Manju Sashu Vs. Indian Oil Corp. Ltd. - Court Judgment

Excerpt:
the case debated on cancellation of contract under order 39 rules 1&2 of the civil procedure code, 1908, in relevance to distributorship of the liquefied petroleum gas - the show cause notice was issued for cancellation on the basis of false information supplied regarding the marital status - it was ruled that the cancellation of the distributorship could not be stayed - - he further assailed the impugned order on the ground that the learned judge failed to consider that there was no concealment or wrongful furnishing of information of any material particu-lar. thus, at best, the said affidavit could have been extenuating circumstance for the respondent to consider while deciding the show cause notice and not a ground for challenge to show cause notice itself.ordermanmohan sarin, j.1. petitioner is aggrieved by the order dated 17.8.1994 passed by the senior civil judge, dismissing the petitioner's appeal against the order dated 8.8.1989, by which the learned civil judge had dismissed the petitioner's application under order xxxix, rules 1 & 2 of the code of civil procedure.2. notice in the revision petition was issued on 5.9.1994, and in the meantime, respondents were restrained from terminating and cancelling the distributorship agency of the petitioner on the basis of the show cause notice dated 14/17.8.1987. pleadings in the revision petition are complete. arguments were heard and concluded on 12.12.1997.3. the facts, in brief, culminating in filing of the present revision petition may be noticed:(i) petitioner in response to an advertisement in the year 1984, had applied for being granted the distributorship of the lpg gas of the respondent under the scheduled caste category against the 1984-85 marketing plan. petitioner, while filling up the applica-corporation form, declared her marital status as 'unmarried'. in the event, petitioner was awarded the lpg gas distributorship and a distributorship agreement was entered into between the petitioner and the respondent on 3.6.1986. (ii) respondent issued a show cause notice dated 14/17.8.1987 to the petitioner. respondent called upon the petitioner to show cause, within 15 days, as to why the distributorship agency should not be terminated on the ground that petitioner had shown her marital status as 'unmarried' in the application. for allotment and it had now come to the knowledge of the respondents that the petitioner on the date when she applied for the distributorship was married. accordingly, the declaration made regarding martial status was false. further that petitioner had deliberately concealed this material fact required in the application form and, thereby contravened clause 27-l of the agreement. (iii) petitioner sent a reply dated 29.9.1987 to the show cause notice wherein it was claimed that there was no contravention of clause 27-l of the agreement. petitioner admitted the factum of her marriage on 19.7.1982 with one mr. raman luthra but claimed that the marriage did not survive and she had left the matrimoni-al house. the marriage was finally dissolved by a decree of divorce dated 5.5.1986 by mutual consent. it was also claimed that there was no concealment or furnishing of wrong information with regard to a material particular. it was claimed that since the marriage with mr. raman luthra did not survive, petitioner was not receiving any support from the said raman luthra and it would have not made any difference in the petitioner's income. further, that the whole purpose of disclosing the matrimonial status was to ascertain that the petitioner does not have any other income. (iv) before the respondents could even take a decision on-the-show cause notice and response received thereto, petitioner filed the present suit for permanent injunction. the learned civil judge did not grant an ex-parte order or restraint. petitioner thereupon filed cr. 873/87. the civil revision petition was disposed of vide order dated 30.8.1988, recording the statement of counsel for the respondent. learned counsel for the respondent stated that respondents would not take any action in terms of the show cause notice bearing no. lpg.954 dated 14/17.8.1987, provid-ed the interim injunction was disposed of at an early date and the decision on the application under order xxxix, rules 1 & 2, cpc being without prejudice to the rights of the respondents in respect of an application under section 34 of the arbitration act. it was also the respondent's case that the agreement dated 3.6.1986 contained an arbitration agreement. (v) the learned civil judge, while dismissing the application under order xxxix, rules l & 2, cpc, held that since the factum of petitioner giving in the application for allotment her marital status as 'unmarried' while actually being married was an admit-ted fact, this amounted to furnishing of incorrect information of a material particular, thereby contravening clause 27-l of the agreement. he, thereforee, found that the petitioner did not have a prima facie case and balance of convenience was also not in her favor and the loss that she may suffer could not be termed as an irreparable loss. (vi) the learned senior civil judge, in appeal, also noted that the factum of furnishing incorrect or untrue statement was admit-ted in the application form. the learned senior civil judge in the impugned order, further noted that as per the information required to be given in the application form under the heading 'income', an affidavit, duly attested by a notary was also required to be filed. further, income had been defined in the application form as 'the income of the applicant or his/her spouse or dependent children'. space had been provided in the form to give the other income or income of spouse, etc. one of the conditions in the application form, viz. clause (8) at page 2, was that if any of the information was found to be incorrect, at any stage, 'the application was liable to be rejected. in these circumstances petitioner, by giving her marital status as 'unmarried' had, thereforee, filed a wrong affidavit with regard to income, inasmuch as the income of her husband had not been stated. the learned civil judge, thereforee, concluded that petitioner had misrepresented and, in fact, there is an admission about not giving the correct information about her marital status in the plaint itself. the learned senior civil judge, thereforee, held that respondent had every right to cancel the distributorship. (vii) at this stage, i may also notice that in this case the counsel who had appeared for the respondent in, appeal, before the learned senior civil judge, had stated that the appeal may be allowed since whether the applicant was married or unmarried at the time of allotment of distributorship was a question of fact requiring evidence. learned senior civil judge has adversely, commented upon this in his judgment, while dismissing the appeal.4. learned counsel for the petitioner has urged before me that the only condition for eligibility for allotment of lpg distributorship was that the applicant was a 'scheduled caste' and the income was less than rs. 24,000/- per annum. he submitted that the marital status was irrelevant and, there-fore, even if there was a misdeclaration it was not on a material particu-lar, as would be required for contravention of clause 27-l of the agree-ment. he further submitted that the petitioner, who was married to sh. raman luthra on 19.11.1982, had started living separately from 11.12.1982. further, divorce by mutual consent was granted on 5.5.1986, while the agreement for distributorship was signed on 3.6.1986. he urged that on the date of the agreement, petitioner was divorced. learned counsel submitted that petitioner had, in fact, disclosed to the respondents the actual position about her marital status before the award of the distributorship. reliance was placed on an affidavit dated 5.5.1986 of the petitioner's husband, sh. raman luthra, who had stated that after the marriage on 19.11.1982, they had separated on 11.12.1982 and till the decree of divorce on 5.5.1986 he did not support the petitioner in any way and the petitioner was not dependent on him. a copy of the said affidavit has been placed on the record of this revision petition. it was put to learned counsel for the petitioner whether there was any receipt or acknowledgement about the said affidavit having been furnished to the respondent. petitioner was unable to produce any forwarding letter or acknowledgement of receipt by the respondents of the said affidavit.5. learned counsel for the petitioner further submitted that having regard to the factual situation of the petitioner having separated from her husband and not being dependent on him, there was no wrongful declaration in respect of her income. besides, she did not receive any support from her husband. learned counsel further 'argued that the petitioner had made out a prima facie case which required trial. this was especially so since the counsel for the respondents who appeared before the learned senior civil judge in appeal had given a statement' that the appeal may be allowed as the factum of petitioner being married or not at the time of grant of distributorship required evidence. he further assailed the impugned order on the ground that the learned judge failed to consider that there was no concealment or wrongful furnishing of information of any material particu-lar. the marital status of the petitioner according to him, was not a material particular.6. learned counsel for the petitioner further submitted that in any case, since the respondents have renewed the agreement subsequently, the show cause notice dated 14/17.8.1987 had become infructuous.7. mr. c.m. oberoi, learned counsel for the respondents, on the other hand, submitted that there was no material irregularity or illegal exercise of jurisdiction in the impugned order warranting interference in revisional jurisdiction. learned counsel also submitted that it was not open to the petitioners to file the suit and challenge the show cause notice.8. learned counsel for the respondents further submitted that in view of the order dated 30.8-1988, passed in cr. 873/87 and the stay granted by this court on 5.9.1994 against terminating or cancelling the distributor-ship agency pursuant to the show cause notice dated 14/17.8.1987, the respondents had not proceeded to take action. especially since the stay had continued and the matter was subjudice before the court. he submitted that petitioner could not take advantage of the same and contend that the notice has become infructuous.9. i have carefully perused the pleadings and documents on record and heard learned counsel for the parties. it would be worthwhile to notice the averments made by the petitioner in para (3) of the plaint:'that when the distributorship was allotted to the plaintiff, an application form for the agency was submitted by the plaintiff, and in the form the marital status of the plaintiff was shown as 'unmarried' but the fact of the matter is that the plaintiff was married to one mr. raman luthra son of late shri v.r. luthra on 19.11.1982 and was separated on 11.12.1982 and ultimately a decree of divorce was granted on 6.5.1986.'it would be noticed that petitioner herself admits the factum of her marriage. there is no explanationn as to why petitioner made a wrong decla-ration. even if petitioner was living separately, the fact of the matter is that the divorce came through, as per petitioner's own statement, on 5.5.1986. the contention of the petitioner that the marital status was not relevant since it was not a condition for eligibility is misconceived, inasmuch as, the marital status assumes significance with regard to the further particulars required to be furnished with regard to, income of the spouse. petitioner's declaration in the application form did not include the income of her spouse. whether the petitioner was receiving any support or not from the spouse cannot alter the factum of incorrect declaration. moreover, respondents had only issued a show cause notice, response to which had, admittedly, been sent. it was the petitioner who rushed to this court even before a decision could be taken by the respondents on the show cause notice and reply thereto. i find merit in the submission of mr. oberoi that petitioner could not have assailed the issuance of the show cause notice in these circumstances, which did not suffer from any patent illegality or error of jurisdiction.10. the findings reached by the learned civil judge and affirmed by the learned senior civil judge that the petitioner did. not have a prima facie case, are fully justified and cannot be faulted with. as noticed earlier, petitioner had not produced any acknowledgement or receipt of having sent to the respondent the affidavit of her former husband, mr. raman luthra, dated 5.5.1986, although, in my view, even if the said affidavit had been furnished, it could not have altered the factum of incorrect declaration filed by the petitioner in her application form wherein she gave her mari-tal status as 'unmarried' and also concealed the income of her spouse. thus, at best, the said affidavit could have been extenuating circumstance for the respondent to consider while deciding the show cause notice and not a ground for challenge to show cause notice itself. petitioner's statement of being an unmarried lady was patently false. the subsequent event of petitioner's divorce prior to the award of distributorship, it would ap-pear, cannot absolve the petitioner from the factum of wrongful declara-tion.11. i also do not find any merit in petitioner's contention that because of the renewal of the agreement the show cause notice has become infructu-ous. as noticed earlier, there was a restraint order passed by this court, restraining the respondent from terminating or cancelling the distributor-ship of the petitioner pursuant to the show cause notice. respondents, therefore, cannot be faulted for having renewed the distributorship of the petitioner. on the other hand, had the respondents taken action, it would have amounted to over reaching the court.12. there is also no merit in the submission of learned counsel for the petitioner that the appeal should have been allowed in view of the statement made by the counsel for the respondent before the senior civil judge in appeal. as noted earlier, the learned senior civil judge has rightly observed that there was no occasion for the respondent's counsel to have made the statement before the court. in any case, the court cannot be faulted for having proceeded to decide the appeal in accordance with law.13. i find no material irregularity or error or jurisdiction in the impugned order. the revision petition has no merit and is dismissed.revision dismissed.

Judgment:
ORDER

Manmohan Sarin, J.

1. Petitioner is aggrieved by the order dated 17.8.1994 passed by the Senior Civil Judge, dismissing the petitioner's appeal against the Order dated 8.8.1989, by which the learned Civil Judge had dismissed the petitioner's application under Order XXXIX, Rules 1 & 2 of the Code of Civil Procedure.

2. Notice in the revision petition was issued on 5.9.1994, and in the meantime, respondents were restrained from terminating and cancelling the distributorship agency of the petitioner on the basis of the show cause notice dated 14/17.8.1987. Pleadings in the revision petition are complete. Arguments were heard and concluded on 12.12.1997.

3. The facts, in brief, culminating in filing of the present revision petition may be noticed:

(i) Petitioner in response to an advertisement in the year 1984, had applied for being granted the distributorship of the LPG Gas of the respondent under the Scheduled Caste category against the 1984-85 Marketing Plan. Petitioner, while filling up the applica-corporation form, declared her marital status as 'unmarried'. In the event, petitioner was awarded the LPG Gas distributorship and a distributorship agreement was entered into between the petitioner and the respondent on 3.6.1986.

(ii) Respondent issued a show cause notice dated 14/17.8.1987 to the petitioner. Respondent called upon the petitioner to show cause, within 15 days, as to why the distributorship agency should not be terminated on the ground that petitioner had shown her marital status as 'unmarried' in the application. for allotment and it had now come to the knowledge of the respondents that the petitioner on the date when she applied for the distributorship was married. Accordingly, the declaration made regarding martial status was false. Further that petitioner had deliberately concealed this material fact required in the application form and, thereby contravened Clause 27-L of the Agreement.

(iii) Petitioner sent a reply dated 29.9.1987 to the show cause notice wherein it was claimed that there was no contravention of Clause 27-L of the Agreement. Petitioner admitted the factum of her marriage on 19.7.1982 with one Mr. Raman Luthra but claimed that the marriage did not survive and she had left the matrimoni-al house. The marriage was finally dissolved by a decree of divorce dated 5.5.1986 by mutual consent. It was also claimed that there was no concealment or furnishing of wrong information with regard to a material particular. It was claimed that since the marriage with Mr. Raman Luthra did not survive, petitioner was not receiving any support from the said Raman Luthra and it would have not made any difference in the petitioner's income. Further, that the whole purpose of disclosing the matrimonial status was to ascertain that the petitioner does not have any other income.

(iv) Before the respondents could even take a decision on-the-show cause notice and response received thereto, petitioner filed the present suit for permanent injunction. The learned Civil Judge did not grant an ex-parte order or restraint. Petitioner thereupon filed CR. 873/87. The Civil Revision Petition was disposed of vide order dated 30.8.1988, recording the statement of Counsel for the respondent. Learned Counsel for the respondent stated that respondents would not take any action in terms of the show cause notice bearing No. LPG.954 dated 14/17.8.1987, provid-ed the interim injunction was disposed of at an early date and the decision on the application under Order XXXIX, Rules 1 & 2, CPC being without prejudice to the rights of the respondents in respect of an application under Section 34 of the Arbitration Act. It was also the respondent's case that the Agreement dated 3.6.1986 contained an arbitration agreement.

(v) The learned Civil Judge, while dismissing the application under Order XXXIX, Rules l & 2, CPC, held that since the factum of petitioner giving in the application for allotment her marital status as 'Unmarried' while actually being married was an admit-ted fact, this amounted to furnishing of incorrect information of a material particular, thereby contravening Clause 27-L of the Agreement. He, thereforee, found that the petitioner did not have a prima facie case and balance of convenience was also not in her favor and the loss that she may suffer could not be termed as an irreparable loss.

(vi) The learned Senior Civil Judge, in appeal, also noted that the factum of furnishing incorrect or untrue statement was admit-ted in the application form. The learned Senior Civil Judge in the impugned order, further noted that as per the information required to be given in the application form under the heading 'Income', an affidavit, duly attested by a notary was also required to be filed. Further, income had been defined in the application Form as 'the income of the applicant or his/her spouse or dependent children'. Space had been provided in the form to give the other income or income of spouse, etc. One of the conditions in the application Form, viz. Clause (8) at page 2, was that if any of the information was found to be incorrect, at any stage, 'the application was liable to be rejected. In these circumstances petitioner, by giving her marital status as 'Unmarried' had, thereforee, filed a wrong affidavit with regard to income, inasmuch as the income of her husband had not been stated. The learned Civil Judge, thereforee, concluded that petitioner had misrepresented and, in fact, there is an admission about not giving the correct information about her marital status in the plaint itself. The learned Senior Civil Judge, thereforee, held that respondent had every right to cancel the distributorship.

(vii) At this stage, I may also notice that in this case the Counsel who had appeared for the respondent in, appeal, before the learned Senior Civil Judge, had stated that the appeal may be allowed since whether the applicant was married or unmarried at the time of allotment of distributorship was a question of fact requiring evidence. Learned Senior Civil Judge has adversely, commented upon this in his judgment, while dismissing the appeal.

4. Learned Counsel for the petitioner has urged before me that the only condition for eligibility for allotment of LPG distributorship was that the applicant was a 'scheduled caste' and the income was less than Rs. 24,000/- per annum. He submitted that the marital status was irrelevant and, there-fore, even if there was a misdeclaration it was not on a material particu-lar, as would be required for contravention of Clause 27-L of the Agree-ment. He further submitted that the petitioner, who was married to Sh. Raman Luthra on 19.11.1982, had started living separately from 11.12.1982. Further, divorce by mutual consent was granted on 5.5.1986, while the Agreement for distributorship was signed on 3.6.1986. He urged that on the date of the agreement, petitioner was divorced. Learned Counsel submitted that petitioner had, in fact, disclosed to the respondents the actual position about her marital status before the award of the distributorship. Reliance was placed on an affidavit dated 5.5.1986 of the petitioner's husband, Sh. Raman Luthra, who had stated that after the marriage on 19.11.1982, they had separated on 11.12.1982 and till the decree of divorce on 5.5.1986 he did not support the petitioner in any way and the petitioner was not dependent on him. A copy of the said affidavit has been placed on the record of this revision petition. It was put to learned Counsel for the petitioner whether there was any receipt or acknowledgement about the said affidavit having been furnished to the respondent. Petitioner was unable to produce any forwarding letter or acknowledgement of receipt by the respondents of the said affidavit.

5. Learned Counsel for the petitioner further submitted that having regard to the factual situation of the petitioner having separated from her husband and not being dependent on him, there was no wrongful declaration in respect of her income. Besides, she did not receive any support from her husband. Learned Counsel further 'argued that the petitioner had made out a prima facie case which required trial. This was especially so since the Counsel for the respondents who appeared before the learned Senior Civil Judge in appeal had given a statement' that the appeal may be allowed as the factum of petitioner being married or not at the time of grant of distributorship required evidence. He further assailed the impugned order on the ground that the learned Judge failed to consider that there was no concealment or wrongful furnishing of information of any material particu-lar. The marital status of the petitioner according to him, was not a material particular.

6. Learned Counsel for the petitioner further submitted that in any case, since the respondents have renewed the agreement subsequently, the show cause notice dated 14/17.8.1987 had become infructuous.

7. Mr. C.M. Oberoi, learned Counsel for the respondents, on the other hand, submitted that there was no material irregularity or illegal exercise of jurisdiction in the impugned order warranting interference in revisional jurisdiction. Learned Counsel also submitted that it was not open to the petitioners to file the suit and challenge the show cause notice.

8. Learned Counsel for the respondents further submitted that in view of the order dated 30.8-1988, passed in CR. 873/87 and the stay granted by this Court on 5.9.1994 against terminating or cancelling the distributor-ship agency pursuant to the show cause notice dated 14/17.8.1987, the respondents had not proceeded to take action. Especially since the stay had continued and the matter was subjudice before the Court. He submitted that petitioner could not take advantage of the same and contend that the notice has become infructuous.

9. I have carefully perused the pleadings and documents on record and heard learned Counsel for the parties. It would be worthwhile to notice the averments made by the petitioner in para (3) of the plaint:

'That when the distributorship was allotted to the plaintiff, an application form for the agency was submitted by the plaintiff, and in the form the marital status of the plaintiff was shown as 'Unmarried' but the fact of the matter is that the plaintiff was married to one Mr. Raman Luthra son of late Shri V.R. Luthra on 19.11.1982 and was separated on 11.12.1982 and ultimately a decree of divorce was granted on 6.5.1986.'

It would be noticed that petitioner herself admits the factum of her marriage. There is no Explanationn as to why petitioner made a wrong decla-ration. Even if petitioner was living separately, the fact of the matter is that the divorce came through, as per petitioner's own statement, on 5.5.1986. The contention of the petitioner that the marital status was not relevant since it was not a condition for eligibility is misconceived, inasmuch as, the marital status assumes significance with regard to the further particulars required to be furnished with regard to, income of the spouse. Petitioner's declaration in the application form did not include the income of her spouse. Whether the petitioner was receiving any support or not from the spouse cannot alter the factum of incorrect declaration. Moreover, respondents had only issued a show cause notice, response to which had, admittedly, been sent. It was the petitioner who rushed to this Court even before a decision could be taken by the respondents on the show cause notice and reply thereto. I find merit in the submission of Mr. Oberoi that petitioner could not have assailed the issuance of the show cause notice in these circumstances, which did not suffer from any patent illegality or error of jurisdiction.

10. The findings reached by the learned Civil Judge and affirmed by the learned Senior Civil Judge that the petitioner did. not have a prima facie case, are fully justified and cannot be faulted with. As noticed earlier, petitioner had not produced any acknowledgement or receipt of having sent to the respondent the affidavit of her former husband, Mr. Raman Luthra, dated 5.5.1986, although, in my view, even if the said affidavit had been furnished, it could not have altered the factum of incorrect declaration filed by the petitioner in her application form wherein she gave her mari-tal status as 'Unmarried' and also concealed the income of her spouse. Thus, at best, the said affidavit could have been extenuating circumstance for the respondent to consider while deciding the show cause notice and not a ground for challenge to show cause notice itself. Petitioner's statement of being an unmarried lady was patently false. The subsequent event of petitioner's divorce prior to the award of distributorship, it would ap-pear, cannot absolve the petitioner from the factum of wrongful declara-tion.

11. I also do not find any merit in petitioner's contention that because of the renewal of the agreement the show cause notice has become infructu-ous. As noticed earlier, there was a restraint order passed by this Court, restraining the respondent from terminating or cancelling the distributor-ship of the petitioner pursuant to the show cause notice. Respondents, therefore, cannot be faulted for having renewed the distributorship of the petitioner. On the other hand, had the respondents taken action, it would have amounted to over reaching the Court.

12. There is also no merit in the submission of learned Counsel for the petitioner that the appeal should have been allowed in view of the statement made by the Counsel for the respondent before the Senior Civil Judge in appeal. As noted earlier, the learned Senior Civil Judge has rightly observed that there was no occasion for the respondent's Counsel to have made the statement before the Court. In any case, the Court cannot be faulted for having proceeded to decide the appeal in accordance with law.

13. I find no material irregularity or error or jurisdiction in the impugned order. The revision petition has no merit and is dismissed.

Revision dismissed.