TMI Blog2005 (9) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... ase where we would set aside the impugned order of the High Court and direct it to dispose of the writ petition afresh. For the reasons aforementioned, there is no merit in this Appeal which is dismissed accordingly. - Appeal (civil) 7337 of 2004 - - - Dated:- 15-9-2005 - SINHA, S.B. AND THAKKER, C.K., JJ JUDGMENT S.B. SINHA, J: The scope and ambit of judicial review vis-`-vis availability of alternative remedy is in question in this appeal which arises out of a judgment and order dated 29.04.2004 passed by a Division Bench of the High Court of Bombay in Writ Petition No.830 of 2004 whereby and whereunder the writ petition filed by the Appellant herein was dismissed in limine. The Appellant herein and one Smt. Bimladevi T. Obhan, who were partners in 'M/s Tilak Automobiles' and the Respondent herein entered into a dealership agreement. Admittedly the said agreement was terminated by the Respondent herein by a notice dated 19.03.2004 in terms of Clause 55 of the said agreement which reads thus : "55. Notwithstanding anything to the contrary herein contained, the Corporation shall be at liberty to terminate this Agreement forthwith upon or at any time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as noticed hereinbefore, was dismissed in limine by the impugned order. Mr. Uday Umesh Lalit, the learned Senior Counsel appearing on behalf of the Appellant, at the outset drew our attention to the subsequent events which took place, namely, that referral of the disputes and differences between the parties were referred to an arbitrator on 07.06.2004 and consequent passing of a consent award by him which reads as under : "In terms of statement of settlement dated December 15, 2004, I pass the award as follows : 5.1 Net payable amount of Rs.431416.39 as agreed to by both the parties plus interest of Rs.33170/- from 1.4.04 till 31.12.04 aggregating to Rs.464586/- shall be paid by the Respondent to the Claimant. 5.2 In view of the financial difficulties of the Respondent, the above amounts shall be paid in 5 installments with the first installment commencing in the first week of Jan. 05 and the last installment to be paid in the last week of March 05. 5.3 Interest at the rate of 12% per annum will be payable for any default i.e. amount outstanding to be paid as 31st March, 05 by the Respondent to the Claimant. 5.4 All the claims of both the Claimant and the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Nagheshwara Rao, in this behalf, placed strong reliance on The State of Uttar Pradesh vs. Mohammad Nooh [1958 SCR 595]; A.V. Venkateswaran, Collector of Customs, Bombay vs. Ramchand Sobhraj Wadhwani and Another [1962 (1) SCR 753]; State of U.P. and Others vs. Bridge Roof Company (India) Ltd. [(1996) 6 SCC 22]; Seth Chand Ratan vs. Pandit Durga Prasad (D) By Lrs. and Others [(2003) 5 SCC 399]; and Asgar S. Patel and Others vs. Union of India and Others [(2000) 5 SCC 311]. The principal question which arises for consideration is as to whether a discretionary jurisdiction would be refused to be exercised solely on the ground of existence of an alternative remedy which is more efficacious. Ordinarily, when a dispute between the parties requires adjudication of disputed question of facts wherefor the parties are required to lead evidence both oral and documentary which can be determined by a domestic forum chosen by the parties, the Court may not entertain a writ application. [See M/s Titagarh Paper Mills Ltd. vs. Orissa State Electricity Board and Another [(1975) 2 SCC 436] and M/s Bisra Stone Lime Co. Ltd. etc. vs. Orissa State Electricity Board and Another [AIR 1976 SC 127] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a discretionary jurisdiction is to be exercised or refused to be exercised by the High Court has to be determined having regard to the facts and circumstances of each case wherefor, no hard and fast rule can be laid down. A three-Judge Bench of this Court in Gujarat Ambuja Cement Ltd. (supra), referring to Harbanslal Sahnia, (supra) held : " There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 25. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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