Union of India v. B. N. Guha — 1973 DIGILAW 74 (CAL)

JUDGMENT Ghose, J. The instant appeal is directed against a judgment and order dated March 6, 1973 passed by the Court of first instance. By the said Judgment and Order, the learned Judge ordered an arbitration agreement contained in the parent agreement bearing No. 1/68-69/MP/BNG/69-71 dated 15th September, 1969 to be filed under section 20 of the Indian Arbitration Act hereinafter referred to the said Act and further ordered, the reference of the disputes and differences mentioned in paragraphs 7, 8, 10, 11 and 12 of the petition filed by the respondent under section 20 of the said Act to the Arbitrator to be nominated in terms of the said Arbitration Agreement by the General Manager, South Eastern Railway. The appellant before us does not impugned the filing of the said agreement and reference of the disputes mentioned in paragraphs 11 and 12 of the petition to the arbitrator. 2. The petition appears at pages 3 to 14 of the Paper Book. Paragraphs 7, 8, 10, 11 and 12 of the petition appear at pages 9 to 12 of the Paper Book. The respondent B.N. Guha & Co., in answer to an invitation to submit tender by the appellant Union of India for wooden sleepers of various sizes and specifications to Union of India, on or about August 20, 1968 submitted a tender for supply of Wooden Sleepers to the appellant Union of India for the South Eastern, Railway from the forests of Madhya Pradesh. On or about 28th December, 1968, the respondent revised its above mentioned offer and submitted a revised offer. The offer made by it on December 28, 1968 was further revised by the respondent when it submitted a revised offer on April 23, 1969. The revised offer mentioned hereinabove of December 26, 1968 and April 25, 1969 appear at pages 118 to 121 and 122 to 125 respectively, of the Paper Book. 3. The respondent in the revised offer dated April 25, 1969 agreed that it would not ask for payment of price in respect of any of the sleepers supplied until a formal contract was executed between the parties. 4. 3. The respondent in the revised offer dated April 25, 1969 agreed that it would not ask for payment of price in respect of any of the sleepers supplied until a formal contract was executed between the parties. 4. Although such revised offer dated April 25, 1969 submitted by the respondent was stated by the respondent to be valid upto May 15, 1969, the Joint Director (Timber) Railway Board by a telegram dated 29th May, 1969 informed the respondent that its revised offer dated April 25, 1969 offering delivery by October 31, 1971 and been accepted subject to a slight modification in escalations and Sales Tax clauses." The said officer further informed the respondent that the details of the modifications had been forwarded in a post copy. The post copy stated the modifications to be "Statutory variation in Sales taxes and variation in the base price fixed by the Sub-committee of the Central Board of Forestry would alone to be the account of the purchaser and that escalations would not apply to the account of the purchaser and that escalation would not apply to the first 30.000 B.G. Numbers, 20,000 numbers of M.G. and other quantities offered for delivery by 31.10.1970 vide first arbitration given in revised offer dated 25.4.1969." 5. By its letter dated 2nd June, 1969 addressed to the Sleeper Control Officer, S.E. Railway, Garden Reach, Calcutta, the respondent forwarded a copy of the said telegram and post copy confirmatory letter and requested the said officer to arrange for inspection of the Sleepers mentioned in the said letter and issue inspection certificate and instructions in respect thereof. The respondent stated in the said letter that they would not insist for payment until execution of agreement and other formalities. 6. The Sleeper Control Officer, S.E. Railway, Calcutta with reference to all the documents mentioned in his letter dated June 7, 1969 including the respondent's letter dated June 2, 1969 placed orders with the respondent for the supply of the various quantities of Sawn Sal Track and Special Size Sleepers at the rates and delivery periods set out in Annexure "A" to the said letter dated June 7, 1969. The said officer directed the respondent to furnish security deposit at the rate of 5% of the value of the Sleepers subject to maximum of Rs. The said officer directed the respondent to furnish security deposit at the rate of 5% of the value of the Sleepers subject to maximum of Rs. 15,000/- and informed that the payment of the bills should be realised only after the formal agreement was executed. After receiving the said letter dated June 7, 1969 which has been set out in judgment under appeal and appears at page 184 of the Paper Book, on and from 7th June, 1969, respondent commenced delivery of wooden sleeper from Madhya Pradesh Forest to the appellant. The respondent has stated in the petition filed under section 20 of the said Act that if did so in anticipation of the formal agreement being executed by and between the parties. The formal agreement between the parties was executed thereafter. The said agreement bears the number /68-69/MP/BNG/69-70 and is dated September 15, 1969. The said agreement appears at page 56 of the Paper Book. The said contract contains all the terms and conditions and that were agreed upon by and between the parties previously in the correspondence that passed between the parties mentioned hereinbefore, except very minor discrepancies in the number of Sal Sleepers to be supplied. The said formal contract executed by the parties contains an arbitration clause, so wif:- "All disputes or differences of and kind whatsoever arising out of or in connection with the contract whether during the continuance of this agreement or after the termination thereof shall be referred by the contractor to the Chief Engineer, South Eastern Railway for the time being in office and the said Chief Engineer shall within a reasonable time after their presentation make and notify decisions thereon in writing. If the contractor be dissatisfied with the decision of the Chief Engineer, S.E. Railway, on any matter dispute or difference on any account of if the said Chief Engineer fails to make a decision within a reasonable time, then and in any such case (but save and except any matter the opinion and/or decision regarding which has been otherwise provided for in the agreement to be final) the disputes and differences shall be referred to arbitration of such Railway Officer as shall be nominated to be the Arbitrator by the General Manager of the S.E. Railways for the time being in office in his sole and absolute discretion and the decision of such Arbitrator shall be final and binding upon the parties. The General Manager, S.E. Railway shall be the sole judge to decide which of the disputes and/or differences fall within the said exception and this not referable to arbitration as aforesaid. No party to the reference shall have the right to be represented or appear before the Arbitrator, by Counsel or other legal representatives. It will be no objection that the person appointed as Arbitrator in the Counsel of his duties as government servant has expressed views on all or any of the matter in dispute. Subject as aforesaid, Arbitration Act, 1940 and the Rules there under and statutory modification thereof shall apply to the arbitration proceedings under this Clause." 7. Prior to the execution of the said formal contract dated September 15, 1969, on or about June 9, 1969 an Ordinance being the Central Sales Tax Amendment Ordinance, 1969 (Ordinance 4 of 1969) was promulgated by the Union of India. The said Ordinance was subsequently repeated by the C. Sales Tax Amendment Act (Act 28 of 1969). According to the petitioner by virtue of the promulgation of the said ordinance and the enactment of the said Act, the respondent became liable to pay Central Sales Tax on all inter State Sales at the rate of 3% on the value of the goods sold and delivered by the respondent to the South Eastern Railway from Madhya Pradesh. The respondent claims that it is entitled to be reimbursed from the appellant, in respect of the said sales tax. On this account the respondent submitted bills for the aggregate sum of Rs. 1,41,306.72 P. The appellant failed to pay the said sum. 8. The respondent claims that it is entitled to be reimbursed from the appellant, in respect of the said sales tax. On this account the respondent submitted bills for the aggregate sum of Rs. 1,41,306.72 P. The appellant failed to pay the said sum. 8. The respondent in terms of the arbitration clause required the Chief Engineer, S.E. Railway for his decision on the matter. The said Chief Engineer did not give any decision on this claim. Thereafter, the respondent wrote to the General Manager, South Eastern Railway for referring the dispute in regard to the aforesaid claim for Rs. 1,41,306.72 P. to arbitration in accordance with the arbitration clause. The General Manager has not referred the said claim to arbitration not appointed or nominated any arbitrator in terms of the arbitration agreement between the parties. 9. Besides the abovementioned disputes, between the parties the respondent also has claimed from the appellant a sum of Rs. 61,329.40P. on account of enhancement of the price at the rate of 3% on all material supplied by the respondent to the appellant from November 1, 1970 in terms of the Railway Board's letter dated 6th November, 1970 and 19th January, 1971 mentioned if paragraph 10 of the petition. Notwithstanding the demands, the appellant has failed and neglected to pay the said claim of the respondent and the General Manager has also not referred the said dispute to arbitration in terms of the arbitration agreement between the parties. We are not concerned with the other dispute mentioned in the petition and directed the same to be referred to the arbitration by the order under appeal as the appellant admits that the said dispute is covered by the arbitration clause. 10. Mr. Bhabra appearing on behalf of the appellant submitted that the contract in the instant case is dated 15th of September, 1969. The terms of the contract show that this contract was not the record of any prior contract arrived at between the parties. There was no necessity, therefore, of coming to any conclusion that the contract between the parties was concluded prior to September 15, 1969. The terms of the contract show that this contract was not the record of any prior contract arrived at between the parties. There was no necessity, therefore, of coming to any conclusion that the contract between the parties was concluded prior to September 15, 1969. The learned Judge's finding that the contract was concluded on June 7, 1969 was erroneous and in any event, the arbitration agreement between the parties that is sought to be filed by the respondent in this Special Suit was the arbitration agreement contained in the contract dated September 15, 1969 and previous agreement if any, therefore, is not germane to the issue involved in this appeal. Mr. Bhabra in support of his contention relied on (1) Boomenji Ardeshire Wardih & Ors. v. Secretary of State, AIR 1929 Privy Council at page 34, wherein the principle of construction of a formal document was stated in the following works, so wif: "Nothing is better settled than that when parties have entered into a formal contract that contract must be constructed according to its own terms and not be explained or interpreted by the antecedent communings which let upto it". 11. The Judicial Committee stated in clear words, in the said case, that it would be a mistake to construe a document in the light of correspondence that had passed between the parties to the documents prior to the execution of the document itself, even though the correspondences were referred to in the documents itself. In the instant case, according to Mr. Bhabra, constraining the terms of the said contract dated 15th September, 1969, the correspondence that passed between the parties from April 25, 1969 to June 7, 1969 would have no effect. Mr. Bhabra contended that the dispute between the parties in regard to the claim of the respondent for the sum of Rs. 1,41,306.72P. was a dispute in respect of transactions that took place between the parties period to the execution of the contract dated September 15, 1969 and could not be covered by the Arbitration Clause contained in the said contract. The said claim of the respondent for the said sum of Rs. 1,41,306.72P. was a dispute in respect of transactions that took place between the parties period to the execution of the contract dated September 15, 1969 and could not be covered by the Arbitration Clause contained in the said contract. The said claim of the respondent for the said sum of Rs. 1,41,306.72 P. on account of the promulgation of the said Central Sales Tax Amendment Ordinance (Ordinance No. 4) of 1969 was also untenable on merit inasmuch as the said levy of 3% Central Sales Tax payable by the respondent had been included in the price of the said Sleepers by the respondent. 12. It appear to me that it is not necessary for me to go into the question as to whether the respondent is entitled to claim the said sum mentioned in paragraph 7 of the petition from the appellant in view of the promulgation of the above mentioned ordinance. That pertains to the merit of the question as to whether the respondent in terms of the contract between the parties is entitled to the said claim. That is entirely for the arbitrators to adjudicate upon. The Court should not, and in my opinion cannot go into the said question in the instant appeal. The questions that call for the determination of the Court in the instant appeal to my mind, are: (1) Whether the parties in the appeal had entered into an arbitration agreement before the institution of any suit relating to the subject-matter of agreement or any part of it. (2) Whether a dispute has arisen to which the agreement applies. (3) Whether any of the parties instead of proceeding under Chapter II applied to the Court having jurisdiction in matters covered by the agreement for an order that the agreement be filed in the Court; and (4) Whether there is any sufficient cause for not directing the agreement to be filed or the disputes covered by the agreement to be referred to arbitration. 13. Mr. Bhaskar Gupta appearing on behalf of tine respondent submitted that the above mentioned correspondence that passed between the respondent and the appellant represented by its officers show that a contract for supply of Sleepers to the South Eastern Railway was arrived at by exchange of letters ending with the letter dated June 2, 1969. 14. 13. Mr. Bhaskar Gupta appearing on behalf of tine respondent submitted that the above mentioned correspondence that passed between the respondent and the appellant represented by its officers show that a contract for supply of Sleepers to the South Eastern Railway was arrived at by exchange of letters ending with the letter dated June 2, 1969. 14. The officer who wrote the said correspondence on behalf of the appellant were authorised and/or empowered to enter into such a contract on behalf of the Union of India. Pursuant to the said contract and in anticipation of execution of a formal contract subsequently, the respondent commenced the supply of Sleepers to the appellant who started inspecting and accepting the same with effect from June 9, 1969. 15. According to Mr. Gupta, the formal contract dated September 15, 1969 was indeed the recording in the formal contract of the terms and conditions arrived at between the parties in the above mentioned correspondence ending with the letter dated June 2, 1969 except with regard to certain minor details. In the premises, the said dispute in regard to Rs. 1,41,306.72 P. is a dispute covered by the arbitration clause contained in the formal agreement dated September 15, 1969. Mr. Gupta further submitted that in any event, the order under appeal is not appeal-able. The appellant according to Mr. Gupta the existence and validity of the arbitration clause contained in the formal document dated September 15, 1969. The appellant also admits that the dispute mentioned in paragraphs 10 and 11 of the petition are covered by the arbitration clause contained in the formal documents September 15, 1969. The order directing the arbitration agreement to be filed is a judicial order. The appellant does not take any exception to the filing of the said Arbitration Agreement. The order directing the reference of the disputes to Arbitrator is ad-ministerial order and cannot be appealed against. Mr. Gupta relied on clause (IV) to sub-section 1 of section 39 of the Arbitration Act. Mr. Gupta also relied in support of his contention on AIR 1961 SC 1985. Sub-section 1 of section 39 of the Arbitration Act, lays down that an appeal shall be under the said Act only from the order passed under the said Act as set out in different clause of the said sub-section. Mr. Gupta also relied in support of his contention on AIR 1961 SC 1985. Sub-section 1 of section 39 of the Arbitration Act, lays down that an appeal shall be under the said Act only from the order passed under the said Act as set out in different clause of the said sub-section. "Filing or refusing to file an arbitration agreement" as mentioned in clause (IV) to the said sub-section of section 39 of the Act is such an order. Right of appeal can only be conferred by a statute or statutory provision. Except as provided for in section 39 there is no right of appeal of a litigant against any order passed under the Arbitration Act. The general right of appeal conferred upon a litigant by clause 15 of the letter patent has been contained by the provision of section 39 of Arbitration Act, which is special statute relating to arbitration between parties to an arbitration agreement. Reference in this connection may be made to in (2) Wright v. Governor General, 52 CWN 224. In M/s. Dhanraimal Gobindram v. M/s. Shanji Kalidas & Company. The Supreme Court had the section to consider the construe sub-section (IV) of section 39 of the Act. The Supreme Court observed that". The powers and duties of the Court in sub-section (iv) of section 20 are of two distinct Kinds. The first is the judicial function to consider whether the arbitration agreement should be filed in the Court or not, that may involve dealing with objections to the existence and validity of the agreement itself. Once that is done, and the Court has decided that the agreement must be filed, the first part of its powers and duties is ever. It is significant that an appeal under section 39 his only against the decision on this part of sub-section (iv). Then follows a Ministerial Act of reference to arbitrator or arbitrators appointed by the parties." 16. Mr. Gupta relied on the aforesaid observations of the Supreme Court and submitted that in the instant case as the appellant does not object to the filing of the arbitration agreement, its objection is restricted only to the reference of the dispute mentioned in the paragraphs 7 and 8 of the petition. From the order referring the disputes to arbitration which is ministerial act as laid down by the Supreme Court, no appeal has. 17. From the order referring the disputes to arbitration which is ministerial act as laid down by the Supreme Court, no appeal has. 17. The controvercy, it should be noted here, in the above mentioned case of Govindram v. Shamji Kalidas & Company (Supra), in regard to section 20 of the Arbitration Act contred round the question whether under sub-section (iv) of section 20 of the said Act, the Court could order the filing of an arbitration agreement and refer the matter to the person who had been empowered by the parties in the agreement to appoint arbitrator or arbitrators or umpire. The Supreme Court in considering in the said case as to whether the arbitration agreement should be filed in the circumstances mentioned hereinabove pointed out that the court before directing the filing of the arbitration agreement under section 20 of the Act had to consider many objections to the filing put forward by the parties opposing the filing of the agreement. By way of illustration, the Supreme Court mentioned that such objection might be put forward in regard to, inter alia, the existence and validity of the parent agreement. The Supreme Court did not in the said case lay down that the question of existence or validity of the parent agreement or the arbitration agreements was the only objection that could be decided before an arbitration agreement could be directed to be filed. Such objection might be also in my opinion, on the ground that one or more of the disputes sought to be referred was not covered by the arbitration agreement between the parties. 18. The Indian Arbitration Act, 1940 contemplates three classes of references to arbitration. Chapter II of the Act deals with arbitration without the intervention of the Court. Chapter III deals with arbitration with the intervention of the Court where the reference is ordered by the Court in terms of the arbitration agreement between the parties where no suit is pending. Chapter III also deals with arbitration in a suit where the court refers the matters in dispute in a suit to arbitration. Reference to arbitration without the intervention of the Court is made where the parties to an arbitration agreement refer the matters in dispute between them covered by the arbitration agreement to the named arbitrator. Chapter III also deals with arbitration in a suit where the court refers the matters in dispute in a suit to arbitration. Reference to arbitration without the intervention of the Court is made where the parties to an arbitration agreement refer the matters in dispute between them covered by the arbitration agreement to the named arbitrator. Arbitration with the intervention of the Court is under Chapter III of the Act where the Court under section 20 of the Act directs an arbitration agreement between the parties to be filed on the application made by a party to the agreement and refers the matter in dispute covered by the agreement to the arbitration named in the agreement or where no such arbitrator is appointed by the parties either by the arbitration agreement or otherwise such an arbitrator is appointed by the Court to whom the matter in dispute are referred. Arbitration in the suit is made whereby agreement between the parties, the Court refers the subject-matter involved in the suit to the arbitrator appointed by the parties to the suit for adjudication. The pre-conditions for making an application for filing of an arbitration agreement is set out in sub-section 1 of section 20 of the Act. The said pre-conditions are: (1) Parties to an arbitration agreement must enter into the said agreement before the institution of any suit with regard to the subject-matter of the agreement or any part of it, (2) A dispute or difference must have arisen to which the agreement applies. Then only a party to the agreement may apply to the court without proceeding under Chapter II for filing arbitration agreement and referring the disputes that were covered by the agreement to arbitration under section 20 of the Act. Clause (iv) to sub-section 1 of section 39 of the Act should be, read, it appears, with sub-section 1 of section 20. In a case where an arbitration agreement is filed, even though some of the disputes are not covered by the arbitration agreement and they are referred to the arbitrator named in the agreement, the order would be appeal-able, in my opinion. Filing of an arbitration agreement contemplated by Clause (iv) to sub-section 1 of section 39 must be filing in regard to a certain dispute and then referring the dispute to arbitration. Filing of an arbitration agreement contemplated by Clause (iv) to sub-section 1 of section 39 must be filing in regard to a certain dispute and then referring the dispute to arbitration. The order of filing is irrefrievably linked with the order or reference of the dispute to arbitration. It was the common case of the parties in Gabindram v. Shamji Kalidas (Supra), that disputes arose between the parties and the said disputes were covered by the arbitration agreement. The only act that was to be done by the Court in the back-ground of the facts of the said case was directing the agreement to be filed and then referring the dispute to the person empowered to appoint arbitrators. In the background of the said facts, the Supreme Court observed that the referring of the disputes to arbitrator was a ministerial act. It is not necessary however in the instant appeal to express any firm view on the question of appeal ability of the order under appeal and I refrain from doing so. 19. From the narration of events made hereinbefore, if appears that offer and counter offer that was made by the parties to one another ripended into a concluded contract when the respondent wrote the letter dated June 2, 1969 to the Sleeper Control Officer, S.E. Railway, Garden Reach. It is not necessary for the purpose of the instant appeal to decide whether the said contract was binding upon the appellant in view of the provisions of Article 299 of the Constitution of India. But it must be noted here that the said correspondence were addressed by the parties to each other in anticipation of execution of a formal agreement which came to be executed by the parties in the form of Instrument dated September 15, 1969. The parties all throughout acted on the faith of the assumption that the said formal agreement would be executed. It is true that the formal contract dated September 15, 1969 does not expressly make the said contract of retrospective effect. But, nevertheless, it cannot be denied that the parties had assumed that a formal contract would in due course executed. The appellant and the respondent carried on the negotiations by means of the letters and/or telegram mentioned hereinabove with that end in view. But, nevertheless, it cannot be denied that the parties had assumed that a formal contract would in due course executed. The appellant and the respondent carried on the negotiations by means of the letters and/or telegram mentioned hereinabove with that end in view. Indeed, the appellant had placed orders and the respondent had effected supplies of wooden sleepers with effect from June 7, 1969 in anticipation of entering into a formal agreement. It appears from the course of events that in the instant case, the parties had assumed that when the formal agreement would be executed, the same would apply retrospectively to the proceeding transactions culminating in the execution of the formal agreement. In the instant case, the term in my opinion, must be imported into the formal contract that it would apply retrospectively to all that had been done in anticipation of it. Reference in this connection may be made to (3) Trollope & Colls. Limited v. Atomic Power Constructions Limited, 1962 (3) All ER 1035 at page 1949. 20. Clause 15 of the said formal agreement appearing at page 53 to the following effect, to wif : "This is in pursuance of Railway Board's acceptance of the firm's revised offer dated 25.4.69 vide their Telegram No. 67/WSC/MSW/1/15(B) dated 29.5.69 and the Sleeper Control Officer, S.E. Rly.'s formal order placed on the firm vide No.1/68-69/MP/BNG/189 dated 7.6.69, connects, in any event, the documents mentioned in the said clause and make them integral part of the formal agreement. The documents mentioned in the said clause are connected with the formal agreement inasmuch as the same is expressly stated to be executed or entered into in pursuance of the said documents." 21. The Arbitration Clause in the formal agreement is of very wide import and covers any dispute which arises out of or in connection with the formal agreement. In the premises, the dispute mentioned in paragraphs 7 and 8 of the petition, that is to say, the claim for Central Sales Tax is in any event connected with the formal agreement and this covered by the Arbitration Clause contained in it, even, if the formal agreement was not of retrospective effect and did not cover the transactions that were entered into by the parties in anticipation of execution of the formal agreement. 22. 22. For the reasons stated above, it is not necessary for me to discuss in detail the cases of (4) Union of India v. A.L. Rallia Ram, AIR 1963 SC 1965, (5) Messrs Devecos Garments Factory & Anr. v. State of Rajasthan, AIR 1971 SC 1965 which lay down, in what circumstances a contract entered into by exchange of correspondence by and between party and an officer of the Union of India becomes binding upon the Union of India, not withstanding the fact that the provisions of Article 299 of the Constitution had not been complied with. In this connection, reference may be made in (6) Sachindra Nath Dutt v. The King, AIR 1952 Calcutta 423 and (7) Ramjidayawahla v. Invest Import, 70 CWN 199. The case of (8) Harichand Mancharam v. Gobind Luxman Gokhale reported in 50 IA 25 merely lays down that the execution of a formal agreement by the parties by itself does not prove that the previous negotiations between them did not amount to an agreement. 23. For the reasons stated hereinbefore, I am of the view that the dispute in regard to the claim for Sales Tax between the parties are covered by the Arbitration Clause contained in the formal agreement dated September 15, 1969. The appeal has no merit and is dismissed with cost. 24. The appellant applied for admission of additional evidence in the appeal. Admission of addition evidence in appeal is governed by Rule 27 of Order 41 of the Code of Civil Procedure. In the instant case, the Court of first instance did not refuse to admit any evidence which ought to have been admitted. In the premises, additional evidence may be allowed to be produced in the instant case only under clause (b) of Rule 27 of Order 41 that is to say, only if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. (Clause (b) sub-rule (i) of Rule 27 of Order 41). But it must be the Court that requires the evidence to be produced to enable it so pronounce judgment or for a substantial cause only. (Clause (b) sub-rule (i) of Rule 27 of Order 41). But it must be the Court that requires the evidence to be produced to enable it so pronounce judgment or for a substantial cause only. The true test therefore in my opinion, is for admitting additional evidence as to whether the Appellate Court is able to pronounce judgment on the evidence on record without taking into consideration the additional evidence sought to be adduced sec. (9) Arjun Singh v. Kartar Singh, AIR 1951 SC1 93. No point, in my opinion is required to be cleared up in the interest of justice by adducing additional evidence in the instant case nor we are unable to pronounce judgment in the absence of any additional evidence. There is also no substantial cause made out by any of the parties for producing additional evidence. For the reasons stated, I think that no ground has been made by the appellant for adducing additional evidence in the instant appeal. The application made by the appellant for admission of additional evidence is dismissed. All interim orders shall stand vacated. Certified for two Counsel. Masud, J. I agree.