Calcutta High Court (Appellete Side)
Thiess Minecs India Private Limited vs Roshni Developers Private Limited & Anr on 26 March, 2012
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
F.M. A. T. NO. 263 OF 2012
+
C.A.N. 2120 of 2012
THIESS MINECS INDIA PRIVATE LIMITED
-Vs.-
ROSHNI DEVELOPERS PRIVATE LIMITED & ANR.
P R E S E N T :-
The Hon'ble Mr. Justice PINAKI CHANDRA GHOSE
a n d
The Hon'ble Mr. Justice DR. MRINAL KANTI CHAUDHURI
For the appellant :-
Mr. Pratap Chatterjee
Mr. Ranjan Kumar Bachawat
Mr. Sanjay Ginodia
Mr. Majob Kumar Tiwari
Mr. Debnath Ghosh
Ms. Preeta Chaudhury
Mr. Sayan Roy Choudhury
Mr. Suvashish Sengupta
For the respondents :-
Mr. S. K. Kapoor
Mr. Sekhar B. Saraf
Mr. Ravi K. Kapoor
Mr. G. J. Jijodia
Mr. R. Bhattacharyya
Heard on : 7th March, 2012, 13th March, 2012, 19th March, 2012 & 22nd March, 2012.
Judgment on : 26th March, 2012.
PINAKI CHANDRA GHOSE, J. : Instead of taking the stay application, we hear out
the appeal by consent of Learned Advocates for the parties and dispose of the same in
the following manner :-
This appeal is directed against an order passed by the Learned Civil Judge
(Senior Division), 2nd Court, Barasat on 3rd March 2012 whereby the Learned Trial Judge
held that no prima facie material or urgency has been made out in the matter to
warrant an order of ad interim injunction and hence refused the prayer for injunction at
the ad interim stage.
Being aggrieved and dissatisfied with the said order, this appeal has been filed
by the appellant/petitioner.
Facts revealed that the appellant/petitioner filed a suit before the Learned
Trial Court praying for leave under Order II Rule 2 of the Code of Civil Procedure being Title Suit No. 20 of 2012. In the said suit the appellant/petitioner prayed for the following reliefs :-
a) Declaration that there was no concluded agreement between the parties or any of them for grant of sub-contract for the work of removal of overburden in relation to the NTPC project at Pakri, Barwadih;
b) Declaration that the MOU dated 2nd July, 2008 did not result in any concluded, valid or enforceable agreement;
c) Declaration that there is no arbitration agreement between the plaintiff and the defendant no. 1;
d) Declaration that the terms contained in the purported MOU dated 2nd July, 2008 including Clause 10 thereof came to an end and ceased to be operative and incapable of being performed and became void after 2nd July, 2008 and/or 31st January, 2011;
e) Declaration that the purported MOU dated 2nd July, 2008 is illegal, null and void and cannot be acted upon;
f) Declaration that the letter dated 2nd February, 2012 and the demands made therein are wrongful, illegal, null and void;
g) Declaration that without execution of an agreement as contemplated in the MOU dated 2nd July, 2008, there is no valid, enforceable or operative agreement between the parties or either of them which is capable of performance;
h) A decree of perpetual injunction restraining the parties hereto from giving effect to, seeking to rely upon and/or relying on the terms of the said MOU dated 2nd July, 2008 or any clause thereof before any Authority or Court of Law or in any other way or manner whatsoever;
i) A decree of perpetual injunction restraining the defendants, their servants, agents and/or assigns from in any way or manner giving any or any further effect to the said MOU dated 2nd July, 2008 and particularly Clause 10 thereof;
j) A decree of perpetual injunction restraining the defendants, their servants, agents and/or assigns from in any way or manner acting on or giving any effect to the letter dated 2nd February, 2012;
k) A decree of perpetual injunction restraining the defendants and each one of them their servants, agents and/or assigns from in any way or manner taking any action before any foreign Court/Authority/Body on the basis of Clause 10 of the said MOU;
l) Delivery up and cancellation of the purported MOU dated 2nd July, 2008;
m) Delivery up and cancellation of the letter dated February 2, 2012;
n) Receiver;
o) Injunction;
p) Attachment;
q) Costs;
r) Further and other reliefs.
In the said suit an application was filed under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure and the appellant/petitioner prayed for an order of injunction restraining the respondents, their agents and/or assigns from giving any effect to, seeking to rely upon and/or relying on the terms of the said MOU dated 2nd July, 2008 or any clause thereof and particularly Clause 10 thereof before any Authority or Court of Law and from giving any effect or further effect to the letter dated 2nd February, 2012.
Further facts revealed that the petitioner is a subsidiary company of one Thiess Ply Limited which is one of the largest construction, mining and service companies in Australia. The petitioner was set up for the purpose of undertaking various mining and mining related activities in India on 17th October, 2005.
The petitioner further participated in an international competitive bids tender floated by NTPC Ltd. (hereinafter referred to as "NTPC") in the year 2006 for mine development and operation of a coal block at Pakri Barwadih in the State of Jharkhand (hereinafter referred to as "the said project"). The petitioner was qualified and selected by the NTPC to participate and the petitioner duly put its price bid on 30th June, 2008 and was to be opened on 3rd July, 2008. Before opening of such price bid, it is the case of the petitioner/appellant that it was approached by the respondent no. 1, which gave a proposal for carrying out a portion of the work of removal of overburden, in the event the petitioner's bid is accepted by the NTPC.
During the pendency of such acceptance by the NTPC, the petitioner and the respondent no. 1 agreed to enter into an agreement in future in respect of such work of removal of a portion of the overburden.
In these circumstances, a Memorandum of Understanding dated 2nd July, 2008 was entered into between the parties.
It is the case of the petitioner/appellant herein that the MOU was merely an understanding to enter into an agreement at a future date subject to the parties arriving at a consensus on various technical, commercial, financial, operational, regulatory and other details necessary in a contract of such nature and was not and is not a valid or enforceable agreement.
It is also the case of the petitioner/appellant that the said MOU is valid for a period of 12 months from 2nd July, 2008 and the validity was extended from time to time till 31st January, 2011. It is also the case of the petitioner/appellant herein that the respondent no. 1 did not take any interest in finalizing any agreement with the petitioner. The respondent no. 2 only sought to negotiate with the petitioner for the grant of a sub-contract for removal of a portion of the overburden in relation to the said project and entered into correspondences and negotiations with the petitioner therefor. However, the petitioner and the respondent no. 1 are unable to agree upon or finalize the terms and conditions of any contract to be entered into for the purpose of removal of overburden.
During the pendency of such negotiation between the parties, the petitioner/appellant herein was ultimately awarded the work of mine development and operation by NTPC on 30th November, 2010.
In terms of the said contention awarded in favour of the petitioner, the petitioner was entered into to develop infrastructure, construct and operate a coal handling plant, operate coal mines, set up workshops, store, yards etc. at the said project site for a period of 22 years. The petitioner for such work would be entitled to payment of a Mining Fee per MT of coal mine, crushed and delivered at the designated point.
It is further the case of the petitioner/appellant herein that from time to time negotiations and several meetings were held between the parties. The respondent no. 2 forwarded draft agreements on 6th December, 2010 and 2nd January, 2011. From the said draft agreements it would be evident, as contended on behalf of the appellant/petitioner, that Clause 10 of the said MOU did not find any place in the draft agreements and had been abandoned and/or given a go-by. The said two draft agreements also did not contain the details and terms necessary for such work. However, in spite of negotiations parties were unable to successfully conclude negotiations to enable them to arrive at any agreement and the said MOU also lapsed by efflux of time on 31st January, 2011 and stood discharged together with rights and obligations, if any, thereafter.
It is further the case of the petitioner/appellant herein that the respondents and the respondent no. 2 expressly agreed and understood that the said MOU had expired and lapsed, no further extensions had been made, that no concluded or enforceable agreement had been or could be entered into and that the parties had been unable to convert the said MOU into any definite agreement. Correspondences were exchanged through e-mails between the parties dated 23rd March, 2011, 26th March, 2011, 21st April, 2011 and 17th May, 2011. It is also the case of the petitioner/appellant that the parties accepted such position and acted on such basis.
It is further averred that the respondent no. 2 has wrongfully and with a view to get a chance from the petitioner has caused the respondent no. 1 to claim and contend that the said MOU was a concluded agreement and on such basis sought to make wrongful and illegal claims on the petitioner. Respondent no. 1 at the behest of the respondent no. 2 has wrongfully caused a letter dated 2nd February, 2012,to be issued, contending that the said MOU had resulted in a concluded agreement and execution of a sub-contract was only a formality. It is further alleged that the failure to execute such proposed agreement is allegedly a breach of obligation by the petitioner and the respondent no. 1 accordingly purported to rely on Clause 10 of the said MOU to claim arbitration in Singapore. The purported appointment and/or nomination of an arbitrator by the defendant no. 1 and the demands made in the said letter dated 2nd February, 2012 are not in accordance with the laws of Singapore. It is stated that the said claim on the part of the respondent no. 1 is false, untrue and misconceived. It is also stated that the said MOU cannot be treated as a concluded agreement between the parties at all.
In these circumstances, suit was filed by the appellant/petitioner. Mr. Bachawat, Learned Advocate led by Mr. Chatterjee, Learned Senior Advocate, submitted that the terms and conditions between the parties have not been finalized. It has been alleged in the letter dated 2nd February, 2012 that the petitioner has failed to execute an agreement as contemplated in the said MOU, thereby allegedly breaching its obligations.
Mr. Bachawat further submitted that Clause 10 of the MOU is to claim arbitration in Singapore. Admittedly, draft agreements forwarded to the petitioner contained terms and conditions which were significantly at variance with the said MOU, including the dispute resolution machinery which was wholly different from Clause 10 of the said MOU. The said two draft agreements do not contain a whisper of Singapore being the venue of arbitration or applicability of International Arbitration Act or the Model Law. Respondent no. 1 relying on such Clause 10 of the MOU is seeking to commence proceedings in Singapore. According to him, parties could not agree to the eligibility of the Singapore Law since there is no connection with regard to Singapore in respect of the business in India and the proposed work, which has to be carried out in India. Singapore is neither connected to the proposed work nor convenient to any of the parties. Singapore is not a domicile of any of the parties hereto and arbitration under the Singapore laws or at Singapore could not have been contemplated by the parties to the said MOU and is contrary to the terms of the petitioner's contract with NTPC.
It is further submitted that since the MOU has already lapsed, then the effect with regard to Clause 10 of the said MOU cannot be given by the parties. The same cannot be relied upon for seeking a remedy thereunder. It is further stated that the cost of the proceedings in Singapore will be prohibitively expensive. All documents, evidence and most witnesses who would be required to depose in proceedings between the parties hereto are in India and it would be physically impossible for both the parties to transport the documents, evidence and witnesses to Singapore for any possible proceeding commenced there.
He further submitted that in course of hearing on March 16, 2012, it was alleged that the plaintiff had appeared before the Court at Singapore and defended the case. No copy of such letter has been made over to the plaintiff's Advocates, in spite of request.
He also submitted that the plaintiff has neither appeared nor entered appearance any Court in Singapore in relation to the present issue or relating to the defendants herein. Only copies of pleadings, etc. on the basis of which an ex parte order was obtained by the defendant no. 1 were sought for, while reserving all rights of the plaintiff.
Mr. Bachawat further submitted that Learned Trial Court refused to pass an interim order on the following grounds :-
(a) A negative declaration is not maintainable under Section 34 of the Specific Relief Act, 1963;
(b) The Learned Trial Judge held that the Court has no jurisdiction in respect of matters where there is an arbitration clause and that the Division Bench judgment reported in 2009 (2) CHN 597 (G E Capital Transportation Financial Services Ltd. Vs. Amritajit Mitra) was a matter to be proved in trial and could not be considered at the time of ex parte hearing of the injunction application;
(c) The plaintiff had approached the Court on the last day before the notice expired;
(d) No relief for specific performance has been sought and if the contract was unenforceable, it is so by operation of law and a declaration under Section 34 of the Specific Relief Act, 1963 is neither maintainable nor necessary in such matter. Accordingly, the case of "Sitac Pvt. Ltd. Vs. The Statesman Ltd." reported in 1988 (2) CLT 84 could not be considered at the hearing of the injunction application;
(e) No prima facie case and no urgency to warrant an interim order of injunction.
According to him, the aforesaid grounds for refusal of an ex parte injunction are perverse and based on an incorrect view of the law and could not have been grounds for refusal without the defendant appearing and taking such grounds.
He further submitted that the findings of the Learned Judge that negative declaration is not maintainable is erroneous and misconceived on the ground that there was no bar/prohibition in the Specific Relief Act, 1963 with regard to negative declaration. Reliance is placed on AIR 1951 Cal. 147 and AIR 1959 Pun. 581. He also contended that the plaintiff has sought various reliefs in the plaint including positive declarations and perpetual injunctions. The fact that negative declaration is prayed for in the plaint cannot affect the maintainability of the other prayers in the suit or the merits of the matter.
He also submitted that in the event, such prayer was not maintainable reliefs of temporary injunction in aid of the other prayers in the plaint could not have been refused. He also submitted that it is well settled that the Specific Relief Act, 1963 is not a complete Code and as such declarations as prayed for are even otherwise maintainable. Reliance is placed on AIR 1975 SC 1810 and AIR 1967SC 436.
He further contended that Leaned Judge's finding that the suit is not maintainable by reason of the arbitration agreement in the MOU is a serious legal error and the Learned Judge has given no reason for this finding.
He further submitted that though the case of GE Capital Transportation reported in 2009 (2) CHN 597 was cited, the learned Judge chose to ignore it without cogent reasons. He also contended that there can be no dispute that Courts have jurisdiction to try all suits of a civil nature except suits which are barred by law.
He also contended that the Arbitration and Conciliation Act, 1996 does not bar a suit in matters relating to contracts having an arbitration clause. On the contrary, on the filing of such a suit, it is for the defendant to take up the point that the dispute should be settled by arbitration (either Section 8 or under Section 45 of the Arbitration and Conciliation Act, 1996). It is only then that the Court will refer the parties to arbitration, subject to compliance of various other requirements. Without such application, the suit will continue to be proceeded within. It is also well settled that Sections 8 and 45 of the Arbitration and Conciliation Act, 1996 do not bar or prohibit such suits. The matter is well settled by a number of decisions. In fact, the case of G.E. Capital Transportation Financial Services Limited was relied on before the Learned Judge who has disregarded the same on the ground that such matters are to be decided at the final hearing of the suit. Such finding is perverse and an obvious attempt to ignore the well-settled law.
He further contended that the MOU lapsed, unenforceable according to both parties, no application under Sections 45 or 8 of the Arbitration and Conciliation Act, 1996 was filed by the defendant. Here, none of the parties have approached the Court to seek reference of the disputes in the suit to arbitration and the Court could not have proceeded on the basis that it has no jurisdiction where there is an arbitration clause.
He also submitted that the Hon'ble Supreme Court has also held that various matters cannot be decided in arbitration including and particularly where complex issues of law and fraudulent conduct are involved. Reliance is made in the 2010 (1) SCC
72. He further contended that the disputes are not arbitrable since there was no concluded contract. Further the MOU lapsed and the said MOU is admittedly or is not validly or enforceable. The defendant no. 1 did not seek execution of any sub-contract. Draft agreement would show that there was no arbitration agreement which was finalized. The defendant no. 2 was never a party to the said MOU. The defendant no. 1 was never demanded cost of such contract.
He further contended that the plaintiff/appellant herein has alleged fraud and, inter alia, that invocation of Clause 10 of the MOU without there being any concluded arbitration agreement is fraudulent. It has been held that where allegations of fraud are required to be gone into, such matters should not be decided in arbitration but be decided by the Court.
According to him, both the parties are Indian Companies. This cannot be equated with the international commercial arbitration. Hence, foreign law cannot be applicable in the facts and circumstances of this case in view of Section 2(f) of the Arbitration and Conciliation Act, 1996. He further contended that no part of the cause of action is arising in Singapore. None of the parties was incorporated in Singapore and he submitted that any attempt to confer jurisdiction on Courts in Singapore would be contrary to public policy and the same would be void and unenforceable. Reliance is placed in Hakam Singh's case reported in AIR 1971 SC 740 and A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A. P. Agencies, Salem reported in AIR 1989 SC 1239.
He further contended that the choice of Singapore law is illegal. He further contended that Singapore Courts have no jurisdiction. He further contended that it is well settled that the seat/venue of arbitration cannot be used to invoke the territorial jurisdiction of the Courts where the arbitration proceedings are held. Reliance is placed in (2005) 3 ARB. LR 518 and (2006) 4 ARB. LR 40.
He further contended that 25 days to file the suit cannot be said to be any delay at all. The Court has misconstrued the provisions of law and came to such conclusion. The delay is not material factor where the act complained of is illegal. The attempt to confer jurisdiction on Singapore Courts and to oust the jurisdiction of Indian Courts and exclude the application of Indian Law is contrary to public policy and is illegal. There is accordingly urgency in the matter.
He also submitted that the plaintiff had suppressed that the proposal for Singapore as a venue for arbitration was incorporated at the instance of the plaintiff and relied on an e-mail dated June 26, 2008. He also contended that there has been no suppression of any fact such as the defendants cannot be prejudiced thereby and the same cannot be a ground for refusing an order of injunction at this stage. Reliance is placed on the case of Gramaphone Co. of India Ltd. Vs. Shanti Films Corporation reported in AIR 1997 Cal. 63.
Mr. Bachawat further submitted that the defendants relied on Yograj Infrastructure Limited Vs. Ssang Yong Engineering & Construction Co. Ltd. reported in (2011) 9 SCC 735 to contend that by Clause 10 of the MOU the parties had agreed to submit only to the curial laws of Singapore and had neither sought to contract out of the jurisdiction of Indian Court nor had selected Singapore law as the law governing the contract (i.e. the proper law of the contract). He also contended that Yograj Infrastructure's case has no application when both the parties to the agreement are Indian. The above case was that of an "international commercial arbitration". It is also mentioned in the first paragraph of the said judgment that one of the parties was a company incorporated in the Republic of Korea. In the said case, both the arbitration proceedings in Singapore appointed Arbitrator by consent in Singapore and both the parties had also applied for interim reliefs in Singapore.
He also submitted that the Supreme Court held that governing law of the agreement was Indian Law while the curial law was the Singapore law. In the instant case, the defendants are trying to apply Singapore law which cannot be applied at all.
Mr. Kapoor, Learned Senior Advocate appearing on behalf of the defendant contended that the appeal should be summarily rejected on the following reasons :-
(i) The reasoned order of the Trial Court is unexceptionable and the findings are in accordance with settled principles of law.
(ii) In the instant case, the trial Court exercised a conscious discretion after full and proper consideration of the materials on record and no ground has been shown warranting interference with its exercise at all.
(iii) The suit was filed on 3rd March, 2012, basically challenging a notice dated 2nd February, 2012. There is no explanation whatsoever for the delay, practically of a month, either in the plaint or the petition.
(iv) The arbitration clause is entirely in compliance with Sections 19 and 20 of the Arbitration and Conciliation Act, 1996 by which the parties are free to choose (a) the law according to which the arbitration will be conducted, that is the procedural law, or the curial law as it is sometimes called as well as (b) venue.
(v) The plaintiff has consciously and deliberately suppressed that it deliberately amended Clause 10 by an e-mail from its CEO dated 26th June, 2008 by which he personally introduced amendments to Clause 10 incorporating the venue of arbitration at Singapore law. For this suppression alone, the application is liable to be summarily rejected at the threshold.
(vi) Admittedly, the defendant has already instituted proceedings at Singapore and obtained an order of injunction. It is settled principle that when a foreign Court is in season our Courts on the principle of comity does not precipitate matters so as to bring about a conflict of jurisdictions by making contradictory orders.
(vii) With all due respect, this is a totally fallacious argument. The execution of the MOU is admitted and significantly it was extended by express conduct on two occasions until January, 2011. It is settled law that in such circumstances, where there is no "serious charge of fraud in the creation of the document that is the arbitration agreement" itself there cannot be any bar to the arbitration proceedings. The settled principle is that (a) the fraud alleged must be of a serious nature and (b) it is the person against whom fraud is alleged who has the option to go to Court and resist arbitration. The person who makes the allegation has no such option available to him. Reliance is placed on a decision reported in AIR 1962 SC 406.
(viii) The contention that the MOU is merely an agreement to enter into an agreement is equally without substance. The MOU was a fully concluded deal, extended on two occasions. It did not lack finality. The parties acted upon the MOU and performed various obligations. In this case, the parties were fully ad idem and all that remained was the signing of a document. It is also settled law that any further negotiations since they did not result in novation of the contract were wholly irrelevant. In any event, these aspects, cannot be decided in appeal, and need to await decision by the Trial Court after affidavits are filed.
(ix) The plaintiff relied upon the judgment of this Hon'ble Court in AIR 1951 Cal. 147 where the facts are clearly distinguishable. That was a case concerning the maintainability of a suit under Sections 32 and 33 of the old Arbitration Act, 1940. There is no discussion in that decision concerning the general principles applicable under the Specific Relief Act and the solitary last sentence is merely an obiter line.
Hence, he submitted that for the aforesaid reasons the appeal is wholly unmeritorious and should be dismissed with costs.
Having heard Learned Counsel for the parties at a length, it appears to us that the question arose whether there is a concluded contract between the parties or not? We do not wish to answer the said question at this ad interim stage although the parties have argued the matter at a length.
We have considered the Memorandum of Understanding dated 2nd July, 2008. It appears that parties in respect of the said MOU intended to be legally bound and agreed in respect of the terms mentioned therein which would be evident from the said MOU. It further appears from Clause 5 of the said MOU the enclosed proposed Sub Contract Arrangements detailing the terms and conditions of the sub contract shall form a part of the said MOU (See: Clause 5 of the MOU).
Clause 8 of the said MOU reads as follows :-
"This MOU shall commence on the date first above written and shall be valid for a period of 12 months by which time, subject to award of the project to the TML consortium by NTPC, a formal Subcontract Agreement will be executed incorporating the clauses of this MOU."
Clause 10 of the said MOU is reproduced hereunder :-
"The parties shall hereto resolve and settle any differences or disputes arising from and/or touching upon the terms and conditions contained in this MOU amicably by an Arbitrator. In the event of not being able to agree upon a sole Arbitrator, both the parties herein shall nominate one arbitrator each and such Arbitrators shall elect a third Arbitrator/umpire, prior to the commencement of the Arbitration proceedings. The Arbitration proceedings shall be conducted in English under the Singapore Law and sitting in Singapore. The award passed by such Arbitral tribunal shall be final and binding on both the parties."
It further appears from the said Clauses that it has been agreed between the parties under the said MOU for the arbitration proceedings, shall be conducted in English under the Singapore Law and sitting of the arbitration will be at Singapore. In our considered opinion, Learned Court at this stage after considering all these clauses did not intend to pass any interim order in the matter and the Court issued notice to the parties for hearing out the matter in question.
It further appears from the order that Learned Trial Court was pleased to give a chance to the defendant in the matter in respect of the decisions cited before the Learned Trial Court. The Court further held that relief sought for is not for specific performance of contract and however, a contract is unenforceable and if it is so by operation of law a declaration under Section 34 of the Specific Relief Act is not maintainable in such case. In these circumstances, the Court held that the plaintiff could not make out a prima facie case at that stage. Hence, the Court refused the prayer.
We have considered the order passed by the Learned Trial Court. In our considered opinion, the order passed by the Learned Trial Court does not suffer from any irregularity and illegality at this stage since the Court thought it would be necessary to give a chance to the defendant to come out with their case before the Court and that is the reason the Court issued notice in the matter.
It further appears to us that while in the suit itself the plaintiff/appellant asked for a declaration that the said MOU has to be declared as null and void and in that case, until such declaration is granted in favour of the appellant, in our opinion, the disputes relating to MOU cannot be said to be already decided.
In view of that we do not find any reason to interfere with the order so passed by the Learned Trial Court at this ad-interim stage and we dismiss this appeal.
We only direct the Learned Trial Court that the application should be disposed of by the Learned Trial Court after giving a chance to the parties to file their respective affidavits. Let Affidavit-in-Opposition be filed by the respondents within a period of four weeks from date. Reply, if any, be filed within one week thereafter and thereafter shall dispose of the said petition within a period of a month from the filing of such affidavits. We further make it clear that the Learned Trial Court shall decide the issue without being influenced by the observations made by us.
Since the appeal is dismissed, connected application for stay (being C.A.N. 2120 of 2012) has become infructuous and the same is dismissed on the above terms.
( PINAKI CHANDRA GHOSE, J. ) I agree.
( DR. MRINAL KANTI CHAUDHURI, J. )