Bombay High Court

Laxmi Organic Industries Limited vs Gokul Sugar Industries Limited on 31 August, 2021

Bench: B.P. Colabawalla

                                                                  (10) carbp(1).18103.2021.doc


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               ORDINARY ORIGINAL CIVIL JURISDICTION
                                   IN ITS COMMERCIAL DIVISION

                      COMM. ARBITRATION PETITION (L) NO. 18103 OF 2021


            Laxmi Organic Industries Limited                      ... Petitioner

                      Vs

            Gokul Sugar Industries Limited                        ... Respondent

            Mr.Karl Tamboly a/w Krushi Barfiwalam i/b. Parinam Law Associates for
            the Petitioner.

            Mr. Surel Shah a/w Mr. Ajit Alange for the Respondent.

                                            CORAM : B. P. COLABAWALLA, J.

TUESDAY , 31ST AUGUST, 2021

P.C. :

1 The above petition is filed under Section 9 of the Arbitration

and Conciliation Act, 1996 (for short the "Arbitration Act") seeking the

following reliefs:

"(a) That pending the hearing and disposal of arbitral proceedings, making of the arbitral award and until execution of the arbitral award, this Hon'ble Court be pleased to order and direct Respondent to deposit the amount of Rs.3,02,04,715/- (Rupees Three Crores Two Lakhs Four Thousand Seven Hundred and Fifteen Only) as on date with further interest thereon @ 18% per annum, and additional interest @ 12% per annum from the date of filing till payment and/or realisation as more particularly set out in Particulars of Claim at Exhibit "N" hereto, or furnish Bank Guarantee of the Nationalized Bank of the said amount in favour of the Prothonotary & Senior Master, High Court, Bombay for an initial period of one year and to be renewed thereafter for such additional period as this Hon'ble Court deem fits to secure the claim of the Petitioner;

(b) That pending the hearing and disposal of arbitral proceedings, making of the arbitral award and until

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execution of the arbitral award, this Hon'ble court be pleased to order and direct Respondent to deposit the amount of Rs.2,20,00,000/- (Rupees Two Crore Twenty-Two Lakhs Only) as on date with further interest thereon @18% per annum, and additional interest @12% per annum from the date of filing till payment and/or realisation towards liquidated damages as per the Supply Agreement as more particularly set out in Particulars of Claim at Exhibit "N" hereto, or furnish Bank Guarantee of the Nationalized Bank of the said amount in favour of the Prothonotary & Senior Master, High Court, Bombay for an initial period of one year and to be renewed thereafter for such additional period as this Hon'ble Court deem fits to secure the claim of the Petitioner;

(c) That pending the hearing and disposal of arbitration proceedings, making of the arbitral award and until execution of the arbitral award, the Respondent be directed by an order of this Hon'ble Court to disclose on oath details of all assets and properties (both movable and immovable) owned by the Respondent including the land along with the said Factory as specified in Exhibit 'k' hereto, the current status of all its assets, past and proposed dealings thereof along with all other details of the same along with copies of the documents of title;

(d) That pending the hearing and disposal of arbitration proceedings, making of the arbitral award and until execution of the arbitral award, that this Hon'ble Court be please to pass an order restraining the Respondent including its directors, employees, servants, agents, trustees or any person acting through it on or on its behalf, or otherwise howsoever, by an order of injunction from in any manner selling, transferring, disposing, alienating or encumbering or pledging or mortgaging or hypothecating or charging or parting with possession of or transferring, or inducting anyone else into or in any manner creating any right, title, interest or license in favour of anyone in respect of its assets disclosed in terms of prayer clause (b);

(e) That pending the hearing and disposal of the arbitration proceedings, making of the arbitral award and until execution of the arbitral award, that this Hon'ble Court be please to pass an order restraining the Respondent including its directors, employees, servants, agents, trustees or any person acting through it on or on its behalf, or otherwise howsoever, be restrained by an order of injunction from in any manner selling, transferring, disposing, alienating or encumbering or pledging or mortgaging or hypothecating or charging or parting with possession of or transferring or inducting anyone else into or in any manner creating any right, title, interest or license in favour of anyone in respect

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of the land along with the said Factory as specified in Exhibit 'K'.

(f) That pending the hearing and disposal of arbitral proceedings, making of the arbitral award and until execution of the arbitral award, this Hon'ble Court be pleased to order and attach the land along with the said Factory as specified in Exhibit 'K' hereto together with all the machinery, equipment, stores, plant, furniture, fixtures, articles, things, appurtenances and other paraphernalia situated therein until the satisfaction of the Petitioner's claim in the sum of Rs.5,22,04,715/- (Rupees Five Crore Twenty- Two Lakhs Four Thousand Seven Hundred and Fifteen Only) as on date with further interest thereon @18% per annum, and additional interest @ 12% per annum from the date of filing till payment and/or realisation as more particularly set out in Particulars of Claim Exhibit "N" hereto and the same be sold in respect of the Petitioner's claim and the net sale proceeds thereof be ordered to be applied to the satisfaction of the Petitioner's claim including costs and interest;"

2 The subject matter of the dispute between the parties is the

Supply Agreement dated 13th November, 2019 entered into between the

Petitioner and the Respondent. Under this Agreement, the Respondent

agreed to sell/supply 5000 MT of Molasses to the Petitioner @ Rs.5100

per MT. The delivery of the aforesaid supply was to be made between 1 st

December, 2019 to 31st January, 2020. The total value of the contract was

about Rs.2.55 Crores. Under clause 3.1.1. of the said Supply Agreement,

the Petitioner had to make an advance payment of Rs.2,29,50,000/-. It is

an admitted fact that this advance payment has been made by the

Petitioner to the Respondent. The said Agreement further provided that if

the Respondent failed to deliver the agreed quantity of Molasses on or

before the expiry of the Agreement (31st January, 2020), then the

Petitioner could, at its sole discretion, extend the delivery period upto 15 th

February, 2020. There are several other clauses regarding giving of post

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dated cheques as security as well as for termination of the Agreement.

There is also a stipulation that the said Agreement shall commence from

the date of the execution thereof and shall remain valid and in force until

15th February, 2020 or on the date on which the total quantity of Molasses

is delivered by the Respondent to the Petitioner, whichever is earlier.

3 The Arbitration Agreement between the parties can be found

at clause 14 of the said Agreement and reads thus :

"14. ARBITRATION:-

In the event of any dispute or difference including relating to the breach, default, termination, non-payment of money due hereunder or the validity hereof, arising between the Parties under or in connection with this Agreement, such dispute or difference shall be submitted to arbitration in accordance with the Arbitration and Conciliation Act, 1996 as may be amended from time to time by sole arbitrator, to be appointed jointly by the Parties. In the event that the Parties are unable to agree upon the sole arbitrator, the arbitrator shall be appointed by the Bombay High Court. The arbitral award shall be final and binding on both Parties. All arbitration proceedings shall be conducted in the English Language and the place of arbitration shall be at Mumbai."

4 According to the Petitioner, the Respondent breached the

terms of the Supply Agreement by not only failing to deliver the total

quantity of Molasses, or any part thereof to the Petitioner, but it sold the

entire quantity to a third party i.e. Khandoba Distilleries Ltd. According to

the Petitioner, these actions of the Respondent were in breach of the

provisions of the Supply Agreement. This was duly recorded by the

Petitioner vide its letter dated 3rd February, 2020.

5 Be that as it may, in reply to a notice dated 25 th March, 2020,

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the Respondent by its Email dated 27th March, 2020, admitted its liability

and default under the Supply Agreement and sought an extension in the

time period for repayment of the advance (Rs.2,29,50,000/-) received by

the Respondent for the supply of Molasses. The relevant portion of this

Email reads thus :

"Please note, we do not intend to default on our commitment to repay the advance with interest in case of non-supply which is mainly on account of low crushing; however we seek your support on humanitarian ground & we request you the following :-

1. Kindly allow us additional period till 30th April 2020 for 50% repayment and 15th May 2020 balance 50% repayment of advance received by us as per the Supply Agreement.

2. We can pay interest at bank rate i.e. 10% that too with much financial hardship as we are already struggling with liquidity crisis and higher interest of 18% is not sustainable.

3. Please do not initiate any legal action for the recovery of the advance dues as it will affect the sentiments of bankers, other creditors and will result into going concern status of our company.

We have always looked upto your company as partner in our business endeavors & seek your cooperation in the difficult time considering long term relationship."

(emphasis supplied)

6 Apart from this admission, the Respondent has admitted its

liability time and again vide its Emails / letters dated 27 th July, 2020, 29th

July, 2020 and 9th July, 2021. In fact, by their Email dated 29 th July,

2020, the Respondent admitted to make the entire payment with the

interest thereon by 17th August, 2020. The relevant portion of the said

Email reads thus :

".....................Forwarded message .................. From: Gokul Sagar <[email protected]>

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Date :Wed, 29 Jul 2020 at 1.24 PM Subject : Regarding Repayment of Outstanding Dues. To:Gokul Sugar <[email protected]>, datta shinde <[email protected]>

Dear Sunil Gupta Sir, We like to inform you that one of our co-operative bank and multistate bank have sanctioned our proposal. Documentation and mortgage process has already been done. Disbursement is going to commence from 10th of august to 16th of august. We like to assure you on 17th of august we will transfer your outstanding dues with interest very sure."

(emphasis supplied)

7 In this factual background, Mr. Tamboly, the learned

advocate appearing on behalf of the Petitioner, submitted that this is a fit

case for directing the Respondent to deposit the amount mentioned in the

prayer clause above considering that there is absolutely no dispute in

relation thereto. He submitted that since admittedly not a single Metric

Tonne of Molasses was supplied by the Respondent, the Respondent is

obligated to refund the advance payment along with interest thereon at

the contractual rate @18% p.m. He submitted that as set out earlier, the

Respondent has admitted its liability time and again, and therefore has no

real chance of success before the Arbitral Tribunal. He submitted that the

Respondent practically has no defence regarding the amount payable and

it would be in the interest of justice to secure the amount which forms the

subject matter of the proposed arbitration reference. He submitted that

this is necessitated more so in the present case, considering that the

Respondent in its affidavit-in-reply has categorically stated that the

factory, machinery etc belonging to the Respondent are already

mortgaged with the consortium of Banks and third party rights are already

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created in relation thereto. He, therefore, submitted that if an order

directing the Respondent to deposit the aforesaid amount is not passed,

then grave prejudice and injury will be caused to the Petitioner. He

submitted that looking into the facts and circumstances of the case, even

the balance of convenience was in favour of the Petitioner. He

correspondingly submitted that this Court allow the aforesaid Petition in

terms of prayer Clause (a) [seeking a deposit] as well as for disclosure in

terms of prayer clause (c) and injunctions in terms of prayer clauses (d)

and (e) reproduced above. Mr. Tamboly stated that at this stage, he is not

pressing for prayer clauses (b) and (f) of the Petition.

8 On the other hand, Mr. Surel Shah, the learned advocate

appearing on behalf of the Respondent, submitted that the Petitioner is

not entitled to any interim relief in as much as that on the Petitioner's own

showing they had raised a demand for repayment of the advance payment

amount from the Respondent as far back as on 25 th March, 2020 and the

present Petition is filed only on 17th August, 2021. This being the case, no

urgent measures under Section 9 are required to be passed by this Court,

was the submission of Mr. Shah.

9 Mr. Shah thereafter submitted that the petitioner itself has

filed proceedings under Section 9 of the Insolvency and Bankruptcy Code,

2016 before the NCLT. In the said proceedings, the Petitioner appears to

have not moved any application for immediate and urgent relief. That

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apart, the Petitioner has also invoked the guarantee given by the

Managing Director of the Respondent-Company. Mr. Shah submitted that

since the Petitioner was unable to invite any interim order in the

proceedings before the NCLT, it has approached this Court invoking

provisions of Section 9 and that too after a period of almost 1 year and 5

months. This conduct of the Petitioner disentitled it from any urgent

interim protection under Section 9 of the Arbitration Act, was the

submission of Mr. Shah.

10 Mr. Shah then contended that the entire claim of the

Petitioner is premature in the absence of termination of the contract. He

submitted that admittedly in the present case, the contract has not been

terminated by the Petitioner and hence, without any termination of

contract, the Petitioner cannot seek any refund of any amount paid by the

Petitioner to the Respondent. This being the case, he submitted that there

was no question of granting any relief in favour of the Petitioner.

11 Lastly, Mr. Shah contended that the Petitioner themselves

extended the time for supply of the Molasses and have time and again

sought compliance of the Agreement. This being the case, there is a

novatio of the contract and the present Petition filed by the Petitioner is

premature as the Supply Agreement continues to exists even till today,

and they are still willing to abide by the said Agreement as set out in their

letter dated 9th July, 2021 (page 77 of the paper book). For all the

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aforesaid reasons, Mr. Shah submitted that the above Petition be

dismissed with costs.

12 I have heard, the learned advocates for the parties at some

length. I have also perused the papers and proceedings in the above

petition. The Supply Agreement which forms the subject matter of the

dispute was entered into on 13th November, 2019. Under the aforesaid

Agreement, the Respondent was to supply to the Petitioner 5000 M.T. of

Molasses @ Rs.5100/- per M.T. The supply of the aforesaid Molasses was

to be done between 1st December, 2019 to 31st January, 2020. In the

event, the delivery could not be completed by 31 st January, 2020, then

time could be extended upto 15th February, 2020 [only at the instance of

the Petitioner]. For the aforesaid supply, the Petitioner was required to

make an advance payment which has been quantified in the Agreement to

be Rs.2,29,50,000/-. This amount has admittedly been paid by the

Petitioner to the Respondent. From the record, it is also clear that even

not one Metric Tonne has been supplied by the Respondent to the

Petitioner. Prima facie, therefore, the Respondent is in breach of the

Agreement dated 13th November, 2019. Due to the non-supply of

Molasses as per the terms of the Supply Agreement, the Petitioner, time

and again called upon the Respondent to either supply the Molasses or to

refund the amount of Rs.2,29,50,000/- together with interest @18% p.a..

The Respondent, in turn, admitted its liability time and again as set out in

their emails/letters dated 27th March, 2020, 27th July, 2020 and 9th July,

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2021. After carefully going through these letters / emails [addressed to the

Respondent by the Petitioner], I am prima facie satisfied that the

Respondent has admitted its liability to refund the advance payment

amount of Rs.2,29,50,000/- to the Petitioner without raising any dispute

whatsoever. Considering these facts, I would be fully satisfied in ordering

the Respondent to deposit this admitted amount in the Court together

with interest thereon. However, before I proceed further, it would only be

fair to deal with each of the submissions made by Mr. Shah, the learned

advocate appearing on behalf of the Respondent.

13 The first argument canvassed by Mr. Shah was with

reference to the alleged delay of the Petitioner in approaching this Court

for seeking reliefs under Section 9 of the Arbitration Act. After going

through the record, I do not find any merit in the argument canvassed by

Mr. Shah on this issue. In my opinion, Mr. Shah is not justified in

contending that no case for interim relief is made out. The

correspondence between the parties clearly shows that because the

Respondent admitted its liability time and again and requested the

Petitioner not to initiate any legal action, is the reason for the delay, if any,

in filing the present Section 9 Petition. In any event, a just claim cannot

be defeated on the ground of delay. For the Respondent to succeed in its

argument on delay, it has to be demonstrated that the delay, if any, has

caused prejudice to the Respondent disentitling the Petitioner to any

relief. In the present case, the delay, if any, has in fact benefitted the

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Respondent as the Respondent has continued to hold on to the money

that legitimately ought to have been refunded to the Petitioner. I,

therefore, do not think that Mr. Shah is justified in contending that the

Petitioner is not entitled to any relief under Section 9 because of any

alleged delay.

14 The next contention taken up by Mr. Shah was that the

Petitioner has approached the NCLT under Section 9 of the Insolvency

and Bankruptcy Code, 2016 (as an operational creditor), and only when

the Petitioner failed to get any relief there, it has approached this Court.

This argument, too, I find to be without any substance for the simple

reason that proceedings initiated under the IBC, 2016 (before the NCLT)

are not recovery proceedings. The Petition under Section 9 of the IBC,

2016 is on the basis that a debt is due and payable by the corporate debtor

to the Petitioner and which has not been paid. If the NCLT finds that there

is a debt due which has not been paid, then it takes the matter further

under the provisions of the IBC, 2016 which, simply put, ultimately results

in a revival of the corporate debtor and the creditors of the corporate

debtor get paid as per the Resolution Plan sanctioned by the NCLT, or the

corporate debtor is wound up. However, the scope and ambit of the

present proceedings are completely different. The present proceedings are

for seeking interim reliefs pending the disputes being referred to

Arbitration. In these circumstances, merely because the Petitioner has

approached the NCLT under the provisions of the IBC, 2016 and/or has

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not applied for any relief there, would not in any way, disentitle the

Petitioner from approaching this Court seeking appropriate reliefs to

secure its claim pending the Arbitration.

15 Mr. Shah, then contended that the claim of the Petitioner is

premature in the absence of termination of the Contract. Prima facie, I do

not find any substance in this argument either. The Agreement clearly

stipulates that the supply of Molasses was to be done by a particular date.

If the supply was not done by that date, there was also a grace period

granted under the Agreement. It is not in dispute that the supply of

Molasses is not done even within the grace period or even till today.

Considering this situation and reading the terms of the Supply Agreement

dated 13th November, 2019 I am of the opinion, at least prima facie, that

the said Agreement came to an end with the failure of the Respondent to

supply the required quantity of Molasses. This is also how the Respondent

understood it because the Respondent itself, (through correspondence),

offered to refund the amount to the Petitioner that was paid by it as an

advance payment for the supply of Molasses. This itself prima facie

indicates that the Respondent also treated the Agreement dated 13 th

November, 2019 as terminated and/or coming to an end. If the

Respondent treated the said Agreement as subsisting, there would be no

question of offering to refund the amount to the Petitioner that was paid

by it as an advance payment for the supply of Molasses. This being the

case, I am not impressed with the argument of Mr. Shah that in the

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absence of termination of the Agreement dated 13th November, 2019, the

claims made / reliefs sought by the Petitioner are premature.

16 The last argument canvassed by Mr. Shah was that since the

Petitioner had extended the time for supply of Molasses, there is novatio

of the contract and hence the present Petition is premature. In this

regard, Mr. Shah relied upon the Email dated 3rd April, 2020 addressed by

the Petitioner to the Respondent. I have carefully gone through the

aforesaid email. I do not think that this Email, prima facie, amounts to

any novatio. What Mr. Shah clearly overlooks is the Email written by the

Respondent on 29th July, 2020, wherein, it is stated that the respondent is

the process of getting finance from Co-operative and Multi-State Banks

and that the entire amount due and payable to the Petitioner under the

Supply Agreement would be transferred to them on 17th August, 2020

together with interest thereon. One cannot read the email dated 13 th April,

2020 in isolation and then contend that the Agreement dated 13 th

November, 2019 still subsists. The fact that the Respondent itself offered

to refund the entire advance payment given by the Petitioner to the

Respondent under said Agreement itself indicates that the Respondent

was not inclined to supply the Molasses but wanted to refund the money

paid by the Petitioner to the Respondent. I, therefore, find no substance in

the argument of Mr. Shah on this count also.

17 Having rejected all the arguments canvassed by Mr. Shah, as

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stated earlier, in my opinion, pending the hearing and final disposal of the

Arbitration proceedings between the parties, this would be a fit case to

direct the Respondent to deposit the amount of Rs.3,02,04,715/- (Rupees

Three Crores Two Lakhs Four Thousand Seven Hundred and Fifteen

Only) in this Court. I say this because the Respondent has, time and

again, admitted its liability to the Petitioner. In the face of these

admissions, at least prima facie, I find there is practically no defence

available to the Respondent. Further, from the record, it prima facie

appears that the financial condition of the Respondent is also quite

precarious. Its entire assets are mortgaged to a consortium of banks.

Further, two creditors have also approached the NCLT seeking winding up

of the Respondent. Considering all these facts, I am satisfied that a case

for an order of deposit is made out.

18 In the view that I take (directing the Respondent to secure

the Petitioner by depositing Rs.3,02,04,715/- in this Court), I am

supported by two Division Bench judgments of this Court, namely, in the

case of (i) Jagdish Ahuja v. Cupino Limited [2020 SCC OnLine Bom 849];

and (ii) Valentine Maritime Ltd. v. Kreuz Subsea Pte Limited and another

[2021 SCC OnLine Bom 75]. In the case of Jagdish Ahuja (Supra), a

Division Bench of this Court has categorically opined that in an

appropriate case, where the court is of the view that there is practically no

defence to the amount payable and where it is in the interest of justice to

secure the amount which forms the subject matter of the proposed

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arbitration, even if no case is strictly made out within the letter of Order

38 Rule 1 or 2, it is certainly within the power of the Court to order a

suitable interim measure of protection under Section 9 of the Act. For

ready reference, paragraph 7 of this decision is reproduced hereunder:-

"7. In an appropriate case, where the court is of the view that there is practically no defence to the payability of the amount and where it is in the interest of justice to secure the amount, which forms part of the subject matter of the proposed arbitration reference, even if no case strictly within the letter of Order 38 Rule 1 or 2 is made out, though there are serious allegations concerning such case, it is certainly within the power of the court to order a suitable interim measure of protection. As we have noted above, the amount is either to be deposited into the treasury in accordance with the agreement between the parties or if, for any reason, it is not payable to the revenue towards the Respondent's tax liability, as is the case of the Appellants here, it is to be paid to the Respondent itself as part of the price of debentures. In fact, when these two options were posed by the learned Single Judge to the Appellants' counsel, in fairness both conceded that there was no third option."

Similarly, in the case of Valentine Maritime Ltd (supra), this Court

has followed its decision in Jagdish Ahuja (Supra). The relevant portion

reads thus:-

"99.Learned senior counsel for the VML could not distinguish the judgment of the Division Bench of this Court in case of Jagdish Ahuja (supra). The Division Bench of this Court in the said judgment has clearly held that in an appropriate case, where the Court is of the view that there is practically no defence to the payability of the amount and where it is in the interest of justice to secure the amount, which forms part of the subject matter of the proposed arbitration reference, even if no case strictly within the letter of Order 38 Rule 1 or 2 is made out, though there are serious allegations concerning such case, it is certainly within the power of the Court to order a suitable interim

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measure of protection. The principles laid down by this Court in the said judgment applies to the fact of this case."

19 For the reasons stated above, I am satisfied that the

Petitioner has made out a case for an order of deposit. In these

circumstances, the following order is passed:

(i) The Respondent is directed to deposit the amount of

Rs.3,02,04,715/- in this Court within a period of eight weeks

from today.

(ii) In addition to the aforesaid order of deposit, there shall be

interim relief in terms of prayer clauses (c), (d) and (e) which

read thus:

(c) That pending the hearing and disposal of arbitration proceedings, making of the arbitral award and until execution of the arbitral award, the Respondent be directed by an order of this Hon'ble Court to disclose on oath details of all assets and properties (both movable and immovable) owned by the Respondent including the land along with the said Factory as specified in Exhibit 'K' hereto, the current status of all its assets, past and proposed dealings thereof along with all other details of the same along with copies of the documents of title;

(d) That pending the hearing and disposal of arbitration proceedings, making of the arbitral award and until execution of the arbitral award, that this Hon'ble Court be please to pass an order restraining the Respondent including its directors, employees, servants, agents, trustees or any person acting through it on or on its behalf, or otherwise howsoever, by an order of injunction from in any manner selling, transferring, disposing, alienating or

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encumbering or pledging or mortgaging or hypothecating or charging or parting with possession of or transferring, or inducting anyone else into or in any manner creating any right, title, interest or license in favour of anyone in respect of its assets disclosed in terms of prayer clause (b);

(e) That pending the hearing and disposal of arbitration proceedings, making of the arbitral award and until execution of the arbitral award, that this Hon'ble Court be pleased to pass an order restraining the Respondent including its directors, employees, servants, agents, trustees or any person acting through it on or on its behalf, or otherwise howsoever, be restrained by an order of injunction from in any manner selling, transferring, disposing, alienating or encumbering or pledging or mortgaging or hypothecating or charging or parting with possession of or transferring, or inducting anyone else into or in any manner creating any right, title, interest or license in favour of anyone in respect of the land along with the said Factory as specified in Exhibit 'K'.

(iii) In case, the aforesaid deposit is made by the Respondent, it

shall be at liberty to move this Court for vacating the reliefs

granted in terms of prayer clauses (c), (d) & (e). If such an

Application is made, the same shall be decided on its own

merits and in accordance with law.

(iv) It is clarified that if the aforesaid deposit is not made within the

time stipulated, the Petitioner shall be at liberty to execute this

order under Section 36 of the Code of Civil Procedure, 1908 to

ensure that the sum of Rs.3,02,04,715/-, or any part thereof, is

brought into this Court.

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20 The Section 9 Petition is disposed of in the aforesaid terms.