Prakash Krishna, J. - (1.) This appeal is under Section 37(1-a) of the Arbitration and Conciliation Act, 1996, hereinafter called the Act against the order dated 19th August, 2004, rejecting the application filed by the appellant for injunction under Section 9 of the Arbitration Act.
(2.) The facts of the case are as follows : The appellants filed an application under Section 9 of the Act seeking permanent prohibitory injunction restraining the defendants from terminating the dealership of two petrol pumps in pursuance of the notice dated 21st December, 2002. The appellants are the licensees of the respondent to sell the petroleum products through retail outlets, one at Delhi Gate Agra and another at Keetham, Agra Mathura Road, Agra. There is no dispute between the parties that there is arbitration clause in between the parties vide para 22 (a) of the agreement dated 13th August, 1998 in between Bharat Petroleum Corporation Limited and the appellants. The Arbitration Clause in the said agreement provides that any dispute or difference of any nature whatsoever in claim, cross application, counter application or set of the Corporation against the distributor or regarding any right, liability at omission or on the account of any of the parties arising out of order in relation to the agreement shall be referred to the sole arbitration of the Director (Marketing) of the Corporation or his nominee. It appears that the Corporation terminated the dealership of the appellants in respect of petrol pumps at Hari Parvat, Agra and at Keetham, Agra. This order was challenged by means of Writ Petition No. 32568 of 2002 by the appellants in this Court. A Division Bench of this Court on 29th August, 2002 allowed the writ petition on the ground that no opportunity of hearing was given to the appellants (petitioners) before passing the impugned order. The Court was of the opinion that even if the appellants (petitioners) committed some irregularities they should be given show cause notice before termination of licence. After the order of this Court passed in the aforesaid writ petition a show cause notice was given to the appellants. A copy of the show cause notice is Annexure-4 to the affidavit filed along with the stay application. In the show cause notice it has been stated that in the inspection dated 5th July, 2002 at the retail outlet at Keetham a number of irregularities were noticed but the appellants neither during the inspection, nor subsequently the (licensee) has put forward any explanation. Another inspection was carried on 15th July, 2002 at retail outlet at Hari Parvat, Agra. In that inspection also a number of discrepancies were found which have been enumerated in paragraph 6.2 of the show cause notice. Yet other discrepancies found out in the inspection dated 18th July, 2002 are mentioned in paragraph 6.4 of the show cause notice. According to the respondent it was found in the said inspection dated 18th July, 2002, that the appellant is indulging in short delivery of 250 ml in every five litres' delivery by making manipulation in the delivery machine. The allegation was that the appellants have interfered with the working parts of the pumps and with the equipments provided by the respondent company without previous written consent of the company, the appellants have thus committed breach of agreement entered into on 13.8.1998 various discrepancies and defaults were also pointed out by the respondent company In the show cause notice. It appears that thereafter the present appellants filed a Suit No. 457 of 2003 in the civil court and obtained an ex parte injunction order from the Court of Civil Judge (Junior Division), Agra. In the said suit the factum of arbitration agreement between the parties was concealed. Subsequently an application under Section 9 of the Act, giving rise to the present appeal seeking permanent prohibitory injunction restraining the defendants from terminating the dealership was filed. In the application it has been stated that the appellants have sent their reply to the show cause notice on 24th May, 2003, but the respondent company is adamant to terminate the dealership. A dispute having arisen as per the agreement dated 13th August, 1988 between the parties, the dispute regarding alleged termination notice is to be referred to the sole arbitration of the Director (Marketing) of the respondent company or its nominee.
(3.) The learned District Judge, Agra, by the impugned order dated 19th August, 2004, has rejected the stay application for interim relief. Challenging the order of the court below the present appeal has been filed.;