Paryag Mahto v. Ram Janam Mahto — 1990 DIGILAW 130 (PAT)

JUDGMENT S.B. Sinha, J. This second appeal is directed against the judgment and decree dated 18.12.87 (decree signed on 4.1.88), passed by Sri Jugal Kishore Prasad, 6th Addl. District Judge, Palamau at Daltonganj in Title Appeal No. 29 of 1986, whereby and whereunder he has affirmed the judgment and decree dated 5.6.86 (decree signed on 136.86) passed by Sri Basudeo Sharan, 2nd Addl. Munsif, Daltonganj, in Title Suit No. 46 of 1985. 2. This appeal raises a question with regard to the interpretation of Section 16 (c) of the Specific Relief Act, 1963. The basic facts are not in dispute. Admittedly a deed of sale was executed on 13.1.82, by the plaintiff-appellant in favour of the defendant-respondent, whereby and whereunder the appellant transferred the suit land being survey plot no. 364, appertaining to khata no. 50, situate at village Sewai, P. S. Lesliganj, measuring 0.451/2 acres of lands for a total consideration of Rs. 2000/- On the said date, the defendant-respondent entered into an agreement to reconvey the said property to the plaintiff, in the event the plaintiff pays back the consideration amount of Rs. 2000/- to the defendant by 13.1.1986. In terms of the sale deed dated 13.1.82, the defendant came in possession. The plaintiff asserted that he tendered the aforesaid amount of Rs. 2000/- to the defendent on several occasions, but he refused to execute the sale deed in the name of the plaintiff in terms of the said agreement for sale. 4. The defendant did no. deny the agreement for sale entered into by and between the parties, but he alleged that he had made improvement worth Rs. 5000/- in respect of the suit land. The defendant further stated that the plaintiff had purchased some seeds from him on credit worth Rs. 3,200.35 paise and the said amount was also agreed by the plaintiff to be paid towards the consideration amount for the document of reconveyance. 5. The defendant was all along ready and willing to reconvey the aforementioned property to the plaintiff, if he paid the total sum of Rs. 10,200.35 paise. 6. Upon the aforementioned pleadings of the parties, tho learned trial court framed the following issues : "I. Is the suit as framed maintainable? 2. Has the plaintiff got cause of action for suit ? 3. What is the consideration amount of deed of agreement? 4. 10,200.35 paise. 6. Upon the aforementioned pleadings of the parties, tho learned trial court framed the following issues : "I. Is the suit as framed maintainable? 2. Has the plaintiff got cause of action for suit ? 3. What is the consideration amount of deed of agreement? 4. Is the plaintiff entitled to reconvey of the land in his favour? 5. To what other reliefs, is the plaintiff entitled ?". 7. The learned trial court in its judgment held that there was node-novo agreement by and between the plaintiff and the defendant, whereby the plaintiff agreed to pay the costs of the development and also the costs of the seeds, allegedly purchased by him from the defendant at the time of the execution of the deed of sale. 8. The learned trial court further held that as the plaintiff has not pleaded in his plaint that he was all along ready and willing to perform his part of the contract as is required under section 16 (c) of the Specific Relief Act 1963, he was not entitled to a decree for specific performance of contract. On appeal, the learned court of appeal below framed questions for consideration, in the following terms ; "(i) What is consideration amount for execution of the deed of reconveyance as agreed between the parties (ii) Whether the plaintiff-appellant is and always has been willing and ready to perform his part of the contract? 10. The learned court of appeal below decided the aforementioned question no. (1) in favour of the plaintiff. The learned court of appeal below, however, decided the second question against the plaintiff holding therein that he failed to make necessary averment in his plaint, the statutory requirement of Section 16 (c) of the Specific Relief Act, that he has all along been and still is ready and willing to perform his part of the contract. The learned court of appeal below appears to have relied upon on a decision of this Court in Nandial Sah v. Pawan Devi, 1979 B.L.J.R. 667, and A.I.R. 1986 Karnataka-l09, (Wrongly mentioned as 1988 Karnataka-109). 11. The learned court of appeal below appears to have relied upon on a decision of this Court in Nandial Sah v. Pawan Devi, 1979 B.L.J.R. 667, and A.I.R. 1986 Karnataka-l09, (Wrongly mentioned as 1988 Karnataka-109). 11. By an order dated 16.5.1989, a learned Single Judge of this Court framed the following substantial question of law for consideration in this appeal: "Even if there was no specific averment in the plaint that the appellant was ready and willing to perform his part of the contract but if the same could have been inferred from the surrounding circumstances and the evidence, whether the court below was required to take notice of that fact and could not have dismissed the suit on the ground of any averment made in the plaint". 12. Mr. A. K. Sinha, learned counsel appearing on behalf of the appellant did not dispute that in terms of section 16 (c) of the Specific Relief Act, 1963, the plaintiff is bound to plead and prove that he was all along ready and willing to perform his part of the contract, but according to the learned counsel the question of readiness and willingness on the part of a contracting party must be gathered from t4e facts and circumstances of each case and no rigid formula can be applied in relation thereto. 13. Learned counsel submitted that in various paragraphs of the plaint, the plaintiff categorically contended that he on a number of occasions tendered the aforementioned sum - of Rs. 2000/- to the defendant and requested him to execute the deed of sale in his favour in terms of the agreement dated 13.1.82. 14. Learned counsel further submitted that a substantial compliance of the aforementioned provision would serve the requirement of law. Learned counsel in this connection bas placed reliance on the following decisions. (i) 1986 P.L.J.R-431 (Nawal Kishore v. Kauleshwari Devi). (ii) (1987) 2 S. C. C. 555 (Ram Sarup Gupta v. Dishun Narain Inter College and others) and (iii) A.I.R. 1988 Gujrat.42 (Rajya Tulsibhai v. Benar Enterprise). 15. Mr. Learned counsel in this connection bas placed reliance on the following decisions. (i) 1986 P.L.J.R-431 (Nawal Kishore v. Kauleshwari Devi). (ii) (1987) 2 S. C. C. 555 (Ram Sarup Gupta v. Dishun Narain Inter College and others) and (iii) A.I.R. 1988 Gujrat.42 (Rajya Tulsibhai v. Benar Enterprise). 15. Mr. P. C. Roy, learned counsel appearing on behalf of the respondent, on the other band, submitted that a pleading of readiness and willingness on the part of the plaintiff as is required to be made under section 16 (C) of the Specific Relief Act and it is mandatory on the part of the plaintiff to plead and prove that he had all along been ready and willing to perform his part of the contract and in absence of such a pleading or proof, a suit for specific performance of contract cannot be decreed. The learned counsel in this connection has placed reliance on the following decisions: (i) 1969 (2) S. C. C. 539. Jouseph Varghese v. Joseph Aley and others). (ii) 1979 B.L.J.R.- 667 (Nandlal Sah v. Pawan Devi) and (iii) 1985 B.L.J.R. 578 (Ramswaroop Singh v. Bijoy Kumar Singh). 16. Section 16 (c) of the Specific Relief Act reads as follows: "Personal bars to relief: Specific performance of a contract cannot be enforced in favour of a person! (a) xxx xxx xxx (b) xxx xxx xxx (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of such has been prevented or waived by the defendant." 17. There cannot be any doubt whatsoever that the plaintiff is required to plead and prove that he had all along been and still is ready and willing to perform his part of the contract. The question whether the plaintiff has been able to prove that he had all along been ready and willing to perform his part of contract is essentially a question of fact and depends upon facts and circumstances of each case. As noticed hereinbefore, in this case the plaintiff sold the property in suit to the defendant by reason of a registered deed of sale by virtue of a deed of sale dated 13.1.82. As noticed hereinbefore, in this case the plaintiff sold the property in suit to the defendant by reason of a registered deed of sale by virtue of a deed of sale dated 13.1.82. On the aforementioned date, itself the parties entered into an agreement of reconveyance whereby and whereunder the defendant undertook to reconvey the said property in the event the plaintiff pays into the defendant the stipulated sum of 2000/- by 13.1.1986. 18. These basic facts have not been denied and disputed by the defendants. The defendant in his written statement had interalia contended that there was a de-novo agreement inasmuch as the plaintiff subsequently became ready to pay the costs of improvements allegedly made by the defendant on the land and also the price of the seeds which he had al1egedly purchased from the defendant. 19. Both the courts below have concurrently found that the defendant has not been able to prove any de novo contract and the original contract entered into by and between the parties on 13.1.1982 subsisted. As noticed hereinbefore even the defendant was ready to execute the deed of sale in favour of the plaintiff in terms of the said agreement dated 13. 1.1982, but he merely contended that the plaintiff was required to pay unto him a higher amount therefor. In these circumstances, the main question which arose for consideration was as to whether, there had been a subsequent variation in respect of an essential term in the agreement or not. 20. In such a situation, in my opinion, the plaintiff was required 'to fulfill his part of the contract only by tendering the amount in question to the defendant. In terms of the explanation appended to Section 16 (c) of the Specific Relief Act, it would appear that where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the Court. 21. The plaintiff is required to aver his readiness or willingness to perform the contract in terms of the aforementioned provisions. 22. 21. The plaintiff is required to aver his readiness or willingness to perform the contract in terms of the aforementioned provisions. 22. It is, therefore evident that the statutory requirement of averring and proving on the part of the plaintiff that he had performed or has always been ready and willing to perform the essential terms of the contract depends upon the contractual obligation of the parties and in a case where the obligation on the part of the plaintiff is merely to pay the amount, he is only required to make an averment with regard to his readiness and willingness to perform the contract according to its true construction. 23. In this connection, it may be mentioned that Forms 47 and 48 of Appendix A to the Civil Procedure Code provides for the manner in which the said readiness and willingness on the part of a person suing for specific performance of contract is required to plea. 24. Paragraph 3 of Form no. 47 of Appendix 'A' to C. P. C. reads as follows: "3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice". Paragraph 5 of Form no. 47 of Appendix; A to the C.P.C. reads as follows :- "5. The plaintiff is still ready and willing to pay the purchase money of the said property to the defendant". The ingredients of the pleadings as contained in Form Nos. 47 and 48 are mutually exclusive. In this view of the matter, if in a case where contractual obligation on the part of the plaintiff was only to pay the purchase money, an averment as stated in paragraph 5 of Form 48 appended to Appendix-A of the Civil Procedure Code sub-serves the purpose. 25. In this case, the lower court records are not available but Mr. Sinha has supplied a plain copy of the plaint, which also bears the signature of the learned counsel for the defendant in the court below. Mr. P. C. Roy, learned counsel on behalf of the respondent did not object to my looking into the aforementioned plain copy of the plaint. In fact Mr. P. C. Roy, has also supplied a copy of the plaint which bears the seal of the court. Mr. P. C. Roy, learned counsel on behalf of the respondent did not object to my looking into the aforementioned plain copy of the plaint. In fact Mr. P. C. Roy, has also supplied a copy of the plaint which bears the seal of the court. The plaintiff has made necessary averments in paragraph 2, 3, 4, 5 and 6 of the plaint Which read as follows ; "2. That as per registered agreement dated 13.1.82, the plaintiff offered the aforesaid amount of Rs. 2,000/- to the defendant several times, but the defendant put off to receive the amount of consideration on various false pleas. 3. That the plaintiff also served a registered notice, through Sri Ladley Hassan, Advocate, Daltonganj, dated 17.6.85, through which the plaintiff expressed and communicated his desire to offer Rs. 20001- and requested the defendant to receive the amount of the consideration, but inspite of receiving the amount of consideration and conveying the sale-deed, within 15 days from the receipt of the notice, the defendant did not do so and gave reply to the notice of the plaintiff through Sri Akhileshwar Pd., Advocate. The defendant mentioned all the contents false in his reply, stating falsely therein about improvement of the land, by spending Rs. 5000/- and purchase of agriculture seeds of Rs. 3200. 35 paise by the plaintiff, from the defendent and allegations about payment of the price of seeds are false, and - falsely also stated that there is due of 3,200-35 paise of the defendant to the plaintiff, all such statements in the reply of the defendant are false and purposive. No such seeds were taken nor the defendant has invested Rs. 5000/- over the improvement of the land and all the statements of such nature in the reply to the notice are false and incorrect. No amount is due against the plaintiff to the defendant. 4. That even thereafter the plaintiff allowed time to the defendant to receive the amount of consideration and come to the truth but the defendant has dishonest motive to create the situation so that the period stipulated in the deed of agreement may be expired so that the sale deed may become ineffective and right of the plaintiff be barred by time. 5. 5. That lastly on 24.11.85, the plaintiff requested the defendant to receive the amount of consideration, but the defendant did not take the same and referred, the plaintiff to the Civil Court. Hence the necessity for the suit. 6. That this year even after pleader's notice the defendant did not receive the consideration then the plaintiff brought the land in question in his Sir possession and transplanted paddy seedlings and now only thing for the plaintiff to file suit to enforce the deed of contract of agreement dated 13.1.85 for specific performance of the contract by the defendant because the plaintiff fulfilled his part of contract. " (underlining is mine) 27. From what has been stated hereinabove, there cannot be any doubt that the plaintiff has made the requisite pleadings that he was ready and willing to perform his part of the contract and/or he has already performed his part of the contract but he has not averted that he is still ready and willing to perfrom his part of the contract. As noticed there-in-before, it was necessary for the plaintiff to aver that he is ready to pay the requisite amount to the defendants. 28. In Nawal Kishore v. Kauleshwari Devi, 1986, P.L.J.R. 431, a learned Single Judge of this Court after taking into consideration Various decisions of the Supreme Court as also of this Court, including Nandlal Sah v. Pawan Devi, ( 1979 BBCJ 599 ); Jouseph Verghese v. Joseph Aleys (1969) 2 S.C.C. 539 ) and Preme Raj v. The D.L.F. Housing and Construction Pvt. Ltd. (A.I.R. 1968 Supreme Court 1355) and various other decisions came to the following conclusion ;- "The ratio of the decisions relied upon by both the parties, to my mind, is that there ought to be an averment of the plaintiff's willingness and readiness to perform his part of the contract. This may not be in the exact words used by the Legislature. The substance of it, however, must be there as required under section 16 of the Specific Relief Act. The surrounding circumstances must also indicate that the readiness and willingness continued from' the date of the contract till the hearing of the suit. It is true that the plaint can not be construed in the pedantic manner to non-suit the plaintiff." 29. The surrounding circumstances must also indicate that the readiness and willingness continued from' the date of the contract till the hearing of the suit. It is true that the plaint can not be construed in the pedantic manner to non-suit the plaintiff." 29. In Ram Sarup Gupta v. Bisbun Narain Inter College (987) 2 S.C.C. 555, the Supreme Court held as follows :- "It is well settled that the pleadings need not reproduce the exact words of expressions as contained in the statute, nor the question of law is required to be pleaded. The substance of the respondent's pleadings clearly informed that their case was that they had made constructions on the land acting upon the licence which substantially met the requirement of law." In that decision, the Supreme Court further laid down that the pleadings should be liberally construed and what is required to be seen is its substance. Reference in this connection may be made to Ramesh Chandra v. Chuni La), reported in A.I.R. 1971 S.C. 1238. 30. In Indira Kaue v. Sheo La) Kapoor, reported in 1988 S.C. 1074, the Supreme Court held as follows :- "Apparently therefore, the plaintiff had done everything in his power to perform his part of the contract by requiring the defendants to remain present at the sub-registry and by himself remaining present in the Sub-registry. The defendant did not remain present at the Registry as is evident from an appreciation of his evidence in the light of the averments contained in the written statement and, his own statement to the effect that he had never received any information to remain present on the 16th. This crucial aspect has been entirely overlooked by the trial court, the lower appellate court and the High Court, if the defendant was not willing to perform his part of the contract what more could the plaintiff have done? The Courts below have therefore, failed to apply themselves to this crucial aspect of the matter and have been carried away by the confusion created in the context of the extent of income of the plaintiff and his failure to produce the pass book. On the appreciation of evidence on record, no other view is possible. The Courts below have therefore, failed to apply themselves to this crucial aspect of the matter and have been carried away by the confusion created in the context of the extent of income of the plaintiff and his failure to produce the pass book. On the appreciation of evidence on record, no other view is possible. The finding recorded by the trial court is contrary to the records and is based on an entirely wrong view of law in disregard of the law declared by this Court in respect of the circumstances in which the adverse inference can be drawn. The finding is rendered also in total disregard of the circumstance that the defendant was never willing to perform his part of contract and had not cared to remain at Sub-registrar's office, notwithstanding the intimation given through the Advocate by a local telegram. The only conclusion which can be reasonably drawn is that the defendant wanted to defeat claim of the plaintiff and wanted to wriggle out of the obligation undertaken by him. Under the circumstances the finding recorded by the Courts below must unhesitatingly be set aside." 39. In Rajya Tulsibhai v. Benar Enterprises (A.I.R.) 1988 Gujrat-42), A. M. Ahmadi and N.B. Patel, JJ., after taking into consideration various decisions of the Supreme Court, including the cases reported in A.I.R. 1968 S.C. 1355: (1966) 2 S.C.J. 789: (1969) 2 S.C.C. 539 ) and A.I.R. 1982 All. 37, held that sufficient compliance of requirement of law will serve the purpose. The learned Judges proceeded to hold as follows:- "In two cases, Dhian Singh v. Tara Chand, A.I.R 1984 All 4 and Anwarul Haq v. Nizamuddin, A.I.R. 1984 All 36, Agrawal J. had an occasion to consider Whether omission on the part of the plaintiff to reproduce the phraseology of Section 16(c) does not insist upon a particular set of words to be used, the averment must in substance indicate, the continuous readiness and willingness on the part of the person suing to perform his part of the contract. This the learned Judge observed in suitable cases could be culled out from the totality of circumstances and the a allegations made in the plaint. This the learned Judge observed in suitable cases could be culled out from the totality of circumstances and the a allegations made in the plaint. If the, totality of circumstances and the allegation in the plaint disclose that the requirement of the statute are satisfied, the omission on the part of the plaintiff to adhere to the language or phraseology of the forms of the statute will be of no consequence. In other words, according to the learned Judge it is not imperative nor is it the requirement of the law that the plaintiff must employ the same language or phraseology referred to in the form and/ or the statute. We are in respectful agreement with the above view." 40. The proposition of law that a substantial compliance of the provisions of section 16(c) of the Act shall serve the requirement of Jaw is neither in doubt nor in dispute. The question, therefore, which arises for consideration is as to whether the plaintiff has fulfilled the requirement of law in this case or not. 41. In Nandlal Sab v. Pawan Devi, 1979 B.L.J.R. 667, the pleading was in the following term. “...... the plaintiff has ever been ready to perform his part of the contract..." It that case, it was held as past-participle has only been used, from the same the present or future readiness and willingness cannot be gathered. In that decision it was also held that the lacuna in the pleading could not have been saved by the plaintiff by adducing evidence. 42. In Jouseph Varghese v. Joseph Aley and Ors., 1969 (2) Supreme Court Cases, 539, the Supreme Court has held that in a suit for specific performance of contract the pleadings must conform to the requirement of Form 47 and 48 of the 1st Schedule of the Code of Civil Procedure. 43. In Ramswaroop Singh v. Vijay Komar Singh, 1985 B.L.J.R 578, there had been no. pleading of readiness and willingness on the part of the plaintiff and in that case, the Bench was considering as to whether a subsequent amendment in the plaint should be permitted or not. It was, therefore, held that the application for amendment of plaint should not be allowed. 44. pleading of readiness and willingness on the part of the plaintiff and in that case, the Bench was considering as to whether a subsequent amendment in the plaint should be permitted or not. It was, therefore, held that the application for amendment of plaint should not be allowed. 44. As noticed hereinbefore, the learned court of appeal below bas relied upon a judgment of Karnataka High Court, reported in A.I.R. 1986 Karnataka-109 (wrongly mentioned in the judgment as 1988 Karnataka 109). In that decision, it was held that section 16(c) of the Specific Relief Act is mandatory and imperative in nature and as such it was not sufficient to mention in the plaint the various circumstances showing the readiness and willingness of the plaintiff to perform his part of the contract without averring the readiness and willingness. 45. In Diwali Lal and On. v. Sardar Baldev Singh and others, reported in 1987 P.L.J.R. 37, a division Bench of this Court hold that in a suit for specific performance of contract, the plaintiff must aver that he has been and still is ready and willing to perform his part of the contract. 46. In Jawahar Lal Wadhwa and anr. V. Haripada Chakraberty, reported in A.I.R. 1989 S.C. 606. it was held that if despite repudiation of contract by the defendant the plaintiff intends to file a suit for specific performance of the contract, be has to show his readiness and willingness to perform his part of the contract. 47. In Abdul Kbader Rowtber T. P. K. Sorabai and others, reported in 1989 (4) S.C.C. 313 , the Supreme Court he'd as follows :- “10. As regards the second contention, namely, the question of specific performance, the High Court says: "Even by putting a liberal construction on the various statements contained in the plaint, it is difficult to hold that there has been even a faint attempt to make it or to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code, that the plaintiff had applied to the defendant specifically to perform the agreement and that he had been and is still ready and willing to specifically perform his part of the agreement... " "11. The High Court is, in our view, justified in coming to this conclusion. " "11. The High Court is, in our view, justified in coming to this conclusion. While it was the definite case of the plaintiff that the documents in question passed neither possession nor title from the plaintiff to the defendant and no consideration was paid thereunder, the trial court rejected that contention and accepted the contention of the defendant that possession and title passed under the documents and the stipulated consideration had been fully paid to the plaintiff. These finding were not challenged by the plaintiff is answer to the defendants' appeal in the High Court. His sole contention in defence of the impugned judgment was that the trial court rightly held that the plaintiff was entitled to a decree for specific performance of the covenant for re-conveyance. It is thus clear that this is a case where the plaintiff seeks specific performance of a contract stated to be evidenced by an allegedly sham document which did not come into effect. His plaint does not contain the requisite pleadings necessary to obtain a decree for specific performance. This equitable remedy recognised by the Specific Relief Act cannot be had on the basis of such pleadings and evidence. " 12. In Jouseph Varghese v. Joseph Aley, this Court stated: sec P. 543, Para 9) "This takes us to the decree passed by the High Court in respect of plaint Item No.1. This decree is purported to have been passed on the basis of the ad mission made by the defendant. It may be noted that the agreement pleaded by the defendant, is wholly different from that pleaded by the plaintiff. They do not refer to the same transaction. The plaintiff did not at any stage accept the agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff is said to have been entered into at the time of the execution of Ext. P-l whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit. The two are totally different agreements. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. The two are totally different agreements. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those picas. As observed by this Court in Prom Raj. v. D. L. F. Housing and Construction Society it is web settled that in a suit for specific performanoe the plaintiff should allege that he is ready a!1d willing to perform his part of the contract and in absence of such an allegation the suit is not maintainable." 48. In view of the aforementioned authoritative pronouncement of the Supreme Court, there is no doubt that the plaintiff is not only to aver his readiness and willingness to perform his part of the contract in the past but is also required to aver his readiness" and willingness in the present also. 49. Recently again in Gopinath Jaishan Joshi v. Prabhakar Mohanlal Kalwar, reported in 1990 (1) Current Civil Cases, page 262, the Supreme Court held that an amendment in the pleadings about readiness and willingness should be allowed in order to complete the cause of action for the suit. 50. In the premises aforementioned, it must be held that the plaintiff by not making any averment in the plaint that he is ready and willing to perform his part of the contract has disentitled himself from obtaining a decree for specific performance of the contract. 51. It may be incidentally mentioned that even such a plea is required to be made in an application under section 54 of the Arbitration Act. 51. It may be incidentally mentioned that even such a plea is required to be made in an application under section 54 of the Arbitration Act. Reference in this connection may be made to Kanpur Agra Transport Corporation v. United India Insurance Co. Ltd., reported in A.I.R. 1990 Calcutta-59. 52. In the result, there is no merit in this appeal, which is accordingly dismissed. However, regard being had to the facts and circumstances of the case, the parties are direct to bear their own costs.