Dr. Bhuwan Chandra Tewari & Others vs Bharat Petroleum Corporation Limited & Others

Manoj K. Tiwari, J

Heard learned counsel for the parties.

By means of this writ petition, petitioners have sought the following reliefs:-

"(I) Issue writ order or direction in the nature of mandamus by commanding the respondents no. 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 & Sons supply of petrol, diesel and other lubricants to the firm M/S Harikishan Tewari & Sons be stopped."

Petitioners claim to be partners in a partnership firm, namely, M/s Harikishan Tewari & Sons, having 33% share in the profits. The said partnership firm was dealing in retail sale of petroleum products pursuant to agency granted by Bharat Petroleum Corporation Ltd. (respondent nos. 1& 2).

Since differences arose between the partners, therefore, petitioners filed a suit for rendition of accounts against the other two partners, namely, respondent nos. 5 & 6, which was registered as Civil Suit No. 78 of 1998. The said suit was dismissed by learned Civil Judge (Senior Division), Almora vide judgment dated 14.09.2001. Petitioners challenged the said judgment by filing First Appeal No. 08 of 2001, which too was dismissed by learned District Judge, Almora vide judgment and order dated 13.03.2003. Petitioners, thereafter, filed Second Appeal No. 40 of 2003, which was allowed by this Court vide judgment dated 22.11.2004. The operative portion of the judgment rendered in Second Appeal is extracted below:-

"11. Therefore, the appeal is allowed and impugned judgment and order passed by the lower Appeallate 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 the 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."

Learned counsel for the petitioners submits that all the Courts have held that petitioners are partner in the firm with 33% share in the profit. He further submits that copy of the judgment passed by this Court in Second Appeal was sent to respondent no. 2 with a request to reconstitute the partnership firm and include name of the petitioners as partner in the Retail Outlet Dealership of Bharat Petroleum Corporation Limited. He further submits that petitioner no. 1 had held detailed discussion with Senior Sales Officer and other higher officers of BPCL regarding re-constitution of the firm and for including name of the petitioners in Outlet Dealer License. Learned counsel for the petitioners has also referred to the correspondence made between petitioner no. 1 and respondent no. 2 regarding re-constitution of the firm.

In this backdrop, petitioners have approached this Court seeking a writ of mandamus commanding respondent nos. 1 & 2 to reconstitute the firm.

Partnership is based on agreement between two or more persons who have agreed to share the profit of a business carried on by all or any of them acting for all, as provided in Section 4 of the Partnership Act, 1932. Section 5 of the Act further provides that the relation of partnership arises from contract and not from status.

Hon'ble Supreme Court in the case of Helper Girdharibhai Vs. Saiyed Mohd. Mirasaheb Kadri, reported in (1987) 3 SCC 538, has held as under:

"8. Whether there was a partnership or not may in certain cases be a mixed question of law and fact, in the sense that whether the ingredients of partnership as embodied in the law of partnership were there or not in a particular case or not must be judged in the light of the principles applicable to partnership. The first question, therefore, is what is a partnership? That has to be found in Section 4 of the Indian Partnership Act, 1932, it says: "Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all" (emphasis supplied). Section 6 of the said Act reiterates that in determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together. The following important elements must be there in order to establish partnership (1) there must be an agreement entered into by all parties concerned, (2) the agreement must be to share profits of business; and ( 3) the business must be carried on by all or any of the persons concerned acting for all.."

It has come on record that Sri Amba Dutt Tewari (respondent No. 5), who was partner in the firm has passed away on 14.06.2018, therefore, Section 42(c) of the Partnership Act would be attracted. Thus it is for the remaining partners to decide whether they want to continue as partner in the firm or not. In the absence of agreement between the parties, no partnership can be created.

A short counter affidavit has been filed by Sri Kanwaljot Singh, Territory Manager (Retail), Bharat Petroleum Corporation Ltd., Dehradun on behalf of respondent Nos. 1 & 2. Para 6 & 7 of the said affidavit are extracted below:-

"6. That it is relevant to state here that as per Section 30 of the Partnership Act there is mandatory conditions of no objection certificate of the existing partner for induction of a new partner. The answering respondents as well as the deponent have never received any application in the prescribed format for re-constitution of the B.P.C.L. dealership, therefore the reconstitution of dealership could not be proceeded with unless the reconstitution guidelines are completely met out.

That as soon as the answering respondents will receive application in the prescribed format after following due process, as per the Reconstitution of Dealership Rules and Guidelines, it will be proceeded accordingly."

Since respondent Nos. 1 & 2 have stated in the counter affidavit that request, if made, by the petitioners for reconstitution of BPCL dealership, will be processed as per the Reconstitution of Dealership Rules and Guidelines. Therefore, this Court thinks that ends of justice would be met if petitioners are permitted to make appropriate application to BPCL, which shall be considered in accordance with law.

Accordingly, the writ petition is disposed of with liberty to petitioners to make application to the competent authority in BPCL. The competent authority shall take decision on the application in accordance with law and communicate the decision to the petitioners, within eight weeks of receipt of the application.

Interim order, if any also stand vacated.