Cmdr. S.P. Puri vs M/S. Alankit Assignments Ltd.
2008 Latest Caselaw 1455 Del

OMP No.395/2005                     Page No.1

                                            REPORTABLE
*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  O.M.P. NO. 395 OF 2005

%                               Date of Decision : 27th August, 2008.

CMDR. S.P. PURI                        .... Objector.
              Through Mr. V.K. Sharma, Advocate.

                                VERSUS

M/S. ALANKIT ASSIGNMENTS LTD.          .... Respondent.

Through Mr. D.S. Chauhan, Advocate.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

2.         To be referred to the Reporter or not ?    YES

3.        Whether the judgment should be reported
          in the Digest ?                         YES

SANJIV KHANNA, J:

1. The Objector, Cmdr. S.P. Puri (retd.) has filed objections under

Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter

referred to as the Act, for short) challenging the Award dated 13th

July, 2005 passed by the Arbitral Tribunal, consisting of three

Arbitrators appointed by the National Stock Exchange of India Ltd.

2. By the impugned Award, the Arbitral Tribunal has rejected

claims of the Objector and allowed counter claim of respondent-M/s.

Alankit Assignments Ltd. (hereinafter referred to as 'respondent or

AAL', for short) of Rs.32,72,631/- less Rs.15,00,000/- deposited by

the Objector as margin money.

OMP No.395/2005 Page No.2

3. At the very outset I may point out that the learned counsel for

the respondent-AAL has admitted that there is a mistake/error in

calculations made by the learned Arbitrators. Out of the total amount

of Rs.32,72,631/-, the respondent-AAL had realised Rs.43,663.46 on

26th August, 2004 from sale of shares of Bhagyanagar Metals Ltd.

and Rs.24,675/- was credited to the account of the Objector on 5th

November, 2004 on receipt of dividend from Reliance Industries Ltd.

Thus, Rs.32,28,968/- is claimed by the respondent-AAL as due and

payable after adjustment of the said amounts. The statement is taken

on record and the award is modified/corrected to this extent.

4. I do not agree with the contention of the Objector that the

Award dated 13th July, 2005 should be set aside on this ground

alone, as there is an error in calculation, which is apparent and can

be corrected by this Court without in any manner interfering with the

reasoning and the grounds given by the learned Arbitrators. It cannot

be said that the error or mistake in calculation made by the learned

Arbitrators goes to the root of the matter and affects the reasoning

and the grounds given by the Learned Arbitrators in support of their

decision.

5. The learned Arbitrators in their Award have rejected the claim

of the Objector that he had invested Rs.14.40 lakhs and also

deposited shares worth Rs.3.5 lakhs with the respondent on the

guarantee and agreement that he would be entitled to interest @

24% per annum on the aforesaid amount.

OMP No.395/2005 Page No.3

6. Learned counsel for the Objector had submitted that the

learned Arbitrators while rejecting the claim made by the Objector

and partly allowing the claim made by the respondent have not

discussed various contentions and pleas raised by the objector.

Learned counsel in this regard had drawn my attention to the written

submissions of the Objector filed before the learned Arbitrators. It is

also pointed out that in view of Section 31(3) of the Act, Arbitrators

are required to give a reasoned award.

7. Learned Arbitrators have given their reasoning to reject the

claim of the Objector and partly allowing the claim of the respondent

as mentioned in paragraphs 13 to 18 of the award. The reasoning

given by the learned Arbitrators is explicit, logical and lucid. Learned

Arbitrators have referred to the pleadings of the Objector and his own

averments in the complaint that there was no necessity to follow

SEBI/NSE Rules. Learned Arbitrators have stated that if that be so,

the arbitration proceedings were not maintainable under the NSE

Rules and Bye-laws. It may be noted here that as per the NSE Rules

and SEBI Guidelines, no broker can make a promise or enter into an

agreement for a fixed rate of return.

8. Learned Arbitrators have given the following reasons for

dismissing claims made by the Objector and partially accepting the

claim of the respondent-AAL; firstly, claim of the Objector is not

supported by documents. Documents in form of agreements between

the parties establish that the relationship between them was that of a OMP No.395/2005 Page No.4

broker and trader. Secondly, claims of the Objector were not legal as

his claims were based on the plea that the parties did not consider it

necessary to follow SEBI/NSE Rules. Thirdly, the contention of the

Objector that he did not know or even have Speed-e account or

password is false. The Objector had entered into an agreement for

Speed-e. Fourthly, the two cheques for Rs.62 lakhs (approx.) issued

by the Objector to AAL were not on account of "Accounting

Generally" and no assurance was given by Mr. Ashok Aggarwal of

AAL that they would not be presented for encashment. The said story

concocted by the Objector is false. Fifthly, there was substantial

evidence that the relationship between the parties, that is, the

Objector and AAL, was that of client and a trading member. Sixthly,

claim of the Objector that he was assured of a fixed return is a

concocted story.The Objector has not approached the Tribunal with

clean hands. Seventhly, claim of the respondent that for payment of

the balance amount after adjusting the margin money should be accepted.

9. Arbitrators are not required to give elaborate judgments dealing

with each and every ground or reason. They have to consider the

entire facts in proper perspective and give an indication of the

grounds and reasons that prevailed upon them to decide the matter.

Law requires arbitrators to give reasons and nothing more. If the

reasons are clear and indicate the basis for the decision, the award

should be upheld and cannot be set aside. Law does not require

arbitrators to give detailed judgments dealing with each and every OMP No.395/2005 Page No.5

contention raised by the parties. What is required to be indicated is

the basis on which the arbitrators have taken a particular view.

Arbitrators need not legal luminaries, well versed with legal skills and

having benefit of legal training. Arbitrators can be men from the trade

or relatives etc. and enjoy substantial latitude and flexibility in

deciding matters in a just and equitable manner. If the arbitrators

have set out grounds and reasons in the award why they are taking a

particular view while deciding claims, the award will be a reasoned

award. Requirement in law is that the arbitrators must give reasons. It

is not the requirement of Section 31(3) of the Act, that the arbitrator

must elaborately discuss all contentions raised by the parties. To

satisfy the requirements of the Act, reasons should be intelligible

comprehensible, but need not be unnecessarily lengthy or elaborate.

Reasons should indicate and provide a precise link between

questions/issues and the conclusion reached in regard thereto. It is

sufficient if the arbitrator makes his mind clear in the award on what

and why decision is made. Short intelligible indications of the grounds

should be discernible to indicate the mind of the arbitrator. Sufficiency

of reasons depends upon facts of each case. (refer Em & Em

Associates versus Delhi Development Authority, reported in ILR

(1987) 2 Del 526, Bank of Baroda versus B.J. Bhambani, Reported

in 1988 Supp SCC 785, Indian Oil Corporation versus Indian

Carbon Ltd., reported in(1988) 3 SCC 36, Gujarat Water Supply

and Sewerage Board versus Unique Erectors (Gujarat) (P) Ltd., OMP No.395/2005 Page No.6

reported in (1989) 1 SCC 532).

10. I may note here that non-speaking awards under the

Arbitration Act, 1940 are valid. Even under the present Act, an

arbitration award need not have reasons if there is an arbitration

agreement to that effect. Proviso to subsection 3 of Section 31 the

present Act permits unreasoned award in cases where parties have

agreed to such an award being passed. Such clauses in the

arbitration agreement have been upheld by the Supreme Court in the

cases of Centromade Minerals and Metals Inc. versus Hindustan

Copper Ltd. reported in (2006) 11SCC 245 and Build India

Construction System versus Union of India reported in (2002) 5

SCC 433.

11. Learned counsel for the applicant-Objector took me

through various documents in support of his contention that the

Objector was not a trader who had employed services of the

respondent but an investor who was assured of a fixed return on

investment. Specific reference was made to the entry or payment of

Rs.1.07 lakhs made on 11th June, 2004 in the account of the Objector

and it was submitted that the said entry is clearly relatable to interest

that was payable @ 24% per annum. The said contention of the

learned counsel and the reliance placed on the said entry is not

acceptable, for the Objector has proceeded on reverse basis to justify

his claim. The claim includes interest on shares worth Rs. 3.5 Lacs

also. Entries of Rs. 1.07 Lacs and Rs. 10,000/- towards interest have OMP No.395/2005 Page No.7

not been confirmed by the respondent-AAL. The case of the

respondent-AAL is that a substantial amount was due and payable by

the Objector. It is also explained that payment was made to the

Objector on his request to enable him to tide over his difficult financial

position. The said documents were examined by the Learned

Arbitrators and upon examination and on the basis of the voluminous

evidence presented by the respondent herein the claims of the

Objector were rejected. They have specifically held that the claim of

the Objector is not supported by even a single document and is

contrary to the documents signed and executed by the objector.

Reasons given by the ld. Arbitrators indicate and state the basis on

which decision has been given. They are sufficient and cannot be

regarded as perverse, unjust or contrary to public policy. The award

is not vitiated for failure to consider relevant aspects. Contentions and

case of the parties were examined but on appraisal of evidence and

on conclusions drawn, the case was decided in favour of the

respondent. Arbitrators are sole judges of quality and quantity of

evidence and under section 34 courts cannot interfere for a different

view is plausible. Section 34 of the Act does not confer appellate

jurisdiction. Keeping in view the reasons given and the limited

jurisdiction of this Court, this ground of challenge has no merit.

13. I am not required to adjudicate and re-examine facts,

nevertheless in order to satisfy myself that no injustice has been

caused to the Objector, I have examined the various contentions of OMP No.395/2005 Page No.8

the Objector and find that they do not have any force. On the other

hand, there is enough evidence and material to show that the entire

claim of the Objector is completely sham and baseless and is a

possible concoction. There is ample evidence and material to

establish that the objector was a trader and there was no agreement

between the objector and the respondent for a fixed return on alleged

investment made by the objector. This is apparent from the following:-

(a) Payments of Rs.14.40 lakhs is staggered and paid by

different cheques over a period of time beginning from 17th

January, 2004 till 16th March, 2004.

(b) The first payment of Rs.40,000/- was made only on 17th

January, 2004 and thereafter payments varied between

Rs.45,000/- to Rs.3.30 lacs were made over a long period on

different dates between 17th January, 2004 till 16th March, 2004.

Purchase of shares in the account of the objector began earlier

in point of time.

(c) The Objector had admittedly entered into an Agreement

dated 2nd January, 2004 for trading in securities under Code

No. NV 327 and was given a specific client I.D. for trading in

shares. The Objector also maintained a separate de-mat

account and had entered into a separate Agreement for the

said purpose with the respondent. The Objector had entered

into a third Agreement for e-Speed facility with the respondent.

E-speed facility enabled the Objector to issue instructions to the OMP No.395/2005 Page No.9

respondent and to have constant watch on his portfolio of

investments. The three written documents contradict and

negate the claim of the Objector.

(d) Learned counsel for the Objector had admitted before me

that the petitioner herein had been indulging in sale and

purchase of shares even before he started trading and utilising

services of the respondent as a broker w.e.f. 7th January, 2004.

His wife and brother-in-law were also engaged in trading of

shares.

(e) Account of the Objector as on 31st March, 2004, the year

ending, had a substantial debiting balance of more than Rs.62

lakhs. It is an admitted case of the Objector that he had issued

two cheques of Rs.30 lakhs and Rs.32,32,645.31 to square up

the account. These cheques on presentation were dishonoured

but were retained by the respondent.

(f) The Objector being a trader in shares was very well aware of

risks of the share market, it's up-swings and down-swings. It is

difficult to accept the contention of the Objector that he was

assured a fixed return of interest @ 24% per annum by the

respondent and as a gullible new entrant made investments on

different dates, signed three different Agreements, was given a

client number and Speed-e facility for trading in shares. The

Agreements signed by the parties clearly show that these were

Agreements which a client signs with a broker when he wants OMP No.395/2005 Page No.10

to trade and/or; buy/sale shares. They clearly warn the person

signing the document about risks involved and highly volatile

nature of the share market. There is not even a single

document to support the claim of the Objector.

(g) It was admitted on behalf of the Objector that disputes arose

between the parties on or about 30th June, 2004 with the market

going into bear mod with share scrips sliding. The respondent

had written a letter dated 30th June, 2004 calling upon the

Objector to square up the account, which had a debit balance

of Rs.1,08,56,840.24 and share scrips transferred to the pool

account on instructions had been sold for total value of

Rs.74,84,208.65 but this still left an outstanding balance of

Rs.32,72,651.59. The Objector by his letter dated 8th July, 2004

gave para-wise reply to the said letter/notice. In his reply the

Objector expressed shock at the huge outstanding and claimed

that he had no knowledge about the same. He also denied

giving instructions to sell the shares or having transferred

shares from his DPA account to the pool account. In the reply

dated 8th July, 2004, the Objector did not claim that he had

made any investment on assured or fixed return. In another

subsequent letter dated 22nd July, 2004 the Objector again did

not make any such claim. Even in reply dated 30th July, 2004 to

the legal notice dated 14th July, 2004 issued under the

Negotiable Instruments Act, 1882 no such claim is made. The OMP No.395/2005 Page No.11

claim of the said nature was made for the first time only in the

letter dated 30th August, 2004 in which it was stated that the

respondents had attempted to eat up his investment of

Rs.14.40 lakhs along with shares worth Rs. 2 lakhs on which

the respondent was supposed to pay him a fixed return of 2%

per month plus sharing of profit, if any, irrespective of losses.

The said arrangement seems too good to be true and too good

to be accepted as true. Later on, the said stand is elaborated in

his letter in the form of complaint dated 14th October, 2004. A

bare perusal of the earlier letters written by the Objector show

that he never disputed or questioned the statements made by

the respondent that the Objector was a trader and had utilised

services of the respondent as a broker and as a depository.

14. A mere credit entry of Rs.1.07 lakhs on 11th June, 2004 does

not prove and establish the claim of the Objector. The respondent

has explained the said entry as an amount advanced by cheque in

good faith. This one entry in view of the voluminous and substantial

evidence including the admissions of the Objector in the letters and

written documents, issue of cheques, etc. completely belie and make

dents in the story concocted by the Objector which has no legs to

stand on. In view of the above findings, the challenge to the Award

rejecting claims made by the Objector has to be rejected.

15. The effect thereof is that the Objector was trading in the

National Stock Exchange and had engaged the services of the OMP No.395/2005 Page No.12

respondent as a broker and as a depository. Further, the Objector

had also availed of the services of e-speed to give instructions and

also watch his portfolio of shares and make investments.

16. One of the main contentions raised by the learned counsel for

the Objector was that the respondent had failed to produce before the

learned Arbitrators the courier receipts to prove delivery of contract

notes. Learned counsel for the Objector had submitted that the

respondent had failed to produce courier receipts to show receipt of

contract notes for sale and purchase of shares by the Objector

through the respondent-broker. Even if it is assumed that the contract

notes were not sent to the Objector through courier, I feel the end

result would be still the same for variety of reasons. Firstly, the

Objector admittedly had e-speed facility which entitled him to watch

his portfolio of investments and therefore knew about sales and

purchases and his portfolio. The objector was aware of the

transactions. To have access to e-speed account each client is given

a secret password and without the said password e-speed account

cannot be accessed and viewed by the person. The objector was

maintaining speed-e account and was aware of the shares held by

him in his depository. Secondly, the trading account of the Objector

shows that there are as many as 85 entries of transactions during the

period 7th January, 2004 till 31st May, 2004. The entries have been

made almost on every trading day with shares being sold or

purchased. The amount involved are substantial and normally in five OMP No.395/2005 Page No.13

figures. Thus, the Objector had made substantial investment in the

share market. It is natural for him to keep a track of his portfolio and

keep abreast with the market trends and know his position. The

objector it is apparent has taken a somersault and has made a claim

after nearly 6 months of extensive trading. It is per-se difficult to

accept that all along the Objector was not aware what was

happening, what was bought and what was sold and he had no

knowledge about his liabilities. Thirdly, the Objector was certainly

aware about his substantial outstanding as on 31st March, 2004 as he

had issued two cheques of Rs.30 lakhs and Rs.32,32,645.31 to

square up the said outstanding. Rs. 62 lakhs are a substantial

amount and it is difficult to believe that the said cheques were issued

without verification and on mere asking. The cheques were also

presented for encashment but dishonoured. Issue of cheques shows

that said amount was due and payable by the Objector to the

respondent towards purchase of shares. Learned Arbitrators have

rejected the contention of the Objector that payment of cheques was

towards "Accounting Generally" and to save tax. Learned Arbitrators

in this regard are judges and adjudicators of fact. The decision of the

learned Arbitrators in this regard cannot be said to be perverse or

based on no material. The very fact that the Objector never

wrote any letter or proceeded against the presentation of

cheques is enough to disbelief and reject the claim of the

Objector. Even with regard to the delivery of contract notes, it was OMP No.395/2005 Page No.14

explained by the respondents before the learned Arbitrators that they

had engaged services of Blaze Flash Courier and the said company

does not entertain any query with regard to the deliveries but they

can furnish copy of receipt books.

17. Learned counsel for the Objector further contended that there

was violation of NSE Guidelines and Rules. In this regard, he has

drawn my attention to Regulation nos. 3.11, 3.5.1, 3.2.2, 3.2.1,

6.1.5(c)(iii) issued by the National Stock Exchange of India Ltd. and

some other Regulations. It was also submitted that under Regulation

3.11 if the Objector had failed to pay for the shares the same could

have been only sold by the respondent not later than 5th trading day

reckoned from the date of pay in. I have examined these contentions

but do not find any merit in the same.

18. The respondent-AAL has claimed that Regulation 3.11 is not

applicable. The said Regulation permits and gives liberty to a trading

member to sell securities, if payment is not received, not later than 5th

trading day reckoned from the date of pay in. It is an enabling

provision. Where a trading member proceeds under Regulation 3.11

no further claim can be entertained between the constituent and the

trading member. The respondent-AAL has not proceeded under

Regulation 3.11 and the enabling powers given thereunder. The

shares purchased were transferred to the D-mat account of the

objector and became his property. The case of the respondent-AAL

which has been accepted by the learned Arbitrators is that pursuant OMP No.395/2005 Page No.15

to Speed-e instructions shares held by the Objector were transferred

from depository account to the pool account and as per the

instructions given by the Objector these shares were sold in the

market but even after the said sale, there was a negative balance.

Learned Arbitrators have directed payment of the said negative

balance. The respondents have not exercised their liberty granted

under Regulation 3.11 and had not sold any shares within five days

from the pay in date.

19. Even otherwise, the Objector had purchased shares and under

the normal law is liable to make payment for the said purchases.

Even if the respondent-AAL had made payment on behalf of the

Objector, the Objector became indebted to AAL to that extent. The

Objector is therefore under a legal obligation to make payment of the

said balance purchase consideration.

20. Learned counsel for the Objector also submitted that there

was violation of the principles of natural justice. He had drawn my

attention to letters written by the Objector to National Stock Exchange

of India Ltd asking the respondent-AAL to submit statement of de-mat

account from January onwards, trading account, details of shares

sold, time and date of sale, details of the shares in the frozen account

and copy of instructions to sell the shares. AAL in reply thereto by

their letter dated 21st December, 2004 had sent copy of the account

statement, transaction details and confirmation of contract notes.

These were duly forwarded to the Objector. The Objector has OMP No.395/2005 Page No.16

accepted that he had received the said details and the account

statement but in his letter dated 18th January, 2005 had submitted

that the contract notes had been printed subsequently and he had not

received contract notes for settlement nos. 4046 to 4059(in other

words he had received other contract notes). He had further stated

that statement of account had not been authenticated. He also made

an allegation that the sale values do not reconcile. I may note that

before the learned Arbitrators a similar plea was taken. The

Arbitrators thereupon asked the respondent-AAL to clarify and furnish

all details. On 19th May, 2005 the respondent-AAL furnished all

details that could be given and thereafter hearing was held on 25th

May, 2005, 9th June, 2005 and 16th June, 2005. Award was made

final and published on 13th July, 2005. In these circumstances, it

cannot be said that the ld. Arbitrators had proceeded in haste or

violated principles of natural justice. The claim of the Objector that he

was not given reasonable and fair opportunity and there was violation

of the principles of natural justice is per se wrong and incorrect. I may

note here that the Objector had filed written submissions on 18th

June, 2005 before the learned Arbitrators after oral hearing was over.

No such plea was raised in the said written submissions. No letter

was also written by the Objector to the learned Arbitrators asking for

further hearing or claiming that he had not been given fair and

adequate opportunity for presenting his case.

21. Learned counsel for the Objector had drawn my attention to OMP No.395/2005 Page No.17

the transaction statement with specific reference to entries dated 28 th

June, 2004 in which the transaction number given is 2004121. It is an

admitted case of the parties that the figure 2004 stands for the year

in question and the number 121 is the specific market type settlement

number. In this regard, learned counsel for the respondent has drawn

my attention to the Guide of National Securities Depositories Ltd. to

trading and settlement and settlement instructions. The said

instructions describe the process by which shares are transferred

from delivery account of the seller to the pool account and then to

receipt account of the purchaser. It is also pointed out that in the

clearing account, the securities are always kept in a basket for the

purpose of identification. It is not disputed that shares can be

transferred from the depository to the pool account before or after the

transaction. Thus transaction number 2004121 was given for all

shares which were transferred from the depository to the pool

account and were sold. Reference to transaction no.2004121

therefore stands explained by the respondent. Learned Arbitrators

being familiar with the dealings in the stock exchange and why and

how the transaction numbers are given have not given any

importance to this contention. It has been explained that these

transaction numbers are given to identify the transaction so that there

is no confusion. They have no other signifance.

22. Transfer from depository to pool account was made by exercising OMP No.395/2005 Page No.18

option under e-speed. The Objector in his letters dated 8th July, 2004

and 22nd July, 2004 has denied giving any such instructions for

transfer of securities from Depository Account to the pool account

and has stated that the respondent has misused e-speed facility

unauthorisedly. It is however admitted that to have access to e-speed

account one must have the password, which is given only to the

person enjoying the e-speed facility. Therefore, normal presumption

is that it was the Objector who had given instructions from e-speed

facility for transfer of securities from Depository Account to the pool

account.

23. Thus learned Arbitrators are not wrong in proceeding and

accepting that the Objector himself had given instructions for transfer

of shares from the depository to the pool account on 25th June, 2004.

Thereafter, the shares were sold.

24. Learned counsel for the Objector had submitted that the Objector

had not given any instructions for sale of shares and made reference

to the e-mail dated 27th June, 2004 that was sent by him to National

Securities Depositories Ltd. He has also drawn my attention to the

receipt stamp of the respondent affixed thereon wherein two dates

namely, 28th June, 2004 and 29th June, 2004 are visible. It was

submitted that the Objector had written to the National Securities

Depositories Ltd for freezing of his Demat account with AAL and

necessary instructions were received by the respondent on 28th June,

2004. It was submitted that sale of shares on 29th June, 2004 OMP No.395/2005 Page No.19

therefore was contrary to the wishes and instructions of the Objector.

A careful perusal of letter dated 27th June, 2004 shows that it was

faxed by National Securities Depositories Ltd to the respondent-AAL

on 29th June, 2006 at about 10:59 a.m. No doubt there are two dates

mentioned on the receipt stamp, but self generated FAX receipt date

29th June, 2004 at 10:59 a.m. is clearly visible. Thus the said fax

could not have been received on 28th June, 2004. National Securities

Depositories Ltd has also confirmed by their letter dated 28th

December, 2006 that they had sent the fax to the respondent on 29th

June, 2004 and not on 28th June, 2004. Shares in the Demat account

was transferred to the pool account on 27th June, 2004. Instructions

in this regard were given through the Speed-e account of which the

Objector had the password. The letter dated 27th June, 2004 written

by the Objector to National Securities Depositories Ltd also proves

that the Objector had the necessary password with him and he was

aware that shares in this depository account had been transferred to

the pool account. Without knowing and having access to the Speed-e

account, the Objector could not have written the said letter to the

National Securities Depositories Ltd for freezing of the same and for

cancellation of Speed-e instructions. Moreover, the case made out by

the Objector before the learned Arbitrators was that the respondent-

AAL had assured him of fixed rate of return and he had no concern

with Speed-e or sale/transfer of shares. In view of the said plea it is

not understood why the Objector had asked for freezing of his Speed-

OMP No.395/2005 Page No.20

e instructions and his Demat account. If the Objector had nothing to

do with the purchase and sale of shares, he was not required to ask

for freezing of his Demat account and cancellation of Speed-e

instructions. This also establishes that the claim of the Objector that

he had made investment under an assured return scheme is false

and incorrect.

25.In view of the above, the award stands modified to the extent

mentioned in paragraph 3. Other objections raised under Section 34

of the Act have no merit and are dismissed. The respondent is also

entitled to costs.

                                                (SANJIV KHANNA)

                                                     JUDGE



AUGUST            27, 2008.
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