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Unless there is a specific bar, the Arbitrator is empowered to grant pendent lite interest- Supreme Court

Indian Railway Construction Company Limited v M/s National Buildings Construction Corporation Limited

2023-Mar-20

empowered to grant pendent lite interest

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
    CIVIL APPEAL NO. 8460 / 2022
(@SLP (C) No.32002 OF 2018)
Indian Railway     …Appellant(s)
Construction Company Limited 
Versus
M/s National Buildings  …Respondent(s)
Construction Corporation Limited 
J U D G M E N T
M. R. Shah, J.


1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 14.08.2018 passed by the High Court of Delhi at New Delhi in FAO(OS) No.112
of 2018 by which the High Court has partly allowed the   said   appeal,   the   Indian   Railway   Construction

Company   Limited   (hereinafter   referred   to   as “IRCON”) has preferred the present appeal. 


2. The brief facts leading to filing of the present appeal in nut­shell are as under: 
2.1 That, an Agreement was entered into between IRCON and   the   respondent   –   M/s.   National   Buildings Construction   Corporation   Limited   (hereinafter referred to as “NBCC”), whereby the respondent was awarded the work of construction of Railway Station cum Commercial Complex at Vashi, Navi Mumbai at
a cost of Rs.3042.91 lakh, to be constructed within a
period of 30 months from 05.04.1990. NBCC failedto   complete   the   work   in   time.   Thereafter,   thsupplementary   agreements   were   entered   int between the parties. As the provision for grant ofadvances had exhausted, NBCC approached IRCON with modified programme for completion of works
and sought for additional financial aid on certainterms and conditions. IRCON in consultation with

CIDCO, agreed to grant advance as a special case against   Bank   Guarantee.   Accordingly,   a supplementary   Agreement   dated   17.12.1991   was
entered into between the parties providing for specialadvance   of   an   amount   of   Rs.   68   lakhs   bearinginterest at the rate of 18% per annum on furnishing of Bank Guarantee. In terms of the supplementary Agreement dated 17.12.1991, a special advance of Rs.68 lakhs was also given to NBCC. As there was
delay   in   the   work   of   NBCC   and   the   work   was practically   abandoned   and   came   to   a   standstill,IRCON served on NBCC a notice dated 21.02.1994
terminating the contract relying upon Clause 60.1 of the Agreement. 2.2 That,   thereafter,   after   some   litigation   before   the Delhi High Court, the NBCC invoked the arbitration clause. The Arbitral Tribunal was constituted. The Arbitral   Tribunal   passed   the   award   dated 04.11.2011. That the Arbitral Tribunal rejected the

NBCC’s claim for refund of two security deposits i.e.Claim Nos.33 and 34. While holding so, the Arbitral Tribunal held that though termination with reference
to   Clause  60.1  was  bad  in  law,  but  justified  thetermination   with   reference   to   Clause   17.4   of   theContract   and   consequently   rejected   the   NBCC’s claim for refund of two security deposits i.e. claim Nos.33   and   34.   The   Arbitral   Tribunal   also   partly allowed   Counter   Claim   No.3   in   favour   of   IRCON.
Counter   Claim   No.3   was   relatable   to   the   counter claim   of   IRCON   for   a   total   of   Rs.3,65,38,806/­ towards interest on various advances given to NBCC,
more   particularly,   with   regard   to   two   specific advances being (1) Special Advance and (2) Advance against hypothecation of equipment. 2.3 Feeling   aggrieved   and   dissatisfied   with   the   award passed by the learned Arbitral Tribunal and insofar as relating to Claim Nos.33 and 34 and the Counter Claim No.3 which were in favor IRCON, the NBCC

approached the High Court by filing an application under Section 34 of the Arbitration and Conciliation Act,   1996   (hereinafter   referred   to   as   “Arbitration Act”).   The   application   under   Section   34   of   the Arbitration Act was confined to the aforesaid three claims   /   counter   claims   respectively   viz.   Claim
Nos.33 and 34 and Counter Claim No.3 only.  2.4 By the judgment and order dated 03.03.2017, the learned Single Judge of the High Court set aside the rejection by the learned Arbitral Tribunal of Claim Nos.33 and 34 of NBCC to the extent it concerned the   return   of   security   deposit   amounts   i.e.
Rs.5,57,486/­   +   Rs.60,85,840/­   by   observing   and concluding   that   once   the   Arbitral   Tribunal   found that the termination with regard to Clause 60.1 was not   justified,   it   was   not   open   for   the   Arbitral Tribunal   thereafter   to   consider   the   termination under Clause 17.4 justifying forfeiture of the security
deposits. The learned Single Judge of the High Court

also   set   aside   the   award   passed   by   the   learned Arbitral   Tribunal   on   Counter   Claim   No.3   by
observing that there is no clause in the contract in particular   awarding   18%   interest   per   annum   on
special advance.  2.5 The   judgment   and   order   passed   by   the   learned Single Judge was the subject matter of appeal under Section 37 of the Arbitration Act before the Division Bench of the High Court. 
2.6 By the impugned judgment and order, the Division Bench of the High Court has partly allowed the said appeal under Section 37 of the Arbitration Act to the
extent upholding the award passed by the learned Arbitral Tribunal insofar as awarding the interest on special   advance   is   concerned.   The   rest   of   the judgment and order passed by the learned Single Judge has been affirmed / confirmed by the Division Bench of the High Court. 

2.7 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, IRCON has preferred the present
appeal. 
3. Shri R.S. Hegde, learned counsel has appeared on behalf of the appellant – IRCON   and Shri Arvind Minocha, learned Senior Advocate has appeared on behalf of the respondent – NBCC. 
4. Shri   R.S.   Hegde,   learned   counsel   appearing   on behalf of the appellant has vehemently submitted that   on   appreciation   of   entire   evidence   and   the
material   on   record   as   the   learned   Tribunal   has observed and held that the IRCON was justified in
rescinding the contract due to abandonment of work by NBCC and when the said finding attained the finality,   the   IRCON   was   justified   in   forfeiting   the security deposits. It is submitted that as such the High   Court   has   taken   too   technical   view.   It   is

submitted   that   as   such   both,   Clause   17.4   and Clause 60.1 are required to be read together. It is submitted that the main aspect which is required to be   considered   is   whether   the   NBCC   failed   to complete the work as per the contract and whether the   NBCC   abandoned   the   work   and   thereafter,
having   satisfied   that   even   during   the   extended period, the NBCC was not able to complete the work, the contract was rightly rescinded and therefore, the
security deposits were liable to be forfeited. 
4.1 It   is   submitted   that   therefore   both,   the   learned Single Judge (in application under Section 34 of the Arbitration Act) and the Division Bench of the High Court have materially erred in upsetting / quashing and setting aside the award passed by the learned Arbitral Tribunal rejecting the Claim Nos.33 and 34. 
4.2 It is submitted that both, the learned Single Judge as well as the Division Bench of the High Court have

materially   erred   in   not   appreciating   the   fact   that once the termination is justifiable with reference to the terms of the contract and even if a wrong clause is mentioned in the letter terminating the contract, the power to terminate the contract cannot be said
 to be illegal, more particularly, when the power is traceable to the specific terms of the contract, i.e.,
Clause 17.4. 
4.3 Now, so far as the Counter Claim No.3 is concerned, it is submitted that as such the Division Bench of
the High Court has set aside the award of interest on the   amount   advanced   against   hypothecation   of equipments, on the ground that there is no such provision   of   award   of   interest   in   the   contract   / supplementary   Agreements.   It   is   submitted   thathowever, the Division Bench of the High Court has not properly appreciated the fact that there is no bar to   award   interest   on   the   amount   advanced.   It   is submitted that the Arbitrator has power to award

interest pendente lite unless specifically barred from awarding it. Reliance is placed on the decision of this Court in the case of Raveechee and Company Vs. Union of India reported in (2018) 7 SCC 664. Making above submissions, it is prayed to allow the present appeal and restore the award passed by
the Arbitral Tribunal. 
5. Learned senior counsel, Mr. Minocha appearing on behalf of the respondent – NBCC while supporting the  impugned judgment and order passed by the
High Court has vehemently submitted that in the present case admittedly the IRCON invoked Clause 60.1 and rescinded the contract. It is submitted that
even the learned Arbitral Tribunal also observed and held that the IRCON was not justified in rescinding the contract under Clause 60.1. It is submitted that
however, thereafter the Arbitral Tribunal justified the termination   of   the   contract   under   Clause   17.4,

which as rightly held by the learned Single Judge / Division Bench was not permissible.  5.1 It   is   submitted   that   the   finding   recorded   by   the
learned Arbitral Tribunal that the contract could not have been rescinded under Clause 60.1 had attained the finality. It is submitted that therefore the learned
Arbitral Tribunal was not justified in rejecting the claim   Nos.33   and   34   which   has   rightly   been   set aside by the learned Single Judge and the Division
Bench, which are not required to be interfered with by this Court in exercise of limited jurisdiction under Article 136 of the Constitution of India.  5.2 It is further submitted by learned Counsel appearing on behalf of the respondent – NBCC that in absence of   any   specific   provision   in   the   contract   / supplementary   Agreements   on   interest   on   the amount   advanced   against   hypothecation   of equipments, the Division Bench of the High Court

has rightly set aside the same.  Making   above   submissions,   it   is   prayed   to dismiss the present appeal. 6. We have heard learned Counsel appearing for the
respective parties at length. 7. As observed hereinabove, challenge to the award by the   learned   Arbitral   Tribunal   before   the   learned Single   Judge   and   now   before   this   Court   is   with respect to Claim Nos.33 and 34 and Counter Claim
No.3 (Partly).  7.1 The   learned   Arbitral   Tribunal   rejected   the   Claim Nos.33 and 34 which were with respect to forfeiture of the security deposits on termination / rescind of the contract. The Counter Claim No.3 of the IRCON was   for   a   total   sum   of   Rs.3,65,38,806/­   towards interest on various advances given to NBCC, more particularly,   with   regard   to   two   specific   advances being (1) Special Advance and (2)  Advance against

hypothecation   of   equipment.   The   learned   Arbitral Tribunal   allowed   the   Counter   Claim   No.3   and awarded interest at the rate of 18% per annum in favour   of   the   IRCON   being   interest   on   special advance   and   advances   against   hypothecation   of equipments. The Division Bench of the High Court
has   partly   allowed   the   appeal   and   allowed   the interest in favour of IRCON at the rate of 18% so far as special advance is concerned. 
7.2 While   considering   the   findings   recorded   by   the learned Arbitral Tribunal and while appreciating the submissions made by the learned counsel appearing
on behalf of the respective parties, relevant clauses of   the   Agreement,   more   particularly,   Clause Nos.17.4, 59.1, 60.1 are required to be referred to,
which are as under:  “TIME TO BE OR THE ESSENCE OF THE CONTRACT: 17.4 The time for completion of the works by   the   date   or   extended   date   fixed   for

completion   shall   be   deemed   to   be   the essence   of   the   contract   and   if   the contractor   shall   fail   to   complete   the
works   within   the   time   prescribe   the Company  IRCON  shall,   if  satisfied   that the   works   can   be   completed   by   the  contractor within a reasonably short time
thereafter be entitled without prejudice to any other right or remedy available on
that   behalf   to   recover   by   way   of ascertained   liquidated   damages   a   sum equivalent to one per cent of the contract value of the works for each week or part
of week the contractor is in default and allow   the   contractor   such   further extension of time as the Project Manager
may decide. If the Company (IRCON) is not   satisfied   that   the   works   can   be completed by the contractor and in the event   of   failure   on   the   part   of   the contractor to complete the works within the further extension of time allowed as aforesaid the Company (IRCON) shall be entitled, without prejudice to any other
right or remedy available in that behalf, to   appropriate   the   contractor’s   security deposit and rescind the contract, whether or not actual damage is caused by such
default. 

RIGHT   OF   COMPANY   (IRCON)   TO DETERMINE CONTRACT: 59.1 The   Company   (IRCON)   shall   be entitled to determine and terminate the contract   at   any   time   should   in   the Company’s   (IRCON)   opinion,   the cessation   of   work   become   necessary

owing to paucity of funds or from any cause   whatsoever,   in   which   case   the value of approved materials at site and of work done to date by the contractor will be paid for in full at the rates specified in the contract. Notice in writing from the Company (IRCON) of such determination and   the   reason   therefore   shall   be
conclusive evidence thereof.  DETERMINATION OF CONTRACT OWING TO DEFAULT OF CONTRACTOR: 60.1 If the contractor should:­ 

i. become bankrupt or insolvent or ii. make   an   arrangement   with   or assignment in favour of his creditors, or agree   to   carry   out   the   contract   under committee of Inspection of his creditors, or iii. Being a company or corporation, go into liquidation (other than a voluntary liquidation   for   the   purpose   of
amalgamation or reconstruction), or  iv. have an execution levied on his good or property on the works, or  v. assign   the   contract   or   any   part thereof   otherwise   than   as   provided   in Clause 7 of these conditions, or vi. abandon the contract, or vii. persistently   disregard   the

instructions   of   the   Project   Manager,   or contravene any provision of the contract,
or viii. fail   to   adhere   to   the   agreed programme of work by a margin of 10% of the stipulated period, or ix. fail to remove materials from the site or to pull down and replace work after receiving from the Project Manager notice to the effect that the said materials or works have been condemned or rejected under conditions, or 
x. fail   to   take   steps   to   employ competent or additional staff and labour as required under these conditions, or  xi. fail to afford the Project Manager or Project   Manager’s   representative   proper facilities for inspecting the works or any part   thereof   as   required   under   these
conditions, or  xii. promise,   offer   or   give   any   bribe, commission,   gift   or   advantages   either himself or through his partner, agent or servant   to   any   officer   of   employee   of IRCON or to any person on his or on the behalf in relation to the execution of this or any other contract with IRCON. Then and in any of the said cases, the
Project   Manager   on   behalf   of   the Company   (IRCON)   may   serve   the contractor with a notice in writing to that
effect   and   if   the   contractor   does   not

within 7 days after the delivery to him of such   notice   proceed   to   make   good   his default in so far as the same is capable of being   made   and   carry   on   the   work   or comply with such directions as aforesaid to   the  entire  satisfaction  of  the   Project  Manager the Company (IRCON) shall be
entitled after giving 48 hours notice in writing   under   the   hand   of   the   Project Manager (to remove the contractor from the whole or any portion or portions as
may be specified in such notice) of the works   without   thereby   avoiding   the contract or releasing the contractor from any of his obligations or liabilities under
the contract and adopt any or several of the following courses.  a) to rescind the contract, of which rescission   notice   in   writing   to the contractor under the hand
of the Project Manager shall be conclusive   evidence,   in   which case the security deposit of the contractor  shall  stand  forfeited to the Company IRCON without
prejudice   to   the   Company’s (IRCON)   right   to   recover   from the   contractor   any   amount   by which the cost of competing the works by any other agency shall
exceed   the   value   of   the contractor. b) to carry out the works or any part thereof, by the employment of   the   required   labour   and materials,   the   costs   of   which

shall   include   lead,   lift,   freight, supervision   and   all   incidental charges   and   to   debit   the contractor with such costs, the amount of which as certified by
the   Project   Manager   shall   be final   and   binding   upon   the contractor,   and   to   credit   the contractor with the value of the works done as if the works had
been   carried   out   by   the contractor   under   the   terms   of
the contract. And the certificate of Project Manager in respect of the amount to be credited to the contractor   shall   be   final   and binding upon the contractor; c) to   measure   up   the   work executed by the contractor and to   get   the   remaining   work completed by another contractor at the risk and expense of the contractor   in   all   respects   in which   case   any   expenses   that may be incurred in excess of the sum   which   would   have   been paid   to   the   contractor   if   the
works had been carried out by him   under   the   terms   of   the contract, the  amount  of  which excess as certified by the Project Manager   shall   be   final   and
binding upon contractor shall be borne   and   paid   by   the contractor and may be deducted from any moneys due to him by
the Company (IRCON) under the contractor or otherwise or from his   security   deposit.   Provided always that in any case in which any   of   the   powers   conferred upon   the   Company   (IRCON) hereof   shall   have   become exercisable and the same shall not   be   exercised,   the   nonexercise   thereof   shall   not constitute a waiver of any of the conditions   hereof   and   such powers shall notwithstanding be exercisable in the event of any
future   case   of   default   by   the contractor for which his liability for past and future shall remain unaffected.” 
Considering   the   material   on   record   and   on appreciation   of   evidence,   the   learned   Arbitral Tribunal though observed that the IRCON was not justified   in   rescinding   the   contract   under   Clause 60.1, rescinding of the contract / termination of the contract   was   justified   under   Clause   17.4,   and thereby has rejected the Claim Nos.33 and 34 of the NBCC which were with respect to forfeiture of the security deposits. The learned Single Judge as well as the Division Bench of the High Court have set

aside   the   award   passed   by   the   learned   Arbitral Tribunal rejecting Claim Nos.33 and 34 inter alia on the ground that once the Arbitral Tribunal gave the
finding that the IRCON was not justified in invoking Clause   60.1,   thereafter   it   was   not   open   for   the Arbitral Tribunal to take the help of Clause 17.4 and
therefore,   the   learned   Arbitral   Tribunal   was   not justified   in   rejecting   Claim   Nos.33   and   34   which were with respect to forfeiture of security deposits,
which could have been under Clause 17.4.  However, it is required to be noted that as such the   finding   recorded   by   the   Arbitral   Tribunal   on applicability of Clause 17.4 and/or rescinding of the contract under Clause 17.4 has not been set aside either by the learned Single Judge or by the Division Bench of the High Court and therefore, the findings recorded   by   the   learned   Arbitral   Tribunal   on applicability of Clause 17.4 has attained the finality. The learned Arbitral Tribunal as such was absolutely

justified in considering whether IRCON was justified in   rescinding   the   contract,   may   be   either   under Clause 60.1 or under Clause 17.4. Even otherwise, from   the   material   on   record   and   even   the   notice dated 21.02.1994 and the subsequent notice dated 07.03.1994,  we are satisfied that  the  IRCON  was satisfied that the work could not be completed by the contractor   even   within   further   extension   of   time.Clause 17.4 provides that if the company (IRCON) is not satisfied that the works can be completed by the contractor and in the event of failure on the part of the contractor to complete the works within further extension   of   time   allowed,   the   IRCON   shall   be entitled,   without   prejudice   to   any   other   right   or remedy available in that behalf, to appropriate the
contractor’s   security   deposits   and   rescind   the contract, whether or not actual damage is caused by such   default.   Even   Clause   60.1   also   provides   for
determination   of   contract   owing   to   default   of

contractor. It provides that if the contractor should abandon the contract, or persistently disregard the instructions of the Project Manager or contravene any provisions of the contract…. then the Project Manager on behalf of the Company may serve the contractor with a notice in writing to that effect and
if the contractor does not within 7 days after the delivery to him of such notice proceed to make good his default in so far as the same is capable of being
made good and carry on the work or comply with such directions as aforesaid to the entire satisfaction of the Project Manager, the Company (IRCON) shall
be entitled after giving 48 hours notice in writing under the hand of the Project Manager (to remove the   contractor   from   the   whole   or   any   portion   or
portions as may be specified in such notice) of the works   without   thereby   avoiding   the   contract   or releasing the contractor from any of his obligations
or liabilities. It further provides that in such a case

the Project Manager on behalf of the IRCON shall be entitled to rescind the contract, in which case the security   deposit   shall   stand   forfeited   to   IRCON
without prejudice to IRCON’s right to recover from the   contractor   any   amount   by   which   the   cost   of completing   the   works   by   any   other   agency   shall
exceed the value of the contractor. 
7.3 Thus, both, under Clause 17.4 and 60.1, on failure of the contractor to complete the work, the IRCON is justified in rescinding the contract and forfeit the
security   deposit.   At   the   cost   of   repetition   it   is observed   that   the   learned   Arbitral   Tribunal   on appreciation   of   entire   evidence   on   record,   had specifically   observed   that   the   contractor   failed   to complete   the   work   even   within   the   stipulated extended   period   of  time  and   even   abandoned  the work   and   therefore,   the   IRCON   was   justified   in rescinding the contract. The said finding as observed
hereinabove   has   attained   finality.   Therefore,   the

IRCON   was   absolutely   justified   in   forfeiting   the security deposits and therefore, the learned Arbitral Tribunal was absolutely justified in rejecting Claim
Nos.33 and 34, which were with respect to forfeiture of security deposits by the IRCON. Both, the learned Single Judge as well as Division Bench of the High Court have seriously erred in setting aside the award passed   by   the   learned   Arbitral   Tribunal   rejecting Claim Nos.33 and 34. We are of the opinion that the
learned   Single   Judge,   therefore,   exceeded   in   its jurisdiction under Section 34 of the Arbitration Act quashing and setting aside the well­reasoned award passed by the learned Arbitral Tribunal on rejecting Claim Nos.33 and 34, which the Division Bench of the High Court has wrongly affirmed.  7.4 Under the circumstances, the impugned judgment and order passed by the learned Single Judge as well as the Division Bench of the High Court quashing
and setting aside the award passed by the learned

Arbitral   Tribunal   rejecting   Claim   Nos.33   and   34 deserve to be quashed and set aside and the award passed   by   the   learned   Arbitral   Tribunal   rejecting
Claim Nos.33 and 34 is required to be restored and upheld.  7.5 Now, so far as the quashing and setting aside the award   passed   by   the   Arbitral   Tribunal   awarding
interest @ 18% on advance for the hypothecation of equipment, by the learned Single Judge confirmed by the Division Bench is concerned, at the outset, it
is required to be noted that the Division Bench of the High   Court   has   upheld   the   order   passed   by   the learned Single Judge quashing and setting aside the
interest awarded by the learned Arbitral Tribunal on advance for the hypothecation of equipment on the ground   that   there   is   no   such   stipulation   in   the
agreement / contract.  However, the High Court has not   at   all   considered   Section   31(7)(a)   of   the Arbitration   Act,  which   permits   the   arbitrator   that

unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the Arbitral Tribunal may include in the sum
for which the award is made interest, at such rate as it deems reasonable, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. Thus,   unless   there   is   a   specific   bar   under   the contract,   it   is   always   open   for   the   arbitrator   /
Arbitral   Tribunal   to   award   pendente   lite   interest. Identical   question   came   to   be   considered   by   this Court   in   the   case   of  Raveechee   and   Company
(supra).      In the said decision, it is observed and held by this Court that an arbitrator has the power
to   award   interest   unless   specifically   barred   from awarding it and the bar must be clear and specific. In the said decision, it is observed and held that the
liability to pay interest pendente lite arises because the claimant has been found entitled to the same

and had been kept out from those dues due to the pendency of the arbitration, i.e., pendente lite. Applying the law laid down by this Court in the
aforesaid decision to the facts of the case on hand, once it was found that the advance amount was paid for hypothecation of equipment and thereafter when
the   Arbitral   Tribunal   awarded   the   interest   on advance for hypothecation of equipment, the same was not required to be interfered with by the learned Single Judge in exercise of the powers under Section 34 of the Arbitration Act and even by the Division Bench of the High Court while exercising the powers under Section 37 of the Arbitration Act.  However, at the same time to award the interest @ 18% can be said   to   be   on   a   higher   side.     In   the   facts   and circumstances of the case, if the interest is awarded  @   12%   on   advance   for   the   hypothecation   of equipment, the same can be said to be reasonableinterest.  

8. In   view   of   the   above   and   for   the   reasons   stated above,   present   appeal   succeeds.     The   impugned judgment and order passed by the learned Single
Judge as well as the Division Bench of the High Court quashing and setting aside the award passed by the Arbitral Tribunal rejecting Claim Nos. 33 and 34 are hereby quashed and set aside and the award passed by the Arbitral Tribunal rejecting the claim Nos. 33 and 34 is hereby restored.   The impugned judgment and order passed by the Division Bench of the High Court in confirming the judgment and order passed   by   the   learned   Single   Judge   insofar   as quashing and setting aside the award passed by the Arbitral Tribunal awarding the interest @ 18% on the advance   for   hypothecation   of   equipment   is concerned,   the   same   is   hereby   quashed   and   set aside and the award passed by the Arbitral Tribunal awarding the interest on advance for hypothecation  of   equipment   is  hereby   restored,  however,  with  a

modification that there shall be paid an interest @ 12% pendente lite on advance for hypothecation of equipment instead of 18% as awarded by the Arbitral
Tribunal.   Present   appeal   is   accordingly   allowed   to   the aforesaid   extent.     However,   in   the   facts   and circumstances of the case, there shall be no order as to costs. 
…………………………………J.
            (M. R. SHAH)
…………………………………J.
  (M.M. SUNDRESH)
New Delhi, 
March 17, 2023

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