Full Text
HIGH COURT OF DELHI
JUDGMENT
SUBHASH INFRAENGINEERS PVT LTD ..... Petitioner
Through: Mr. Brijesh Kumar Goel and Mr. Sajat Goel, Advs.
Through: Mr. Puneet Taneja and Ms. Laxmi Kumari, Advs.
1. The present petition filed under Section 11 of the Arbitration & Conciliation Act, 1996[1] seeks appointment of a sole arbitrator to adjudicate the disputes between the parties.
2. The disputes between the parties have arisen in the context of a Letter of Award in the form of Purchase Order dated 17.10.2019 for works relating to “Starter Ash Dyke package For Barauni Thermal Power Project (2X250MW)”.
3. The said Letter of Award was followed by a Contract Agreement “the Act” dated 31.10.2019. Various disputes are stated to have arisen between the parties in the context of the said contract including, inter alia, on account of the alleged non-handing over of the work fronts and reimbursement of recurring overhead expenses stated to have been incurred by the petitioner.
4. Admittedly, the applicable General Conditions of Contract[2] include an arbitration clause which is in the following terms:- “7. Settlement of Disputes 7.[1] Mutual Consultation If any dispute of any kind whatsoever shall arise between the Employer and the Contractor in connection with or arising out of the Contract, including without prejudice to the generality of the foregoing, any question regarding its existence, validity or termination, or the execution of the Works, whether during the progress of the works or after their completion and whether before or after the termination, abandonment or breach of the Contract, the parties shall seek to resolve any such dispute or difference by mutual consultation. If the parties fail to resolve such a dispute or difference by mutual consultation, then the dispute may be settled through Expert Settlement Council/ Arbitration / other remedies available under the applicable laws. 7.[2] Resolution of Dispute through Expert Settlement Council If the parties fail to resolve such a dispute or difference by mutual consultation, the dispute if the parties agree, may be referred to Conciliation in cases involving disputed amount up to Rs. 250 crores, which is to be arrived at considering the claim and counter claim of the parties to the dispute. 7.2.[1] Invitation for Conciliation: 7.2.1.[1] A party shall notify the other party in writing about such a dispute it wishes to refer for conciliation within a period of 30 days from the date of raising of the dispute in case of failure to resolve the sake through mutual consultation. Such invitation for Conciliation shall contain sufficient information as to the disputes to enable the other party to be fully informed as to the nature of the dispute, amount of the monetary claim, if any, and apparent cause of action. 7.2.1.[2] Upon acceptance of the invitation to conciliate, the other party shall submit its counter claim, if any, within a period of 30 days from the date of the invitation to conciliate. If the other party rejects the invitation or disputed “GCC” amount exceeds Rs.250 crores, there will be no Conciliation proceedings. There shall be no Conciliation where claim amount is only up-to Rs. 5 Lakhs. 7.2.1.[3] If the party initiating Conciliation does not receive a reply within thirty days from the date on which it sends the invitation, or within such other period of time as specified in the invitation, it shall treat this as rejection of the invitation to conciliate from the other party. 7.2.[2] Conciliation: 7.2.2.[1] Where invitation for Conciliation has been furnished under GCC sub clause 7.2.1, the parties shal attempt to settle such dispute through Expert Settlement Council (ESC) which shall be constituted by CMD, NTPC. 7.2.2.2. ESC will be formed from experts comprising of three members from the panel of conciliators maintained by NTPC. However, there will be single member ESC for disputes involving claim and counter claim (if any) up-to Rs.[1] crore. CMD will have authority to reconstitute an ESC to fill any vacancy. 7.2.2.[3] The eligible persons for consideration for empanelment in the panel of conciliators shall be amongst Retired Civil Servants of Govt. Of India not below the rank of Joint Secretary, Retired Judges, Retired Executive directors/Directors/Chairman of any Maharatna/Navratna company in India other than NTPC Ltd, Retired Independent Directors who have served on the Board of any Maharatna/Navratna company in India other than NTPC Ltd and Independent experts in their respective fields preferably registered with the Indian Council of Arbitration of Delhi International Arbitration Centre or Federation of Indian Chambers of Commerce and Industry or SCOPE Arbitration Forum. 7.2.[3] Proceedings before ESC: 7.2.3.[1] The claimant shall submit its statement of claims along with relevant documents to ESC members, and to the party(s) indicated in the appointment letter within 30 days of the issue of the appointment letter. The respondent shall ifle its reply and counter claim (if any) within 30 days of the receipt of the statement of claims. Parties may file their rejoinder/additional documents. If any in support of their claim/counter claim within next 15 days. No documents shall be allowed thereafter. 7.2.3.2. The parties shall file their claim and counter claim in the following format a. Chronology of the dispute b. Brief of the contract c. Brief history of the dispute d. issues
┌────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ d. issues │ │ Sl. Description of Claims/ Amount (in Relevant │ │ No. Counter claims foreign Contract │ │ currency/INR) Clause │ │ e. Details of Claim(s) /Counter Claim(s) │ │ f. Basis/Ground of claim(s)/counter claim(s) along with relevant │ │ clause of contract │ │ Note: Statement of claims shall be restricted to maximum limit of 20 pages. │ │ 7.2.3.3 In case of 3 members ESC, 2 members will constitute a valid quorum │ │ and the meeting can take place to proceed in the matter after seeking consent │ │ from the member who is not available. However, ESC recommendations will │ │ be signed by all the members. │ │ 7.2.3.4 The parties shall be represented by their in house employees. No │ │ party shall be allowed to bring any advocate or outside │ │ consultant/advisor/agent to contest on their behalf. Ex-officers of NTPC who │ │ have handled the subject matter in any capacity shall not be allowed to attend │ │ and present the case before ESC on behalf f contractor. However, ex- │ │ employees of parties may represent their respective organizations. Parties │ │ case, parties are unable to reach a settlement, no interest shall be claimed by │ │ either party for the period from the date of notice invoking Conciliation till the │ │ date of ESC recommendations and 30 days thereafter in any further │ │ proceedings. │ │ 7.2.3.5. ESC will conclude its proceedings in maximum 10 meetings, and give │ │ its recommendations within 90 days of its first meeting. ESC will give its │ │ recommendations to both the parties recommending possible terms of │ │ settlement. CMD, NTPC may extend the time/number of meetings, in │ │ exceptional cases, if ESC requests for the same with sufficient reasons. │ │ 7.2.3.6. Depending upon the location of ESC members and the parties, the │ │ venue of the ESC meeting shall be either Delhi/Mumbai/Kolkata/Chennai or │ │ any other city whichever is most economical from the point of view of travel │ │ and stay etc. All the expenditure incurred in ESC proceedings shall be shared │ │ by the parties in equal proportion. │ └────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
8. The respondent vide its letter dated 20.10.2022 is stated to have requested the petitioner to review its aforesaid contention, in view of the contractual provisions, and participate in the proceedings before the ESC.
9. Thereafter, a notice of arbitration dated 08.11.2022 was sent by the petitioner to the respondent stating as under:- “Ref. No.: SIPL/NTPC-BTPP/2022-23/260 Date: 08.11.2022 Without Prejudice To, The Head of Project, NTPC Limited, Barauni Thermal Power Project, Distt: Begusarai, Bihar -851116. Sub: STARTER ASH DYKE PACKAGE FOR BARAUN THERMAL POWER PROJECT (2x250 MW), LOA NO. CS-8004-331-9-CS- Our “NOTICE FOR ARBITRATION” under Contract GCC Clause 7.[3] for the settlement of disputes so arisen in the said Contract. Ref:
1. Our letter No. 123 dated 04.08.2022 – Notifying NTPC the dispute/differences/ claims of about Rs. 21.82 crores so arisen; needing resolution/settlement.
2. Your letter No. 02 dated 14.10.2022- Informing us Expert Settlement Council (ESC) constituted, unilaterally by NTPCfor CONCILIATION of disputes so arisen.
3. Our letter No. 237 dated 18.10.2022- Communicating our denial to NTPC for any such CONCILIATION as per Section 62(2) of the Arbitration and Conciliation Act, 1196.
4. Your letter dated 20.10.2022- Reg. such Conciliation be commenced, in interest of both parties.
5. Our letter dated 21.10.2022 – Reiterating our denial dated 18.10.2022 to NTPC for any such CONCILIATION Dear Sir, With reference to above cited correspondence and in the interest of justice to be furthered, we hereby serve our instant “Notice for Arbitration” upon NTPC for resolution of our long pending disputes / claims through ARBITRATION provided under GCC Clause 7.[3] of the Contract. Please take notice that in line with GCC Clause 7.3.[1] (2nd para thereof) our disputes/claims were already notified to NTPC on 04.08.2022 vide Ref.[1] cited above, which claims amount is about Rs. 21.82 crores (Interest thereon extra). Accordingly, we would be submitting all such disputes/ claims and amount thereof, in the ARBITRATION reference so sought. Further, we wish to pertinently state that the GCC clause 7.3.[3] regarding „Appointment of a Sole Arbitrator‟ by CMD, NTPC – now lies in teeth of settled law of Perkin Eastman; Judgement delivered on 26.11.2019 by the Hon‟ble Supreme Court of India, and therefore, please take notice that a Sole Arbitrator in the present case/matter would be now be appointed by the jurisdictional Hon‟ble High Court. Suffice to say that our instant “NOTICE for ARBITRATION” is without prejudice to any of our rights or remedies as provided under the Contract and/or those available in law, and we would proceed further, as deemed necessary or expedient, for seeking ends of justice. Thanking you, Yours faithfully, For Subhash Infraengineers Pvt. Ltd. (D. S. Saini) Managing Director”
10. In response, the respondent sent communication dated 14.11.2022 stating as under:- “Ref. No. NTPC/ESC/Barauni/02-a Dated: 14.11.2022 To, M/s Subhash Infraengineers Private Limited, Plot No. B-1, Infocity, Sector-34, Near Hero Honda Chowk, Gurugram ( Haryana ) Kind Attention: Sh. DS Saini, Managing Director Subject: - Constitution of Expert Settlement Council (ESC) for settlement of dispute between M/s Subhash Infraengineers Private Limited and NTPC – Barauni TPS pertaining to the Package of Starter Ash Dyke Package for Barauni TPS vide LOA No. CS-8004-331-9-CS- Ref:
1) SIPL‟s letter dated 04.08.2022, ref no. SIPL/NTPC- BTPP/2022-23/123
2) NTPC‟s letter dt. 14.10.2022, ref no. NTPC/ESC/Barauni/ 02
3) SIPL‟s letter dt. 18.10.2022, ref no. SIPL/NTPC-BTPP/2022-
4) NTPC‟s letter dt. 20.10.2022, ref no. nil
5) SIPL‟s letter dt. 21.10.2022, ref. No. SIPL/NTPC-BTPP/2022-
6) SIPL‟s letter dt.08.11.2022, ref. No. SIPL/NTPC-BTPP/2022- Dear Sir, The above-mentioned communications exchanged between the parties may be referred. It is reiterated that on the request of M/s SIPL, NTPC vide letter dt. 14.10.2022 constituted ESC and informed all the concerned including M/s SIPL. It may please be again noted that as per Clause 7.2.[2] of GCC, forming part of the Contract, ESC is to be constituted by CMD, NTPC. Accordingly, in line with the contractual provisions, ESC has been constituted for resolution of disputes between the parties. As such refusal by M/s SIPL to participate in ESC proceedings, subsequent to constitution of ESC as per its own request raises doubts on the efforts of M/s SIPL towards settlement of disputes. NTPC reserves its right to raise this issue at appropriate forum. M/s SIPL vide letter dt. 08.11.2022 has now given notice under Cl. 7.3.[3] of GCC regarding appointment of Sole Arbitrator and has also cited the judgement of Perking Eastman Architects DPC &Anr. Vs. HSCC (India) Ltd. pronounced by Hon‟ble Supreme Court. In this regard, it is to inform that NTPC, subsequent to pronouncement of Perkins Eastman Judgement, is not appointing Sole Arbitrator in any matter. Accordingly, NTPC can provide four names of prospective Arbitrators to M/s SIPL and M/s SIPL can choose two names out of these four names. Thereafter, NTPC will appoint one person out of two aforesaid names, as sole Arbitrator. NTPC can proceed accordingly, if you so consent. Thanking You. Yours‟ Truly (Avnish Srivastava) Chief General Manager (DRC)”
11. In the above background, it is contended by the counsel for the petitioner that in view of law laid down by the Supreme Court in Perkins Eastman Architects DPC Vs. HSCC (India) Ltd.4, an independent arbitrator is liable to be appointed to adjudicate the disputes between the parties. Further, it is contended that it was not open for the respondent to unilaterally devise a procedure as set out in respondent’s letter dated 14.11.2022 (supra) and seek to suggest a panel of four names, out of which the petitioner was asked to choose any two names. It is submitted that aforesaid procedure, in discord with the contract and the law laid down by the Supreme Court in Perkins[4] (supra).
12. Per contra, learned counsel for the respondent opposes constitution of an arbitral tribunal on the ground that the petitioner has not complied with the mandatory pre-arbitral steps as envisaged under Clause 7 of GCC.
13. It is further contended by learned counsel for the respondent that the withdrawal of the petitioner from conciliation is contrary to Clause 7.[2] of the GCC. It has been specifically averred in the reply filed by respondent, as under:-
14. Having considered the respective averments and having heard the respective counsel for the parties, I find no merit in the contentions raised by the respondent.
15. At the outset, it is noticed that in the communication dated 14.11.2022 sent by the respondent in response to the petitioner’s invocation of arbitration, the respondent has acceded to constitute an arbitral tribunal albeit in the manner suggested in said the communication. What has been proposed in the said communication is that the respondent would provide names of four prospective arbitrators to the petitioner and the petitioner has been called upon to choose two of the four names. It has been further proposed that out of the said two names chosen by the petitioner, the respondent would appoint one person as the sole arbitrator.
16. It is noticed that vide the said communication dated 14.11.2022, the respondent did not, per se, have any objection to the constitution of arbitral tribunal. As such, the respondent cannot be heard to contend that the appointment of Arbitrator in the matter would be premature, having itself acceded to the constitution of the arbitral tribunal.
17. Moreover, the appointment procedure suggested by the respondent is not envisaged in the relevant contractual stipulation i.e. Clause 7 of GCC. The relevant contractual stipulation contemplates that the sole arbitrator would be appointed by the CMD of the respondent from the list of empanelled arbitrators of the respondent.
18. Clearly, any unilateral appointment by the respondent would be in derogation of the law laid down by the Supreme Court in Perkins[4]. This position is not disputed by learned counsel appearing for the respondent. In such a situation, it is incumbent for this Court to appoint an independent sole arbitrator to adjudicate the disputes between the parties and it is not open for the respondent to insist upon an appointment procedure which is not envisaged in the Arbitration Agreement between the parties.
19. There is also no merit in the contentions raised on behalf of respondent with regard to the non-adherence to the pre-arbitral mechanism as envisaged under Clause 7 of GCC.
20. As noticed, it has been specifically averred by the petitioner in the present petition that the disputes between the parties remain unsettled/unresolved despite mutual consultation meetings held between the parties. Furthermore, it is incorrect to allege that the petitioner has not exhausted the procedure of seeking settlement through conciliation. Vide communication dated 04.08.2022, the petitioner specifically took recourse to Clause 7.[2] of GCC for resolution of disputes through Expert Settlement Council, however, subsequently, the petitioner declined to participate/withdrew from the conciliation proceedings before the ESC since no opportunity was given to it for mutual selection of names of the concerned conciliators.
21. In this regard, it is relevant to note that in terms of Section 62(3) of the Act, it is open for a party to reject the invitation to conciliate. Further, in terms of Section 76 of the Act, the conciliation proceedings can be terminated by a written declaration of a party and there is no legal bar in this regard. In the present case, Clause 7.2.[5] of the GCC expressly provides that “parties are free to terminate Conciliation proceedings at any stage as provided under the Arbitration and Conciliation Act 1996.”
22. In the context of a pari materia arbitration clause, it has been held by a Coordinate Bench of this Court in the case of Abhi Engg. Corporation Pvt. Ltd. Vs. NTPC Ltd.5, as under:- “11. It has been rightly argued on behalf of the learned counsel for the 'petitioner that the process of "conciliation" could be resorted to only if both the parties agreed. Since the petitioner was not agreeable to resolution through conciliation, the Invocation of Arbitration cannot be held to be in non-compliance of mechanism agreed between the parties. ….
13. In the present case, it is not as if there was a detailed multiple-tier procedure given before the hierarchy of officers for addressing the grievances in regard to execution of the Contract of the petitioner. The first two tiers are mutual consultation and conciliation. As already nominated above, conciliation can take place only if both the parties consent. Rather, it is a case of abandonment of the Contract by the respondent due to inability to delay in issuance of NOC by the Pollution Control Board. Moreover, the first tier of dispute resolution was only to see if the parties could agree at any mutual settlement. As has been rightly argued on behalf of the petitioner, the nature of disputes which had arisen between the parties was not of the kind which may see any fruitful result through mutual consultation. In this case, a reference may be made to the Judgement of Supreme Court in Demarara Distilleries Pvt. Ltd. vs. Demerara Distillers Ltd. (2015) 13 SCC 610, wherein it was opined that the relegation of the parties to the avenue of amicable resolution, when the an application under Section 11(6) of A&C Act, 1996 has been filed, would be unjustified as in case, where such relegation would be merely in the nature of an empty formality.
14. A reference has also been made to the decision of this Court in 2022:DHC:4280 Kunwar Narayan vs. Ms Ozone Overseas Pvt Ltd and Anr. in ARB.P. 538/2020 decided on 10th February, 2021, wherein a similar mechanism for resolution of disputes was provided. Reliance has also been place on Demarara Distilleries Pvt. Ltd. vs. Demerara Distillers Ltd. (supra) and Ravindra Kumar Verma vs. BPTP Ltd. MANU/DE/3028/2014, wherein it was observed that nothing worthwhile would be achieved by relegating the parties to explore any avenue of amicable resolution. Besides, the appointment of an Arbitrator by this Court would not act as an impediment to the parties to resolve their disputes amicably should it be possible at any point of time.
15. In the present case, considering the nature of dispute, it may be an empty formality as observed above, to relegate the parties to first explore the possibility of mutual consultation. Moreover, this cannot be considered as a ground to dismiss the present petition under Section 11(6) of A&C Act, 1996.”
23. In Kunwar Narayana vs. M/s Ozone Overseas Pvt. Ltd. & Anr.6, this Court relied upon the judgment of the Supreme Court in Demarara Distilleries Pvt. Ltd. vs. Demerara Distilleries Ltd.[7] and the judgment of this Court in Ravindra Kumar Verma vs. BPTP Ltd.[8] and has held as under:-
24. In the case of M/s Oasis Projects Ltd. Vs. Managing Director, National Highway and Infrastructure Development Corporation Limited[9], a Coordinate Bench of this Court, has held as under:-
25. Learned counsel for the respondent has relied upon the judgment of this court in the case of M/s Chabbras Associates vs. M/s HSCC India Limited &Anr.10, where the court refused to exercise jurisdiction under Section 11 of the Act on the ground that the procedure prescribed in the arbitration agreement in that case was not adhered to. It is noticed that arbitration clause in the said case was in the following terms:- “SETTLEMENT OF DISPUTES & ARBITRATION Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design, drawings 2023/DHC/000828 2023/DHC/000388 and instructions here-in before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter:
(i) If the contractor considers any work demanded of him to be outside the requirements of the contract, or disputes any drawings, record or decision given in writing by the Engineer-inCharge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the authority indicating in schedule 'F" (Reviewing Authority) in writing for written instruction or decision. Thereupon, the Reviewing Authority shall give his written instructions or decision within a period of one month from the receipt of the contractor's letter. If the Reviewing Authority fails to give his instructions or decision in writing within the aforesaid period or if the contractor is dissatisfied with the instructions or decision of the Reviewing Authority, the contractor may, within 15 days of the receipt of the Reviewing Authority's decision, appeal to the authority as indicated in schedule 'F" (Appealing Authority) who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The Appealing Authority shall give his decision within 30 days of receipt of contractor's appeal If the contractor is dissatisfied with the decision of the Appealing Authority, the contractor may within 30 days from the receipt of the Appealing Authority's decision, appeal before the Dispute Redressal Committee (DRC) along with a list of disputes with amounts claimed in respect of each such dispute and giving reference to the rejection of his disputes by the Appealing Authority. The Dispute Redressal Committee (DRC) shall give his decision within a period of 90 days from the receipt of Contractor's appeal. The constitution of Dispute Redressal Committee (DRC) shall be as indicated in Schedule „F‟. If the Dispute Redressal Committee (DRC) fails to give his decision within the aforesaid period or any party is dissatisfied with the decision of Dispute Redressal Committee (DRC), then either party may within a period of 30 days from the receipt of the decision of Dispute Redressal Committee (DRC), give notice to the Client for appointment of arbitrator on prescribed proforma as per Appendix XV, failing which, the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator.
(ii) Except where the decision has become final, binding and conclusive in terms of Sub Para (i) above, disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Client….. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each such dispute along with the notice for appointment of arbitrator and giving reference to the rejection of the Appealing Authority of the appeal.”
26. A bare perusal of the aforesaid clause makes it evident that the same mandated reference of the disputes to a “Reviewing Authority” and thereafter to, “Appealing Authority” followed by another appeal to the “Disputes Redressal Committee (DRC)”. In the context of Chabbras Associates (supra), the aforesaid authorities were entrusted to perform an adjudicatory function after hearing the parties. In fact, the relevant clause which fell for consideration in the said case, specifically mentioned that it was open for the contractor to “offer evidence in support of his appeal” before the appealing authority. It was in this context that this Court felt that bypassing the aforesaid authorities and straightaway filing a petition under Section 11 of the Act seeking appointment of an arbitrator, was not apposite in the facts of that case and in view of the nature of the arbitration clause.
27. Likewise, the arbitration clause that fell for consideration by this Court in Sushil Kumar Bhardwaj vs. Union of India11 was similar to the clause in case of Chabbras Associates10 and is quite different from the clause in the present case.
28. In the present case, the clause/pre arbitral mechanism contemplates mutual consultation followed by conciliation. As noticed in Abhi Engg.[5] and 2009 SCC OnLine Del 4355 Oasis Projects[9], conciliation is a voluntary process and once a party has opted out of conciliation, it cannot be said that the said party cannot take recourse to dispute resolution through arbitration.
29. In the notice invoking arbitration dated 08.11.2022, it has been mentioned that the claim amount in respect of which the disputes are sought to be raised is to the tune of Rs. 21.28 crores. As such, it is below the ceiling amount of Rs. 25 crores referred to in Clause 7.3.[1] of the GCC.
30. In the circumstances, Mr. Justice (Retd.) A.M. Khanwilkar, Former Judge, Supreme Court of India (Mob. No. 9967437111) is appointed as the Sole Arbitrator to adjudicate the disputes between the parties.
31. The appointment of the arbitrator is based on a prima facie examination of the matter. In terms of the judgment of the Supreme Court in Vidya Drolia v. Durga Trading Corpn.12, it shall be open for the respondent to raise objections as to jurisdiction and/or arbitrability/maintainability of the claims before the learned Sole Arbitrator which shall be adjudicated by the learned Sole Arbitrator on their merits, in accordance with law.
32. The learned Sole Arbitrator may proceed with the arbitration proceedings subject to furnishing to the parties requisite disclosures as required under Section 12 of the Act. The fees payable to the Sole Arbitrator shall be in terms of the stipulations contained in the arbitration agreement between the parties or as may otherwise agreed to between the parties and the learned Sole Arbitrator.
33. All rights and contentions of the parties in relation to the claims/counter-claims are kept open, to be decided by the learned Sole Arbitrator on their merits, in accordance with law.
34. Needless to say, nothing in this order shall be construed as an expression of opinion of this court on the merits of the case.
35. The present petition stands disposed of in the above terms.