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PETITIONER: DAMODAR VALLEY CORPORATION

       Vs.

RESPONDENT: K. K. KAR

DATE OF JUDGMENT12/11/1973

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN DWIVEDI, S.N.

CITATION:  1974 AIR  158            1974 SCR  (2) 240  1974 SCC  (1) 141  CITATOR INFO :  RF         1989 SC 839  (18)

ACT: Arbitration Act, 1940 (10 of 1940)-Repudiation of  contract- If arbitration clause perishes with repudiation.

HEADNOTE: On  the  respondents  failure to fulfil  the  terms  of  the contract,  the appellant repudiated it and  imposed  certain penalties in accordance with the terms of the contract.  The appellant  later waived the penalties and paid certain  sum3 due  to  the respondent.  The appellant claimed  that  these payments, including the return of the deposit money  finally settled the claims of the respondent.  The respondent on the other land.claimed from the appellant certain sums including damages for ’repudiation of the contract.  The appellant not having agreed the respondent appointed an arbitrator whom he later  named  as the sole arbitrator.  The validity  of  the appointment  of  the sole arbitrator was challenged  by  the appellant  under ss. 9(b) and 33 of the  Indian  Arbitration Act,  1940.  The arbitration clause in the contract  was  to the  effect  that  in  Cass of in  dispute  "upon"’  or  "in relation to’ or "in connection with" the contract the matter shalt  be  referred to arbitration.  The  Subordinate  Judge permitted  the  appellant to adduce  evidence  to  establish whether the contract was put an end to by final payment  and whether  the  arbitration clause contained in  tin  contract perished with it.  The High Court in revision set aside  the order of the Subordinate Judge and dismissed the application of the appellant In toto. It was contended that since there had been a full and  final settlement  under the contract, the rights  and  obligations under  the  contract did not subsist  and  consequently  the arbitration clause also perished along with the settlement HELD  :  (i)  Where in a contract there  is  an  arbitration clause,  notwithstanding the Plea that there was a full  and final  settlement between the parties, that dispute  can  be referred to the arbitration’s.  The High Court was in  error in  directing the dismissal of the appellant’s  petition  in toto.  The question whether there has been a full and  final settlement of a claim under the contract Is itself a dispute arising  ’upon’ or ’in relation to’ or ’in connection  with’

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the  contract.   These words are wide enough  to  cover  the dispute  sought to be referred.  On the facts of  this  case when  the  appellant  refused  to  accept  the  goods,   the respondent could claim damages for breach of contract.  Such a claim for damagesis a dispute or difference which  arises between the respondent and appellantand is, upon" or "in relation   to"   or  "in   connection   with"the   contract. [248C:243C-D] A  contract  is  the creature of an  agreement  between  the parties  and  where  the  parties under  the  terms  of  the contract  agree  to incorporate an arbitration  clause  that clause  stands apart from the rights and  obligations  under that  contract, as it has been incorporated with the  object of  providing  a machinery for the  settlement  of  disputes arising in relation to or in connection with that  contract. The  questions of unilateral repudiation of the  rights  and obligations  under  the  contract or of  a  full  and  final settlement  of  the contract relate to  the  performance  or discharge  of the contract.  Far from putting an end to  the arbitration  clause, they fall within the purview of it.   A repudiation  by  one  party alone  does  not  terminate  the contract.  It takes two to end it and hence it follows  that as the contract subsists for the determination of the rights and obligations of the parties. the arbitration clause  also survives. [243F-G] (ii)In cases where the dispute between the parties is  that the  contract itself did not subsist either as a  result  of its being substituted by a new contract or by rescission  or alteration.  that  dispute  could not  be  referred  to  the arbitration as the arbitration clause itself would perish if the   averment  was  found  to  be  valid.   As   the   very Jurisdiction  of  the  arbitrator  is  dependent  upon   the existence  of  the  arbitration clause  under  which  he  is appointed,  the  parties have no right to  invoke  a  clause which perishes with the contract. [244B-C] 241 (iii)  The contract being concensual, the  question  whether the  arbitration  clause survives or perishes  would  depend upon the nature of the controversy: and if* effect upon  the existence  or  survival of the contract itself.   Where  the binding  nature  of  the contract is  not  disputed,  but  a difference  has  arisen between the parties  thereto  as  to whether there has been a breach by one side or the other  or whether  one or both the parties have been  discharged  from further  performance  such  differences are  "upon"  or  "in relation  to" or "in connection with the contract.   That  a contract  has come to an end by frustration does not put  an end  to the contract for all purposes because there  may  be rights and obligations which had arisen earlier when it  had not come to an end, as it is only the future Performance  of the  contract that has come to an end.  A dispute as to  the binding  nature  of  the contract cannot  be  determined  by resort to arbitration clause because the arbitration  clause itself stands or falls according to the determination of the question in dispute. [244D-F] The  question whether the termination was valid or  not  and whether   damages   were  recoverable  for   such   wrongful termination  did  not affect the arbitration clause  or  the right  of the respondent to invoke it for appointment of  an arbitrator. Union  of  India v. Kishorilal Gupta & Brothers,,  [1960]  1 S.C.R. 493 relied.

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 851 of 1972. Appeal  from the Judgment and Order dated the 25th  January, 1971  of the Calcutta High Court in Civil Rule No.  1683  of 1970. B.   Sen and D. N. Mukherjee, for the appellant. V.   S. Desai and M. M. Kshatriya, for the respondent. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-on an application under SS. 9(b) and 33 of  the Arbitration Act 10 of 1940-hereinafter  called  ’the Act  challenging  the  propriety  of  a  reference  to   the arbitration  of the sole arbitrator, the Subordinate  Judge, Alipore  permitted  the  appellant  to  adduce  evidence  to establish  whether the contract was put an end to  by  final payment,  and if it was whether the arbitration clause  con- tained  in the contract will perish with it.   Against  this order  the respondent filed a revision in the High Court  of Calcutta  which  while  setting  aside  the  order  of   the Subordinate  Judge  dismissed the application filed  by  the appellant.   This  appeal  is by  certificate  against  that decision. In  order  to appreciate the significance  of  the  question which  has,  to be determined, a few relevant facts  may  be stated.   The  respondent entered into a contract  with  the appellant  to supply certain quantities of coal  at  certain price but as he failed to do so in accordance with the terms of  the  contract, the appellant  repudiated  the  contract, imposed  certain penalties in accordance with the  terms  of the  contract  which  he later waived  and  ultimately  paid certain sums to the respondent which were due to him for the supply of coal.  It is the case of the appellant that  these payments including the return of the deposit amount  finally settled  the  claims  of  the  respondent.   No  doubt   the respondent was asked to submit his bill along with a receipt stating  that  he, received the payment in  full  and  final settlement  of  all  payment and that there  was.  no  other claim.  But the respondent while 242 submitting  his  bill did not give the receipt  as  desired. The amount of the bill was, however, paid, after receipt  of which   tile  respondent  claimed  further  sums  from   the appellant   including,  damages  for  repudiation   of   the contract.  When the, appellant did-not agree to comply  with the demands the respondent served a notice of his  intention to refer the matter to the arbitration under the arbitration clause  contained  in  the  contract.   By  that  notice  he intimated  the appellant that he has appointed J. N.  Mulick as his arbitrator and requested the appellant to appoint its own  arbitrator.   The  appellant  did  not  agree  to   it, whereupon  the respondent by a further notice intimated  the appellant that the arbitrator nominated by him would be  the sole  arbitrator for a vindicating the dispute  between  the parties.  Soon thereafter the sole arbitrator J. N.  Mullick issued  a  notice  to the  appellant  and  consequently  the appellant  had to file an application under ss. 9(b) and  33 of  the Act challenging the validity of the  appointment  of the  sole arbitrator.  In paragraph-16 of- the petition  the appellant stated : .lm15 "........  all claims and demands as between the  petitioner and  the contractor standing fully paid and  adjusted  there was no dispute in the absence whereof the entire proceedings in  the  above case do not lie and the instant case  is  not maintainable  under  the Arbitration Act being  outside  its fold."

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As  stated  earlier, the Subordinate Judge  held  that  the, appellant  could adduce evidence that the contract had  come to an end in order to determine that the arbitration clause perished with the contract. On  the  pleas  raised before  the  Subordinate  Judge,  the following questions were considered .               (1)   Has the Court jurisdiction to decide the               points   raised   in   paragraph-16   of   the               appellant’s petition?               (2)   Whether  the arbitration clause  between               the  parties  would cease to  exist  with  the               termination of the agreement; and               (3)   Whether   oral  evidence  touching   the               dispute  in  respect  of  the  alleged   final               settlement of the claim would be admissible in               the proceedings. The  Subordinate  Judge  answered  these  questions  in  the affirmative  and  held  that  the  appellant  could   adduce evidence  to establish that the contract had come to an  end and  that as a consequence the arbitration  clause  perished with it. On  these  facts the short question for determination  is  : where  one  of the parties refers a dispute or  disputes  to arbitration and the other party takes a plea that there  was a  final  settlement  of all claims, is  the  Court,  on  an application  under ss. 9(b) and 33 of the, Act, entitled  to enquire  into the truth and validity of the averment  as  to whether  there  was  or was not a final  settlement  on  the ground that if that was proved, it would bar a reference to the  arbitration inasmuch as the arbitration  clause  itself would perish. The respondent purported to refer the dispute to arbitration under the following clause of the agreement 243               "........if at any time any question,  dispute               or  difference whatsoever shall arise  between               the  Corporation and the  successful  tenderer               upon or in relation to, or in connection  with               the contract, either party may forthwith  give               to  the  other,  notice  in  writing  of   the               existence   of  such  question,   dispute   or               difference, and the same, shall be referred to               the adjudication of two arbitrators, one to be               nominated by the Corporation and the other  to               be  nominated by the successful  tenderer  and               the  award of the arbitrators shall be  final               and binding on the parties and the provisions.               of  Indian Arbitration Act, 1940, and  of  the               Rules    thereunder    and    any    statutory               modification thereof shall be deemed to  apply               to and be incorporated in this contract It appears to us that the question whether there has been  a full  and  &A settlement of a claim under  the  contract  is itself  a dispute arising ’upon’ or ’in relation to’ or  ’in connection with’ the contract.  These words are wide  enough to   cover   the  dispute  sought  to  be   referred.    The respondent’s  contention  is  that  the  contract  has  been repudiated  by  the appellant unilaterally as  a  result  of which  he  had  no option but  to  accept  that  repudiation because if the appellant was not ready to receive the  goods he  could  not supply them to him or force  him  to  receive them.    In   the   circumstances,   while   accepting   the repudiation,  without  conceding that the  appellant  had  a right to repudiate the contract, he could claim damages  for breach  of contract.  Such a claim for damages is a  dispute

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or difference which arises between himself and the appellant and  is ’upon’ or ’in relation to’ or.’in  connection  with’ the contract. The contention that has been canvassed before us is that  as there  has  been  a  full and  final  settlement  under  the contract,  the rights and obligations under the contract  do not  subsist  and consequently the arbitration  clause  also perishes  along  with the settlement.  If  so,  the  dispute whether  there  has or has not been a settlement  cannot  be the  subject  of an arbitration.  There is, in our  view,  a basic fallacy underlying this submission.  A contract is the creature  of an agreement between the parties and where  the parties   under  the  terms  ’of  the  contract   agree   to incorporate    an    arbitration   clause,    that    clause stands’--apart  from the rights and obligations  under  that contract,  as  it has been incorporated with the  object  of providing a machinery for the settlement of disputes arising in  relation  to or in connection with that  contract.   The questions  of  unilateral  repudiation  of  the  rights  and obligations  under  the  contract or of  a  full  and  final settlement  of  the contract relate to  the  performance  or discharge  of the contract.  Far from putting an end to  the arbitration clause, they fall within the purview of it.   A repudiation  by  one  party alone  does  not  terminate  the contract.   It  takes two to end it, and hence  ’it  follows that  as the contract subsists for the determination of  the rights  and  obligations  of the  parties,  the  arbitration clause also survives.  This is not a case where the plea  is that  the contract is void, illegal or fraudulent  etc.,  in which  case, the entire contract along with the  arbitration clause  is  non  est, or voidable.  As the  contract  is  an outcome of the agre&nent between the parties it is equally 244 upon to the parties thereto to agree, to bring: it to an end or to treat it as if it never existed.  It may also be open to  the  parties  to terminate  the  previous  contract  and substitute in its place a new contract or alter the original contract in such a way that it cannot subsist.  In all these cases,  since  the  entire contract is put an  end  to,  the arbitration  clause,  which is a part of it,  also  perishes along with it.  Section 62 of the Contract Act  incorporates this  principle  when it provides that if the parties  to  a contract agree to substitute a new contract or to rescind or alter  it,  the  original contract need  not  be  performed. Where,  therefore, the dispute between the parties  is  that the  contract itself does not subsist either as a result  of it’s being substituted by a now contract or by rescission or alteration   that   dispute  cannot  be  referred   to   the arbitration  as the arbitration ,clause itself would  perish if  the  averment  is  found  to  be  valid.   As  the  very jurisdiction  of  the  arbitrator  is  dependent  upon   the existence  of  the  arbitration clause  under  which  he  is appointed,  the  parties have no right to  invoke  a  clause which perishes with the contract. In  certain circumstances, it may be that there has  been  a terminal  tion  of  the  contract  unilaterally  and  as   a consequence  the parties may agree to rescind the  contract. In  such a situation the rescission would put an end to  the performance  of  the contract in futuro, but it  may  remain alive  for claiming damages either for previous breaches  or for the breach which constituted the termination. We  have  adverted to these several aspects merely  to  show that  ,contracts being consensual, the question whether  the arbitration  clause survives or perishes would  depend  upon the  nature  of  the controversy and  its  effect  upon  the

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existence  or  survival of the contract itself.   Where  the binding  nature  of  the contract is  not  disputed,  but  a difference  has  arisen between the parties  thereto  as  to whether there has been ;a breach by one side or the other or whether  one or both the parties have been  discharged  from further  performance  such  differences are  "upon"  or  "in relation  to’ or "in connection with" the contract.  That  a contract  has come to an end by frustration does not put  an end  to the contract for all purposes, because there may  be rights and obligations which had arisen earlier when it  had not come to an end, as it is only the future performance  of the  contract  that has come to an end.  It  is,  therefore, clear  that  a  dispute  as to the  binding  nature  of  the contract  cannot  be determined by  resort  to  arbitration, because  as we have stated earlier, the  arbitration  clause itself stands or falls according to the determination of the question  in  dispute.   It may be stated  that  the  Privy. Council   had  in  Hirji  Mulji  v.  Cheong  yue   Stewnship Company(1)  held that as the authority of a person  claiming arbitral  jurisdiction  depends  on the  existence  of  some submission  to him by the parties of the  subject-matter  of the  complaint,  "a contract that has determined is  in  the same  position as one that has never been concluded at  all. The  observations  of  Lord Sumner in that case  as  to  the effect of frustration of the contract before its performance on  the arbitration clause inasmuch as frustration  operates automatically and the contract (1)  [1926] A.C. 407. 2 45 to  exist  for  all purposes save  for  the  enforcement  of claims  vested  before that date of which there  were  none, were  dissented  from  in  Heyman  and  another  v.  Darwins Ltd.(1),  though Lord Macmillan did not want to express  any opinion  on  this  question.  Be that it  may,  in  Heyman’s case(3) Lord Macmillan pointed out at pp. 370-371 :               "If  it  appears that the dispute  is  whether               there has ever been a binding contract between               the parties, such a dispute, cannot be covered               by  an  arbitration clause in  the  challenged               contract.  If there has never been a  contract               at all, there has never been as part of it  an               agreement to, arbitrate.  The greater includes               the  less.   Further, a claim to set  aside  a               contract  on such grounds as fraud, duress  or               essential  error cannot be the  subject-matter               of a reference under an arbitration clause  in               the  contract sought to be set aside.   Again,               an  admittedly binding contract  containing  a               general arbitration clause may stipulate  that               in  certain events the contract shall come  to               an end.  If a question arises whether the con-               tract has for any such reason come to an end I               can  see no reason why the  arbitrator  should               not  decide that question.  It is clear,  too,               that  the parties to a contract may  agree  to               bring it to an end to all intents and purposes               and  to treat it as if it had  never  existed.               In  such  a case, if there be  an  arbitration               clause  in the contract, it perishes with  the               contract.   If  the parties substitute  a  new               contract  for  the contract  which  they  have               abrogated   the  arbitration  clause  in   the               abrogated  contract cannot be invoked for  the               determination  of  questions  under  the   new               agreement.    All   this  is  more   or   Iess

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             elementary." The  above  observations of Lord Macmillan as  well  as  the observations  of  other Law Lords in  Heymams  case(1)  were considered by this Court in The Union of India v. Kishorilal Gupta  and Bros.(3) where the respondents bad  entered  into three contracts with the appellant each of which-  contained an arbitration clause.  Before the contracts had been  fully executed,  disputes arose between the parties, one  alleging that the other was committing a breach of the contract.  The parties   then  entered  into  three  fresh   contracts   on successive dates purporting to settle these disputes on  the terms  therein  comtained.   By  the  first  two  of   these settlement  contracts the respondents agreed to pay  to  the appellant  certain moneys in settlement respectively of  the disputes  relating to the first two original contracts.   By the  last  of  these settlement  contracts  the  respondents agreed  to  pay to the appellant in  specified  installments certain moneys in settlement of the disputes relating to the third  original contract as also the moneys which  had  then become due on the first two settlement contracts and had not been paid.  This settlement further undertook to  hypothetic certain properties to secure the due repayment of these   moneys. In the end it provided as follows: (1)  [1942] A.C. 356.                            (2)  [1942] A.C. 356. (3)  [1960] 1 S.C.R. 493.                             246               "The  contracts  stand  finally  concluded  in               terms of the settlement and no party will have               any further or other claim against the  other.               " On  a  question  whether  the  arbitration  clauses  in  the original  contracts  had ceased to have any effect  and  the contracts  stood  finally  deter mined as a  result  of  the settlement  contracts,  the Calcutta B Court held  that  the first  contract  had  not been abrog by  the  settlement  in respect   of  it,  but  the  third  original  contract   the arbitration clause contained in it had ceased to exist as  a result of the last settlement, as such the arbitrator had no jurisdiction  to  arbitrate under that  arbitration  clause. Imam and Subba Rao, JJ., (Sarkar, J., dissenting)  confirmed the  High  Court’s  decision,  They  held  that  the  three, contracts were settled and the third settlement contract was in  substitution  of  the three contracts;  and,  after  its execution,  all the earlier contracts were extinguished  and the arbitration clause contained therein also perished along with them.  They further held that the new contract was  not a conditional one and after its execution the parties should work  out  their rights only under its terms.   Sarkar,  J., however, held that the award was valid and could not be  set aside  as the third settlement neither expressly put an  end to the arbitration clause. nor, considered as an accord  and satisfaction, did it have that effect.  He observed that  an arbitration  clause  stands  apart  from  the  rest  of  the contract in which it is contained. it does not impose on the one  party  an obligation in favour of the  other;  it  only embodies an agreement that if any dispute arises with regard to  any  obligation which one party has  undertaken  to  the other,  such  dispute shall be settled by  arbitration.   An accord   and  satisfaction  which  is  concerned  with   the obligations  araising from the contract, does not affect  an arbitration  clause containaed in it.  It will  be  observed that while the decision rested on the interpretation of  the settlement clause as to whether the original contracts  were put  an  end  to  and in their  place,  new  contracts  were

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substituted with the result that the arbitration clause  did not survive, the principle of law that where the parties put an  end  to  the contract as if it  had  never  existed  and substitute  it with a new contract governing the rights  and obligations  of  the  parties  thereunder,  the  arbitration clause also perishes along with it, was accepted as  correct by all the, learned Judges. After  a review of the relevant case law, Subba Rao, J.,  as he  then  was,  speaking for  the  majority  enunciated  the following  principles  :  "(1) An arbitration  clause  is  a collateral  term  of a contract ’as distinguished  from  its substantive terms; but none the less it is an integral  part of   it;  (2)  however  comprehensive  the  terms   of   ,in arbitration clause may be, the existence of the contract  is a  necessary condition for its operation; it  perishes  with the  contract; (3) the contract may be non est in the  sense that  it  never came legally into existence or it  was  void abinitio; (4) though the contract was validly executed,  the parties may put an end to it as if it had never existed  and substitute  a  new contract for it  solely  governing  their rights  and liabilities thereunder; (5) in the former  case, if  the  original  contract  has  no  legal  existence,  the arbitration clause also  247 cannot operate, for along with the original contract, it  is also  void; in the latter case, as the original contract  is extinguished  by-  the,  substituted  one,  the  arbitration clause  of the original contract perishes with it;  and  (6) between  the  two  falls  many  categories  of  disputes  in connection  with  a  contract,  such  as  the  question   of repudiation, frustration, breach etc.  In those cases it  is the performance of the contract that has come to an end, but the contract is still in existence for certain purposes  in respect  of disputes arising under it or  inconnection  with it.   As  the contract subsists for  certain  purposes,  the arbitration  clause operates in respect of these  purposes." In  those  cases,  as  we have stated  earlier,  it  is  the performance  of the con-, tract that has come to an end  but the  contract is still in existence for certain purposes  in respect of disputes arising under it or in, connection  with it.  We think as the contract subsists for certain purposes, the   arbitration  clause  operates  in  respect  of   those purposes. Sarkar, J., did not dissent from the propositions enunciated by  Subba Rao, J., but only disagreed with the majority’  on the effect of the settlement on the arbitration clause.   He also  referred  to  the observations of  Lord  Macmillan  in Hayman’s case(1)  and observed at P. 519 : "An  arbitration agreement,  of course, is the creature of an  agreement  and what is created by agreement may be destroyed by agreement." Again  at p. 521 he- said : "It is well settled that such  a clause (arbitration clause) in a contract stands apart  from the  rest of the contract." It was, however, pointed out  by him that an accord and satisfaction which secures a  release from  an  obligation arising under a  contract,  is  really, based  on the existence of the contract instead of  treating it as non-existent.  The contract is not annihilated but the obligations under it cease to be enforceable.  Therefore  it is  that  when  an action is brought  for  the  appropriate remedy  for  non-performance of these  obligations  that  an accord  and  satisfaction  furnishes a  good  defence.   The defence is not that the contract has come to an end but that its  breach  has been satisfied by accord  and  satisfaction and, therefore, the plaintiff in the action is not  entitled to  the usual remedy for the breach.  In the  circumstances;

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he thought that the arbitration clause did survive to settle the dispute as to whether there was or was not an accord and satisfaction. In this case, we are not troubled with the question  whether there  has been notation, rescission or substitution of  the contract,  nor  have  the parties in  their  pleadings  ever contended  that  the  contract is non est  as  it  has  been substituted  by a new contract.  Where, however, as in  this case,  there was a termination of the contract due  to  non- performance, the existence of the contract has been  assumed for  the  purposes  of  such  termination.   Similarly   the question  whether  there has been a settlement  of  all  the claims   arising  in  connection  with  the  contract   also postulates  the  existence of the contract.   The  principle laid down by Sarkar, J., in Kishorilal Gupta Bros’s  case(2) that  accord  and satisfaction does not put an  end  to  the arbitration clause was not dissented to by the majority.  On the other hand 1. [1942].  A. C. 356.                         (2) [1960] 1 S.C.R.493. 4-522SCI/74 248 proposition (6) seems to lend weight to the views of Sarkar, J   In  these  circumstances,  the  question   whether   the termination  was  valid  or  not  and  whether  damages  are recoverable  for such wrongful termination does  not  affect the  arbitration clause, or the right of the  respondent  to invoke it for appointment of an arbitrator. While so, we think the High Court was in error in  directing the  dismissal of the appellants petition in toto.  In  that petition  several other contentions were urged one of  which was  that  the  appointment of J. N.  Mullick  as  the  sole arbitrator  should be set aside for nonconformity  with  the provisions  of S. 9(b) of the Act.  It may also be  observed that  under  the  proviso  to  that  section  the  Court  is empowered to set aside any appointment as a sole  arbitrator made  under cause (b) and either on sufficient  cause  being shown allow further time to the defaulting party to  appoint an  arbitrator  or pass such other order as it  thinks  fit. The  Subordinate Judge did not decide any of  the  aforesaid matters,  which  he should have, been allowed  to  do.   The learned  Advocate for the respondent also  frankly  conceded that  the  High Court was not justified  in  dismissing  the petition altogether.  In the circumstances, as we have  held that  where  in a contract there is an  arbitration  clause, notwithstanding  the  plea that there was a full  and  final settlement between the parties, that dispute can be referred to  the arbitration, the Subordinate Judge. is  directed  to dispose. of the petition of the appellant according to law. After this judgment was prepared the respondent filed  Civil Miscellaneous  Petition No. 9566-of 1973 seeking  directions on  the ground that the learned counsel who represented  him during  the hearing made the above concession that the  High Court   was  not  justified  in  dismissing   the   petition altogether,  on  a misapprehension of the real  facts.   The reasons for further consideration on this aspect were  fully set  out  in  the petition which was  placed  before  us  on November 6, 1973.  After hearing the learned counsel for the respondent   we  found  no  justification  for  giving   any directions or for changing our view that the High Court  was in error in dismissing the petition under s. 9(b) read  with s.  33  of  the Act.  We  accordingly  dismissed  the  Civil Mscellaneous Petition. In  the  result the appeal is partly allowed,  but  in.  the circumstances without costs.

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P.B.R.                                             Appeal partly allowed. 249