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TMI Blog2009 (8) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was permitted to sell and retail petroleum products belong to the respondent. Under Clause 2 of the said agreement the respondent granted leave and licence and permission to the appellant, for the duration of the agreement, to enter on the said premises and to use the premises and the apparatus and equipments installed thereon for the sole and exclusive purpose of storing, selling and handling the products purchased by the appellant as dealer from the respondent; it is further provided therein that the appellant, save in such manner shall have no right, title or interest to the said premises or apparatus or equipments installed thereon and shall not be entitled to claim the right of lessee, sub-lessee, tenant or any other interest in the said premises or outfit; it is also specifically provided therein that the appellant shall not be deemed to be in exclusive possession of the said premises. 2. Disputes and differences having arisen between the parties with respect to the said agreement and the respondent having terminated the dealership of the appellant, the Chairman and Managing Director of the respondent on 13th June, 2008, in accordance with the arbitration clause, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribunal could be said to be contrary to law; it was further pointed out that in the opinion of this Court, on the perusal of the memorandum of appeal, the only ground which appeared to have some force was the ground taken in the memorandum of appeal of the arbitrator as on the date of making of the order having become functus officio. 5. The senior counsel for the appellant has read various documents, earlier orders filed alongwith the memorandum of appeal. The senior counsel for the appellant firstly has contended that the arbitrator erred in not finding a case in favour of the appellant inspite of several courts in proceedings prior thereto having granted interim orders in favour of the appellant. In this regard it may be stated that the appellant had first preferred WP(C)14426/2006 in this Court with respect to the order of the respondent terminating the dealership of the appellant. In the said writ petition vide order dated 13th September, 2006, while issuing notice to show cause to the respondent, the operation of the termination order was stayed till the next date of hearing. It may, however, be noted that though the respondent was represented before the court on that date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha MANU/SC/0387/2009MANU/SC/0387/2009 : (2009) 5 SCC 694 holding inter alia that a precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decided an interim order which does not finally and conclusively decide an issue cannot be a precedent; any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided and cannot be ratio decidendi or precedent. Moreover, the orders on which reliance was placed by the senior counsel for the appellant are ex parte and in any case finally it was directed that the arbitrator will decide the application under Section 17 of the Act without being influenced therefrom. Thus, it cannot be urged that the arbitrator was bound by the aforesaid ex parte interim orders of the courts. Faced with the said position, no further submissions were made in this respect. 10. The senior counsel for the appellant next contended that the arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing wrong in the said direction of the arbitrator. As per the agreement (supra) between the parties, the land as well as structure, apparatus, equipments thereon belongs to the respondent and the appellant was merely a licensee to operate the same. I have inquired from the senior counsel for the appellant whether there is anything in the agreement which bars such an arrangement. Though it is the admitted position that the term of the dealership agreement had not expired but the senior counsel for the appellant admits that the agreement otherwise was terminable even prior to the expiry of its term on stipulated defaults by the appellant. That being the position, the order impugned is found to be in consonance with law. The order protects the rights of the appellant by directing that the respondent shall not appoint any dealer or create any third party rights with respect to the said outlet till the disposal of the arbitration proceedings and adjudication of the disputes qua the termination order. 13. I had repeatedly inquired from the senior counsel for the appellant as to how the agreement of such a nature could be specifically enforceable as was sought by the appellant as a inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r his own hands appoint. It is not in dispute that the arbitrator was appointed on 13th June, 2008. The senior counsel for the appellant has contended that arbitrator entered into reference on 4th July, 2008; the period of six months expired on 4th November, 2008 and the further period of four months would expire on 4th March, 2009. The order aforesaid is dated 4th June, 2009. It is thus the contention of the senior counsel for the appellant that the arbitrator neither extended any time by four months neither by any order nor by the impugned order and was thus functus officio on the date of the making of the award. However, save for this bare averment nothing further has been contended on this important aspect. 17. The senior counsel for the respondent on enquiry in this respect contended that the 1996 Act unlike the 1940 Act does not provide for any time for making of the award. It is further argued that in the present case the parties have by their conduct extended the time for the arbitrator to make the award. 18. I had inquired from the senior counsel for the appellant whether the appellant had taken the said plea before the arbitrator. The answer is in the negative. 19. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be pressed by the petitioner is that there are no arbitration proceedings, no question of appeal against the said order arises. Thus I find that parties by agreement express and/or implied had extended the arbitration agreement beyond the term provided in Clause 66 of the earlier agreement between the parties. 23. I have had occasion to deal with such a clause also in Surender Pal Singh v. Hindustan Petroleum Corporation Ltd. MANU/DE/0929/2009MANU/DE/0929/2009. I find that even when the mandate of the arbitrator and/or the arbitration proceedings terminates in accordance with such an agreement between the parties, under Section 15(2) of the Act a substitute arbitrator is to be appointed, according to the rules that were applicable to the appointment of the arbitrator being replaced. That being the position, the expiry of the time aforesaid loses its significance inasmuch as the only impact thereof is of the appointing authority of the respondent again appointing the arbitrator. Considering that the arbitration proceedings were/are underway before the arbitrator already appointed, in all likelihood the same arbitrator would have been appointed again. Thus, no merits are fou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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