Full Text
HIGH COURT OF DELHI
JUDGMENT
ROHAN BRC GAS EQUIPMENT PVT LTD & ANR..... Petitioner
Advocates who appeared in this case:
For the Petitioner : Ms. Kaadambari Singh, Mr. Aamir Zaidi, Ms. Ayushi Zaidi, Ms. Ayushi Ranade and Mr. Sahil Khanna, Advocates
For the Respondent : Mr. Manish Mohan, CGSC with Mr. Vinod Tiwari, GP and Mr. Jatin Teotia, Advocate for UOI.
Mr. Ravi Varma, Mr. Ayush Srivastava and Mr. Ashutosh Ranjan, Advocates for R-2/ICAT.
Mr. Dayan Krishnan, Sr. Advocate with Mr. Mahip Singh, Mr. Varun Kalra and Mr. Krishan Kumar, Advocates for R-3.
[ The proceeding has been conducted through Hybrid mode ]
1. This is an application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) filed on behalf of petitioners seeking withdrawal of the present writ petition bearing W.P.(C) NO. 16337/2022.
2. Ms. Kaadambari Singh, learned counsel appearing for the applicants/petitioners submits that by way of the present application, the petitioners seek withdrawal of the present petition for pursuing appropriate legal remedies as may be available to the petitioners in law.
3. Ms. Kaadambari submits that the prayer as made in the writ petition had sought primarily a writ against the respondent no.2 (ICAT) and other respondents were merely proforma parties in the sense that the restraint orders were sought, primarily, against the respondent no.2 International Centre for Automotive Technology (hereinafter as “ICAT”) while it was issuing Homologation Certificates behind its back.
4. Ms. Kaadambari submits that the admitted fact also is that they had filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter as “A&C Act”) proceedings, in which reliefs qua the respondent no.3 were specifically sought and not clinched against ICAT, in particular. Ms. Kaadambari submits that the petitioners became aware of the TAC certificate/extension of TAC certificate only once the ICAT/respondent no.2 herein, had disclosed alongwith their documents, as to the number of transfer of TAC certificate that had taken place.
5. Ms. Kaadambari submits that they did not even know the nature of such transactions. Learned counsel relies upon the provisions of Order XXIII Rule 3 of CPC and the principles analogous thereto, which are also applicable to the writ proceedings. Ms. Kaadambari further submits that the present application would fall under Order XXIII Rule 1 sub-Rules 3(a) and (b) of CPC to submit that the petitioners cannot be left remediless and having regard to the fact that the arguments in the present petition had been continued only on the question of maintainability of the present petition as also on the point of jurisdiction and no notice having yet been issued in the present petition, such liberty can be granted.
6. Ms. Kaadambari also submits that the suit, which has already been filed before the competent Civil Court at Gurugram, does not contain the same relief as sought in the present petition and in any case that could not come in the way of the petitioner seeking to withdraw the present petition with liberty to take appropriate course to law wherever it is available to the petitioners.
7. Ms. Kaadambari relies upon the judgment of High Court of Andhra Pradesh at Hyderabad in the case of MA Faiz Khan vs. Municipal Corporation of Hyderabad in CRP No. 3428/1997 reported in AIR 1998 AP 414 decided on 20.02.1998 whereby, under similar circumstances the Single Judge of the High Court had, not only permitted the withdrawal but also granted liberty to pursue its remedy elsewhere.
8. Ms. Kaadambari also submits that the respondents had vehemently opposed the present writ petition on the basis of lack of jurisdiction and also had questioned the maintainability of the petition on the contention that it contains disputed questions of fact which could not be entertained under Article 226 of the Constitution of India.
9. Per Contra, Mr. Dayan Krishnan, learned senior counsel appearing for respondent no.3 submits that though respondent no. 3 does not oppose the withdrawal but definitely opposes the withdrawal with liberty, if granted by this Court.
10. Learned senior counsel invites attention of this Court to the provisions of Order XXIII Rule 1 sub-Rule 3 of CPC to submit that having filed a suit already in respect of the larger claims that was raised in the present writ petition and without having availed of such liberty prior to filing the suit, no such liberty can or ought to be granted.
11. Mr. Krishnan, learned senior counsel also submitted that any such liberty would preempt and curtail the defences as are available to the respondent in any other proceedings which may be undertaken by the petitioners, if any such liberty is granted.
12. Mr. Krishnan strongly stresses on the fact that the petitioners have been indulging in forum shopping, in that, immediately after having filed the present writ petition, the petitioners had also filed two applications under Section 9 of the A&C Act before the Single Judge of this Court. Learned senior counsel submits that having realized the futility of having filed the applications under Section 9 of A&C Act and the apprehension that the same may be dismissed, the petitioners also apprehending that the same result would entail, if the present writ petition would carry on, is now trying to wriggle out of a peculiar situation, created by the petitioner itself.
13. Mr. Krishnan, learned senior counsel submits that this abuse of process of law cannot be condoned and as such the liberty to take the remedies elsewhere cannot be granted to the petitioners to the determinant of the respondent.
14. Another pertinent submission made by Mr. Krishnan, learned senior counsel is that the 11 certificates as covered in para 11 of the suit as filed before the competent Court at Gurugram, the same in his submissions, squarely fall within the prayer (b) of the present writ petition and therefore, the liberty cannot be granted though withdrawal maybe permissible.
15. To the submission made by Ms. Kaadambari with regard to the manner in which the certificates have been transferred, Mr. Ravi Verma, learned counsel appearing for the ICAT had vehemently opposed the same on the ground that the certificates, at the relevant point of time, were transferred in accordance with rules and regulations of the ICAT as also on the basis of documents before it and therefore, the submission may not stand. Ms. Kaadambari opposes the same.
16. This Court has considered the arguments address by the learned counsel on both sides.
17. It would be apposite to extract the reliefs as sought by the petitioners in the present petition.
1) “Issue a Writ of Mandamus or any other Writ available in law for setting aside the Order/ Decision of the Respondent No. 2, as conveyed by Respondent No. 3 vide their email, dated October 06, 2022, permitting to addition/ transfer/ extension of the name of Respondent No. 4/ MWTL/ the JV Company, to the Homologation Certificate for CNG Pressure Regulator (Zenith MS), which the Petitioner No. I owns and is entitled to hold individually;
2) Issue an appropriate Writ of Mandamus or any other Writ available in law permanently restraining the Respondent No. 2 from delaying or curtailing the renewal of the TAC/ Homologation/ COP certificates already issued in favour of Petitioner No. I and/ or not to delay the issuance of fresh TAC/ Homologation/ COP Certificates in its favour, unless there is any court's order to the contrary;
3) Issue directions permanently restraining Respondent No. 2/ ICAT from illegally or otherwise transferring/ extending any TAC/ Homologation Certificate/ COP Certificates owned by the Petitioner No. 1, in favour of Respondent Nos. 3 and 4 or any other entity, without the specific and express consent of the Petitioners; and not to reply on the undated MoU and NOC (notarised as on 23.08.2021), the same having been revoked and even otherwise having been issued for only one application, viz., for transfer of Homologation Certificate pertaining to Duster.
4) Issue appropriate directions to the Respondent Nos. 1 and 2 to formulate clear regulations, rules and processes, for clarity and transparency on the processes and procedure, which may be followed by the Respondent No. 2 with respect to its various functions, including but not limited to consideration of applications of transfers/ extensions/ issuance/ renewal of TAC/ Homologation/ COP certificates, and to adhere to principles of natural justice for such decisions;
5) pass such other or further order(s) as this Hon'ble Court may deem and proper.”
18. When the petition was filed, the same was vehemently opposed by not only respondent no.3 but also by respondent no.2/ICAT on the basis that the same is not maintainable before this Court on the ground that (i) it entails disputed questions of facts and (ii) that none of the parties are “State” as defined under Article 12 of the Constitution of India and, therefore, not amenable to the writ jurisdiction of this Court. In fact, the very maintainability was opposed tooth and nail by the respondents.
19. It is also pertinent to note that no notice has yet been issued in the accompanying writ petition and the arguments were continuously heard only on whether the writ petition itself is maintainable as also on the question of jurisdiction.
20. The petitioners’ original case according to the writ petition was that despite an objection raised by them, the ICAT, without considering the objections, transferred the TAC certificate in favour of respondent no.4 at the instance of respondent no.3.
21. This Court has neither passed any order nor made any observations in respect of the merits of the case. There is no observation made by this Court in any of its order, which would affect either of the parties on merits. Suffice it to note that the party seeking to withdraw the petition, wherein no observations on issues of fact or law have yet been decided, cannot be curtailed to exercise its rights of appropriate remedies in law.
22. No doubt that the suit before the competent Civil Court at Gurugram has been filed by the petitioners, however, on a perusal of the suit/plaint as also reliefs as sought, it is clear that the same are not identical to the issues raised in the present writ petition.
23. Undoubtedly, there are overlapping facts, which may obviously occur, since the parties are same and grievances more or less arise out of the acts or omission or commission of ICAT. To that extent, there could be possibility of overlapping, however, that cannot be a deciding factor as to whether the present petitioners can or cannot be granted a right to withdraw with or without liberty.
24. The stress laid by learned senior counsel on the pendency of the petitions under Section 9 of A&C Act before the learned Single Bench of this Court is concerned, that may really not matter since the issue in those cases arose from agreements between petitioner no.2 and respondent no.3 and would have no bearing or consequences upon the adjudication of the present application seeking withdrawal.
25. Surely a party cannot be deprived of its rights to find alternate remedies in law, insofar as writ proceedings under Article 226 is concerned. The rights of the party cannot be curtailed in a manner to leave it remediless in all circumstances. The Courts would lean towards providing liberty to a party where no decision has taken place at all and no issue on facts or finding has been recorded. Moreover, the issues which were being heard were only with respect to whether this Court did or did not have jurisdiction. That too, has not been decided and even before coming to the conclusion on those issues, the petitioners have sought to withdraw the present writ petition seeking liberty to take appropriate remedies in accordance with law.
26. In view of the above, this Court is of the considered opinion that the petitioners can be permitted to withdraw the writ petition with liberty to take appropriate remedies in accordance with law.
27. It goes without saying that since there has been no decision either on law or on merits, the rights of all the parties remain reserved.
28. Resultantly, the application is allowed and the petition is dismissed as withdrawn.
29. The application stands disposed of in terms of the aforesaid observations. W.P.(C) 16337/2022 & CM APPL. 51230/2022 & CM APPL. 55315/2022
30. The writ petition, alongwith pending applications, is dismissed as withdrawn with liberty as sought granted.
TUSHAR RAO GEDELA, J. APRIL 20, 2023