Sangeet Lodha, J. - (1.) BY way of this writ petition, the petitioner has questioned legality of notice dated 21.5.14 issued by the respondent -Bharat Petroleum Corporation Limited ('BPCL'), directing the petitioner to submit the proposal for Reconstitution of Dealership along with required documents by 21.6.14. The petitioner has been further informed that in the event of non -submission of Reconstitution Proposal, the BPCL reserves the right to terminate temporary dealership awarded to the petitioner pending completion of formalities of Reconstitution of Dealership.
(2.) THE petitioner No. 1, a partnership firm, was awarded Retail Outlet Dealership at Rishabhdev, District -Udaipur. At the relevant time, the petitioner -firm was consisting of 3 partners, namely, Surajmal Jain, Deenbandhu Parmar and Sukh Lal. The said partnership was dissolved on 26.8.66 and after settlement of accounts of firm, with the consent of the partners, a new partnership firm was constituted vide partnership deed dated 27.8.66, having its partners as (i) Surajmal Jain (ii) Deenbandhu Parmar (iii) Vimalchand Jain and (iv) Shyam Sunder Lal Jain (the petitioner No. 2 herein), which stood registered with the Registrar of Firms on 9.2.67. Due to death of one of the partners, namely Sukh Lal Jain on 29.4.71, the surviving partners dissolved the existing partnership firm on 30.4.71 and constituted a new partnership firm on the same date with the same name, having its partners as (i) Deenbandhu Parmar (ii) Vimalchand Jain and (iii) Shyam Sunder Lal Jain, which was duly registered with the Registrar of Firms on 18.6.77. Pursuant to reconstitution of the partnership firm as aforesaid, the respondent -BPCL (earlier known as Burmah -Shell Oil Storage and Distributing Company of India Ltd.) continued the dealership with the newly constituted partnership firm vide letter dated 26.5.72. Due to death of one of the partner Deenbandhu, the surviving partners replaced Deenbandhu Parmar with his legal heir Shri Narendra Kumar Parmar and accordingly, a new partnership firm was constituted on 22.2.85 and thereafter, the partnership deed was executed on 22.3.85. The reconstitution was accepted by the respondent -BPCL and fresh dispensing pump and selling licence was issued on 4.5.90 and accordingly, memorandum of agreement signed by the parties came into force for 15 years from the date of its execution. After expiry of 15 years, the fresh dealership agreement was executed in the year 2005 between the petitioner -firm and the BPCL, which is effective till year 2020. However, in the year 2010, one of the partner Shri Vimal Chand Jain expired on 26.1.10 and while the formalities for reconstitution of the firm were pending, yet another partner Shri Narendra Kumar Parmer expired on 25.8.11. Thereafter, the reconstitution of the firm is being deferred for want of consensus amongst the surviving partner and the legal heirs of deceased partners and therefore, the dealership is being run by Shyam Sunder Lal Jain, the surviving partner of the firm, the petitioner No. 2 herein. According to the petitioners, the best efforts were made to reconstitute the partnership firm with the legal heirs of the deceased partners on the same terms and conditions as per earlier partnership dated 20.3.85. It is submitted that for the purpose of reconstitution of the partnership, a meeting was convened at territory office of the BPCL at Udaipur on 19.4.14, wherein Shri Sanjay Kumar, the legal heir of deceased partner Shri Vimal Chand Jain and officials of the company also participated. It is submitted that in the said meeting, the petitioner confirmed that he is ready to reconstitute the firm with the legal heirs of both the deceased partners, provided that share holding of the partnership is kept the same. It is submitted that the next meeting was scheduled to be held on 23.4.14 at the territory office of the BPCL at Udaipur. On 23.4.14, the petitioner went to the territory office of BPCL at Udaipur and also carried the proposed deed of reconstituted partnership firm but, neither the officials of the Company met the petitioner nor the legal heirs of the deceased partners were present. Thereafter, straight away, by way of impugned notice, the BPCL has proposed to terminate the dealership in case the proposal for reconstitution of the firm alongwith required documents is not submitted by 21.6.14. Hence, this petition.
(3.) LEARNED counsel for the petitioner contended that as per clause 15 of the Partnership Deed dated 20.3.85, the partnership firm shall not stand dissolved on the death of any of its partners, rather it will continue with the legal heirs of deceased partner or after division of the shares of the deceased partner amongst the surviving partners by mutual consent. Drawing the attention of this court to the clause 13(b) of the Dealership Agreement, learned counsel submitted that on the death of any of the partner of licensee firm, BPCL may at its option at once determine the agreement and if the option shall not be exercised, the agreement shall continue as between the BPCL and the surviving or continuing partners of the licensee firm. Learned counsel submitted that indisputably, the dealership has been continued by the respondents with the surviving partner of the firm for all these years and therefore, the stand sought to be taken by the BPCL that the dealership stands terminated and the petitioner firm was allowed only to carry on business on temporary basis till the time it was able to complete the process of reconstitution of partnership firm is absolutely incorrect. Learned counsel submitted that the existing dealership of the petitioner has never been converted into temporary dealership as claimed by the respondent -BPCL. Learned counsel submitted that if the legal heirs of the deceased partners of the firm are not cooperating for reconstitution of the firm, as per clause 13(b) of the Dealership Agreement, the dealership may be continued between the BPCL and surviving or continuing partner and therefore, the question of termination of the dealership agreement does not arise. Learned counsel submitted that the dealership having been continued in terms of clause 13(b) for last four years, the impugned notice issued by the BPCL at this stage, is actuated by malice and therefore, deserves to be quashed.;