# Indian Oil Corp. Ltd v. M/s J. Lal Filling Station & Anr

- **Citation:** (2021) 2 ILRA 653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Matter Under Article 227 No. 339 of 2021
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indian-oil-corp-ltd-v-m-s-j-lal-filling-station-anr-46860
- **Pages:** 10

## Headnote

A. Constitution of India, 1950-Article 227Challenge to-suspension of retail outlet
dealership and show cause notice-Instead
of filing reply of show cause notice the
plaintiff/respondent filed an application
for grant of interim injunction -injunction
granted arbitrarily-satisfaction that there
is a prima facie case by itself is not
sufficient to grant injunction-the court
654 INDIAN LAW REPORTS ALLAHABAD SERIES
further has to satisfy non-interference
would result in "irreparable loss" to the
party seeking relief and there is no other
remedy
available
except
to
grant
injunction-conduct of the party and
"balance of convenience" is also relevantsuit filed by the plaintiffs is barred u/s
14(1) of the Specific Relief Act, 1963Once an application is filed u/s 8 of the
Arbitration & Conciliation Act, the court
has no jurisdiction to continue with the
suit-injunction order is wholly illegal and
contrary to the settled principles of
law.(Para 1 to 23)

The writ petition is allowed. ( E-5)

List of Cases cited:-

## Text

2 All. Indian Oil Corp. Ltd. Vs. M/s J. Lal Filling Station & Anr.
653
which the High Court had observed that "in
my view, unless and until the civil court
decides the question whether the document
are genuine or forged, no criminal action
can be initiated against the petitioners and
in view of the same, the present criminal
proceedings and taking cognizance and
issue of process are clearly erroneous." the
Hon'ble Supreme Court held that the High
Court was not in any way justified to
observe the same. It was held that the
criminal proceeding could not be quashed
only because the respondents had filed a
civil suit with respect to the aforesaid
document.

44. Learned counsel for the applicant
could not demonstrate before this Court as
to how any cognizable offence was not
made out against the applicant and as to
how the offences under which the trial is
proceeding, after submission of the chargesheet, those offences were not made out. It
has not been submitted by the learned
counsel for the applicant that even on the
basis of the material collected during
investigation, the offence was not made out
for submission of the charge-sheet. Any
such material has also not been brought on
record before this Court. Consequently,
there is no occasion for this Court to enter
into this aspect of the matter, if on the
averments in the FIR and the materiel
collected during investigation, any case for
quashing of the charge-sheet and the
proceedings of the criminal case is or is not
made out, on the ground that such
proceedings do or do not amount to abuse
of the process of Court under Section 482
Cr.P.C.

45. The trial is proceeding against the
applicant on day-to-day basis. It is pending
at the stage of Section 313 Cr.P.C. There is
direction of this Court, vide order dated
10.12.2018 passed in Application under
Section 482 Cr.P.C. No.44523 of 2018, and
vide order dated 15.10.2009 passed in
Criminal
Misc.
Bail
Cancelation
Application No.2224 of 2018, to conclude
the trial according to Section 309 Cr.P.C.
and on day-to-day basis. Considering the
stage of the proceedings of the criminal
case, as well, which is near to its end, the
case
for
quashing
of
the
criminal
proceedings is not made out.

46. Thus considered this Section 482
Cr.P.C. petition deserves to be dismissed
and is dismissed being devoid of merits.

47. No orders as to costs.
----------
(2021)02ILR A653
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Matter Under Article 227 No. 339 of 2021

Indian Oil Corp. Ltd. ...Petitioner
Versus
M/s J. Lal Filling Station & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar, Sri H.P. Dube, Sri Vipul Dube

Counsel for the Respondents:
C.S.C.

A. Constitution of India, 1950-Article 227Challenge to-suspension of retail outlet
dealership and show cause notice-Instead
of filing reply of show cause notice the
plaintiff/respondent filed an application
for grant of interim injunction -injunction
granted arbitrarily-satisfaction that there
is a prima facie case by itself is not
sufficient to grant injunction-the court
654 INDIAN LAW REPORTS ALLAHABAD SERIES
further has to satisfy non-interference
would result in "irreparable loss" to the
party seeking relief and there is no other
remedy
available
except
to
grant
injunction-conduct of the party and
"balance of convenience" is also relevantsuit filed by the plaintiffs is barred u/s
14(1) of the Specific Relief Act, 1963Once an application is filed u/s 8 of the
Arbitration & Conciliation Act, the court
has no jurisdiction to continue with the
suit-injunction order is wholly illegal and
contrary to the settled principles of
law.(Para 1 to 23)

The writ petition is allowed. ( E-5)

List of Cases cited:-

1. Dalpat Kumar Vs Prahlad Singh (1992) 1 SCC
719.

2. M.P. Mathur Vs DTC, (2006) 13 SCC 706

3. Wander Ltd. & anr. Vs Antox India P.
Ltd.(1990) Supl. SCC 727

4. Gujarat Bottling Co. Ltd. Vs Coca Cola Co.
(1995 ) 5 SCC 545,

5. Hindustan Petroleum Corp. Ltd. Vs Pinkcity
Midway Petroleums (2003) 6 SCC 503

6. Ram Roop & ors. Vs Bishwa Nath & ors.
(1958) AIR Ald 456

7. Shalini Shyam Sethi & ors. Vs Rajendra
Shanker Patel (2010) 8 SCC 329

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Rakesh Kumar, learned
counsel for the petitioner and Sri H.P. Dube,
Advocate and Sri Vipul Dube, Advocate have
put
their
appearance
on
behalf
of
respondents.

2. The petitioner has filed the present
petition under Article 227 of the Constitution
of India with the following prayers:-

"(a) To direct the Civil Judge (Senior
Division) Agra to decide the application
NO.37Ga filed by the petitioner-Corporation
under Section 8 of the Arbitration &
Conciliation Act, 1996, forthwith;

(b) to set a side the order dated
10.7.2018 passed by the Civil Judge, (Senior
Division) Agra;

(c) issue any other suitable, order or
direction which this Hon'ble Court may deem
fit and proper in the circumstances of the
case;

(d) award costs in favour of the
applicant throughout."

3. Facts in brief as contained in the
writ petition are that the petitioner-Indian
Oil Corporation had appointed various
retail outlet dealers for sale of petroleum
products. After selection of respondent
No.1 as a dealer, an agreement was
executed
between
the
petitionercorporation and Sri Satish Kumar Arora,
the proprietor of the retail outlet/respondent
No.2 on 25.02.2005 for retail sale of
petroleum products. An inspection of the
retail outlet of the plaintiffs/respondents
was carried out on 17.5.2017 in the
presence of Sri Satish Kumar Arora, the
proprietor of the retail outlet/respondent
No.2, by a team nominated by the District
Magistrate, Agra consisting of members
namely B.K. Shukla, DSO Agra, Sri
Mayank Kumar SO (Retail Sales) IOCL,
Agra-I, Sri A.K.Mishra, ARO Agra, Sri
Rohit Yadav, ACM-IV, Agra, Sri Rajvir
Singh, Police Inspector Agra and Sri
Sanjay Singh, Police Inspector, Agra, Sri
Rajesh Singh, Inspector,W&M, Agra, Sri
Shailendra Singh, Inspector W.&M, Agra,
Sri Avdesh Singh, Service Engineer M/s
Midco Ltd. and Sri A.K. Mahawar Senior
Foreman,
IOCL
Agra.
During
the
inspection of the retail outlet of the
plaintiffs/respondents, it was found that the
2 All. Indian Oil Corp. Ltd. Vs. M/s J. Lal Filling Station & Anr.
655
pulsar of 1 nozzle of Motor Spirit (petrol),
bearing
Sl.
No.03GC0228GVR
was
suspected to be tampered as there was some
extra soldering in the pulsar and based on
the aforesaid inspection report, a fact
finding letter dated 30.5.2017 was issued to
the respondent No.1 asking him to submit
his reply. At the time of inspection, the
pulsar card was seized and sent by the
petitioner-corporation
to
the
Original
Equipment Manufacturer (OEM), i.e., M/s
MIDCO for testing at their lab as per the
Marketing
Disciplinary
Guidelines.
Thereafter a report was submitted by the
Midco on 28.2.20218 mentioning therein
that

(1) One of the pulser signal cable is
found connected to IS PIN through
additional cable.

(2) PPFL cable is found disconnected
from the pulsar PCB.

4. After perusal of the same, the
competent
authority
namely
Deputy
General Manager (Retail Sales), Agra
Division Agra. issued a show cause notice
to the respondents on 25.05.2018.

5. It is argued by Sri Rakesh Kumar,
learned counsel for the petitioner that on
issuance of show cause notice, an original
suit was preferred by the petitioner being
Original Suit No.716 of 2018 with the
following reliefs:-

"The plaintiffs, therefore, prays for
judgement and decree for declaration as
under:-

A. That a decree of declaration be
passed against the defendant to declare the
show cause notice dated 30.05.2017 and
25.05.2018 9sent on 04.07.2018) is null
and void and not binding upon the plaintiffs
consequential
relief
of
permanent
prohibitory injunction be passed to restrain
the defendant, its officers and employees
from interfering in supplying of the
petrol/diesel and other lubricants products
of all kinds to the plaintiffs retail outlet by
suspending or terminating the retail outlet
and dealership stopping their supplies on
the basis of the report dated 17.5.2017 and
show cause notices dated 30.05.2017 and
25.5.2018 (sent on 4.7.2018) in any manner
whatsoever.

B. That the defendant to pay cost of
the suit.

C. That such other or further relief as
the nature of the case admits of be also
granted to the plaintiffs."

6. Along with suit, an application for
grant of interim injunction was also filed on
10.07.2018 seeking following relief:

"For
the
reasons
given
in
the
accompanying affidavit, it is respectfully
prayed that the Hon'ble Court may be
pleased to restrain the defendant, its
officers and employees from interfering in
supplying of the petrol/diesel and other
lubricant products of all kinds to the
plaintiffs retail outlet by suspending or
terminating the retail outlet and dealership
stopping their supplies on the basis of the
report dated 17.05.2017 and show causes
notices dated 30.05.2017 and 25.05.2018
(sent on 04.07.2018) in any manner
whatsoever till the disposal of this suit"

7. The trial Court on 10.07.2018
following order was passed on the
injunction application:-

"10-7-2010

oknh }kjk izkFkZuk i= 8x e; 'kiFki= 9x
izLrqr dj dFku fd;k x;k gS fd izfroknhx.k o
mlds vf/kdkfj;kas o deZpkfj;ksa dks vLFkk;h fu"ks/kkKk
O;kns'k ds ek/;e ls fu"ksf/kr fd;k tk;s fd os okn ds
656 INDIAN LAW REPORTS ALLAHABAD SERIES
vfUre fuLrkj.k rd oknh dks isVaksy@Mhty ,oa vU;
mlls lacaf/kr mRiknksa dh vkiwfrZ esa dksbZ ck/kk mRiUu
u djsaA

lquk rFkk i=koyh dk voyksdu fd;kA

oknhx.k us vius dFku ds leFkZu eas 'kiFki=
9x ds layXud yhtMhM fnukWd 1-10-2003 dh izfr
fujh{k.k fVIi.kh fnukWd 17-5-2017 dh izfr] uksfVl
fnukWd 30-5-2017 dh izfr o oknh dks i= fnukWd 7-62017] lR;kiu izek.k i=] iathdj.k izek.k i= vkfn
dh izfr ,oa lwph 11x ls ewy uksfVl fnukWd 25-52018 dkxt la0 12x@1 rk 12x@4 fyQkQk uksfVl
fnukWd 25-5-2018 dh izfr dkxt la0 13x uksfVl
fnukWd 30-5-2018 dh izfr dkxt la0 14x tokc
fnukWd 17-6-2017 dh izfr dkxt la0 15x@1 o i=
fnukWd 9-7-2018 dh izfr dkxt la0 16x izLrqr fd;s
x;s gSaA

lquk rFkk i=koyh dk voyksdu fd;kA

okn ds rF;ksa ,oa ifjfLFkfr;ksa ds izdk'k esa ;fn
bl Lrj ij oknhx.k ds i{k eas ,d i{kh; vLFkk;h
fu"ks/kkKk O;kns'k ikfjr ugh fd;k x;k rks oknh okn
dk mn~ns'; foQy gksus rd viw.kZuh; {kfr gksus dh
lEHkkouk gSA vr% izfroknh dks ,di{kh; fu"ks/kkKk
O;kns'k ds ek/;e ls fu"ksf/kr fd;k tkrk gS fd og
Lo;a vFkok vius lg;ksfx;ksa ds ek/;e ls oknh ds
vkmVysV dks fuyfEcr ;k lekIr dj oknh dks vkiwfrZ
gksus okys isVaksy@Mhty ,oa mlls lacaf/kr vU;
mRiknksa dh vkiwfrZ dks vfxze fu;r frfFk rd ckf/kr
u djsaA i=koyh izkFkZuk i= 8x ds fuLrkj.k gsrq
fnukWd 27-7-2018 dks is'k gksA oknhx.k vkns'k 39
fu;e 3 dk vuqikyu vfoyEc djsaA

g0v0

flfoy tt 1⁄4fl0fM01⁄2

vkxjkA"

8. It is argued that on the same day,
i.e., 10.07.2018, when the suit was
preferred, an ex parte injunction was
granted
in
favour
of
the
plaintiffsrespondents by the Civil Judge (Junior
Division), Agra, restraining the petitionerdefendant from suspending or terminateing
the retail outlet and further directions were
given to not to stop sales and supplies of
the petroleum products till the next date
fixed. It is argued that an application under
Sction 8 of the Arbitration & Conciliation
Act, 1996 was filed by the petitionerCorporation on 19.9.2019. It is argued that
large numbers of dates were fixed in the
matter but no orders were passed on the
same by the court below. It is argued that
the reliefs soubht by the plaintiffsrespondents are clearly barred by subsection (1) of Section 14 of the Specfic
Relief Act. The counsel for the petitioner
relied upon a judgement in support of his
submission, reported in (1991) 1 SCC 533
(Indian Oil Corporation Ltd. Vs. Amritsar
Gas Service & others).It is argued that in
view of the aforesaid, the suit filed by the
plaintiffs-respondents
itself
was
not
maintainable.

9. It is further argued that once an
application
under
Section
8
of
the
Arbitration & Conciliation has been filed,
the Civil Court has no jurisdiction to
continue with the suit in support of his
submission. He relied upon thejudgment of
Hon'ble Supreme Curt, reported in 2003 (6)
SCC
503
(Hindustan
Petroleum
Corporation Ltd. Vs. Pinkcity Midway
Petroleum).

10. On the other hand, it is argued by
Sri H.P. Dube, learned counsel for the
respondents that no action whatsoever has
been taken by the petitioner-defendant for
more than one year by moving any
application for vacation of such interim
injunction or for dismissal of the suit as
provided under Order VII Rule 11 CPC. It
is further argued that the order passed by
the Civil Court dated 10.7.2018 us an
appealable Order XXXXIII Rule 1(r). Thus
the petition under Argicle 227 of the
Constitution of India is not maintainable.

11. Heard learned counsel for the
parties and perused the record.

12. It appears from perusal of the
record that in spite of the aforesaid ex-parte
2 All. Indian Oil Corp. Ltd. Vs. M/s J. Lal Filling Station & Anr.
657
injunction order, no action was taken by the
petitioner-corporation
to
move
any
application in the court below for vacation
of the aforesaid order and for the first time
after more than one year, an application
was filed as provided under Section 8 of
the Arbitration and Conciliation Act, 1996
read with Section 151 CPC with the prayer
to refer the matter to the Director
Marketing of Indian Oil Corporation for
arbitration.

13. It is clear from perusal of the
record that only a show cause notice was
issued to the respondents by the PetitionerDefendant asking them to submit their
reply to the aforesaid notice which was
issued on the basis of the inspection carried
out and report submitted by OEM on
28.02.2018. It further appears that certain
irregularity was found during the inspection
and only thereafter, the show cause notice
was issued to the respondent-plaintiff. The
only remedy which was available to the
plaintiff respondent to file a reply to the
show cause notice but in place of
submitting reply, suit in question has been
filed by the plaintiff-respondent and on the
same day, i.e, on 10.07.2018, ex-parte
interim injunction was granted by the trial
Court. It further reveals from perusal of the
order dated 10.07.2018 by which interim
injunction was granted that none of the
ingredients as required by law namely
prima facie case, balance of convenience
and irreparable loss have been seen by the
trial
court
while
granting
interim
injunction. It further reveals from perusal
of the record that an application for
appointment of arbitration was filed on
11.9.2019 but till date no decision has been
taken on the same. Section 36 of the
Specific Reliefs Act, 1963 provides for
preventive relief. Section 37 of the Specific
Reliefs Act, 1963 provides that temporary
injunction in a suit shall be regulated by the
Code of Civil Procedure. The grant of relief
in a suit for specific performance is itself a
discretionary remedy. It is settled law that
for the grant of interim injunction, plaintiff
has to establish a strong prima facie case on
the basis of undisputed facts. The conduct
of the plaintiffs-respondents will also be
very relevant consideration for the purpose
of injunction. At this stage for the grant of
interim injunction, the discretion has to be
exercised judiciously and not arbitrarily.

14. The cardinal principles for grant
of temporary injunction were settled by the
Apex Court in the case of Dalpat Kumar
vs. Prahlad Singh, (1992) 1 SCC 719. The
relevant paragraph is quoted below:-

"5...Satisfaction that there is a prima
facie case by itself is not sufficient to grant
injunction. The Court further has to satisfy
that noninterference by the Court would
result in "irreparable injury" to the party
seeking relief and that there is no other
remedy available to the party except one to
grant injunction and he needs protection
from the consequences of apprehended
injury or dispossession. Irreparable injury,
however, does not mean that there must be
no physical possibility of repairing the
injury, but means only that the injury must
be a material one, namely one that cannot
be adequately compensated by way of
damages. The third condition also is that
"the balance of convenience" must be in
favour of granting injunction. The Court
while granting or refusing to grant
injunction should exercise sound judicial
discretion to find the amount of substantial
mischief or injury which is likely to be
caused to the parties, if the injunction is
refused and compare it with that which is
likely to be caused to the other side if the
injunction is granted. If on weighing
658 INDIAN LAW REPORTS ALLAHABAD SERIES
competing possibilities or probabilities of
likelihood of injury and if the Court
considers that pending the suit, the subject
matter should be maintained in status quo,
an injunction would be issued. Thus the
Court has to exercise its sound judicial
discretion in granting or refusing the relief
of ad interim injunction pending the suit."

15. In the case of M.P. Mathur vs.
DTC, (2006) 13 SCC 706, following
observations were made by the Apex Court
which is quoted below:-

"14. The present suit is based on
equity...In the present case, the plaintiffs
have
sought
a
remedy
which
is
discretionary. They have instituted the suit
under Section 34 of the 1963 Act. The
discretion which the court has to exercise is
a judicial discretion. That discretion has to
be exercised on well settled principles.
Therefore, the court has to consider--the
nature of obligation in respect of which
performance
is
sought,
circumstances
under which the decision came to be made,
the conduct of the parties and the effect of
the court granting the decree. In such
cases, the court has to look at the contract.
The court has to ascertain whether there
exists an element of mutuality in the
contract. If there is absence of mutuality
the court will not exercise discretion in
favour of the plaintiffs. Even if, want of
mutuality is regarded as discretionary and
not as an absolute bar to specific
performance, the court has to consider the
entire conduct of the parties in relation to
the subject matter and in case of any
disqualifying circumstances the court will
not grant the relief prayed for (Snell's
Equity, 31st Edn., p. 366)...."

16. In the case of Wander Ltd. and
another vs. Antox India P. Ltd., 1990
Suppl. SCC 727 prescribes a rule of
prudence only. Much will depend on the
facts of a case. In the case of Gujarat
Bottling Co. Ltd. vs. Coca Cola Co.,
reported in (1995) 5 SCC 545, following
observations were made :

"47....Under Order 39 of the Code of
Civil Procedure, jurisdiction of the Court
to interfere with an order of interlocutory
or temporary injunction is purely equitable
and, therefore, the Court, on being
approached,
will,
apart
from
other
considerations, also look to the conduct of
the party invoking the jurisdiction of the
Court, and may refuse to interfere unless
his conduct was free from blame. Since the
relief is wholly equitable in nature, the
party invoking the jurisdiction of the Court
has to show that he himself was not at fault
and that he himself was not responsible for
bringing
about
the
state
of
things
complained of and that he was not unfair
or inequitable in his dealings with the party
against whom he was seeking relief. His
conduct should be fair and honest...."

17. It is settled law that where
arbitration clause exists, the court is a
mandatory duty to report the dispute arising
between the contracting parties to the
arbitrator in the case of Hindustan
Petroleum Corporation Ltd. Vs. Pinkcity
Midway Petroleums (2003) 6 SCC 503.
Following observations have been made by
the Apex Court in paragraph 14 of the
aforesaid judgement which is reproduced
below:-

"Therefore, in cases where there is an
arbitration clause in the agreement, it is
obligatory for the Court to refer the parties
to arbitration in terms of their arbitration
agreement and nothing remains to be
decided in the original action after such an
2 All. Indian Oil Corp. Ltd. Vs. M/s J. Lal Filling Station & Anr.
659
application is made except to refer the
dispute to an arbitrator. Therefore, it is
clear that if, as contended by a party in an
agreement between the parties before the
Civil Court, there is a clause for
arbitration, it is mandatory for the Civil
Court to refer the dispute to an arbitrator."

18. In this view of the matter, the
interim injunction granted by the court
below
in
favour
of
the
plaintiffsrespondents is per se illegal and in
complete violation of the law laid down by
the Apex Court from time to time.

19. Insofar as the arguments advanced
by Sri H.P. Dube, learned counsel for the
respondents that against interim injunction
granted
in
favour
of
the
plaintiffsrespondents, an alternative remedy is
available to the petitioner to file an appeal
as provided under Order 41 Rule 1(r) of
CPC is concerned, the principles relating to
the scope and applicability of Article 227
of the Constitution of India in great detail
by a Division Bench of this Court in the
case of Ram Roop and others Vs. Bishwa
Nath and others reported in AIR 1958
Allahabad 456 which are reproduced
below:-

1. The superintendence referred to in
Article 227 of the Constitution includes
judcial superintendence.

2. The power conferred by the Article
is wide but not unlimited. The exercise of
the power is discretionary and relief under
the Article cannot be claimed as a matter of
right.
The
principles
regulating
the
exercise of the power are generally
speaking the same as the principles on
which writs can be issued under Article 226
but in a sense the power under Article 227
is wider as the High Court can sometimes
issue directions in the exercise of that
power which it could not do under Article
226.

3. The power under the Article can be
exercised even in those cases in which no
appeal or revision lies in the High Court.

4. The power should not ordinarily be
exercised if any other remedy is available
to the aggrieved party even though the
pursuing of that remedy may involve some
inconvenience or delay.

5.The power should not be used to
correct mere errors of fact or law. Error of
law may include a wrong decision on a
question of jurisdiction.

6. The power is to be used sparingly
only in appropriate cases in which the
conscience of the Court is pricked and it
feels that immediate interference is called
for as it is necessary to keep the
Subordinate Courts or Tribunals within
their bound or to prevent some outrageous
miscarriage of justice and grave results
would follow if the power is not exercised.
Whether a particular case is of this kind or
not will depend on its own facts and
circumstances.
Such
cases
cannot
obviously be exhaustively catalogued."

20. The Apex Court in the case of
Shalini Shyam Sethi and others Vs.
Rajendra Shanker Patel (2010) 8 SCC 329
has considered the entire history and scope
of Article 227 in detail and after
considering the various decisions of various
High Courts as well as Supreme Court has
formulated principles for exercise of
jurisdiction under Article 227 of the
Constitution of India in para 49 of the
which is under:-

"49. On an analysis of the aforesaid
decisions of this Court, the following
principles on the exercise of High Court's
jurisdiction under Article 227 of the
Constitution may be formulated:
660 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) A petition under Article 226 of the
Constitution is different from a petition
under Article 227. The mode of exercise of
power by High Court under these two
Articles is also different.

(b) In any event, a petition under Article
227 cannot be called a writ petition. The
history of the conferment of writ jurisdiction
on High Courts is substantially different from
the history of conferment of the power of
Superintendence on the High Courts under
Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a
hat,
in
exercise
of
its
power
of
superintendence under Article 227 of the
Constitution, interfere with the orders of
tribunals or Courts inferior to it. Nor can it,
in exercise of this power, act as a Court of
appeal over the orders of Court or tribunal
subordinate to it. In cases where an
alternative statutory mode of redressal has
been provided, that would also operate as a
restrain on the exercise of this power by the
High Court.

(d) The parameters of interference by
High Courts in exercise of its power of
superintendence have been repeatedly laid
down by this Court. In this regard the High
Court must be guided by the principles laid
down by the Constitution Bench of this Court
in Waryam Singh Vs. Amarnath (AIR 1954
SC 215) and the principles in Waryam Singh
(supra) have been repeatedly followed by
subsequent Constitution Benches and various
other decisions of this Court.

(e) According to the ratio in Waryam
Singh (supra), followed in subsequent cases,
the High Court in exercise of its jurisdiction
of superintendence can interfere in order
only to keep the tribunals and Courts
subordinate to it, ''within the bounds of their
authority'.

(f) In order to ensure that law is
followed by such tribunals and Courts by
exercising jurisdiction which is vested in
them and by not declining to exercise the
jurisdiction which is vested in them.

(g) Apart from the situations pointed in
(e) and (f), High Court can interfere in
exercise of its power of superintendence
when there has been a patent perversity in
the
orders
of
tribunals
and
Courts
subordinate to it or where there has been a
gross and manifest failure of justice or the
basic principles of natural justice have been
flouted.

(h) In exercise of its power of
superintendence High Court cannot interfere
to correct mere errors of law or fact or just
because another view than the one taken by
the tribunals or Courts subordinate to it, is a
possible view. In other words the jurisdiction
has to be very sparingly exercised.

(i)
High
Court's
power
of
superintendence under Article 227 cannot
be curtailed by any statute. It has been
declared a part of thebasic structure of the
Constitution by the Constitution Bench of
this Court in the case of L. Chandra Kumar
vs. Union of India & others, reported in
(1997)
3
SCC
261
and
therefore
abridgement
by
a
Constitutional
amendment is also very doubtful.

(j) It may be true that a statutory
amendment of a rather cognate provision,
like Section 115 of the Civil Procedure
Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and
cannot cut down the ambit of High Court's
power under Article 227. At the same time,
it must be remembered that such statutory
amendment
does
not
correspondingly
expand the High Court's jurisdiction of
superintendence under Article 227.

(k) The power is discretionary and has
to be exercised on equitable principle. In
an appropriate case, the power can be
exercised suo motu.

(l) On a proper appreciation of the
wide and unfettered power of the High
2 All. Indian Oil Corp. Ltd. Vs. M/s J. Lal Filling Station & Anr.
661
Court under Article 227, it transpires that
the main object of this Article is to keep
strict administrative and judicial control by
the High Court on the administration of
justice within its territory.

(m) The object of superintendence,
both administrative and judicial, is to
maintain efficiency, smooth and orderly
functioning of the entire machinery of
justice in such a way as it does not bring it
into
any
disrepute.
The
power
of
interference under this Article is to be kept
to the minimum to ensure that the wheel of
justice does not come to a halt and the
fountain of justice remains pure and
unpolluted in order to maintain public
confidence in the functioning of the
tribunals and Courts subordinate to High
Court.

(n) This reserve and exceptional
power of judicial intervention is not to be
exercised just for grant of relief in
individual cases but should be directed for
promotion of public confidence in the
administration of justice in the larger
public interest whereas Article 226 is
meant
for
protection
of
individual
grievance. Therefore, the power under
Article 227 may be unfettered but its
exercise is subject to high degree of
judicial discipline pointed out above.

(o) An improper and a frequent
exercise of this power will be counterproductive
and
will
divest
this
extraordinary power of its strength and
vitality."

21. Applying the principles, as laid
down by the Apex Court in the case of
Shalini Shyam (supra), the Court is of the
opinion that it is a fit case, where the court
shold exercise its jurisdiction under Article
227 of the Constitution of India, despite
there being alternative remedy is available
for the reasons (1) the order dated
10.7.2018 granting interim injunction is
illegal, against the settled principles of law
and perverse (2) the suit filed by the
plaintiffs-respondents
is
barred
under
Section 14(1) of the Specfic Relief Act, (3)
Once an application is filed under Section 8
of the Arbitration and Conciliation Act, the
court has no jurisdiction to continue with
the suit, as held in case of Hindustan
Petroleum Corporation (supra) and (4) to
ensure that wheel of justice does not come
to a halt and foundation of justice remains
pure and unpolluted in orderto maintain
public confidence in functioning of the
court.

22. In view of the aforesaid, the
injunction
order
dated
07.2.2018
as
extended from time to time is set aside
being wholly illegal and contrary to the
settled principles for grant of temporary
injunction.

23. At this point, Sri H.P. Dube,
learned counsel for the respondents submits
that his client will withdraw the suit filed
by them by moving an appropriate
application before the Court below within a
period of one week from today. He further
prayed that a direction be issued to the
petitioner to allow time to file reply to the
show cause notice dated 25.5.2018.

24. In view of the undertaking and
submission of Sri H.P. Dube, learned counsel
for the respondents, the Civil Judge (Senior
Division) Agra is directed to pass appropriate
order on the withdrawal application of the
plaintiffs-respondents within one week from
the date of filing of withdrawal application of
the plaintiffs-respondents, who undertakes to
file it within one week. The plaintiffsrespondents are further directed to file reply
to the show cause notice dated 25.5.2018,
within one month from today. If the reply to
662 INDIAN LAW REPORTS ALLAHABAD SERIES
show-cause notice is file within stipulated
period, the petitioner-Corporation will pass
appropriate orders on the same in accordance
with law within further period of one month,
after providing opportunity of hearing to the
plaintiffs-respondents.

25. With the aforesaid direction, the
petition is allowed.
----------
(2021)02ILR A662
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2021

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Arbitration and Conciliation Appl. U/S 11(4) No.
68 OF 2019

Tata Projects Ltd. ...Applicant
Versus
Central
Organisation
for
Railway
Electrification ...Opp. Party

Counsel for the Applicant:
Sri Rahul Agarwal

Counsel for the Opp. Party:
Sri Navneet Chandra Tripathi

A. Civil Law - Arbitration and Conciliation
Act,
1996-Section 11(4)-challenge
toappointment
of
arbitrator-seeking
appointment of arbitrator in respect of
payment
dispute-applicant
successfully
executed the work but aggrieved by the
full
payment
have
not
been
madeapplicant issued a notice to appoint the
arbitrator but the respondent refused to
appoint-applicant was within it's right to
approach the Court for appointment of
independent arbitrator-claim made is not
time barred-proposed arbitrator is eligible
as he was appointed Presiding Officer of
the SAT before enforcement of the 2020
Rules dated 12.02.2020-those rules do not
apply to proposed arbitrator-no legal
impediment in his continuance as an
arbitrator-neither on ground of legality
nor of propriety, the proposed arbitrator is
inconvenienced.(Para 1 to 38)

The application is allowed. ( E-5)

List of Cases cited:-

1.
Central
Organization
for
Railway
Electrification Vs M/S ECISPIC -SMO-MCML
(JV) A joint Venture Comp.; (2019) SCC
Online 1635,

2. Beghar Foundation Vs K.S. Puttaswamy
(Retd. ); (2021) 123 taxman. Com 344 SC

3. U.O.I . Vs M/S Tantia Construction Ltd.(
S.L.P.(C) Nos. 12670/2020)

4. Build India Construction System Vs U.O.I
(2002) 5 SCC 433

5. Bharat Broadband Network Ltd. Vs United
Telecoms Ltd. (2019) 5 SCC 755

6. Madras Bar Association Vs U.O.I. & anr.(
2020) SCC Online SC 962

(Delivered by Hon'ble Saumitra Dayal Singh, J.)

1. Heard Sri Rahul Agarwal, learned
counsel for the applicant and Sri Navneet
Chandra Tripathi, learned counsel for the
opposite party.

2. Present is an application filed under
Section 11 of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as the 'Act').
The application was filed on 12.07.2019 with
a prayer to appoint an independent arbitrator,
to adjudicate the disputes that have arisen
between the parties under a written contract
dated 01.03.2010 entered into between the
applicant and the Chief Project Manager,
Railway Electrification for the work "Design,
Supply, Erection, Testing & Commissioning
of 25 KV, AC, 50 Hz, Single Phase, Traction
Overhead Equipments, Switching Stations,