Gujarat High Court
Alphard Maritime Pvt. Ltd. vs Malara Enterprises on 23 April, 2021
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/IAAP/40/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/PETN. UNDER ARBITRATION ACT NO. 40 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE BELA M. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ALPHARD MARITIME PVT. LTD.
Versus
MALARA ENTERPRISES
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Appearance:
MR ASHWIN SHANKAR WITH MR RISHI MURAR KP FOR MS PAURAMI B.
SHETH(841) for the Petitioner(s) No. 1
MR.PARTH CONTRACTOR(7150) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date : 23/04/2021
CAV JUDGMENT
1. The petitioner M/s. Alphard Maritime Pvt. Ltd., has preferred the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the said Page 1 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT Act"), seeking following prayer: "18.a. Appoint an independent Arbitrator for the purpose of resolving the dispute arose between the petitioner and the respondents under the Arbitration and Conciliation Act, 1996 (for short "the Act") read with the Arbitration and Conciliation (Amendment) Act, 2019, No.33 of 2019."
2. As per the case of the petitioner, the petitioner is a Company incorporated in India and is an owner of various tugs, barges and offshore vessels. The petitioner is the owner of the barge A M Abhik, on which the dry docking services were provided by the respondents, who belong to Malara firm, a proprietary firm of the Proprietor Mr.Ashish S. Joshi, the respondent No. 2 herein. The further case of the petitioner, as stated in the petition, is that the petitioner required dry docking services for the barge involved in the present dispute, for which the respondent No.2 had approached the petitioner with a quotation for the dry dock repairs of the barge at Sikka Port on behalf of the respondent No.1. Later as per the instructions of the petitioner, the respondent No.1 sent the quotations and the contractual terms on its letterhead vide Email on 26.9.2019 for the dry docking services to be provided, (AnnexureB Collectively). Clause13 of the terms and conditions thereof is Page 2 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT reproduced as under: "13 Jurisdiction of arbitration will be at the High Court of Gujarat".
3. According to the petitioner, though it was specifically provided in the contract that the dry docking activities will be completed in a timebound manner i.e. within 30 days of the docking, the respondents took 120 days in completing the dry docking and also made other breaches of the contract, which were noticed by the petitioner subsequently i.e. after the payments were made to the respondents for the said work. According to the petitioner, it was forced to incur an additional cost of cleaning the tanks on the barge, and on account of the delay occurred in completing the work, the petitioner also suffered a loss of freight and other losses as a result of the breaches of the contract at the instance of the respondents. The petitioner, therefore, sent a notice dated 14.4.2020 through E mail calling upon the respondents to pay the damages arising out of the breach of the contract amounting to INR 5,85,00,000/ and also invoked the arbitration Clause 13 requesting the respondents to appoint an independent and impartial sole Arbitrator as per the provisions of the said Act Page 3 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT (AnnexureC). However, the respondents responded vide the E mail dated 11.5.2020 stating inter alia that the respondents did not have any such contract as mentioned in their Email and asked the petitioner not to communicate on the subject in future. Thereafter, certain correspondences were exchanged between the parties in which the respondents refuted the very existence of the contract. The petitioner therefore has filed the petition seeking appointment of Arbitrator under Section 11 of the said Act, in view of the Clause13 of the terms and conditions of the contract quoted by the respondents in AnnexureB.
4. The respondents have resisted the petition by filing an affidavitinreply, challenging the very maintainability of the petition under Section 11 of the said Act and contending inter alia that a quotation could not be said to be a contract. There was no agreement between the parties for referring the dispute to the arbitration . It is also contended that even if it was assumed that there was a contract between the petitioner and the respondents, then also a passing reference to the word "Arbitration" or "Arbitrator" in a contract would not constitute a valid agreement between the parties. The respondents have further contended that the petitioner had intentionally Page 4 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT suppressed the fact that the purchase order dated 27.9.2019 issued by the petitioner in favour of the respondent No.2, which was duly acted upon by the parties, did not have the clause of arbitration. Thus, in absence of any arbitration agreement between the parties, the petitioner could not have filed the petition for appointment of an Arbitrator.
5. The learned Advocate Mr.Ashwin Shankar appearing for the petitioner submitted that the quotation dated 26.9.2020 containing the arbitration Clause13 defined the contractual relationship between the parties. The other clauses contained in the said quotation were also referred to by the respondents in the correspondences, which had ensued at the contemporaneous time. The purchase order was issued by the petitioner pursuant to the Clause11 of the quotation dated 26.09.2020. From the E mails exchanged and the conduct of the parties, it was evidently clear that there was an arbitration agreement as contemplated in Section 7 of the said Act. Since, runs the submission of the learned Advocate Mr.Ashwin Shankar, the existence of the Clause13 is not denied by the respondents, the respondents have indirectly admitted to the validity of the Arbitration Clause, by stating that there was no ad idem between the parties on the arbitration agreement. Mr.Shankar invoking the Doctrine of Page 5 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT KompentenzKompentenz, has relied upon the decision of the Supreme Court in case of Uttarakhand Purv Sainik Kalyan Nigam Limited Vs. Northern Coal Field Limited, reported in (2020) 2 SCC 455 to submit that the arbitral Tribunal is empowered and has the competence to rule on its own jurisdiction including determining all jurisdictional issues as also the existence or validity of the arbitration agreement. Reliance has also been placed on the decision of the Supreme Court in case of Govind Rubber Limited Vs. Louis Dreyfus Commodities Asia Private Limited reported in (2015) 13 SCC 477 to submit that an arbitration agreement even though in writing need not be signed by the parties, if the record of agreement is provided in exchange of letters, telex, telegrams or other means of communications.
6. Per contra, the learned Advocate Mr.Parth Contractor for the respondents vehemently submitted that the quotation by the respondents was merely an offer and not a binding contract, and that there was no arbitration clause in the purchase order. Mr. Contractor further submitted that assuming without admitting that the quotation contained the arbitration agreement, such passing reference of words in the terms and conditions of the Page 6 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT quotation would not constitute a valid arbitration agreement as contemplated under Section 7 of the said Act. Placing heavy reliance on the decision of the Supreme Court in case of Jagdish Chander Vs. Ramesh Chander and Ors., reported in (2007) 5 SCC 719, Mr. Contractor submitted that mere use of the word "arbitration" or "arbitrator" in a clause would not make it an arbitration agreement, if it required or contemplated a further or fresh consent of the parties for reference to arbitration. Mr. Contractor also relied upon the decision of the Bombay High Court in case of Dhargalkar Technoesis (I) Pvt. Ltd. Vs. MMRD (in Arbitration Petition No.55 of 2020) decided on 3.12.2020 to buttress his submission that in absence of an arbitration agreement between the parties the petition is liable to be dismissed.
7. At the outset, it may be noted that the 2015 Amendment Act brought significant changes in Section 11 of the Act, and subsection (6A) was inserted therein by the said Amendment Act, w.e.f. 23.10.2015. The said subSection (6A) was omitted by the Act 33 of 2019, however it seems that though the said Amendment Act 33 of 2019 was published in the Official Gazette of India on 9th August, 2019, the said deletion of subsection (6A) Page 7 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT has not come into effect. The Supreme Court in the latest decision in case of Bharat Sanchar Nigam Ltd. Versus M/s. Nortel Networks India Pvt. Ltd. decided on 10th March, 2021, in Civil Appeal Nos. 843844 of 2021, observed with regard to the status of subsection (6A) as under:
"The 2019 Amendment has deleted subsection (6A) in Section
11. However, the amended to Section 11 is yet to be notified. Consequently, subsection (6A) continues to remain on the statute book, and governs the scope of power under Section 11 for the present. "
8. The said subsection (6A) of Section 11 of the said Act reads as under: "(6A) The Supreme Court or, as the case may be, the High Court, while considering any application under subsection (4) or subsection (5) or subsection (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement."
9. In case of Uttarakhand Purv Sainik Kalyan Nigam Limited (supra), the Supreme Court considering subsection (6A) of Section 11 and applying the Doctrine of Kompentenz Kompentenz, also known as competencecompetence, reiterated that in view of the legislative mandate contained in Section 11 (6A) the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold Page 8 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT issues are left to be decided by the Arbitrator under Section 16. The precise observations made by the Supreme Court in the said case are reproduced as under:
"7.10. In view of the legislative mandate contained in Section 11(6A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issued are left to be decided by the arbitrator under Section 16, which enshrines the kompetenzkompetenz principle."
10. In view of the above stated legal position, the Court is required to examine only about the existence of the Arbitration Agreement. Section 7 of the said Act envisages as to what is an Arbitration Agreement. The said provision reads as under:
"7. Arbitration Agreement (1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in Page 9 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT which the existence of the agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract."
11. At his juncture, it would be also germane to refer to the decision of the Supreme Court in the case of Govind Rubber Limited (supra), on the interpretation of Section 7 of the said Act. Para. 15 to 17 thereof read as under:
"15. A perusal of the aforesaid provisions would show that in order to constitute an arbitration agreement, it need not be signed by all the parties. Section 7(3) of the Act provides that the arbitration agreement shall be in writing, which is a mandatory requirement. Section 7(4) states that the arbitration agreement shall be in writing, if it is a document signed by all the parties. But a perusal of clauses (b) and (c) of Section 7(4) would show that a written document which may not be signed by the parties even then it can be arbitration agreement. Section (4)(b) provides that an arbitration agreement can be culled out from an exchange of letters, telex, telegrams or other means of telecommunication which provides a record of the agreement.
16. On reading the provisions it can safely be concluded that an arbitration agreement even though in writing need not be signed by the parties if the record of agreement is provided by exchange of letters, telex, telegrams or other means of telecommunication, Section 7(4)(c) provides that there can be an arbitration agreement in the exchange of statements of claims and defence in which the existence of the agreement is alleged by one party and not denied by the other. If it can be prima facie shown that the parties are at ad idem, then the mere fact of one party not signing the agreement cannot absolve him from the liability under Page 10 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT the agreement. In the present day of ecommerce, in cases of internet purchases, tele purchases, ticket booking on internet and in standard forms of contract, terms and conditions are agreed upon. In such agreements, if the identity of the parties is established, and there is a record of agreement it becomes an arbitration agreement if there is an arbitration clause showing ad idem between the parties. Therefore, signature is not a formal requirement under Section 7(4)(b) or 7(4)(c) or under Section 7(5) of the Act.
17. We are also of the opinion that a commercial document having an arbitration Clause has to be interpreted in such a manner as to give effect to the agreement rather than invalidate it. On the principle of construction of a commercial agreement, Scrutton on Charter Parties (17th Edn., Sweet & Maxwell, London, 1964) explained that a commercial agreement has to be b construed, according to the sense and meaning as collected in the first place from the terms used and understood in the plain, ordinary and popular sense (see Article 6 at p. 16). The learned author also said that the agreement has to be interpreted "in order to effectuate the immediate intention of the parties".
Similarly, Russell on Arbitration (21st Edn.) opined, relying on Astro Vencedor Compania Naviera S.A. v. Mabanaft GmbH, that the court should, if the circumstances allow, lean in favour of giving effect to the arbitration Clause to which the parties have agreed. The learned author has also referred to another judgment in Paul Smith Ltd. v. H and S International Holdings lnc. in order to emphasise that in construing an arbitration agreement the court should seek to "give effect to the intentions of the parties".
12. Thus, it can be safely deduced from the aforesaid legal position that the Arbitration Agreement even though in writing need not be signed by the parties, if the record of the agreement is provided by the exchange of letters, telex, telegrams or other means of telecommunications. It is also held that a commercial Page 11 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT document having an arbitration clause has to be interpreted in such a manner as to give effect to the agreement rather than to invalidate it.
13. Ofcourse, the learned Advocate Mr. Parth Contractor appearing for the respondents has placed heavy reliance on the observations made by the Supreme Court in the case of Jagdish Chander (supra), to submit that mere use of the words 'arbitration' or 'arbitrator' in a clause will not make it an arbitration agreement, if it required a further or fresh consent of the parties for reference to arbitration. To be precise, the observations made by the Supreme Court are reproduced as under:
"8. This Court had occasion to refer to the attributes or essential elements of an arbitration agreement in K K Modi v. K N Modi [1998 (3) SCC 573], Bharat Bhushan Bansal vs. U.P. Small Industries Corporation Ltd. [1999 (2) SCC 166] and Bihar State Mineral Development Corporation v. Encon Builders (I)(P) Ltd. [2003 (7) SCC 418]. In State of Orissa v. Damodar Das [1996 (2) SCC 216], this Court held that a clause in a contract can be construed as an 'arbitration agreement' only if an agreement to refer disputes or differences to arbitration is expressly or impliedly spelt out from the clause. We may at this juncture set out the well settled principles in regard to what constitutes an arbitration agreement:Page 12 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT
(i) The intention of the parties to enter into an arbitration agreement shall have to be gathered from the terms of the agreement. If the terms of the agreement clearly indicate an intention on the part of the parties to the agreement to refer their disputes to a private tribunal for adjudication and an willingness to be bound by the decision of such tribunal on such disputes, it is arbitration agreement. While there is no specific form of an arbitration agreement, the words used should disclose a determination and obligation to go to arbitration and not merely contemplate the possibility of going for arbitration. Where there is merely a possibility of the parties agreeing to arbitration in future, as contrasted from an obligation to refer disputes to arbitration, there is no valid and binding arbitration agreement.
(ii) Even if the words 'arbitration' and 'arbitral tribunal (or arbitrator)' are not used with reference to the process of settlement or with reference to the private tribunal which has to adjudicate upon the disputes, in a clause relating to settlement of disputes, it does not detract from the clause being an arbitration agreement if it has the attributes or elements of an arbitration agreement. They are : (a) The agreement should be in writing. (b) The parties should have agreed to refer any disputes (present or future) between them to the decision of a private tribunal. (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it. (d) The parties should have agreed that the decision of the Private Tribunal in respect of the disputes will be binding on them.
(iii) Where the clause provides that in the event of disputes arising between the parties, the disputes shall be referred to Arbitration, it is an arbitration agreement. Where there is a specific and direct expression of intent to have the disputes settled by Page 13 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT arbitration, it is not necessary to set out the attributes of an arbitration agreement to make it an arbitration agreement. But where the clause relating to settlement of disputes, contains words which specifically excludes any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it will not be an arbitration agreement. For example, where an agreement requires or permits an authority to decide a claim or dispute without hearing, or requires the authority to act in the interests of only one of the parties, or provides that the decision of the Authority will not be final and binding on the parties, or that if either party is not satisfied with the decision of the Authority, he may file a civil suit seeking relief, it cannot be termed as an arbitration agreement.
(iv) But mere use of the word 'arbitration' or 'arbitrator' in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words such as "parties can, if they so desire, refer their disputes to arbitration" or "in the event of any dispute, the parties may also agree to refer the same to arbitration" or "if any disputes arise between the parties, they should consider settlement by arbitration" in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement.
Similarly, a clause which states that "if the parties so decide, the disputes shall be referred to arbitration" or "any disputes between parties, if they so agree, shall be referred to arbitration" is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or Page 14 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future. "
14. Now, so far as the facts of the present case are concerned, the petitioner has placed reliance on the Clause13 contained in the terms and conditions mentioned in the quotation submitted by the respondents. The said Clause 13 stated that the jurisdiction of arbitration will be at High Court of Gujarat. Undisputedly, the said quotation with the terms and conditions was accepted by the petitioner, without any modification therein. It is also not disputed by the respondents that pursuant to the said quotation, the petitioner had issued the purchase order in favour of the respondents for carrying out the dry docking work on the barge of the petitioner and that the contract as such was acted upon and implemented by the parties.
15. The bone of contention raised by Mr. Contractor appearing for the respondents is that the purchase order issued by the petitioner did not contain the arbitration clause. The Court does not find any substance in the said submission. Merely because the purchase order issued by the petitioner did not contain any terms and conditions or the arbitration clause, it could not be said that there was no arbitration clause, more particularly Page 15 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT when the quotation of the respondents, containing the arbitration clause was accepted by the petitioner, and on the basis of which the purchase order was issued by the petitioner. There is also nothing on record to suggest that the parties had contemplated a further or fresh consent for reference of disputes to the arbitration. The said Clause 13 contained in the quotation of the respondents having neither been denied nor modified by the petitioner till the entire contract was executed, it can safely be concluded that both the parties were adidem about the said clause pertaining to the arbitration. It does not lie in the mouth of the respondents to say that the clause13 which stated that the jurisdiction of arbitration will be at the High Court of Gujarat, was not binding to them or that there was no arbitration agreement as contemplated in Section 7 of the said Act. From the said documents on record namely the quotation of the respondents and the purchase order of the petitioner, it clearly transpires that both the parties intended to refer the disputes to the arbitration and agreed that the jurisdiction of the arbitration will be at the High Court of Gujarat.
16. This takes the Court to the next question as to whether the Court could appoint an Arbitrator under Section 11 of the said Act as prayed for in the petition. In the instant case, the parties Page 16 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT though had agreed to submit the jurisdiction of the High Court of Gujarat, they had not agreed to the procedure for the appointment of an Arbitrator. Therefore, it will be necessary to cursorily refer to the relevant provisions contained in Section 11, as regards the appointment of an Arbitrator in a situation, when the parties, though having agreed for the arbitration, have not agreed on the procedure for appointing an Arbitrator. It is needless to say that Section 11 exclusively deals with the appointment of the Arbitrators. Subsection (2) thereof provides that subject to the subsection (6), the parties are free to agree on a procedure for appointing an Arbitrator or Arbitrators. Sub section (6) provides inter alia that if an agreed procedure had not been acted upon, the parties could approach the Supreme Court or the High Court as the case may be, to take necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. Subsection (5) provides that failing any agreement referred to in subsection (2), in an arbitration with a Sole Arbitrator, if the parties fail to agree on the arbitrator within thirty days from the receipt of a request made by one party from the other party to so agree, the appointment shall be made on an application of the party, in accordance with the provisions contained in subsection (4). As Page 17 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT per subsection (4), on the contingencies mentioned therein having arisen, the appointment is required to be made, on an application of the party, by the High Court in case of arbitration other than international commercial arbitration.
17. As stated earlier, though the parties had agreed to submit to the jurisdiction at the High Court of Gujarat for the purpose of arbitration, the procedure for the appointment of the Arbitrator was not agreed upon. It has also come on record that the petitioner had already called upon the respondents by sending a Notice of Arbitration dated 14.04.220 through email, calling upon them to appoint an independent and impartial Sole Arbitrator as per the provisions contained in the Act, however the respondents had refused to agree to the said request. Under the circumstances, in absence of any procedure having been agreed upon for appointing the Arbitrator, and both the parties having failed to agree on the appointment of the Arbitrator, within thirty days from the receipt of the request made by the petitioner to the respondents, the case would fall under sub section (5) of Section 11 for appointment of Arbitrator by this Court.
18. In the aforesaid premises, the Court in exercise of the Page 18 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021 C/IAAP/40/2020 CAV JUDGMENT powers conferred under subsection (5) read with subsection (4) and subsection(2) of Section 11, appoints Mr. Jutice Kartikeya Thaker, Former Judge of High Court of Gujarat, to act as an Arbitrator to resolve the disputes between the parties. The learned Advocate Mr.Shankar appearing with Ms. Paurami Sheth for the petitioner is directed to obtain the requisite consent and declaration of Mr. Justice Thaker as required in terms of Sixth Schedule, under Section 11(8) read with Section 12(1)(b) of the Arbitration and Conciliation Act, 1996, as amended by the Arbitration & Conciliation (Amendment) Act, 2015 to act as an Arbitrator within two weeks from today. On obtaining such declaration, learned Advocate for the petitioner Mr. Shankar shall submit the same in the office within two weeks from today.
19. In the aforestated premises and subject to the aforesaid directions, the petition stands allowed accordingly. Rule is made absolute accordingly.
(BELA M. TRIVEDI, J) V.V.P PODUVAL/SINDHU NAIR Page 19 of 19 Downloaded on : Fri Apr 23 23:03:54 IST 2021