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PETITIONER: UNION BANK OF INDIA

       Vs.

RESPONDENT: OFFICIAL LIQUIDATOR H.C.  OF CALCUTTA AND ORS.

DATE OF JUDGMENT:       26/04/2000

BENCH: R.P.Sethi, M.B.Shah

JUDGMENT:

Shah, J.

     This  appeal  is filed against the judgment and  order dated  24.12.1996  passed  by  the  Division  Bench  of  the Calcutta  High  Court dismissing the Appeal No.  GA  708  of 1996  arising  out  of  Company Petition No.   316  of  1981 whereby  the learned Single judge had confirmed the  auction sale  of  the  property of Mesrs.   Kolay  Biscuits  Company Private Limited - Company under liquidation.  In the present case,  it  is  admitted fact that on 9th  July  1965  Mesrs. Kolay Biscuits Company Private Limited created a mortgage of its  land and building in favour of Union Bank of India  for the  loan granted in its favour.  The factory of the company was  closed  down  in 1980.  On 20th March  1991  under  the provisions  of the Sick Industrial Companies Act (SICA), the company was declared as sick unit by the Board of Industrial and  Financial  Reconstruction  (for short  B.I.F.R.)  and thereafter  application  under the said Act was rejected  by the  Board.   Appeal  filed before the  A.I.F.R.   was  also dismissed.   It  is the contention of the Bank that on  30th March,  1981,  the  borrowings by the Company  increased  to about  Rs.   3  Crores  and Company  executed  four  balance confirmations  in  respect of the dues in various  accounts. The  bank  also  filed a title mortgage suit  No.   103/1992 before  the  Assistant District Judge, Sealdah  against  the Company   and   five    guarantors    for   recovering   Rs. 4,11,21,411/-  along with interest after obtaining leave  by the  Company  Judge under Section 446 of the Companies  Act. By  order  dated 19th August, 1991 the Company Judge  issued directions  for  winding  up of the Company  and  appointing official  liquidator to take over assets.  On 16th February, 1996,  the Company Judge appointed Mr.  Pranoj Roy Chowdhary of  M/s Chowdhary Associates as a valuer with a direction to submit  a  report within six weeks from the date.   Official Liquidator  has  stated that he informed the appellant  Bank about  the  said order by letter dated 29th February,  1996. Thereafter the matter was placed before the Company Judge on 21st June, 1996 and on the same date Company Judge passed an order  fixing date of sale of Companys assets as 2nd August 1996   and   directed  the   official  liquidator  to   make advertisement for notice of sale of assets of the Company in newspapers,  namely,  the Statesman, Dainik Bishwamitra  and Anand  Bazaar Patrika inviting applications for purchase  of the property on as is where is basis with a direction that purchaser will be bound to deposit 20 per cent of the tender

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amount along with the tender by Bank draft or bankers cheque or pay order.

     On  2nd August, 1996, one Advocate Mr.  Dutta moved an application  stating  that  nearly  1200  workmen  would  be affected  if the sale does not take place as a going concern and  the  workmen  are not re-employed.  The  Company  Judge observed:

     the  fate  of so many workmen nearly 1200  in  number with their families depending upon them cannot be ignored by the Court.

     On  that day on behalf of the State of West Bengal  it was submitted that its Corporation (R.  No.4) was interested to  purchase  the land and the entire Company and they  were also  interested in re-employment of workers so the  Company be  sold  out  as a going concern.   Thereafter,  the  Court straightaway  directed that the sale fixed on that day would not  be  held and Official Liquidtor was directed  to  issue fresh  advertisement  in the same newspapers on 22nd  August 1996  fixing  the date for auction sale on  13th  September, 1996 for the assets of the Company as a going concern.

     On  20th September 1996, the matter was placed  before the  Court  and  it  was  stated  on  behalf  of  the  State Government Corporation that it was not agreeable to purchase with the condition of re-employing workmen.  Therefore, they withdrew  their  offer  to purchase the Company as  a  going concern.   The  Court also considered the  Valuation  Report which was placed before it wherein the assets of the Company were  valued  at Rs.66,90,032/-.  On the basis of  the  said valuation  M/s  Indrani Soft Drinks - respondent No.1  whose offer was Rs.  40 lakhs raised the same to Rs.  67 lakhs and agreed  that they would take the Company as a going  concern and all eligible employees would be re-employed.  Hence, the Court  accepted  the  said   offer.   The  learned  advocate appearing  on behalf of the secured creditor  Union Bank of India  prayed for stay of the operation of the order but the same was rejected on the ground that no useful purpose would be  served  if  the stay of the operation of the  order  was granted.  Thereafter, it appears that on behalf of Syndicate and  Promising  Exports Limited, one advocate  appeared  and submitted  that  it  was ready and willing to  purchase  the Company  as  a going concern by paying Rs.  70 lakhs on  the same  terms  and conditions as stated above.  His offer  was considered  by the Court by giving a direction that  offeror would deposit 20 per cent of the amount either by Bank draft or pay order, with the official liquidator on or before 23rd September  1996.   The  Court further directed that  in  the event  of failure to deposit the said sum, the offer of  M/s Indrani  Soft Drinks will stand accepted without there being any  further bid.  The matter was kept for further orders on 27th  September,  1996.   On  that date it  was  found  that Promising Exports had neither sent any offer to the official liquidator nor had deposited any amount.  The Court observed that  the sale in favour of auction purchaser  M/s  Indrani Soft  Drinks  remains accepted and directed them to pay  the balance amount within 60 days.  It also directed  Official Liquidator will supply a copy of the valuation report to the secured  creditor  at their cost.  The Official  Liquidator was directed not to part with possession of the Company till the entire purchase price was paid.

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     Against  that  order  appellant  preferred  an  appeal before  the  Division  Bench.  Before the Division  Bench  a contention  was raised with regard to the inadequacy of  the price  and the Court observed that the Court would be rather loath  to  interfere and intervene in a Court sale  where  a question  of inadequacy of the price is to be considered  by observing that:  Court sale has taken place for the benefit of  the employees concerned and more than 100 employees were starving  to death and the official liquidator was trying to sell  the  assets as a going concern so that the  employment opportunities can be maintained in these hard days.

     The  Court  also  considered  the  fact  that  in  the meantime  after confirmation of the sale the entire purchase price  has  been  paid by M/s Indrani Soft  Drinks  and  the Official  Liquidator  has  intimated to the  purchaser  that possession will be made over in the course of the day and at that  stage Union Bank of India thought it fit to move  this Court for staying the operation of the order which cannot be granted.  The Court also observed that the offer obtained in Court matches with the valuation report and the grievance of inadequacy  of price cannot be accepted and sale when taking place  in a Court of law ought to be given a final shape, as quickly as possible, so that rehabilitation of the employees can  be effected without any loss of time because Court  was informed  that more than 100 employees have already  died. Against that order this appeal is filed.

     Mr.   G.L.   Sanghi,  learned senior counsel  for  the appellant-Bank  submitted  that  the  order  passed  by  the Company  Judge which is confirmed by the Division Bench  is, on  the  face  of  it,  erroneous  and  is  based  on  total non-application  of  mind.   He submitted that  in  sale  of Companys  property it is the duty of the Court to see  that the  properties are sold at a reasonable price and not at  a throw  away price.  He pointed out that without there  being anything on record merely relying upon the oral statement by some  person  stating  that he represents some  workers  the orders  are  passed  by the Company Judge and  confirmed  in appeal  by the Division Bench.  It has been pointed out that Company  was closed since 1980 and, therefore, there was  no question  of 1200 employees working in the said Company.  He further pointed out that apart from the Company being closed since  years  the BIFR & AIFR, both statutory expert  bodies failed  to  restart the Company and thereafter  the  learned Judge without verifying any of these facts and the valuation report  and  without giving the copy of valuation report  to the  secured  creditors  for whose benefit  properties  were sold,  directed  the property to be sold and  confirmed  the sale.   It  is  also submitted that in the notice  for  sale issued  by the liquidator the upset price is not stated  and that  at  initial  stage  offer of  respondent  No.2  Messrs Indrani  Soft Drinks Limited was only Rs.40 lakhs but in the Court  after  seeing the so called valuation report  it  was raised to Rs.67 lakhs which clearly indicates that there was something  wrong  with  the offers.  He also relied  on  the decision  of this Court in Allahabad Bank & Ors.  v.  Bengal Paper  Mills  Co.   Ltd.   & Ors.  [1999 (4)  SCC  383]  and submitted  that  facts of the said case are similar and  the law  laid  down in the said case would be applicable in  the present case.

     As  against this, the learned senior counsel Mr.  A.K. Ganguli  for  the respondents vehemently submitted that  the Bank  has not raised any objection before the Company  Judge

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with  regard to the inadequacy of the price or non-supply of the  valuation report and for any other alleged irregularity in  the  conduct of the auction sale.  Therefore, the  Court should  not  interfere  in  this appeal.   In  any  case  in adequacy  of price is no ground for interference in  appeal. He  pointed out that auction sale took place in the presence of  the learned advocate for the Bank and at the time of the hearing of the matter he never represented to the Court that the  oral  statement  made, at the time of  hearing  of  the application, that 100 workers have died is incorrect or that said  facts  be verified, and therefore, said statement  was rightly  accepted  by the Court.  In the alternative, it  is his  contention  that if the sale is set aside a  bona  fide purchaser  should not suffer as he has invested large amount after  the purchase of the property in the auction sale and, therefore,  the liquidator should be directed to refund  the amount  with 18% interest with additional amount invested by Respondent no.2 and the expenses incurred by it.

     At  the outset, we would state that in proceedings for winding  up of the Company under liquidation, the Court acts as  a  custodian  for the interest of the  company  and  the creditors.   Therefore,  before sanctioning the sale of  its assets,   the  Court  is   required  to  exercise   judicial discretion  to see that properties are sold at a  reasonable price.   For  deciding  what   would  be  reasonable  price, valuation report of an expert is must.  Not only that, it is the  duty of the Court to disclose the said valuation report to  the  secured  creditors  and  other  interested  persons including  the  offerors.   Further, it is the duty  of  the Court  to  apply  its  mind  to  the  valuation  report  for verifying  whether  the report indicates  reasonable  market value  of  the property to be auctioned, even if  objections are not raised.

     From the facts narrated above, it is apparent that the attention  of learned Company Judge was not focussed to  the fact  that since 1980 Company was closed and that there  was no  question  of  selling the Companys assets  as  a  going concern.   Not  only  that it was the duty of the  Court  to verify the statement made by some applicant that sale of the Company  on as is where is basis will affect 1200  workers and  for that proper notice was required to be issued to the secured  creditors for whose benefit the property was to  be auctioned.   To straightway rely upon such statement was, to say  the  least, not judicious.  The Company Judge ought  to have  also  considered the fact that an attempt made by  the BIFR  an  AIFR  which are expert bodies under  the  SICA  to revive   the   sick  unit  had   failed.   In  any  set   of circumstances,  there  was no material on record before  the ld.  Judge for holding that Company could be revived and the employees  would  be  reinstated in service by  giving  them re-employment.   Without  indulging  in  any  such  exercise straightaway to state that property would be sold as a going concern  was  totally  without  any  basis  and,  therefore, unjustified.   At  the time of hearing of this matter it  is admitted  that  after  purchase  of   the  Company,  it  was restarted only for one day i.e.  on the day of inauguration.

     It  also appears that the Division Bench was persuaded by   the  so-called  sympathy   for  the  workers,   without verification  of the fact that Company was closed before  17 years  of  sale.   Court has noted in  the  beginning  while narrating  the  submission of the ld.  Counsel who  appeared for  the  benefit  of  the  employees  that  more  than  100

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employees  were  starving  to death and in  the  later  para stated  that  Court  was informed by  the  learned  advocate appearing  for  the  employees  union  that  more  than  100 employees  have  already  died.   Without  there  being  any application  on  record  and   without  there  being  proper verification  of the facts from the concerned parties, it is not  just  and proper to make such observations.  It is  not impossible  that  because of the lapse of 17 years,  out  of 1200  workers who might have worked in the said factory  100 employees  might  have  died of natural death.  But  in  any circumstances  it was unjustified to make a case over it and to  accept  oral submissions and to dispose of the  valuable properties  of  a  Company by stating that the sale  of  the Company  as  a going concern was for the benefit of  the  so called employees who were not in employment.

     Further,  in  the  present case, it is  admitted  that valuation  report  was  called  for   by  order  dated  16th February,  1996;  once the report was called for, it was the duty  of  the Court to see that copy of the said  report  is given  to the secured creditors and other affected  persons. It  was  known  to  the Court  that  the  appellant  secured creditor  was  claiming  more  than  Rs.4  crores  from  the Company.   It  appears that valuation report was kept  as  a secret,  confidential document.  After winding up order, the properties  of  the Company are in the custody of the  Court for  the  benefit of the secured creditors and  if  anything remains,   thereafter   for   other    creditors   and   its shareholders.   In the present case, without disclosing  the valuation  report  to the creditors and without  fixing  its reserve  price,  the properties were auctioned and the  sale was  confirmed.   This  approach  is  unjustifiable  by  any judicial  standard  and is against the normal procedure  for auctioning the immovable property of the Company which is to be wound up.

     Further, it appears that learned Judge has not applied his  mind  to  the  valuation report itself.   He  has  only considered  the  last figures given in the valuation  report which  says  that  total  valuation   of  the  property  was Rs.66,19,032/-.   Had  the Court considered the  report,  it would have immediately noticed that valuation report was not at  all  reliable.  This would be clear from  the  following facts narrated in the valuation report:  -

     Valuation:   On enquiry from the local people, it  is understood  the land price in this particular varies between Rs.2  lakhs  to  2.5  lakhs per  Katta  depending  on  size, position, Road Frontage, low and or high land etc.  However, after  considerating  all  aspects,  it  is  felt  fair  and reasonable value at Rs.2 lakhs per katta is found reasonable but  as  a  matter of fact the land is lease hold.   So  the value of land will be lease because of lease hold land.

     As  per  lease beginning of the year of 1963  for  the term of 99 years @ Rs.300/- per month.

     So,  the  rent for 99 years @ Rs.300/- =  Rs.3,56,400. 15% Municipal Tax & Repairing of structure etc.=Rs.53,460/-. Total  rent,  tax etc.  for 99 years=Rs.4,09,860/-  So,  the value of land for 99 years = Rs.4,09,860/-

     (Rupees  four  lakhs nine thousand eight  hundred  and sixty only)

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     In  our  view valuer stating that for the  purpose  of valuation  of the land he has enquired from local people and that  he  understood that the land price in this  particular area varies between Rs.2 lakhs to 2.5 lakhs per katta cannot be  said  to be an opinion of an expert valuer.  He has  not relied upon any sale instance for arriving at the conclusion that  the valuation varies from Rs.2 to 2.5 lakhs per katta. He  has also not stated from whom he has verified the  value of  the land.  Further, he has stated that after considering all aspects, he felt that fair and reasonable value would be Rs.2  lakhs per katta.  Presuming that valuation of land  is Rs.2  lakhs  per  katta  then also the value  of  the  land, admeasuring  67  katta  and 8 chattak, would  be  more  than Rs.1.35  crore.   Thereafter, he stated the land is a  lease hold land, so the value of the land would be on the basis of its  rental income and he arrived at the conclusion that its value  would  be  only Rs.4,09,860/-.  It appears  that  the valuer  has also not considered the material fact that lease period  was for 99 years with the condition for its renewal. It  is apparent that learned Company Judge has simply  noted the final figures mentioned in valuation report and accepted the  same without applying his mind to the aforesaid  facts. .   In Allahabad Bank v.  Bengal paper Mills case  (supra), dealing  with  a  similar  auction sale of  the  company  in liquidation,  the Court observed that instead of sale by the liquidator  in  Company  matters  sale  is  required  to  be confirmed  by  the  High  Court so as to  ensure  that  best possible  price is realised upon the sale of the assets  and properties  of the Company so that creditors of the  Company can  hope  to recoup their dues.  The Court relied upon  the decision in M/s Navlakha & Sons vs.  Sri Ramayana Das & Ors. [1969  (3) SCC 537] wherein (para 6) the Court has  observed thus:   The principles which should govern confirmation  of sales  are  well established.  Where the acceptance  of  the offer by the Commissioners is subject to confirmation of the court the offeror does not by mere acceptance get any vested right  in  the  property  so that he  may  demand  automatic confirmation of his offer.  The condition of confirmation by the court operates as a safeguard against the property being sold  at inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale.  In every  case  it is the duty of the court to  satisfy  itself that  having regard to the market value of the property  the price  offered is reasonable.  Unless the court is satisfied about  the adequacy of the price the act of confirmation  of the  sale  would  not  be  a  proper  exercise  of  judicial discretion.   In  Gordhan  Das  Chuni Lal  vs.   T.   Sriman Kanthimathinatha  Pillai (AIR 1921 Mad.286), it was observed that  where the property is authorised to be sold by private contract or otherwise it is the duty of the court to satisfy itself  that  the  price  fixed is the best  that  could  be expected  to  be offered.  That is because the court is  the custodian  of the interests of the company and its creditors and  the sanction of the Court required under the  Companies Act  has  to  be exercised with judicial  discretion  regard being  had to the interests of the company and its creditors as  well.  This principle was followed in Rathnaswami Pillai vs.    Sadapathy  Pillai  (AIR  1925   Mad.   318)  and   S. Soundararajan  vs.  Roshan & Co.  (AIR 1940 Mad.  42.) In A. Subbaraya  Mudaliar  vs.   K.  Sundararajan (AIR  1951  Mad. 986)  it was pointed out that the condition of  confirmation by  the  court being a safeguard against the property  being sold  at an inadequate price, it will be not only proper but necessary  that the Court in exercising the discretion which it  undoubtedly has of accepting or refusing the highest bid

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at  the auction held in pursuance of its orders, should  see that  the price fetched at the auction is an adequate  price even  though  there  is  no suggestion  of  irregularity  or fraud.

     The  learned  senior counsel Mr.  Ganguli relied  upon the decision of this Court in M/s Kayjay Industries (P) Ltd. vs.  M/s Asnew Drums (P) Ltd.  and Others [1974 (2) SCC 213] and  contended  that Court should not go on  adjourning  the sale  till a good price is received, as it being a notorious fact  that  court  sales  and   market  prices  are  distant neighbours;   If  auction  sales are  adjourned  repeatedly, decree  holders  can  never get the property of  the  debtor sold.   He  emphasised the observation mere  inadequacy  of price  cannot demolish every court sale.  In our view, this submission requires to be rejected on the ground that in the said  case, the Court has reproduced paragraph which we have quoted  above from the decision in Navlkha and Sons (Supra), wherein  the court has specifically held that the  condition of confirmation by the court operates as a safeguard against the  property being sold at inadequate price whether or  not it  is  a  consequence of any irregularity or fraud  in  the conduct  of  the  sale;  the court is  required  to  satisfy itself  that  having  regard  to the  market  value  of  the property  the price offered is reasonable;  unless the court is  satisfied  about  the adequacy of the price the  act  of confirmation  of  sale  would not be a  proper  exercise  of judicial discretion.  This aspect is reiterated by the court by  holding that the aforesaid principles must govern  every court  sale.   The Court has also observed that  failure  to apply  its  mind  to  the material factors  bearing  on  the reasonableness  of the price offered may amount to  material irregularity  in  conduct  of sale.   Thereafter  the  Court pertinently  observed:   And  where  a  court  mechanically conducts  the  sale  or routinely signs assent to  the  sale papers,  not bothering to see if the offer is too low and  a better price could have been obtained, and in fact the price is  substantially inadequate, there is the presence of  both the elements of irregularity and injury.

     It is further observed

     what  is  expected of the Judge is not to be  prophet but a pragmatist and merely to make a realistic appraisal of the   factors,   and  if  satisfied   that  in   the   given circumstances the bid is acceptable, conclude the sale.

     As  discussed  above,  in the present case,  there  is total  non-application  of  mind to the  material  which  is required  to be considered for auction sale of the assets of the  Company.  Learned counsel for respondent No.2  referred to  the  decision of this Court in Ram Maurya  vs.   Kailash Nath  &  Ors.   [1999  (9) SCC 276] and  submitted  that  as secured  creditors  have  not brought  appropriate  pleading before  the  learned  Company Judge, this Court  should  not interfere  in such sale.  In our view, the said decision has no  bearing on the facts of the present case as the case was decided  on the basis of auction sale under Order 21 Rule 90 of  the CPC and the Court has observed that judgment  debtor did  not  furnish  adequate materials  to  substantiate  the allegation of fraud and material irregularity.

     Further,  learned  counsel relied on the  decision  in Motors  and  Invests Ltd.  vs.  Union Bank of India  &  Ors.

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[1997  (11)  SCC  271] and contended that the Court  in  the alternative  may  direct refund of the amount deposited  and invested  by  the  bona  fide  auction  purchaser  with  18% interest.  In that case, the Court has set aside the sale of 44  acres  of  land  by  holding that it  was  sold  at  too inadequate  price.   In  the said case also  the  Court  has observed:  - Equally, though court sale is compulsive sale, equal  endeavour should be made to fetch adequate price  for the  property  sold  so  that  the  decree  debt  would  get satisfied  and  surplus, if any, could be paid over  to  the judgment-debtor.

     The  Court  further ordered that in case the  official assignee  has  kept the sale amount in any  interest-earning security,  the  principal amount together with  interest  is directed  to be refunded to the appellant.  And, in case the amount was not kept in any deposit and was used to discharge outstanding  debt  due by respondents 2 and 3,  the  auction purchaser  was entitled to get interest at 18% per annum  on the amount deposited by him.

     In  the present case, the said judgment has no bearing mainly  because  as  soon  as the amount  was  deposited  by respondent  No.   2, possession of the property  was  handed over to him.  Not only that, in our view, similar contention was  dealt  with in Allahabad Bank v.  Bengal  Paper  Mills case (supra) and is rejected by assigning following reasons: -

     It  could  not  have turned a blind eye to  the  many defects  that  it itself noted in the order of  sale  merely because  the Banks had moved the appeals after five  months; nor   was   there   any   justification  for   taking   into consideration  the expenditure that had been incurred by the second respondent subsequent to its possession of the assets and  properties.   In  the first place, the  Division  Bench should  have  noted that the learned Single Judge  had  with unseemly  haste ordered possession thereof to be handed over to  the  second  respondent on the very next  day.   In  the second  place, the appeals had been filed within the  period of  limitation.   Expenditure  incurred during  this  period could  not render the appeals, in effect, infructuous.   The same  should apply to expenditure incurred subsequent to the filing  of  the  appeals and until the time that  they  were heard.   The  second respondent knew that the  appeals  were pending  and that they could end in the order of sale  being set  aside.   Such  expenditure  as it  incurred  with  this knowledge  was  at its risk.  In the third place,  and  most important,  the  interests of the creditors of the  Company, particularly  the  unsecured   creditors,  overweighed  such equities,  if  any, as might have been considered to  be  in favour  of the second respondent.  It was, in our view,  the obligation  of  the Division Bench to have struck  down  the order  of  sale, having regard to what it found  wrong  with it.

     Thereafter the Court has directed refund of the amount without any interest and has permitted the auction purchaser to  apply  to  the High Court and specify  it  firstly  that expenditure  was  incurred and secondly that in law  it  was entitled  to recover it.  For the reasons stated, same would be the position in the present case.  Further, in this case, there  is  a  specific condition of the auction  sale  which reads  thus:   The  High Court may set aside  the  sale  in favour  of  Purchaser/Purchasers  even  after  the  sale  is

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confirmed  and/or  purchase  consideration is paid  on  such terms  and  conditions as the Court may deem fit and  proper for  the interest and benefits of creditors,  contributories and all concerned and/or for public interest.

     Hence,  if the sale is set aside in appeal, it can not be  stated that purchaser is entitled to have refund of  the amount with interest.

     We  also make it clear that we have not dealt with the contention of the learned counsel for the Bank that what was sold  in auction was equity of redemption and not the rights of the mortgagee.

     In  the  result, the appeal is allowed.  The  impugned order  passed  by  the  Company Judge  in  Company  Petition No.316/1981  confirmed in appeal GA No.708/96 is quashed and set  aside.  Official Liquidator is directed to recover  the possession  of  the property sold as per the  inventory  and thereafter  to refund the amount deposited by the respondent No.2    auction purchaser.  It would be open to  respondent No.2  to  file proper application for recovering  any  other expenditure  incurred  by  it  after purchase  of  the  said property  if  it  is  entitled to  recover  the  same.   The Official Liquidator is directed to resell the property after obtaining  fresh valuation report from other reliable expert and  after  giving  a copy of the said valuation  report  to secured creditors.  In the notice for sale reserved price be fixed  and  due  advertisement be  published  in  newspapers having  circulation  in commercial cities  including  Delhi, Mumbai  and Chennai on the basis of the directions which may be  issued by the High Court.  The appeal stands disposed of accordingly.  No costs.