notice of Motion
are not part of the plaint and therefore, the plaintiff cannot claim
any amount in excess of the suit claim.
On 26.07.2018, the meeting was held between Oil
Marketing Companies and PDA’s Representative where the proposal
for share out of arrears was given by the State Level Coordinator
(hereinafter “S.L.C.”). Defendant no.1 started working on the
distribution according to the discussion and arrangement made at
the above mentioned meeting. On 02.11.2018 second meeting was
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held with the same agenda. On 25.02.2019, S.L.C. sent e-mail and
communicated guidelines to the Maharashtra State Office for
payment of arrears to the dealers. As per the said guidelines, the
defendant no.1 was required to reimburse arrears of Rs.0.19/0.21 per
Kg. to the dealers for the period 01.01.2015 to current date till
de
novo study was completed and recommendations were implemented.
As the plaintiff is dealers control site i.e. D.C. site, it is liable to
receive Rs.0.21 paise per Kg. Commission on total sales. According
to the defendant no.1, the plaintiff is entitled to only Rs.27,26,411/-
(Rupees Twenty Seven Lakhs Twenty Six Thousand Four Hundred
Eleven only) as arrears in commission till
de novo study is
completed and recommendations are accepted. Therefore, Notice of
Motion be dismissed.
4. Ld. Advocate for the plaintiff has vehemently argued that
the defendant no.1 has no authority to change the share out of the
arrears in the backdrop of the minutes of Order dated 17.10.2006.
He has contended that the Order of the Court shall prevail over the
internal meeting, guidelines of defendant no.1. He has also
contended that this is a commercial contract between the plaintiff
and defendant no.1 and both the parties have to act as per the
terms of contract which are enumerated in the minutes of meeting
Order dated 17.10.2006.
5. Ld. Advocate for the defendant no.1 has claimed that the
defendant no.1 is a Public Sector Undertaking and any guidelines
issued by its office are not only applicable to the plaintiff but to all
the dealers in India and the plaintiff cannot be given different
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treatment than the other dealers. He has also pointed out that terms
of minutes of Order dated 17.10.2006 are without prejudice to
defendant no.1’s rights and therefore, plaintiff is not entitled for any
reliefs in the Notice of Motion.
6. Since the Notice of Motion hinges upon minutes of the
Order dated 17.10.2006 in Notice of Motion No.3545 of 2006, it will
be useful to reproduce relevant paragraphs i.e. paragraphs no.1, 3
and 4 thereof:
1) The plaintiff has paid a sum of Rs.38,45,578.68/- to the
Defendant no.1. The plaintiff further agrees to pay the
Defendant no.1, on a daily basis, an amount calculated
at the rate of Rs.20/61 per Kg. of CNG or as may be
fixed by Defendant no.2 subsequently, supplied to the
Plaintiffs from the date of restoration of supply of CNG.
3) The Plaintiff and the Defendant no.1 have agreed to the
above arrangement strictly without prejudice to their
rights and contentions, including but not limited to the
right to claim interest on any and all overdue amounts,
in the above matter as well as in any other proceedings
that may have already been and/or proceedings that
may be initiated in the future.
4) Liberty to apply to all parties. Motion be listed for final
hearing in due course.
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7 NM no. 446-19 in S.C.SUIT no.7114-06
On the basis of these terms, Ld. Advocate for the
plaintiff is claiming that the defendant no.1 does not have any legal
right to change the rate of trade margin. It is not in dispute that
the defendant no.1 is a Public Sector Undertaking and there are
multiple number of dealers working through the said undertaking.
The S.L.C. gave proposal with regard to the share between the
dealers and Oil Companies out of arrears. By the e-mail dated
25.02.2019, it was communicated to Maharashtra State office of the
defendant no.1 that it was required to reimburse arrears of
Rs.0.19/0.21 per Kg. (for CC/DC sites) to the dealers for the period
from 01.01.2015 to current dated till
de novo study was completed
and recommendations were implemented. The defendant no.1 has
mentioned in its reply at paragraph no.14 that as per the above
guidelines plaintiff is entitled to Rs.0.21 per Kg. as a commission on
the total sale of CNG and the plaintiff is entitled to Rs.27,26,411/-
(Rupees Twenty Seven Lakhs Twenty Six Thousand Four Hundred
Eleven only) as arrears in commission till
de novo study is
completed and recommendations are accepted. It has also given the
table containing total quantity of CNG sale by defendant no.1
between April, 2018 to January, 2019 which was 1,29,82,914 Kg.
and on that basis the aforesaid amount was determined as arrears.
7. Reverting back to the minutes of the Order dated
17.10.2006, it is trite that plaintiff agreed to pay the defendant
no.1, on daily basis, an amount at the rate of Rs.20/61 per Kg. of
CNG. However, the said stipulation was not absolute bar for the
defendant no.1 or the plaintiff. Paragraph no.3 of the said Order
clarifies that said agreement was without prejudice to rights and
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contentions of the parties in future proceedings also. It is not in
dispute that there was no issue in respect of the above Order and
payments in accordance therewith till 2015 and since that Order the
plaintiff had been paying the agreed amount to the defendant no.1
and
vice versa as purported share in the trade margin. As stated
herein earlier the policy decision was taken after the meetings on
26.07.2018 and 02.11.2018 which was applicable not only to the
plaintiff but also to all CC sites, DC sites all over India. Therefore, I
do not find merit in the submission that the defendant no.1 has
illegally acted in contravention of the minutes of Order dated
17.10.2006. Therefore, the claim of Rs.1,17,97,564/-(Rupees One
Crore Seventeen Lakhs Ninety Seven Thousand Five Hundred Sixty
Four only) cannot be granted.
8. In prayer clause (c) of the Notice of Motion it is prayed
that the defendant no.1 be directed to issue the Tax Invoices for
every calendar month within 10 to 15 days of expiry of the month,
for the sale of CNG effected during each month from the outlet of
the plaintiff. The defendant no.1 has not filed any reply in respect
of above said prayers. It is claimed in the affidavit that the Tax
Invoices should be available to the buying dealer within 10 days
from the end of month so that he can get sufficient time to prepare
the accounts and claim, the said return is to be filed within 21 days
from the end of month. It is also alleged that the defendant no.1 is
not issuing the Tax Invoices in time although plaintiff remits the
amount on daily basis by RTGS. It is also contended that despite
notice, the defendant no.1 is sending invoices very late. No reply is
given by the defendant in respect of this claim. Therefore, the
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direction needs to be given to the defendant in terms of prayer
clause (c) of the Notice of Motion. Hence, following order :
ORDER
1. Notice of Motion No. 446 of 2019 is partly allowed.
2. Prayer clause (b) in the Notice of Motion No.446 of 2019 is
rejected.
3. Prayer clause (c) of the Notice of Motion No.446 of 2019 is
granted.
4. Costs in cause.
sd/-
(C. V. Marathe)
Judge,
Date : 14.02.2020. City Civil Court, Gr. Mumbai.
Dictated on : 14.02.2020.
Transcribed on : 14.02.2020.
Signed by HHJ on : 14.02.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 15.02.2020 at 10.59 a.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
14/02/2020
JUDGMENT/ORDER signed by
P.O. on
14/02/2020
JUDGMENT/ORDER uploaded
on
15/02/2020
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