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11. The appellant realizing that this eventuality may come to pass, sought to terminate the agreement. A letter dated 30.05.2001 was dispatched by the appellant to the respondent herein. The respondent had claimed before the learned Arbitrator that the said letter was received by them, only on 11.06.2001, and hence, was ante-dated.

11.1 It is important to note that the learned Arbitrator has returned a finding on the aspect of ante-dating after examining the evidence and the material placed before him in that regard. It is also significant to note at this stage, that pursuant to the agreement dated 16.05.2001, the appellant and DSS appointed two lawyers i.e., Mr. Rajive Sawhney, Sr. Advocate and Mr. V.N. Koura, Advocate as escrow agents to effectuate the deal of transfer of the shares held by DSS in Skycell. This escrow agreement, which was undisputedly executed on 27.06.2001, envisaged issuance of instructions to the two escrow agents which were made irrevocable and, were to dissolve, if the transactions as envisaged by the said document did not conclude to the joint satisfaction of the two escrow agents by 31.08.2001; which was the date envisaged, as noticed above, by us, in the agreement of 16.05.2001.

17. On the other hand, Mr. Bhakru essentially relied upon the findings reached by the learned Arbitrator as also various correspondences exchanged between the parties in support of the impugned judgment and the award. Mr. Bhakru drew our attention to the fact that conditions A-5 to A-7, which were adverted to on behalf of the appellant were those which were contained in the escrow agents agreement dated 27.05.2001 which were noting but irrevocable instructions issued to the two escrow agents jointly by DSS (i.e., the shareholder in Skycell) and the appellant. It was contended that, the respondent, had not taken on the obligations contained therein.

19. Based on the aforesaid clause, Mr. Singh has submitted that the deal i.e., the transfer of shares held by DSS in Skycell could said to have been validly consummated only if the shares in respect of which an "irrevocable offer" of acceptance is available with the escrow agents were free of any lien, encumbrance or charge.

20. In order to appreciate this submission, one would have to take note of the fact that the agreement dated 16.05.2001 was executed between the appellant and the respondent whereby, the respondent had taken upon itself, a role of a facilitator to effectuate the transfer of shares held by DSS in Skycell, therefore, while the "objective", which in substance in legal parlance, is a recital to the agreement, encapsulated the ultimate objective of the said agreement, obligations which were undertaken by each party to the agreement of 16.05.2001 were contained in clauses which followed; clause A-1. It is precisely for this reason that pursuant to the agreement of 16.05.2001, escrow agents were appointed by DSS and the appellant vide escrow agreement dated 27.05.2001, as they were aware of the fact that on account of pending litigation (as amongst the shareholders of DSS) and the undertakings given to the two bankers, a proactive intercession on the part of DSS (i.e., the shareholder) would be required. The obligations in regard to these approvals and consents were, therefore, encapsulated in the form of instructions to the escrow agents in the escrow agent agreement. The said instructions admittedly bore the signatures of the representatives of DSS and the appellant herein. The respondent could naturally; as clearly reflected in the aforementioned escrow agents agreements, only facilitate the transaction upto a stage and, any further movement in that regard, could not be made without the help and assistance of DSS and the appellant. It is not in dispute that the respondent secured an irrevocable offer from the appellant alongwith the original share certificates as well as transfer deeds, which were deposited with the escrow agents within the stipulated time frame. As a matter of fact on 31.08.2001, the CLB had also vacated its earlier interim order, whereby, on 07.04.1999 the shareholders of DSS were directed to obtain the prior approval of CLB in the eventuality of a decision being taken to sell shares of DSS in Skycell. Therefore, the entire argument raised on behalf of the appellant is in our view and that of the arbitrator is wrongly premised on the purpose which a recital, that is, the objective clause falters in an agreement. That a recital does not govern the rights and obligations between parties to an agreement when clauses in that regard are explicit and unambiguous is captured quite pithily in the words of Lord Halsbury in Mackenzie vs. Duke of Devonshire, (1896) A.C.400 :-

Years later the same principle had been reiterated by the Privy Council in Beli Ram and Bros. V. Mohd. Afzal, 1948 AIR (PC) 168 Sir John Beaumont in that decision said :

"The operative part of a deed cannot be controlled by recitals in the preamble if the operative words are clear"...."

21. Therefore, in our view, the submission of Mr. Singh that the respondent was not entitled to the fee because the obligations with regard to approvals or consents had not been discharged is, without merit. As a matter of fact, most of the so called impediments in the way of transfer of the shares of DSS in Skycell were really in the nature of self created ghosts by the appellant with the sole objective of reneging on the obligation to pay the respondent's fee. Towards this end, it may also be noticed that before the Arbitrator, an issue was raised as to the legality of the agreement dated 16.05.2001. This issue was raised even when the appellant himself had in pursuance of the agreement dated 16.05.2001 deposited two cheques in Indian rupees equivalent to USD 13.6 Million with the escrow agents towards the consideration fixed under the said agreement. The appellant drew one cheque in the sum of Rs.42,95,92,400/- in the name of DSS while the other, in the sum of Rs.19,48,42,500/- was drawn in favour of the respondent. The learned Arbitrator rejected this contention. The submission made in this behalf was that, one of the shareholders of DSS (i.e., Mr. Satwant Singh) had through the aegis of the respondent entered into the agreement dated 16.05.2001 only to deprive the shareholders of DSS the benefit of the entire sale consideration of DSS's shares in Skycell. The learned Arbitrator came to the conclusion that the agreement dated 16.05.2001 was for the services which the respondent had agreed to extend to the appellant. The agreement envisages two things: first, the maximum total consideration payable for sale of DSS shares in Skycell which is pegged at USD 13.6 Million ; second, the manner of its payment. Both these aspects which were negotiated between DSS and the appellant were incorporated in the escrow agents agreement in the form of irrevocable instructions. The learned Arbitrator found no illegality attached to the agreement dated 16.05.2001 simply because, the mode of payment as agreed to between the two principal parties i.e., the buyer and the seller (DSS and the appellant) was reflected in the subsequent agreement executed between the said parties i.e., DSS and the appellant.