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Judgment
The petitioners before this Court are partners in a firm known as “M/s Harikishan Tewari and Sonsâ€. A suit for rendition of account was filed
by the petitioners before the Civil Judge (Sr. Division), Almora, which was dismissed by the learned trial court vide order dated 14.09.2001. The first
appeal against the order dated 14.09.2001 was also dismissed, as it was time barred. Aggrieved, the petitioners/plaintiffs filed a second appeal before
this Court, which as allowed vide order dated 22.11.004 and the suit of the petitioners/plaintiffs was finally decreed with directions for preparing the
preliminary decree. The operative portion of the order dated 22.11.2004 passed in Second Appeal No. 40 of 2003 reads as under:
“11. Therefore, the appeal is allowed and impugned judgment and order passed by the lower appellate court, to the extent of finding and decree
based on limitation, is set aside. The Civil Suit No. 78 of 1998 is decreed with costs for rendition of account for three years prior to the institution of
suit. Let a preliminary decree be prepared by the learned trial court as provided in the Rule 16 of Order XX of the Code of Civil Procedure, 1908.)â€
Thereafter, preliminary decree was prepared holding the petitioners as partners for 33 per cent. The partnership was for running a petrol pump at
Ranikhet, District Almora and the company was the Bharat Petroleum Corporation Ltd. Meanwhile, the private respondents continued to operate the
petrol pump.
The fact of the matter is that inspite of the preliminary decree prepared in favour of the petitioners, neither any amount was released in their favour
nor they are being allowed to participate in any manner in the partnership firm.
This petition was filed with the following prayers:
“(I) Issue writ order or direction in the nature of mandamus by commanding the respondent nos. 1 & 2 to reconstitute the firm M/s Harikishan
Tewari & Sons showing the petitioners as partners of 33% shares by giving them all the consequential benefits.
(II) Issue any other suitable writ, order or direction which in the interest of justice and under the circumstances of the case the Hon’ble Court may
deem fit and proper.
(III) Issue an interim order or direction to the respondent nos. 1 & 2 till the reconstitution of the firm M/s Harikishan Tewari & Son supply of petrol,
diesel and other lubricants to the firm M/s Harikishan Tewari & Sons be stopped.
(IV) Award the cost of petition to the petitioners.â€Â
On 06.04.2017, following orders were passed by this Court :
“Mr. Devesh Upreti, Advocate present for the petitioners.Â
Mr. Mukesh Rawat, Advocate holding brief of Mr. S.S. Chauhan, Advocate for respondent Nos. 1 & 2.
Mr. Ranjan Ghildiyal, Advocate present for respondent No. 3.
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Ashish Sinha, Advocate for respondent Nos. 4, 5 & 6.
Learned counsel for the petitioner seeks two weeks’ time to file supplementary affidavit.
Time granted.
Two weeks’ time is granted to respondent Nos. 1 & 2/Bharat Petroleum Corporation Limited to come up with the proposal as to what alternative
arrangement they can make in order to keep the Petrol Pump at Ranikhet functional, in case, respondent Nos. 5 & 6, who are presently supply diesel
and petrol at its outlet from Ranikhet, are restrained to do so, as is being prayed.
List this matter on 20.04.2017 in the daily cause list immediately after fresh cases.â€
6. On 20.04.2017, this Court passed the following orders:
“Mr. Devesh Upreti, Advocate for the petitioners.Â
Mr. S.S. Chauhan, Advocate for respondent nos. 1 & 2.
Mr.Ranjan Ghildiyal, Advocate for respondent no. 3.
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Ashish Sinha, Advoate for the respondent nos. 4, 5 & 6.
On the last occasion, learned counsel for the respondent nos., 4, 5 & 6 was directed to suggest the alternative arrangement as the erstwhile partners
of the firm, which was running petrol pump, are in disputes.
Learned counsel for the respondent nos. 1 & 2 suggests that under the provisions of the company, in such matters, as an interim arrangement, the
dealership can be given on ad-hoc basis to the next nearest dealer of the company.
He shall apprise to the Court as to the details of such dealer by filing a detailed affidavit within ten days.
Time granted.
List this matter on 02.05.2017.â€
Meanwhile, against the order dated 06.04.2017, M/s Harikishan Tewari & Sons moved a special appeal, which was dismissed by a Division Bench
of this Court vide order dated 17.05.2017.
On 20.06.2017, following orders were passed by this Court:
“Mr. Devesh Upreti, Advocate, present for the petitioner.Â
Mr. S.S. Chauhan, Advocate, present for respondent Nos. 1 and 2.Â
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Bharat Mehra, learned counsel for respondent Nos. 4 to 6.Â
A request has been made by Mr. Arvind Vashistha, learned Senior Counsel appearing for the respondent that regarding the same matter second
appeal, filed by the respondent, is pending before the learned Single Judge of this Court, which is likely to be decided on the next date fixed.Â
In view thereof, put up this matter on 17.07.2017 in the daily cause list.Â
In spite of opportunity, no counter affidavit has been filed on behalf of respondent Nos. 1 and 2.Â
In view thereof, Territory Manager, Bharat Petrol Corporation Ltd. is hereby directed to remain present in person before this Court on the next date
of listing.Â
It is made clear, in case, counter affidavit is filed by the next date of listing, the personal appearance of the Officer shall not be required in the
matter.Â
This Court tried to mediate between the parties as well considering that both petitioners and private respondents are cousins. On 17.07.2017,
following orders were passed by this Court:
“Mr. Devesh Upreti, Advocate present for the petitioners.
Mr. S.S. Chauhan, Advocate present for respondent nos. 1 & 2.
A statement has been given in the Court by the learned counsel for the Bharat Petroleum Corporation Limited that in the present controversy an ad
hoc arrangement can be made under a scheme by which such a licence can be granted to a third person for six months to three years.
Learned counsel for the Bharat Petroleum Corporation Limited shall submit the scheme before this Court by next date of listing.
List this case on 20.07.2017 in the daily cause list.â€
Meanwhile, the second appeal filed on behalf of the private respondents remained pending for consideration period of time as defective and no
effort was being made at the hands of the appellants for its disposal.
The petitioners have not moved an application with a prayer for appointment of receiver on the property.
However, before it could be considered for appointment of receiver for taking control over the petrol pump, a request has been made by Mr.
Arvind Vashistha, learned Senior Counsel for the private respondents, that since the dispute is within the family members, the efforts be made for
reconciliation even at this stage. He has also apprised this Court that there is a “Lok Adalat†scheduled to be held on 14.04.2018.
Consequently, Registry is directed to place the matter before the “Lok Adalat†on 14.04.2018.
List this case on 16.04.2018 in the daily cause list.Â