Bharat Sanchar Nigam Ltd vs Renewable Energy System Ltd & Ors
2009 Latest Caselaw 2490 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                OMP.Nos 174/2004 & 184/2004

%                                Date of decision:06.07.2009

BHARAT SANCHAR NIGAM LTD.                       ...... Petitioner
                       Through: Mr Chandan Kumar, Advocate


                               Versus

RENEWABLE ENERGY SYSTEM LTD & ORS ...... Respondents

                       Through: Mr Vikas Dutta and Mr. Manish Vaid,
                       Advocates for Respondent No.1 & Mr. Pradeep
                       Dewan, Advocate for Respondent No.2 Canara
                       Bank.

                                AND

CANARA BANK                                      ..... Petitioner
                       Through: Mr Pradeep Dewan, Advocate

                               Versus

BHARAT SANCHAR NIGAM LTD & Ors                 ...... Respondents

                       Through: Mr Chandan Kumar, Advocate for
                       Respondent No.1 and Mr. Vikas Dutta & Mr.
                       Manish Vaid, Advocates for Respondent No.2
                       Renewable Energy System Ltd.



CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?       No

2.    To be referred to the reporter or not?   No

3.    Whether the judgment should be reported
      in the Digest?                                 No


RAJIV SAHAI ENDLAW, J.

1. Both petitions under Section 34 of the Arbitration and

Conciliation Act, 1996 are with respect to the same arbitral award

and are being taken up together for consideration.

2. Bharat Sanchar Nigam Ltd. (BSNL), the petitioner in OMP

174/2004 is for the present purpose, the successor of the

Department of Telecommunications (DOT) of the Government of

India. M/s Renewable Energy System Limited (RESL) which is

respondent No.1 in OMP 174/2004 and the respondent No.2 in OMP

184/2004 was the successful bidder in a tender floated by DOT for

manufacture of Solar Power Generating Systems (equipment) and for

leasing the same to DOT. In order to carry out the contract, RESL

approached Canara Bank (Bank), the petitioner in OMP 184/2004 for

grant of finance/credit facilities and it was inter alia agreed between

the Bank and RESL that after manufacturing the equipment, RESL

shall sell the same to the Bank and the Bank would, in turn, give

them on lease to BSNL for a period of five years, on payment of lease

money on quarterly basis besides other charges. A tripartite

agreement dated 19th February, 1998 between DOT, RESL and Bank

was entered into in this regard. The said agreement also contained

an arbitration clause providing for arbitration on any question,

disputes or differences arising under that agreement or in

connection therewith of the Director General, DOT or his equivalent.

In the meanwhile, DOT was succeeded by BSNL as aforesaid.

Disputes and differences having arisen, RESL approached for

appointment of arbitrator and the Respondent No.3 in each petition

was appointed as the sole arbitrator. The Bank also approached for

appointment of arbitrator and also filed its statement of claim in the

arbitration already commenced between RESL and BSNL; the said

arbitration was clarified by BSNL to be of the claims of the Bank

also. An award dated 24th February, 2004 was published by the

arbitrator.

3. The arbitrator in the said award has inter alia held:

i. that arbitration of claims of Bank against BSNL was

maintainable in spite of dicta of the Apex Court in ONGC Vs

Collector of Central Excise 1995 Supp (4) SCC 541 laying down

for reference of disputes between two Government bodies as Bank &

BSNL are, to the committee under the control of the Cabinet

Secretary;

ii. that the arbitration agreement covered disputes not only qua

the 1000 units of equipment by then already delivered to BSNL but

also qua the entire 9070 units of equipment subject matter of the

agreement;

iii. that RESL could not have offered 8070 units of equipment for

testing/inspection without BSNL issuing a purchase order having

details of destination to RESL;

iv. that it was indeterminable on the information on hand, as to

how much time RESL would have needed to make the balance 8070

units of equipment after purchase order with destination therefor

had been placed by BSNL on RESL;

v. that BSNL had placed a clear lease order to supply to its

destinations, whose particulars were to be furnished by the BSNL

separately, an exact and unchangeable quantity of 9070 units of

equipment under the tripartite agreement dated 19th February, 1998

and the subsequent agreement dated 31st March/19th April, 2000

with respect to 1000 units of equipment was only a formality with

respect to the 1000 units of equipment supplied/delivered and was

not in supersession of the earlier tripartite agreement dated 19th

February, 1998 with respect to supply of entire 9070 units of

equipment;

vi. that it was the BSNL which was at fault for non delivery of the

remaining 8070 units of equipment and for this fault was liable

under Section 54 of the Contract Act to pay compensation for the

losses suffered by RESL/Bank;

vii. that RESL was ready and willing to perform its part of the

agreement for supply of remaining 8070 units of equipment and was

prevented from supplying the same owing to the order dated 22nd

May, 2001 of the Telecom Engineering Centre (TEC). The arbitrator

however while holding so also held that the precise extent of the

readiness of RESL could not be determined for want of evidence;

viii. that the balance 8070 units of equipment could not be supplied

by RESL owing to the BSNL having failed to supply details of

destination as provided in annexure II of the agreement;

ix. that the failure of the BSNL for making lease payments with

respect to 1000 units of equipment already supplied was owing to

the default of the Bank in complying with the necessary formalities

in terms of the agreement in that regard and only on compliance

whereof the said payment could be released by BSNL;

x. that the reasons alleged by BSNL for not furnishing the

particulars of destination for supply of balance 8070 units of

equipment were not valid;

xi. that RESL had not made any incorrect statement to BSNL,

owing to which the failure of BSNL to take delivery of balance 8070

units of equipment could be justified. Consequently, it was held that

BSNL was not justified in not taking delivery of balance 8070 units of

equipment and axiomatically the Bank and RESL had become

entitled to suitable compensation under the law from BSNL. The

said finding was, however, clarified with the observations that the

precise liability of BSNL could not be determined unless "the

parties" offer satisfactory proof of losses allegedly suffered by them

and attributable directly to the default of BSNL;

xii. that the balance 8070 units of equipment which RESL claimed

to have kept ready for delivery to BSNL, conformed to the technical

specifications of BSNL and were obviously end-use-specific and the

likelihood of their usefulness for a different purpose and by some

user other than the BSNL could not be entirely ruled out without a

technical field survey. It was further held that this issue was quite

irrelevant at that stage;

xiii. that RESL was not entitled to the relief of specific performance

of directing BSNL to take delivery of balance quantities for the

reason of RESL having not proved that the balance 8070 units of

equipment actually stood manufactured by dates stipulated in the

agreement for delivery thereof and also for the reason of the relief of

specific performance being not maintainable in law for reason of

monetary compensation being an alternative remedy;

xiv. that the claim of compensation of RESL could not be

determined with the available information and the award proposed

the matter to be investigated in detail by an expert committee

comprising of nominees of each of the three parties and an

independent body; if such expert committee concludes that any of

the balance 8070 units of equipment were actually ready and only

waiting for destination details for inspection and dispatch as on 31st

July, 1998, the liability of BSNL for compensation be determined

with respect thereto;

xv. Certain monetary claims of RESL were declined and with

respect to yet other claims it was held that unless further particulars

supported by documents were furnished by RESL, the same could

not be adjudicated. Though RESL was held entitled to costs,

however, for the reason of it having not furnished all particulars and

proof of costs incurred, no award for costs of arbitration was made;

privity of contract was found between BSNL and the Bank with

respect to the arrangement for leasing of equipment but not with

respect to sanction or disbursal of funds by the Bank to RESL;

though the Bank was held guilty of having failed to submit the

requisite documents for release of quarterly lease rentals with

respect to 1000 units of equipment supplied but otherwise it was

held that RESL / Bank could not have taken any other steps for

mitigation of losses suffered by them;

xvi. Collusion between Bank and RESL to the detriment of the

BSNL was ruled out;

xvii. An Award for Rs 266.06 lacs with respect to the quarterly

lease rentals due for 1000 units of equipment supplied was passed

against BSNL. However, BSNL was not held liable for any interest

or penalty for late payment for the reason of the Bank having not

complied with the necessary formalities for release of the said

payment though found to be overdue earlier. It was directed that

upon compliance of formalities, BSNL shall release the said payment

within 30 days to the Bank;

xviii. The claim of the Bank on account of loss of tax benefit was

held to be remote and rejected;

xix. Cost of Rs 26,650/ incurred by the Bank towards the stamp

paper for the award only was awarded. The claim of the Bank for the

remaining costs of arbitration was rejected for want of proof;

xx. The claims of the Bank against RESL were held to be not

arbitrable;

xxi. The summary of the award as given towards the end is as

under:

"To sum up, the respondent DOT/BSNL is held guilty of breach of contract, and hence liable to pay damages to the other two parties. Quantification of these damages being not possible at present in the absence of authentic data, certain modalities to ascertain the same have been suggested. The respondent is also liable, under the lease agreements of 19.2.1998 and 19.4.2000, to pay the Lease Management Fee and Quarterly Lease Rentals to the claimant Canara Bank. These have been quantified. No costs for arbitration have been awarded, except reimbursement of expenditure on stamp duty incurred by Canara Bank."

4. BSNL as well as the Bank having preferred these petitions, the

stage for constitution of an expert committee as suggested in the

award did not arise.

5. BSNL has, in its petition, inter alia stated that due to change in

government policy, procurement of equipment with respect whereto

the aforesaid tripartite agreement was entered into was stopped and

accordingly it could place destination details for supply of only 1000

units of equipment. The challenged to the award by BSNL is limited

to:

i. the arbitrator having entertained the disputes between BSNL

and Bank and having not referred the same to the committee

under the control of the Cabinet Secretary;

ii. the failure of the arbitrator to give final arbitration award.

iii. the suggestion in the award of constitution of expert

committee being beyond the tripartite agreement and the

terms of the reference and specially when the arbitrator had

concluded that RESL and the Bank had not proved their

claims;

iv. the award being incomplete.

BSNL thus sought setting aside of the award to the aforesaid

extent.

6. The challenge by the Bank to the award is limited to:

i. the finding of the arbitrator of the claims of the Bank against

RESL being not arbitrable before him;

ii. the finding of the arbitrator of the precise liability of BSNL

for compensating the Bank/ RESL being in detriminable on

the basis of material on record;

iii. restricting the claim of the Bank for loss of profit only to the

extent of actual number of equipments manufactured and

kept ready for delivery as on 31st July, 1998 by RESL. It is

contended that the Bank having provided finance for the

entire 9070 units to RESL was entitled to loss of profits from

BSNL for the entire balance quantity of 8070 units;

iv. inconsistency in the award in, at page 45 holding that the

entire 8070 units could not at the relevant times be kept

ready fabricated and that the batteries had to be

manufactured only 15 days prior to the submission thereof

for testing and in other part of the award holding that it was

for the expert committee to decide as to how many units were

kept ready by 31st July, 1998 by the RESL;

v. the finding of the Bank having defaulted in complying with

the formality and in submission of documents for release of

quarterly lease rentals with respect to 1000 units of

equipment supplied. It is contended that BSNL had in its

reply to the statement of claim not taken the said plea and

had only taken the plea of having not released payments

owing to an order of the Calcutta High Court in a proceeding

filed by one Magma Leasing Company Ltd against RESL and

had taken the said plea subsequently as an afterthought. It is

further contended that the Bank had at the contemporaneous

time also never contended that it was unable to release the

payment for the reason of any failure of the Bank to comply

with the formalities. It is further contended that the order of

the Calcutta High Court had also come to an end in the year

2001. It is also claimed that the lease rentals were due from

27th June, 1998 while the arbitrator had awarded the same

w.e.f. 1st July, 1998.

7. RESL has not preferred any objections to the award. However,

in the reply to both the petitions RESL has also challenged the award

to the extent, of being in determinative and negating its other claims.

However, the said replies of RESL cannot be treated to be a petition

under Section 34 of the Arbitration Act and are even not within the

time prescribed in Section 34 (3) of the Act. The counsel for the

RESL during his oral submissions also has challenged the award. The

counsel for RESL also contended that the arbitrator after having held

the BSNL liable for loss caused to RESL and Bank ought to have

determined the quantum of the said losses himself and urged that

the matter should be remitted for determination of the quantum of

compensation. It was further contended that without BSNL

intimating the destination for delivery there could be no question of

RESL keeping the balance units ready for delivery. It was further

contended that in any case the remission ought to be only for

determination of the quantum of liability of BSNL and the other

findings ought not to be disturbed. The counsel also cited judgments

listed in index dated 18th September, 2008 but it is not found

relevant to deal with the same.

8. The counsel for BSNL during oral submissions pointed out it is

also borne out from the record that BSNL during the pendency of

these proceedings had deposited the sum of Rs 266.06 lacs in this

court and which sum has since been ordered to be released to the

Bank. The counsel for BSNL further submitted, that the arbitrator

found that RESL had not manufactured the balance 8070 units; that

RESL has not challenged the award and thus the said finding in the

award of RESL having not manufactured the balance machineries

has attained finality - the Bank is not competent and has no locus to

challenge the said findings. It is contended that in the aforesaid

state of affairs the challenge by BSNL is only to para 31 under issues

15-21 constituting a committee of experts. It was further contended

that the recourse, if any, of the Bank was against RESL and not

against BSNL and RESL has since been declared sick within the

meaning of SICA, 1985 and it was only owing to the sickness of RESL

that the Bank was pursuing its claims against BSNL.

9. The counsel for the Bank has contended that the Bank has

rendered financial assistance of over Rs 12 crores to RESL; that the

said finance was for the entire quantity of 9070 units of equipment;

that however the Bank had not received any payment in return; that

the Bank does not know who is at fault whether BSNL or RESL and

had hence asked for an award against whichever of the two was

found to be at fault; that both the Bank and RESL had moved an

application in the sitting held by the arbitrator at Hyderabad for an

inspection of balance quantity of equipments which were lying at

Hyderabad only but the arbitrator did not opt for the said inspection;

that the arbitrator erred in not awarding interest and penalty in

terms of the agreement to the Bank against BSNL with respect to

1000 units of equipment already supplied; that there was

inconsistencies in the award - while under issue 24 it has been held

that the Bank's claim for loss of profit in respect to balance 8070

units of equipment was beyond ambit of arbitration, in para 31 under

issues 15-21 direction for constitution of expert committee had been

given; that under Section 26 of the Act the arbitrator was entitled to

appoint an expert and if so desirous, ought to have first appointed an

expert and thereafter published the award; that in spite of liability of

the BSNL being determined, the award did not determine the

quantum of liability. Lastly it was urged that the arbitrator erred in

not adjudicating the claims of Bank against RESL which fell within

the ambit of arbitration clause in the tripartite agreement.

10. The counsel for BSNL, in rejoinder, contended that the

arbitrator is not a person steeped in law and owing to that while

holding that there was no evidence of balance 8070 units having

been manufactured and ready for delivery and which would have led

to dismissal of the claims for compensation, directed the constitution

of an expert committee. It was contended that the said direction was

severable from the remaining award and on such severance the

award otherwise was valid. It was further contended that on the

basis of available material neither RESL nor the Bank was entitled to

any other amount and fresh/further evidence could not be permitted

to be led before the expert committee suggested in the award.

11. A perusal of the objections of BSNL shows that BSNL has not

objected to the finding in the award insofar as holding BSNL to be in

breach of the contract and holding BSNL liable for losses suffered by

RESL/Bank. The main contention of BSNL/its counsel is that the

arbitrator having held RESL/Bank not to have placed sufficient

material before the arbitrator to prove the losses suffered or the

compensation to which they had become entitled, the arbitrator

ought not to have given directions for appointment of a committee

and award to which extent only is sought to be set aside by BSNL.

12. I am however unable to accept the aforesaid contention of

BSNL. It is not as if the arbitrator has gone through the evidence

and held that RESL/Bank has not proved to have suffered any loss.

On the contrary, the arbitrator has left the said question

undetermined. The loss to he Bank which has released finance even

for the remaining 8070 units of equipment to RESL is res upsa

loquitor. The arbitrator has also found the equipment to be specific

for use of BSNL and not found RESL/Bank guilty of not mitigating

losses. The arbitrator himself has in the award noted that during the

sitting of the arbitrator at Hyderabad both RESL and the Bank had

offered inspection of the remaining 8070 units which RESL was

averring it had already manufactured and kept ready for delivery to

BSNL. BSNL opposed the said request. The arbitrator has not given

any reason whatsoever as to why said inspection was not

undertaken. The arbitrator has not given enough weightage to the

said offer. The said offer lends one to believe that RESL was in a

position to give inspection of balance units. Moreover, I find that law

does not require the goods required to be supplied to be kept in

readiness. All that that the law requires is that the party claiming

compensation on account of breach ought to prove that in the

absence of the breach it was ready to perform its part of the

agreement so as to be entitled to a claim for loss of profit. All the

said aspects have not been gone into by the arbitrator and for the

reason that the arbitrator did not contemplate the award to be the

culmination of the proceedings but intended a further inquiry in this

respect. The award to the said extent is found to be against law and

public policy.

13. I find the aforesaid aspect to be no longer res integra. In

National Highways Authority of India Vs ITD Cementation

India Ltd MANU/DE/9104/2007 (DB) the arbitral tribunal noted that

although the claimant had produced some documents, but on the

basis thereof losses suffered could not be worked out; certain other

statements produced by the claimant in support of its claim were

also found to be lacking in details; the arbitrators held themselves at

a loss to work out the claim and in the circumstances declined to

quantify the amount due to the claimant and granted a declaratory

award holding that the claimant was entitled to additional costs

incurred by it and left the question of quantification to be

determined by National Highways Authority of India. It was

contended by the National Highways Authority of India in its

objections to the said award that the award was imperfect inasmuch

as it left the question of quantification of the amount undecided. It

was further contended that the arbitrators having clearly observed

that the material on record was insufficient to enable them to

determine the amount payable, the logical result which ought to

have followed was a rejection of the claim made before them and the

arbitrator could not have followed the unusual course of giving to the

claimant a chance to produce material and to satisfy NHAI regarding

additional costs. The procedure adopted by the arbitrator was

contended to be legally impermissible as the arbitrators were duty

bound to determine all questions in controversy and the exact

amount, if any.

14. The Division Bench of this court held that though ordinarily,

failure on the part of the claimant to substantiate its claims should

result in rejection of the claim but it is not an invariable rule. It was

held that it was possible in certain situations to leave the actual

quantification to be made by a party or an agency to be appointed by

the arbitrators on principles laid down by the arbitrators. The

Division Bench however in that case held that the facts thereof were

not such where determination of principle could result in

quantification of the amount by a simple process of calculation. It

was held that determination of disputed questions of facts had to be

at the hands of the arbitrators only and could not be delegated to

any other person or authority. It was further held that inasmuch as

the arbitrators had left the issues regarding quantification of the

amount open but required the same to be decided by NHAI which

was the party to the dispute, they committed a mistake.

Quantification of the amount was held to be a major area of

controversy between the parties. It was further held that the claim

could not be rejected in toto simply because the material was not

sufficient and it was necessary that the amount was quantified in

spite of being left open for determination. Resultantly the award

was set aside and the matter remitted back to the arbitrators, limited

to the issue of quantification. The division Bench also gave

additional opportunity to the parties to adduce evidence on

quantification before making a fresh award.

15. I am respectively bound by the aforesaid dicta of the Division

Bench. Similarly, the Division Bench of the Kerala High Court in

Sulaikha Clay Mines Vs Alpha Clays AIR 2005 Kerala 3 held while

setting aside an award for procedural violation the court is

empowered under Section 34(4) of the Act to also change the

arbitrator. I may add that I have also in Union of India Vs Modern

Laminators Ltd MANU/DE/1237/2008 held that the court is

empowered in dealing with an application under Section 34 of the

Act to not only remit the matter back but also to modify the award.

16. In the present case also I find that several disputed questions

of fact will be entailed in quantification of damages losses and

determination thereof is in sole domain of arbitrators and cannot be

left to the committee proposed. From the findings of the arbitrator as

summarized herein above and to which there is no challenge, it

cannot be said that the present is a case of no losses having been

suffered by RESL/Bank. In the aforesaid circumstances the

objections of BSNL are not found sustainable and accordingly OMP

No. 174/2004 is dismissed. Consequently, OMP.No.184/2004 insofar

as seeking remission of the matter to the arbitrator is concerned has

to be allowed.

17. I may at this stage notice that though BSNL had also preferred

objection qua the disputes between the BSNL and the Bank being

not arbitrable for the reason of being required to be referred to the

Committee under the control of the Cabinet Secretary, but the same

was not pressed during the arguments. Even otherwise, the award

records that the said Committee was approached and declined the

request on the ground of the disputes being required to be resolved

by arbitration. The award cannot be faulted with on the said ground.

18. I also do not find any merit in the objection of BSNL of the

arbitrator having found that RESL had not manufactured the balance

8070 units and/or of the said finding having become final for the

reason of RESL having not challenged the award. Not only is the

said finding of the arbitrator inconsistent to other findings in the

award, but as observed by me above, the question of determination

of compensation is to be determined irrespective of whether 8070

units were lying ready for delivery or not. Moreover, the Bank being

party to the agreement and being the real affected party is even

otherwise entitled to challenge the said finding and the failure of

RESL to file objections would not affect the rights of the Bank. The

Apex Court in K.P. Poulose Vs. State of Kerala 1975 (2) SCC 236

has held that an inconsistent award is liable to be set aside by the

court.

18.A The counsel for BSNL has relied upon:

i. Hind Builders Vs. U.O.I. AIR 1990 SC 1340 laying

down that court cannot interfere with possible

interpretation of contract by arbitrator.

I do not find the same applicable. The arbitrator in

holding in one part of award of liability of BSNL being

limited to the units of equipment kept ready or in

appointing expert committee has not interpreted any

contract.

ii. MCD Vs. Jagan Nath Ashok Kumar AIR 1987 SC 2316

and UOI Vs. Santiram Ghosh AIR 1989 SC 402, neither

of which is also found relevant for the issues involved.

19. As far as the other objections of the Bank to the award are

concerned, firstly I do not find any error apparent on the face of the

award in the finding that the claims of the Bank against RESL were

not arbitrable. The interest of the Bank and RESL in the agreement

containing the arbitration clause was in unison. The purport of the

arbitration agreement is of resolution of disputes by arbitration to

which BSNL is a party. It does not stand to reason as to why the

officer of BSNL should be an arbitrator in disputes between the

RESL and the Bank. Moreover, it is the admitted position that

besides the agreement containing the arbitration clause, there are

other documents between the RESL and the Bank. The arbitrator

himself has in the award referred to Bank having obtained an

indemnity from RESL. It is not the case of the counsel for the Bank

that the said documents also provided for arbitration by the officer of

BSNL. The officer of BSNL has not given his consent to be the

arbitrator in the inter se disputes between the RESL and the Bank.

In the circumstances the arbitrator was justified in taking a view of

the said inter se disputes between the Bank and RESL being not

arbitrable before him. The award also records that the counsel for

the Bank had agreed with the aforesaid stand of the arbitrator. I

have perused the objections preferred by the Bank. I do not find any

statement therein that the said part has been erroneously recorded

by the arbitrator or that no such statement was given or stand taken

by the counsel for the Bank before the arbitrator. The counsel for the

Bank having agreed before the arbitrator that the said inter se

disputes were not arbitrable is not entitled to now object to the

same.

20. However, the objection of the Bank to the observations/finding

of the arbitrator of the claim against BSNL being limited to the

extent of actual number of equipments manufactured and kept ready

is contrary to law. There is no such requirement in law. If

Bank/RESL by evidence or otherwise are able to establish before the

arbitrator that but for the breach by BSNL they were in a position to

perform their part of the agreement, Bank/RESL would be entitled to

compensation for breach as also held by the arbitrator. The award

to that effect is set aside.

21. However, I do not find the objection of the Bank to the award

to the extent holding the Bank to be in fault in complying with the

formalities for release of the payments with respect to 1000 units of

equipment to be within the ambit of Section 34 of the Act. The said

finding is factual in nature and this court is not to sit in appeal over

the award and no question of public policy is involved. The said

objection is thus dismissed. similarly no interference is called for in

the finding as to the amount due towards the said 1000 units of

equipment.

22. Thus the award to the extent aforesaid is set aside and

remitted back to the arbitrator. Since the arbitrator was an officer

of BSNL and may not now be in a portion to arbitrate, it is clarified

that in the event of the same arbitrator being unavailable for

arbitration the arbitration be held by the present incumbent in office.

BSNL to intimate the particulars of arbitrator to other parties within

30 days of today. The arbitrator to render an award of the

compensation payable by BSNL for breach of contract. In

consonance with the law laid down by the Division Bench of this

court (supra) the parties shall be entitled to adduce further evidence

on the quantum to be determined by the arbitrator.

With the aforesaid directions, the petitions are disposed of

leaving the parties to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) July 06, 2009 M