Madras High Court
John Glitous vs Devaraj on 25 April, 2022
Author: R.N.Manjula
Bench: R.N.Manjula
A.S. (MD) No. 34 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 07.04.2022
PRONOUNCED ON : 25.04.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S. (MD) No. 34 of 2017 and
C.M.P. (MD) No. 2231 of 2017
John Glitous ... Appellant / plaintiff
Vs.
1. Devaraj
2. Thankam
3. Devika
4. Rathika ... Respondents / Defendants
(Notice to R4 may be dispensed with is
recorded vide Court order dated 20.04.2017
made in A.S. (MD) No. 34 of 2017 and W.M.P.
(MD) No. 2231 of 2017 by CVKJ)
PRAYER: Appeal Suit filed Order 41 Rule 1 & 2 r/w. Section 96 of the
Civil Procedure Code, against the judgment and decree dated 22.12.2015
made in O.S. No. 57 of 2010 on the file of the District Court,
Kanniyakumari, Nagercoil.
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A.S. (MD) No. 34 of 2017
For Appellant : Mr.K.Govindarajan
for Mr.C.Cenil
For Respondents : Mr.K.Sathiya Singh for R1 to R3
R4 - Exparte
JUDGMENT
This Appeal has been preferred challenging the Judgment and Decree of the learned District Judge, Kanniyakumari at Nagercoil, dated 22.12.2015 made in O.S. No. 57 of 2010.
2.The appellant is the plaintiff; the plaintiff has filed a suit for specific performance and also for injunction in respect of the suit property; the defendants are the owners of the property comprised in R.S. No. 796/11, Eraniel Village; out of the said property, the first defendant has got title for 5½ cents and the second defendant has got title over 4 cents and the defendants 3 and 4 together got title over 5½ cents and the house therein; the second defendant is the wife of the first defendant; the defendants 3 and 4 are their daughters; the defendants have entered into a sale agreement in _______ Page 2 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 respect of the suit property in favour of the plaintiff on 30.12.2009 for sale consideration of Rs.11,00,000/- (Rupees Eleven Lakhs only); on the date of sale agreement itself, the plaintiff paid a sale advance of Rs.7,05,000/- (Rupees Seven Lakhs Five Thousand only); the time for performance of contract was fixed at three months; thereafter also, the plaintiff paid a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) as part sale consideration to the second defendant; the plaintiff is ready and willing to get the sale deed executed by paying the balance sale consideration; the plaintiff requested the defendants to execute the sale deed; since the defendants refused to come forward and execute the sale deed by receiving the balance sale consideration, the plaintiff has filed a suit for specific performance and injunction.
3.The defendants resisted the suit by alleging that they never agreed to sell the suit property in favour of the plaintiff by receiving any sale consideration; the plaintiff is a close relative of the defendants; the fourth defendant was studying Nursing Course at Chennai; in the year 2006, the _______ Page 3 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 plaintiff gave a sum of Rs.50,000/- (Rupees Fifty Thousand only) to the fourth defendant for her educational expenses by agreeing to get back the money after she finished her studies and got a job; during the year 2009, the plaintiff told that he was in financial crisis and he needed a sum of Rs. 50,000/- (Rupees Fifty Thousand only) given to the defendants; he also assured to arrange educational loan through Bank and on that pretext, he received the original property documents and he obtained signatures in the blank stamped papers; by believing the words of the plaintiff, the defendants gave all those documents to him; thereafter, the plaintiff started to harass the defendants; so the second defendant gave a complaint to the District Collector on 22.03.2010; just in order to escape from the clutches of the loan, the plaintiff has prepared a false sale agreement by misusing the signed blank papers and also gave a false police complaint; and that was closed after due enquiry; since the plaintiff did not come with clean hands to the Court, he is not entitled to the relief as claimed; there is no cause of action to the suit; hence, the suit should be dismissed. _______ Page 4 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017
4.On the basis of the above pleadings, the learned trial Judge has framed the following issues:
(i) Whether the second defendant has not executed sale agreement in favour of the plaintiff, dated 30.12.2009?
(ii) Is it true to say that the plaintiff has misrepresented to the second defendant to obtain the signatures in blank papers and original documents from the defendants?
(iii) Whether the sale agreement deed is a fraudulent one?
(iv) Whether the plaintiff is always ready and willing to perform his part of contract?
(v) Whether the plaintiff is entitled to get the decree for specific performance of contract as prayed for?
(vi) Whether the plaintiff is entitled to get permanent injunction as prayed for?
(vii) To what any relief, the plaintiff is entitled to?
5.During the course of trial, on the side of the plaintiff, three witnesses were examined as PW1 to PW3 and Exs.A1 to A17 were marked. On the side of _______ Page 5 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 the defendants, one witness was examined as DW1 and Exs.B1 and B2 were marked. On conclusion of the trial, the learned Judge dismissed the suit and granted the alternate relief of recovery of money of Rs.50,000/-(Rupees Fifty Thousand only) with interest at the rate of 12% per annum. Aggrieved over the same, the plaintiff has filed this Appeal Suit.
6.The learned counsel for the appellant submitted that Ex.A1 - sale agreement would show that it cannot be a fabricated one; despite all the defendants are residing in the same house, the second defendant alone received the notice and rest of the defendants managed to return the same; the brother of the second defendant is examined as PW2 and he has stated about the execution of the sale agreement and attested the same; the daughter of the second defendant, i.e., fourth defendant, has joined in the Nursing Course in the year 2006 and she had finished the course in the year 2010. In such circumstances, no educational loan can be arranged in the year 2009 as alleged by the defendants; the witnesses who were examined as PW2 and PW3 are attestors of Ex.A1 – sale agreement and they have _______ Page 6 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 stated clearly about the execution of the sale agreement and receiving of the advance money; PW3 is the relative to both the plaintiff and the defendants and hence, his evidence cannot be ignored; as per Section 91 of the Indian Evidence Act, 1872, the terms of contract can be proved by producing the written agreement and Section 92 of the Act would exclude the oral evidence; the learned trial Judge has dismissed the suit on the ground that the sale agreement did not have the name of the scribe in it; excepting the second defendant, the other defendants were subjected to themselves for examination; the learned trial Judge has omitted to consider the evidence on the side of the plaintiff and dismissed the suit; even after the Tamil Nadu Amendment Act, 2012, which made the registration of the sale agreement mandatory, the unregistered sale agreement can be received as evidence in the suit for specific performance; as per Proviso to Section 49 of the Registration Act, the unregistered document can be used for collateral purposes and it can be admitted as an evidence; the second defendant who was examined as DW1, has admitted the other signatures of the defendants in Ex.A1 – sale agreement and that was not properly appreciated by the _______ Page 7 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 learned trial Judge; the appellant / plaintiff was all along ready and willing to perform his part of contract by initiating all possible actions; under such circumstances, the learned trial Judge ought to have decreed the suit and the learned trial Judge has not recorded any findings with regard to the readiness and willingness on the part of the plaintiff, despite the relief of specific performance; in support of the above contentions, the learned counsel for the appellant submitted the following citations:
(i) D.Devarajan vs. Alphonsa Mary and others reported in 2019 (2) CTC 290;
(ii) Thirugnanasambandam vs. Kannan and others reported in 2018 (6) CTC 198;
(iii) V.Sivasankaran vs. Pushpalatha in C.R.P. (PD) (MD) No. 2616 of 2014.
7.The learned counsel for the respondents submitted that the sale agreement does not have the name of scribe, who had written the same; the appellant had cheated the defendants on the pretext of obtaining educational loan and _______ Page 8 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 got the title deeds of the property from the defendants; the first and second defendants are illiterate and they were made to sign the blank papers on the assurance to lend money; the learned trial Judge has rightly observed that the second defendant only availed a loan of Rs.50,000/- (Rupees Fifty Thousand only) from the plaintiff for educational expenses of the fourth defendant; the appellant managed to make use of the signed blank papers and prepared the sale agreement; the learned trial Judge has rightly appreciated the evidence in a proper perspective and non-suited the plaintiff for getting the relief of specific performance.
8.On the basis of the rival submissions made by both side counsel, I feel that the following point for consideration are essential in this Appeal Suit:
“Whether the judgment of the learned trial Judge in refusing the relief of specific performance, is fair and proper?”
9.The fact that the suit properties belong to the defendants is not in dispute. As per the evidence of DW1, it is seen that the appellant / plaintiff is the _______ Page 9 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 second defendant's paternal aunt's son. The impugned sale agreement is marked as Ex.A1 and it is an unregistered sale agreement.
10.The learned counsel for the appellant submitted that in view of the Registration (Tamil Nadu Amendment) Act, 2012, the sale agreement in respect of the immovable property above the value of Rs.100 must be registered and hence, the unregistered sale agreement – Ex.A1 is not admissible in evidence. In this context, it is relevant to cite the decision of this Court held in Devarajan vs. Alphonsa Mary and others reported in 2019 (2) CTC 290. In the said judgment, it is held that the consequence of non-registration does not operate as a total bar and in view of proviso to Section 49 and it can be used for collateral purposes. The said judgment reads as under:
“8. There was some arguments on Section 10 of the Indian Contract Act, 1872 and what emerges out of Section 10 can be stated. It reads:
“Section 10. What Agreements are Contracts:- All Agreements are Contracts; if they are made by the _______ Page 10 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 free consent of parties competent to Contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India and not hereby expressly repealed, by which any Contract is required to be made in writing or in the presence of Witnesses, or any law relating to the registration of documents.” The Second Paragraph of Section 10 only insists that where any formalities requires that a Contract be in writing or must be attested or registered, the same shall be done. In other words, Section 10 even as it defines in the First Paragraph 'what Agreements are Contracts' also goes to state in the Second Paragraph that the ingredients stipulated for the formation of a valid Contract should not be stretched as exempting any Statutory formalities prescribed for the formation of the Contract. Here, the Second Paragraph itself requires that the need for registration in terms of the Registration Act, therefore, needs to be complied with.
9. However, the consequence of non-registration does not operate as a total bar to look into the Contract, as the Proviso to Section 49 itself carves out two exceptions: Where it can be _______ Page 11 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 used for any collateral purposes, and where it can be used as an evidence in a Suit of specific Performance. When the Statute itself prescribes a legislative route within its Scheme, that cannot be denied to the Appellant herein.”
11.In yet another judgment rendered in Thirugnanasambandam vs. Kannan and others reported in 2018 (6) CTC 198, it is held that, the non- registration of the document would not affect the suit for specific performance; but however, on the basis of an unregistered agreement, the benefit under Section 53-A of the Transfer of Property Act cannot be claimed. The relevant portion of the judgment is extracted hereunder:
“36. It is the contention of the learned counsel for the defendants that the sale agreement provides that the property was handed over pursuant to the agreement and as such, in view of the amendment to Section 17(1-A) of the Registration Act, the document is inadmissible in evidence. In view of the said contention of the learned counsel for the defendants, it would be appropriate to extract Section 17(1-A) of the Registration Act, which reads as follows:-
“17. Documents of which registration compulsory:-
_______ Page 12 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 (1) .....
(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said Section 53-A.” It is significant to note that the above Section clearly provides that the contracts to transfer for consideration any immovable property for the purpose of Section 53-A of the Transfer of Property Act shall be registered and if they have not been registered, then they shall have no effect for the purpose of Section 53-A of the Transfer of Property Act. The amendment to the section 53-A of the Transfer of Property Act was made by way of Act 40 of 2001, under which the words :the contract, through required to be registered, has not been registered, or”, have been omitted. Therefore, the amendment is very clear that if the document is not registered, no relief under Section 53-A of the Transfer of Property Act can be claimed.
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37. Section 53-A of the Transfer of Property Act clearly provides that if an agreement holder was put in possession of the property and he was having an instrument of transfer that has not been completed in the manner known to law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee in respect of the property of which the transferee has taken or continued in possession other than a right expressly proved by the terms of the contract. Therefore, it is clear that Section 53-A of the Transfer of Property Act is a defending provision under which a transferee can defend his possession against the transferor who wanted to claim possession from the transferee and for defending such action against the transferor the contract is required to be registered. Hence, the claim benefit under Section 53-A of the Transfer of Property Act, the contract has to be registered.
38. So far as Section 49 of the Registration Act is concerned, the Proviso to Section 49 reads as follows:-
“Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific _______ Page 14 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 performance under Chapter II of the Specific Relief Act, 1877,[***] or as evidence of any collateral transaction not required to be effected by registered instrument.” The words 'or as evidence of part performance of a contract for the purpose of Section 53-A of the Transfer of Property Act, 1882' were omitted by Act 48 of 2001.
39. Hence, the above said proviso to Section 49 provides that the suit for specific performance is maintainable and is not barred even though the contract is not registered. The said amendment will apply only to claim benefit under Section 53-A of the Transfer of Property Act and non-registration of the document will not affect the suit for specific performance. Under such circumstances, the contention of the learned counsel for the defendants that since the sale agreement was not registered, the plaintiff is not entitled to claim the relief of specific performance, cannot be accepted.
12.The interpretation so given with regard to the admissibility of unregistered sale agreement was followed in recent judgment of this Court rendered in V.Sivasankaran vs. Pushpalatha in C.R.P. (PD) (MD) _______ Page 15 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 No. 2616 of 2014. The above judgments had settled that there is no legal impediment to receive an unregistered sale agreement as evidence in a suit for specific performance. So the admissibility of Ex.A1 in the suit for specific performance cannot be denied.
13.But the learned trial Judge had observed that the sale agreement has been created by making use of the signatures of the defendants in blank papers. In this context, the evidence of DW1 assumes no significance. Despite suit properties stood in the name of all the four defendants and their signatures in Ex.A1 – sale agreement were not denied, on the side of the defendants, the second defendant alone has been examined as DW1. It is stated by the defendants that the plaintiff had managed to get the original title deeds of the suit property from the defendants on the pretext of obtaining educational loan through Nationalized Bank. It is further submitted that the second defendant has obtained only a sum of Rs.50,000/- (Rupees Fifty Thousand only) as loan from the appellant / plaintiff for the educational expenses of her daughter, i.e., fourth defendant.
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14.The evidence of the second defendant, who was examined as DW1 would reveal that her second daughter (fourth defendant) was sent to study Nursing Course in the year 2006. Even at the time of sending her to the course, she obtained loan from the appellant. But, it is stated by the second defendant in her evidence that she had entrusted the property documents to the appellant in the year 2009. The fourth defendant has finished her course in the year 2010. DW1 admitted in evidence that on 04.01.2010, she received a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) to her account.
15.So, it is difficult to believe that the educational loan was said to be arranged at the time when the fourth defendant was about to finish her course. Ex.A1 – sale agreement shows that it was purchased in the name of the first defendant Devaraj on 30.12.2009. Neither the signature of the Devaraj, nor his thumb impression is found in Ex.A1 – sale agreement. Even though the signatures of other defendants are admitted, in the last page of the sale agreement, there are five thumb impressions. It is not stated _______ Page 17 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 specifically who had affixed them. The details of the scribe of the document is obviously missing and no scribe has signed the same. Ex.A1 – sale agreement is a typewritten, but it is an unregistered agreement. Though it is claimed by the defendants that their signatures were affixed in blank papers for creating sale agreement, the pattern in which the signatures were affixed in each page against the serial numbers and also the signatures on the stamp papers would only show that the signed blank papers could not have been utilized for the purpose of the sale agreement. Since non-judicial stamp papers for the sale agreement were purchased in the name of the first defendant on 29.12.2009, the signatures of the defendants could not have been affixed any time prior to 2009.
16.Though the sale agreement is falling short of the standard sale agreement, in which the signature of the scribe would be found, the recitals and the manner in which Ex.A1 – sale agreement got drafted will not render the same as completely concocted one, but it is prepared in an immatured manner. It is claimed by the appellant that he had given a sum of Rs. _______ Page 18 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 7,05,000/- (Rupees Seven Lakhs and Five Thousand only) as advance on the date of sale agreement itself. He has further stated that he had sent a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards part sale consideration through the Bank Account of the second defendant.
17.During her cross-examination, she had stated that on 04.01.2010 she received a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) to her Bank Account. However, she claimed that the amount was given to her by pledging the jewels of her daughter. She has stated further that since her daughter did not come to pledge her jewels, the jewels were given to some one and they had pledged the jewels and sent a sum of Rs.25,000/- (Rupees Twenty Five Thousand only). The above facts were not stated by the second defendant in the written statement. Even in her evidence, she has not stated specifically to whom had she given the jewels of her daughter. So, the receipt of a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) to the Bank Account on 04.01.2010 would only show that the said sum was sent by the plaintiff subsequent to the agreement as stated in his evidence. _______ Page 19 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 Though the second defendant had stoutly denied the entire payment made to her in pursuance of Ex.A1 – sale agreement, the evidence would reveal that she had received a part consideration of Rs.25,000/- (Rupees Twenty Five Thousand only) subsequent to the sale agreement on 04.01.2010.
18.PW2 is the brother of the second defendant and he has stated in his evidence about his attestation in the sale agreement dated 30.03.2010. He has stated that he affixed the signature on the sale agreement at the office of the document writer. So, this would only show that the document was prepared by the document writer, but in the document, the details of the document writer and his signature were omitted to be mentioned.
19.PW2 has further stated that the thumb impression was also obtained in Ex.A1 – sale agreement. PW3, another attestor, has also stated in his evidence that he had attested Ex.A1 – sale agreement. PW3 also stated that the thumb impression was obtained in Ex.A1 – sale agreement. It has already been observed that there are five thumb impressions were seen in _______ Page 20 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 Ex.A1. However, it is not made clear whether the five thumb impressions were made by the executant themselves. But, the fact remains that PW2 and PW3 are the witnesses for obtaining thumb impressions in Ex.A1. So, the cumulative evidence of PW1 to PW3 and the admission given by the DW1 would only show that on the alleged date, the sale agreement was entered into between the plaintiff and the defendants in respect of the suit properties.
20.Even though the petition was sent by the second defendant to the District Collector on 22.03.2010, which is marked as Ex.B1, her evidence would reveal that she did not know the further proceedings on the complaint. In Ex.B1 – complaint, it is stated that she had given her title documents and signed blank stamp papers and given the papers to the plaintiff and by misusing the same, the plaintiff was threatening her. But her evidence would reveal that she did not enquire about the action taken on her complaint - Ex.B1.
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21.It is to be noted that the appellant / plaintiff has also given a police complaint against the defendants on 25.03.2010. The copy of the complaint and the receipt of the complaint are marked as Exs.A2 and A3. Since the complaint has been received as a petition, the police would have definitely made enquiries about the same. But, DW1, stoutly refused that she did not know any of the complaint given by the appellant / plaintiff and she did not participate in the enquiry conducted by the police. So, the evidence of DW1 would only show that she suppressed some material aspects about the transactions. DW1 has refused in her evidence about the receipt of telegram sent by the appellant.
22.PW1 has stated in his evidence that the suit properties were purchased by virtue of three sale deeds in the name of the defendants 1 to 4. Despite that, only single sale agreement was executed. He also admitted in his evidence that he ought to have obtained separate sale agreement from the defendants. It is claimed by the respondents that the value of the suit property is Rs.35,00,000/- (Rupees Thirty Five Lakhs only) and a rock bottom price of _______ Page 22 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 Rs.11,00,000/- (Rupees Eleven Lakhs only) is stated in Ex.A1 and hence it is doubtful. Even though the execution of the sale agreement is found to be true, it was not executed in a proper manner. One of the executors did not affix his signatures or thumb impressions. All these will show the improper manner in which, Ex.A1 – sale agreement has been drafted.
23.Considering the shortfalls in Ex.A1 – sale agreement and other circumstances surrounding the transaction, I feel that the appellant / plaintiff is entitled only to get the refund of advance money in lieu of the relief of specific performance. But, the learned trial Judge had omitted to consider the admission given by DW1 in her evidence and proceeded to outrightly reject Ex.A1 – sale agreement and decreed the suit only in respect of recovery for a sum of Rs.50,000/- (Rupees Fifty Thousand only). In my view, the appellant is entitled to get the refund of advance amount of Rs. 7,05,000/- (Rupees Seven Lakhs Five Thousand only) along with another sum of Rs.25,000/- (Rupees Twenty Five Thousand only) sent to the account of the second defendant on 04.01.2010 making together _______ Page 23 of 26 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 34 of 2017 Rs.7,30,000/- (Rupees Seven Lakhs Thirty Thousand only) with interest. Thus, the point is answered accordingly.
In the result, this Appeal Suit is partly allowed and the judgment and decree in O.S. No. 57 of 2010 on the file of the District Court, Kanniyakumari at Nagercoil, is set aside and the suit is decreed in respect of the alternate relief of refund of partial consideration of Rs.7,30,000/- (Rupees Seven Lakhs Thirty Thousand only) along with interest at the rate of 7.5% per annum from the date of the sale agreement till the date of suit and thereafter till the date of decree and at the rate of 6% per annum from the date of the decree till the date of realization. No costs. Consequently, connected Miscellaneous Petition is closed.
25.04.2022
Index : Yes / No
Speaking Order : Yes / No
vji
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A.S. (MD) No. 34 of 2017
To
1. The District Court,
Nagercoil.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S. (MD) No. 34 of 2017
R.N.MANJULA, J.
vji
PRE-DELIVERY
JUDGMENT MADE
IN
A.S. (MD) No. 34 of 2017
25.04.2022
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