YATINDRA SINGH, J. ( 1 ) IS the decision of a party to an arbitration contract about non- arbitrability of a dispute (excepted matters under the contract) final between the parties? At what stage, can objections regarding non-arbitrability of a dispute be taken? These are some of the interesting questions involved in this case. ( 2 ) NORTHERN Eastern Railway, Gorakhpur (the Railways) was constructing bridge over Kosi river. They entered into contract on 3rd November 1981 with M/s Madnani Construction Corporation (Pvt) Limited (the contractor) for constructing bridge island no. 13 and 14. There were special conditions in the contract (the SCC) and it states that General Conditions of Contract and standard specification of the Northern Eastern Railways (the GCC) shall form a part of this contract. This construction was to be completed by 15th February 1982. After completion, some payments were made to the contractor but were received by him under protest. The contractor served a notice dated 16. 11. 1983 for appointment of an arbitrator to settle the dispute. The General Manager of the Railways (the GM) rejected it on 24th March 1986 on the ground that the dispute was non-arbitrable as it fell under excepted matters of the contract. ( 3 ) THE contractor filed an application on 18th August 1987 under section 20 of the Arbitration Act 1940 (the Act) for appointment of an arbitrator. This application was transferred on 21st February 1990 to the court of JSCC/additional civil Judge (the court below ). The court passed an order on 2. 3. 1990 that File received, put up on the date fixed. Subsequently the court appointed one Sri BN Shukla, Advocate as an arbitrator on 31. 5. 1991. The Railways filed an FAFO no. 534 of 1991 (the earlier FAFO) against this order. It was dismissed on 27. 8. 1991. The arbitrator gave his award on 13. 4. 1992 holding that the Railways should pay an amount of Rs. 4,48,873. 22 alongwith compoundable bank interest prevalent at that time from 16. 11. 1983 to 21. 3. 1992. ( 4 ) THE contractor filed an application on 8. 5. 1992 under section 17 of the Act for pronouncing judgment and making decree according to the award. The Railways filed application under section 30 read with section 33 (Section 30/33) of the Act before the Civil Judge on 20th May 1992 for setting aside the award. 3. 1992. ( 4 ) THE contractor filed an application on 8. 5. 1992 under section 17 of the Act for pronouncing judgment and making decree according to the award. The Railways filed application under section 30 read with section 33 (Section 30/33) of the Act before the Civil Judge on 20th May 1992 for setting aside the award. They also filed objections on 24th August 1992 against the application filed by the contractor under section 17 of the Act. The Railways filed an application before the District Judge for transfer of the application filed by the contractor under section 20 of the Act under section 24 of Civil Procedure Code. It was dismissed on 13th November 1992. The Railways filed an application on 23rd November 1992 before the court below for summoning their application under section 30/33 of the Act from the court where it was filed. This was objected to by the Contractor on the same date. However, the court below summoned it and not only rejected it but also rejected their objections against the application under section 17 of the Act. The Court below by its order dated 1. 12. 1992 also pronounced judgment according to the award and decreed interest at the rate given by the Bank from the date of the award till actual payment. ( 5 ) WE have heard counsels for the parties. Following points arise for determination: (I) Whether the court below had jurisdiction to decide the case? (ii) Whether application of the Railways under section 30/33 of the Act and their objections against the application of the Contractor u/s 17 of the Act were rightly rejected? (iii) Whether the decision of the General Manager dated 24. 3. 1986?rejecting request for appointment of Arbitrator on the ground that dispute fell under excepted matters?is final between the parties? (iv) Whether the Railways is entitled to raise objections regarding excepted matters (non-arbitrability of the dispute) at the stage of application under section 20 of the Act? (v) Whether the dispute relates to excepted matters under the contract and was non-arbitrable? (vi) Whether the terms of the contract prohibit payment of interest and no interest could be awarded? (vii) Whether the court had jurisdiction to award interest from the date of the award? (v) Whether the dispute relates to excepted matters under the contract and was non-arbitrable? (vi) Whether the terms of the contract prohibit payment of interest and no interest could be awarded? (vii) Whether the court had jurisdiction to award interest from the date of the award? ( 6 ) THE counsels for the Railways submitted that the court below was the court of Small Causes Court and had no jurisdiction to decide the application under section 17 of the Act. They also referred to section 2 (c), 14 (2), 20, 21 and 40 of the Act in support of their submission. ( 7 ) THE word court has been defined under section 2 (c) of the Act (See Appendix-I ). It means Civil Court that has jurisdiction to decide the questions forming subject matter of the reference in case the same was subject matter of a suit. The subject matter of the reference was cognisable by the Court of Civil Judge and not by the Small Causes Court. In view of the same only Civil Judge had jurisdiction to entertain application for appointment of arbitrator and award should have been filed in his court; Small Causes Court had no jurisdiction in the matter. ( 8 ) THE Court below is court of Additional Civil Judge; this court is also Ex- Officio Court of Small Causes: it has dual functions. As an Additional Civil Judge, the court below was entitled to entertain the suit forming subject matter of reference. The application by the contractor under section 20 of the Act for appointment of Arbitrator was transferred to his court. It was registered and was allowed. This order has been upheld by our High Court. The award on the application u/s 17 of the Act has been filed before the same court that had appointed the arbitrator. In these circumstances it can not be said that the Court below had no jurisdiction. The award can not be set aside on this ground. This point is decided against the Railways. ( 9 ) THE Court below has rejected the application of the Railways under section 30/33 and the objections against application u/s 17 of the Act on the following grounds: (I) Application under section 30/33 of the Act has been filed in a different court and can not be looked into. (ii) The objections are beyond time. ( 9 ) THE Court below has rejected the application of the Railways under section 30/33 and the objections against application u/s 17 of the Act on the following grounds: (I) Application under section 30/33 of the Act has been filed in a different court and can not be looked into. (ii) The objections are beyond time. (iii) The objections are not properly stamped. None of the grounds are tenable. ( 10 ) THE application under section 30/33 of the Act has to be filed within 30 days of the notice of the award. The Railways had filed their application under section 30/33 of the Act on 20. 5. 1992. According to the court below the limitation of filing the same was till 23. 5. 1992. The application under section 30/33 was filed within this time. It was summoned by the court below. It should have been considered. In case the court was of the view that it was filed in the wrong court, then reasonable time should have been given to get the cases connected so that they may be decided by the same court. The court below ought not to have rejected it. ( 11 ) THE objections of the Railways were of similar nature as their application under section 30/33 of the Act. This application was filed within time but in different court. One of them was sufficient for the purposes of the case. We have already held that the court below ought to, have given time to get the cases connected or decided the application on merit. In these circumstances, the Railways were vigilant; there was sufficient cause to condone the delay: it ought to have been condoned. ( 12 ) IN case objections were not properly stamped then the court below ought to have given time to the Railways to properly stamp it, but ought not to have rejected it on this ground. There is nothing on the record to show that any time was granted to remove the defect. ( 13 ) THE court below has wrongly decided this point. However, it is not necessary to remand the case as the court below has framed issues on merit also and has recorded its findings thereon. There is nothing on the record to show that any time was granted to remove the defect. ( 13 ) THE court below has wrongly decided this point. However, it is not necessary to remand the case as the court below has framed issues on merit also and has recorded its findings thereon. ( 14 ) COUNSEL for the Railways referred to clause 62 of the GCC and submitted that the dispute relates to excepted matters and the decision on the dispute by the General Manager dated 24. 3. 1986 was final between the parties. He has cited following decisions to support his submission. (I) Yellru Mohan Reddy Vs. Rastriya; Ispathnigam Ltd, Vishakhapatnam; AIR 1992 Andhra Pradesh 81 (the Yellru case ). (ii) Vishwanath Sood Vs. Union of India; AIR 1989 Supreme Court 952. (the Vishwanath case ). (iii) Unreported Single Judge decision in Rahedshyam Kedia Vs. Union of India and others in Civil Misc. Arbitration Application No. 7 of 1997 decided on 22. 2. 1999 (the Radheyshyam case ). ( 15 ) IN the Yellru case, clause 16 (I) of the contract provided for matters which were excepted matters. Clause 16 (2) (a) provided for settlement of those disputes by an arbitrator that were not excepted matters. The question in this case was whether the dispute was excepted matter or not. The Andhra Pradesh High Court (paragraph 25) held: The dispute whether the work is new or not included in the contract as contended by the contractor or whether it is already included in the contract as contended by the Engineer is not a question covered by Clause 11. 3 and therefore the matter is not an excepted matter under clause 16. 1. it is therefore a matter in regard to which any decision or certificate of the Engineer could be treated as not binding. The court on this finding allowed the application of the contractor and appointed an arbitrator to decide the dispute. This case does not support the Railways but on the contrary is against them. ( 16 ) IN the Vishwanath case clause 2 of the contract provided compensation for delay in carrying out the work and compensation was required to be determined by the Superintendent Engineer in accordance with it. Clause 25 of the contract provided for settlement of those disputes by an arbitrator which were not already provided for under the contract. ( 16 ) IN the Vishwanath case clause 2 of the contract provided compensation for delay in carrying out the work and compensation was required to be determined by the Superintendent Engineer in accordance with it. Clause 25 of the contract provided for settlement of those disputes by an arbitrator which were not already provided for under the contract. The arbitrator had awarded compensation to the department for delay in execution of the work. The question was whether the arbitrator could do so. There was no dispute that the arbitrator had given award for delay in executing the work; a matter for which provision was there under the contract. It is in this light that the Supreme Court held that Compensation for delay could be determined by the Superintendent Engineer under clause 2 and the claim was non-arbitrable under clause 25 of the contract. ( 17 ) IN the Radheshyam case, contract between the parties was similar to the contract as in the present case and it was held: z The decision of the General Manager was final and binding on the contractor. z It was not open for the court to review the matter for deciding whether the said view was correct or not. z The decision of the Railways that the dispute was covered by excepted matters could not be interfered with. This case supports the submission of the counsels for the Railways. ( 18 ) THE counsels for the Railways relied upon the Radheshyam case and submitted that once the GM held that the dispute related to excepted matters, then his decision was final even if it was wrong. According to them, the GM by wrongly deciding the question on excepted matters could exclude the jurisdiction of the court as well as of the arbitrator. ( 19 ) HERE there is no clause in the contract that if there was difference of opinion between the parties regarding any dispute being excepted matter or not then what would happen. In case there was a clause that in such event the difference of opinion would be referred to the GM and his decision would be final, then the case would have been different. In that event the decision of the GM would have been final and beyond the reach of the court. The counsels of the Railways could not point any such clause in the contract. In that event the decision of the GM would have been final and beyond the reach of the court. The counsels of the Railways could not point any such clause in the contract. In the present case there is difference of opinion between the parties whether the dispute falls under excepted matters or not and the decision of the GM regarding excepted matter is not final between the parties. The GM by wrongly deciding this question can not exclude the jurisdiction of the court. In our opinion the Rahedshyam case is wrongly decided and is overruled. ( 20 ) THE Railways had refused to refer the dispute on the ground that it related to excepted matters and was non-arbitrable. The Contractor thereafter filed an application under section 20 of the Act for appointment of an arbitrator. This was objected by the Railways, among the others, on the ground that it was excepted matters. The Court had also framed issue No. 1 regarding this. The court below by its order dated 31. 5. 1991 did not decide whether the dispute fell under excepted matters or not, but left it to be decided by the arbitrator and appointed Sri BN Shukla, Advocate as an arbitrator. ( 21 ) THE Railways had filed the earlier FAFO challenging the reference on the ground that the dispute was non-arbitrable. It was further claimed that in any case if an arbitrator was to be appointed then the matter ought to have been referred to the GM and an advocate could not be appointed as an arbitrator. ( 22 ) THE High court rejected the contention of the Railways regarding appointment of an Advocate as an arbitrator on the ground that the GM had already expressed his view and there was considerable delay. However, the court did not say a word whether the dispute fell under excepted matters or not. The High Court merely affirmed the order passed by the trial court. This only means that the question, whether dispute related to excepted matters or not, was left to be decided by the Arbitrator. He in his award held that none of the claims of the Contractor were excepted matters and he was entitled to adjudicate upon the same. The High Court merely affirmed the order passed by the trial court. This only means that the question, whether dispute related to excepted matters or not, was left to be decided by the Arbitrator. He in his award held that none of the claims of the Contractor were excepted matters and he was entitled to adjudicate upon the same. ( 23 ) THE Supreme Court in General Manager Northern Railways vs. Sarvesh Chopra; (2002) 4 SCC 45 (the Sarvvesh Chopra case) summed up the law (paragraph 17) as follows: To sum up, our conclusions are (I) while deciding a petition under section 20 of the Arbitration Act, 1940, the court is obliged to examine, whether a difference which is sought to be referred to arbitration, is one to which the arbitration agreement applies. If it is a matter expected from the arbitration agreement, the court shall be justified in withholding the reference, (ii) to be an excepted matter, it is not necessary that departmental or an "in-house" remedy for settlement of claim must be provided by the contract. Merely for the absence of provisin for in-house settlement of the claim, the claim does not cease to be an expected matter, and (iii) an issue as to arbitrabiliy of claim is available for determination at all the three stages- while making reference to arbitration, in the course of arbitral proceeings and while making the award a rule of the court (Italics mine) ( 24 ) IN this case the Railways have raised objections at the time when application under section 17 of the Act (for pronouncing judgment on the basis of award) was filed by the Contractor. However as this question was not decided in the earlier litigation, it can not be said that the Railways are precluded from raising this question in these proceedings. They can raise this objection as is clear from observations in the Sarvesh case. ( 25 ) THE relevant part of the award is Appendix-II to this judgment. The arbitrator has allowed item nos. 1 to 3, 5 to 8, 9 (a), 9 (d), 10 (ii) and 11 (b ). Item no. 10 (ii) relates to interest and will be dealt while deciding point no. 6. Lets consider whether remaining items are excepted matters under the contract or not. ( 26 ) CLAUSE nos. The arbitrator has allowed item nos. 1 to 3, 5 to 8, 9 (a), 9 (d), 10 (ii) and 11 (b ). Item no. 10 (ii) relates to interest and will be dealt while deciding point no. 6. Lets consider whether remaining items are excepted matters under the contract or not. ( 26 ) CLAUSE nos. 62 and 63 of the GCC (Appendix-III) state that excepted matters can not be referred to arbitration. Clause no. 62 explains as to which disputes are excepted matters. It refers to many clauses but according to the counsels for the Railways, these items fall under two clauses 22 (5) and 45 (a) of the GCC (Appendix-III ). ( 27 ) CLAUSE 22 (5) of the GCC merely refers to ambiguity in the meaning and intent of, any drawing and specification, or execution or quality of work or material, or measurements of the works. ( 28 ) CLAUSE 21 of the SCC (See Appendix -IV) states how measurements are to be taken. Clause 45 (a) of the GCC refers to dispute regarding measurements. This clause states that in case there is any dispute regarding measurements, then objection should be filed within seven days by the contractor and it would be re- considered. Clause 45 (b) of the GCC states the consequences of the same. ( 29 ) ITEM nos. 1 and 2 relate to claim regarding penetration of the Ballies. This difference has arisen due to different measurements claimed by the contractor. This is clear from the documents examined by the Arbitrator as mentioned in his award. According to the contractor, item no. 1 and 2 have been awarded as the depth of the penetration of Ballies was not recorded i. e. a dispute regarding measurements. This dispute clearly fell under clause 45 (a) and was excepted matter. ( 30 ) ITEM no. 3 and 5 to 8 are related to Item Nos. 1 and 2 and arise due to them. If there was no difference in measurement for Item nos. 1 and 2 then there could not be claim for Item nos. 3 and 5 to 8. This was so explained to us by the counsels for the Contractor and the Engineer who was present in the court on behalf of the Contractor. If there was no difference in measurement for Item nos. 1 and 2 then there could not be claim for Item nos. 3 and 5 to 8. This was so explained to us by the counsels for the Contractor and the Engineer who was present in the court on behalf of the Contractor. In view of this, these items also relate to measurements and fall under excepted matters under clause 45 (a) of the GCC. The claims in item nos. 1 to 3 and 5 to 8 were non-arbitrable. ( 31 ) ITEM No. 9 (a) relates to supply of Boats. Item No. 9 (d) is related to item no. 9 (a ). Item No. 11 (b) relates to cost of wastage of labour. These items are not related to measurements. They are not covered by Clause 22 (5) or 45 (a) of the GCC. The counsel for the Railways could not point out any clause of the contract under which these could be covered. In view of this they are not excepted matters and were arbitrable. ( 32 ) THE Supreme Court in Associated Engineering Company Vs. Govt. of AP; { air 1992 SC 232 (paragraphs 28, 29)} held that; An umpire or arbitrator can not widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract. He can not say that he does not care what the contract says. He is bound by it. It must bear his decision. He can not travel outside its bounds. If he exceeded his jurisdiction by so doing, his award would be liable to be set aside. ( 33 ) ITEM nos. 1 to 3 and 5 to 8 were excepted matters and were non-arbitrable. The Arbitrator committed an illegality in allowing them. The award on these items is illegal and no decree can be passed on their basis. ( 34 ) THE question whether the Arbitrator could award interests or not was subject matter of debate. It has been answered by the two different constitution benches of the Supreme Court. In the first case (Secretary, Irrigation Department, Government of Orissa Vs. The award on these items is illegal and no decree can be passed on their basis. ( 34 ) THE question whether the Arbitrator could award interests or not was subject matter of debate. It has been answered by the two different constitution benches of the Supreme Court. In the first case (Secretary, Irrigation Department, Government of Orissa Vs. GC Roy; AIR 1992 SC 732 ) the court held that, Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principle amount or independently) is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes ? or refer the dispute as to interest as such ? to the arbitrator, he shall have the power to award interest. ( 35 ) IN the subsequent case (Executive Engineer DMI Division Vs. NC budhraj; AIR 2001 SC 628) the court by majority held that: For all the reasons stated above, we answer the reference by holding that the arbitrator appointed with or without the intervention of the Court, has jurisdiction to award interest, on the sums found due and payable, for the pre-reference period, in the absence of any specific stipulation or prohibition in the contract to claim or grant any such interest. ( 36 ) IN short, an arbitrator can award interest for a period prior to reference and during pendency of the arbitration proceeding unless it is prohibited under the agreement. These decisions specifically overruled the earlier decision reported in Ex-Engg, Irrigation vs. Abhaduta Jena; AIR 1988 SC 1520 . These two decisions are relevant for the rest of the country but not necessary so far as our State is concerned in view of state amendment conceding similar powers to the arbitrator. ( 37 ) SECTION 3 (See Appendix-I) of the Act states that unless different intention is expressed the items mentioned in schedule 1 of the Act are implied in an arbitration agreement. This schedule did not include any item related to interest. ( 37 ) SECTION 3 (See Appendix-I) of the Act states that unless different intention is expressed the items mentioned in schedule 1 of the Act are implied in an arbitration agreement. This schedule did not include any item related to interest. It has been amended in our State and paragraph 7-A (See Appendix-I) has been inserted by UP Civil Laws (Reforms and Amendment) Act (Act no. 57 of 1976) with effect from 11. 19. 1977. It is clear from paragraph 7-A to the Schedule 1 of the Act that in case award is for payment of money then arbitrator may award interest for following period: (I) up to the date of commencement of the arbitration. (ii) from the date of commencement of arbitration proceedings {as defined in section 37 (3) of the Act} till the date of award. (iii) from the date of the award till the date of payment or any earlier date. There is no ceiling to the rate of interest for the first two period though it has to be reasonable, but there is ceiling of 6% per annum on the rate of interest for the third period namely from the date of award till the date of payment or any earlier date. ( 38 ) ITEMS mentioned in schedule I to the Act are impliedly included in an arbitration agreement but in view of section 3 of the Act they are subject to any specific terms of the contract. In view of section 3 and para 7-A of Schedule I of the Act, interest can be awarded by an arbitrator only if it is not prohibited by the contract. ( 39 ) CLAUSE 16 (1) (Appendix III) of the GCC provides for earnest money and security deposit. Clause 16 (2) of the GCC is as follows: 16 (2) No interest will be payable upon the earnest money or the security deposit or amounts payable to the contractor under the contract but government securities deposited in terms of such clause (1) of this Clause will be repayable with interest accrued thereto. This clause prohibits payment of interest on amounts payable to the Contractor under the contract except the government securities mentioned therein. Here the payment of interest is not on government securities but on the amount alleged to be payable to the contractor under the contract. This clause prohibits payment of interest on amounts payable to the Contractor under the contract except the government securities mentioned therein. Here the payment of interest is not on government securities but on the amount alleged to be payable to the contractor under the contract. ( 40 ) CLAUSE 30 of the SCC (Appendix - IV) is similar to Clause 52 of the GCC. These clauses bar interest and damages in respect of withholding or retention under the lien. To our mind, clause 16 (2) read with fifth paragraph clause 30 of the SCC and clause 52 of the GCC bar the payment of interest to the contractor. The Supreme Court decisions refereed earlier (paragraph 34 and 35 of this judgment) and Para 7-A of Schedule 1 of the Act apply only in case if the contract does not prohibit payment of interest. We have already held that contract prohibits payment of interest: the Arbitrator committed illegality in awarding interest. ( 41 ) THE counsels for the contractor submitted that the Contractor is entitled to interest under clause 19 of the SCC (see Appendix-IV ). This clause does not give any such right to the contractor. This clause merely provides that the Railways are entitled to interest under the circumstances mentioned in that clause but does not give similar rights to the contractor. We are afraid that payment of interest to the contractor can not inferred from this clause. ( 42 ) COUNSELS for the Contractor submitted that the Contractor is entitled to interest on the basis of the Interest Act 1978. The Interest Act applies to the Tribunal as well as to the Arbitrator. Section 3 of the interest Act states that interest could be awarded, but sub-section 3 (a) (ii) clarifies that this can not be done in relation to any debt or damages in case payment of interest is barred by express agreement. We have already held that interest can not be paid as it is expressly barred under the contract: no interest could be paid under the Interest act also. ( 43 ) THE arbitrator has awarded interest under item no. 10 of clause 1 of the award. He has further awarded interest from 16. 11. 1983 to 31. 3. 1992 on the claim awarded under clause 3 of the award. This is illegal. ( 43 ) THE arbitrator has awarded interest under item no. 10 of clause 1 of the award. He has further awarded interest from 16. 11. 1983 to 31. 3. 1992 on the claim awarded under clause 3 of the award. This is illegal. ( 44 ) THE Court below has awarded interest at the rate of interest given by the Bank from the date of the award till the date of payment. Payment of interest by the court has been dealt under section 29 of the Act (See Appendix-I) This section clearly states that the court could award interest from the date of decree at such rate as the court deems reasonable. The Court below has awarded interest, which is given by the Bank. This has been ordered as the court thought it to be reasonable. There is no illegality in awarding this rate of interest but this could be awarded from the date of the decree and not from the date of award. The order granting interest from the date of award is illegal. ( 45 ) OUR conclusions are as follows; (A) The court below had jurisdiction to entertain the application under section 17 of the Act. (b) The application of the Railways under section 30/33 of the Act and their objections against application under section 17 were wrongly rejected but the case is not being remanded as the court below has also decided on merits. (c) The decision of the GM?holding that the dispute relates to excepted matter?is not final and can be reviewed by the court. (d) The question whether the claim related to excepted matters or not was not decided in the previous round of litigation and was left to be decided by the Arbitrator. It can be considered in the present proceedings. (e) Item nos. 1 to 3 and 5 to 8 of Clause 1 of the award dated 13. 4. 1992 relate to excepted matters and were non-arbitrable: no decree can be passed on their basis. (f) The contract prohibited payment of interest. Item 10 is award for interest; it could not be awarded. Similarly no interest could be awarded under clause 3 of the Award. (g) There is no illegality in awarding interest payable at the bank rate, but it could only be awarded from the date of decree and not from the date of award. Item 10 is award for interest; it could not be awarded. Similarly no interest could be awarded under clause 3 of the Award. (g) There is no illegality in awarding interest payable at the bank rate, but it could only be awarded from the date of decree and not from the date of award. ( 46 ) IN view of our conclusions this FAFO is partly allowed. Let the decree be made only in respect of item no. 9 (a) (Rs 7,657), 9 (d) (Rs 47,553. 07) and item nos. 11 (b) (Rs 10,800) of clause 2 of the award (Total Rs. 65990. 07 ). The Contractor will also be entitled to interest at the Bank rate on this amount (as awarded by the Court below) from the date of decree i. e. 1. 12. 1992 till actual payment. As the appeal is partly allowed, the parties will bear their cost throughout.