JUDGMENT Satish K. Agnihotri, J. Writ petition under Article 226/227 of the Constitution of India 1. Challenge in this petition is to the order dated 21.12.2009 (Annexure P/1) whereby the dealership of the petitioner-firm has been terminated on the ground that the petitioner has committed breach of Clause 42, 44, 55(G) alongwith Clause 10, 11, 12, 43 and 55(K). It is further prayed that consequently, the respondent No. 1 and 2 be directed to restore the suspended supply of Motor Spirit (for short 'the M.S.') and High Speed Diesel (for short 'the H.S.D.'). 2. The brief facts, in nutshell, as projected by the petitioner is that the proprietor namely Dr. Mukesh Kumar Agrawal (hereinafter referred to as 'the proprietor'), of the petitioner-firm namely Ayush Petrol Pump, is also a proprietor of a nursing home namely, Agrawal Nursing Home at Bhilai, and operates through other qualified staff for charity purposes. According to the petitioner, the role of proprietor in the said nursing home is only of a care taker for smooth functioning of the nursing home and no income is derived from the said nursing home. The petitioner-firm was appointed as dealer of the respondent No. 1 and 2-Corporation for sale of petroleum products including MS and HSD, w.e.f. 23.03.2005 (Annexure P/2). The petitioner was under an obligation to pay full price of delivery to be made on the supplies received at the depot effecting the sale of the products. Accordingly, the petitioner left several cheque books containing several signed cheque leaves with the depot of the Corporation in good faith anticipating that the Corporation authorities would fill in the correct amounts and dates on such cheque leaves against supplies to be made to the petitioner. On account of ill health of the father of the proprietor, the petitioner could not reconcile the account and his father died on 30.07.2009. The petitioner received a notice on 01.08.2009 (Annexure P/5) for payment of the amount to the tune of Rs. 26,33,033.94 immediately, followed by another notice dated 07.08.2009 (Annexure P/6) to pay a sum of Rs. 15,58,498.92 towards the principal amount and Rs. 30,000/-towards balance interest for the dishonored cheques. The petitioner immediately deposited a sum of Rs. 27,81,487.45 during the period from 03.08.2009 to 05.08.009. 26,33,033.94 immediately, followed by another notice dated 07.08.2009 (Annexure P/6) to pay a sum of Rs. 15,58,498.92 towards the principal amount and Rs. 30,000/-towards balance interest for the dishonored cheques. The petitioner immediately deposited a sum of Rs. 27,81,487.45 during the period from 03.08.2009 to 05.08.009. The petitioner submitted its reply on 25.08.2009 (Annexure P/7) stating the reasons for non-reconciling the account, however, made it clear that he had already submitted demand drafts against the returned cheques. After receipt of the entire amount alongwith interest, the respondent No. 1 and 2/Corporation decided to issue show cause notice to the petitioner on 25.08.2009 (Annexure P/8) for showing cause as to why necessary action may not be taken against the petitioner as deemed fit in terms of clauses 10, 11, 12, 42, 43, 55(g) and 55(k) of the Dealership Agreement dated 24.02.2005. The time to submit reply was 7 days from the date of receipt of the notice. The petitioner replied to the said notice on 27.8.2009 (Annexure P/9). Thereafter, the impugned order 21.12.2009 (Annexure P/1) was passed. Thus, this petition. 3. Shri Sanjay K. Agrawal, learned Counsel appearing for the petitioner with Shri Jitendra Pali, would submit that the petitioner had deposited the entire amount alongwith interest before issuance of the show cause notice for termination of the petitioner's dealership stating, inter-alia, that the dishonor of cheques had been taking place for a long time and the petitioner continued to lift the product from HPCL depot without taking corrective measures. Shri Agrawal would further submit that the account could not be reconciled due to prolonged illness of the father of the proprietor of the petitioner-firm, as well as for the reason that the petitioner was never informed before 01.08.2009. Shri Agrawal would next submit that Clause 55(g) of the dealership agreement clearly provides that if the dealer, for any reason makes default to make payment to the Corporation in full or his outstanding as appearing in the corporation books of account beyond 4 days of demand by the corporation, the corporation shall be at liberty to terminate the agreement. It is further provided that if there is any breach of any of the covenants and stipulation contained in the agreement, and fail to remedy such breach within four days of the receipt of a written notice from the corporation in that regard, the dealership would be terminated. It is further provided that if there is any breach of any of the covenants and stipulation contained in the agreement, and fail to remedy such breach within four days of the receipt of a written notice from the corporation in that regard, the dealership would be terminated. In the case on hand, the respondent No. 1 and 2/Corporatoin has not given any such notice to remedy any alleged breach of the clause of agreement within the stipulated period and even the show cause notice which was given after deposit of the entire amount also, does not disclose that if there was any breach, the dealer was under obligation to remedy the same within a period of four days of the receipt of written notice from the Corporation in that regard. Thus, the act of the respondent No. 1 and 2/Corporation is contrary to the provisions of the agreement, unreasonable, arbitrary and discriminatory. In the instant case, no such notice of four days as provided in Section 55A of the dealership agreement, was ever issued to the petitioner for remedying the alleged breach of Clauses 10, 11, 12, 42, 43, 555(J) and 55(K) 4. Shri Agrawal, in support of his contention would rely on Hindustan Petroleum Corporation Limited and Ors. v. Super Highway Services and Anr., handed down by the Supreme Court and a decision of this Court in Sai Service Station v. Indian Oil Corporation and Ors. and the latest decision of this Court in Mahamaya Service Centre v. Indian Oil Corporation Limited and Ors.. 5. Shri Agrawal would further contend that no cause of action has arisen under the provisions of Negotiable Instrument Act, 1881 (for short 'the act, 1881') as Section 138 of the Act, prescribes that to constitute an offence, six ingredients are required to be fulfilled to say that person who had drawn the cheques can be deemed to have committed an offence of the dishonor of cheques within the meaning of Section 138 of the Act, 1881. No notice or demand was issued for the payment of dishonor of cheques providing 15 days time as contemplated under Section 138 of the Act, 1881 and as such, the same is not available to the respondent No. 1 and 2/Corporation. 6. No notice or demand was issued for the payment of dishonor of cheques providing 15 days time as contemplated under Section 138 of the Act, 1881 and as such, the same is not available to the respondent No. 1 and 2/Corporation. 6. Per contra, Shri Koshy, learned Counsel appearing for the respondent No. 1 and 2/Corporation would submit that the impugned order was passed on the ground of violation of clauses Clause 42, 44, 55(G) along with Clause 10, 11, 12, 43 and 55(K) of the dealership agreement dated 24.02.2005 (Annexure P/3). Shri Koshy would further submits that this petition filed under Article 226 of the Constitution of India, is to enforce a civil liability arising out of breach of contract to pay the amount due to the respondent-Corporation and as such, the same is not maintainable, on the ground of availability of an alternative remedy in terms of arbitration agreement as per Clause 66 of the dealership agreement. The supplies were stopped by the respondent No. 1 and 2/Corporation, when it was found that there were financial irregularities on the part of the petitioner by not paying the dues. Thereafter, paying back the money does not absolve the petitioner from the wrong committed by it and the same amounts to violation of the dealership agreement. There is no public element involved in this case. It is a matter of breach of contract which can be agitated before the Civil Court of competent jurisdiction. An ad hoc dealer has been appointed in place of the petitioner. It is a case where the payment of post-dated cheques have been stopped by the petitioner. The petitioner was a habitual defaulter in making payment as the cheques were not dishonored once, but on several occasions. The petitioner was informed about the dishonor of cheques through telephonic communication. There is no mandatory requirement of issuance of the show cause notice before suspension of sales and supplies of MS/HSD as per the existing norms. Suspension was due to the outcome of non-transfer of funds to the respondent No. 1 and 2/Corporation. Shri Koshy would further submit that the petitioner has paid the balance amount after a much delay of demand. Accordingly, after ensuring full payment, the show cause notice was issued. 7. Having considered the rival submissions made by learned Counsel for the parties, the facts involved in the case on hand are indisputable. Shri Koshy would further submit that the petitioner has paid the balance amount after a much delay of demand. Accordingly, after ensuring full payment, the show cause notice was issued. 7. Having considered the rival submissions made by learned Counsel for the parties, the facts involved in the case on hand are indisputable. There is no dispute that the petitioner failed in honoring the cheques issued by him for supply of MS and HSD and failed to make regular payment for supply of MS and HSD. Thereafter, a notice was issued on 01.08.2009 and subsequently, the entire amount i.e. the principal sum with interest, as demanded, was paid before 25.08.2009. Thus, there is no dispute involved in the instant writ petition. 8. The relevant clauses of the dealership agreement viz. 10, 11, 12, 42, 43, 44, and Clause 55 reads as under: 10. The corporation will deliver its said products to the dealer at the rates therefore ruling on the date of delivery, the corporation will make delivery of products to the dealer against payment in cash or by demand draft. The corporation may, however, as its sole discretion agree to give such credit/cheque facilities as it deems fit to the dealer from time to time and for such period or periods as the corporation considers appropriate and may cancel or vary the same at any time without assigning any reason therefore and without giving any advance notice. In the event that the corporation shall agree to extend any such credit facility, the dealer shall settle all bills punctually within the period of credit allowed without any deduction whatsoever and without claiming to set off against the amount of such bills any amount admittedly due or alleged to be due by the corporation to the dealer. In the event of the amount of any bill or part thereof preferred by the corporation upon the dealer remaining unpaid for a period of four days. The corporation shall be at liberty to refuse supply any further product to the dealer and also to forthwith treat this agreement as being repudiated by the dealer. In the event of the amount of any bill or part thereof preferred by the corporation upon the dealer remaining unpaid for a period of four days. The corporation shall be at liberty to refuse supply any further product to the dealer and also to forthwith treat this agreement as being repudiated by the dealer. Sales tax, surcharges and other levies or charges, applicable from time to time, shall be extra, should there be any change in the incidence, rates, charge or levy of such taxes, surcharges and other levies or charges, on account of any change in the basis of levy or in the interpretation of law for any reason whatsoever, all such taxes, surcharges, levies or charges shall be payable by the dealer to the corporation in accordance with such changes from the date of such a change is in force and/or made effective on all sales of the products made hereunder, notwithstanding that such sales were made before the date of such change. In the event of the corporation has to supply the products to a dealer in another State, the corporation shall dispatch the products to the dealer with the corporation as the consignor and the dealer as consignee. The dealer shall issue necessary declarations as prescribed under the central sales tax act and the rules made thereunder to enable the corporation to charge concessional rate of tax in respect of such sales. 11. Notwithstanding that credit may be given for the payment of the price of the products. The corporation shall be entitled, without assigning any reason thereof, to resume and keep possession of the goods until payment. 12. In addition to any right of lien to which the corporation may by law or under this agreement be entitled, the corporation shall be entitled to have a first charge or lien on all goods of the dealer for the unpaid price of any goods sold and delivered to the dealer by the corporation under this agreement. 42. The dealer undertakes faithfully and promptly to carry out, observe and perform all directions or rules given or made from time to time by the corporation for the proper carrying on of the dealership of the corporation. 42. The dealer undertakes faithfully and promptly to carry out, observe and perform all directions or rules given or made from time to time by the corporation for the proper carrying on of the dealership of the corporation. The dealer shall scrupulously observe and comply with all laws, rules regulations and requisitions of the Central/State Government and of all authorities appointed by them by either of them including in particular the Chief Controller of Explosives, Government of India, and/or Municipal and/or, any other local authority with regard to the storage and sale of such petroleum products. 43. The dealer shall indemnify and save harmless, the corporation from all losses, damages, claims, suits or actions which may arise out of result from any injury to any person or property or from violations of any statutory enactments, rules and regulations or other written orders or other laws or caused by or resulting from non-observance by the dealer of the provisions of this agreement. 44. It shall be a paramount condition of the agreement that the dealer himself (if he be an individual) or both partners of the dealer firm (if the dealer is a partnership firm consisting of two partners only) by the majority of the partners of the dealer firm (if the dealer is a firm consisting of more than two partners) or the majority of the members of the dealer co-operative society (if the dealer is a co-operative society) as the case may be shall take active part in the management and running of the retail outlet and shall personally supervise the same and shall not under any circumstances do so through any other person, firm or body. 55. Notwithstanding anything to the contrary herein contained, the corporation shall be at liberty to terminate this agreement forthwith upon or at any time after the happening of any of the following, namely: (A) If the dealer shall commit a breach of any of the covenants and stipulation contained in the agreement, and fail to remedy such breach within four days of the receipt of a written notice from the corporation in that regard. (B) Upon (i) The death or a adjudication as insolvent of the dealer, if he be an individual; (ii) The dissolution of the partnership of the dealer's firm or the death of adjudication as insolvent of any partner of the firm, if the dealer be a firm; (iii) The liquidation, whether voluntary or otherwise or the passing of an effective resolution of the winding up, if the dealer be a company or co-operative society. (C) If any attachment is levied and continued to be levied for a period of seven days upon the effects of the dealer or any individual partner for the time being of the dealer's firm or any member of the dealer co-operative society. (D) If the dealer of any partner in the dealer's firm or any member of the co-operative society appointed as dealer hereunder shall be convicted of a criminal offence. (E) If a receiver shall be appointed of any property or assets of the dealer or of any partner in the dealer's firm or of any member of the dealer co- operative society. (F) The licence issued to the dealer by the relevant authorities for the storage of petroleum and other products supplied by the corporation is cancelled or revoked. (G) If the dealer shall for any reason make default in payment to the corporation in full or his outstanding as appearing in corporation books of account beyond 4 days of demand by the corporation. (H) If the dealer does not adhere to the instructions issued from time to time by the corporation in connection with safe practices to be followed by him in the supply/storage of the corporation's products or otherwise. (I) If the dealer shall contaminate or tamper with the quality of any of the products, supplied by the corporation. (J) If the dealer shall sell the product, supplied by the corporation at prices higher than those fixed by the corporation/statutory authority. (K) If the dealer shall either by himself or by his servants or agents commit or suffer to be committed any act which, in the opinion of the Chief/Senior Regional Manager/Regional Manager of the Corporation for the time being in whose decision shall be final, is prejudicial to the interest or good name of the corporation or its products the Chief/Senior Regional Manger/Regional Manager shall not be bound to give reason for such decision. (L) If any information given by the dealer in his application for appointment as a dealer shall be found to be untrue or incorrect in any material respect. The corporation's right to terminate this agreement under the terms or this clause shall be without prejudice to any of its other rights and remedies against the dealer. In the event of the corporation terminating this agreement under the provisions of this clause, it shall not be liable to pay for any loss or compensation in respect of such termination provided that the supply of any petroleum products by the corporation to the dealer, pending expiry of any notice of termination or after any, act, contravention or omission by the dealer entitling the corporation to terminate this agreement shall have become known to the corporation, shall not in any way prejudice or affect the right of the corporation to revoke and/or enforce the termination of this agreement and the licence granted hereunder. 9. In the show cause notice dated 25.08.2009 (Annexure P/8) the respondent No. 1 and 2/Corporation has stated the irregularities on the part of the petitioner by violating the terms and conditions of the dealership agreement, which reads as under: While you are expected to carry out the business to the satisfaction of the Corporation you have not been doing so far the past several months. We were quite surprised to note that the dishonour of your cheques have taken place for a quite long period and neither you have intimated Corporation nor you have taken any corrective action at your end. Above all, you continued to lift product from Mandir Hasaud Depot without paying for earlier supplies and without taking corrective action. It is regretted to note that you have never brought to our knowledge of your own about above series of dishonor of cheques. You have not taken any corrective action of your own and to pay for the outstanding amount. You kept lifting product from our depots without bothering to pay for the earlier supplies. Even though local cheque facility was extended to you for depositing the same at Bhilai COD, you have deliberately given the outstation cheques at Mandir Hasaud while the same facility was never extended to you. 10. The petitioner, within a period of two days, responded to the said notice explaining his conduct. Even though local cheque facility was extended to you for depositing the same at Bhilai COD, you have deliberately given the outstation cheques at Mandir Hasaud while the same facility was never extended to you. 10. The petitioner, within a period of two days, responded to the said notice explaining his conduct. The same reads as under: Sir as advised we have cleared the MS/HSD and Lubes account as of date and there are no dues pending from our side. In addition above we have also deposited additional amount of Rs. 1,25,000/- in our MS/HSD account. I also beg to state that the amount of Rs. 8071008.07, including interest was deposited by us as soon corporation advised us regarding dishonored instruments I would like to state that I am sole proprietor of M/s. Ayush Petrol Pump and from its inception the sale of MS/HSD and lubes are on continued to grow day by day. Due to my fathers prolonged illness, I am not able to reconcile my Bank Account and I am totally unaware of any dishonoring of instruments presented to HPCL from M/s. Ayush Petrol Pump till date the corporation informed about above matter. Sir we did not have any intent of not honoring payment which was due from us to HPCL, and we will be always loyal to HPCL in future also and it can also be reflected from the fact that we had immediately paid all outstanding amount including the interest to the corporation as soon it was advised by the HPCL and immediately hereafter we are reconciling our all the accounts with HPCL and without our Bankers and all the due care is taken that no such incident will occur in future. The details of the outstanding payment made to the HPCL is given below: SN CHQ NO CHQ DATE AMOUNT DD NO. The details of the outstanding payment made to the HPCL is given below: SN CHQ NO CHQ DATE AMOUNT DD NO. DD DATE AMOUNT 1 615738 26/08/2008 445447.42 739870 05/08/09 445447.42 2 615741 27/08/2008 460216.25 739871 05/08/09 460216.25 3 615742 30/08/2008 491162.76 739877 08/08/09 491162.76 4 615743 01/09/2008 445447.42 739869 05/08/09 445447.42 5 615744 02/09/2008 610268.68 739872 08/08/09 610269.00 6 419552 04/05/2009 393437.50 739851 30/07/09 393437.5 7 419555 05/05/2009 414295.95 739852 30/07/09 414295.95 8 419563 16/05/2009 421248.77 739853 30/07/09 421248.77 9 419564 18/05/2009 421248.77 739854 30/07/09 421248.77 10 419569 20/05/2009 107590.00 739855 31/07/09 107590 11 419592 22/06/2009 403108.95 739856 30/07/09 403108.95 12 421006 04/07/2009 457067.92 739889 17/08/09 457068.00 13 421015 15/07/2009 484268.11 739868 04/08/09 484268.11 14 421016 17/07/2009 484268.11 739859 31/07/09 484268.11 15 421019 20/07/2009 946108.25 739866 04/08/09 946108.25 16 421025 28/07/2009 484268.11 739862 31/07/09 484480.16 739867 04/08/09 115451 17/08/09 2600 TOTAL 7469452.97 TOTAL 7472265.42 598742.65 Interest 8071008.0 TOTAL 7 We have also received letter from corporation regarding receiving of all the outstanding payment along with interest which was due from us on account of dishonored instruments. Besides above payment we had also paid additional Rs. 1,25,000 as informed by sales officer. From above it was very clear that we do not have any wrong intention towards not paying our dues and we are always remain loyal with the corporation. If we came to know about dishonoring of the instruments at the earlier we definitely taken the corrective action itself and no such instances would happened. Honestly it only happened because I am totally unaware of the dishonoring of the instruments paid to the HPCL at Mandir Hasaud since my bank did not informed about the same nor I have received any earlier intimation fro supply Depot. Regarding submitting the Outstation Cheque at Mandir Hasaud I would like to state that from several months COD operator was refused to accepts the instruments from us towards MS/HSD load although we had given the facility for submitting the Local Cheques with Bhilai COD, the matter was well informed to the corporation. Due to non acceptance of Cheques at Bhilai COD we have not left out no other option to deposit the Cheques at Supply Depot at Mandir Hasaud for uplifting the MS/HSD load. Since the Depot has accepted the instruments, we thought the facility of Cheque deposition at Mandir Hasaud may have extended to us. 11. Due to non acceptance of Cheques at Bhilai COD we have not left out no other option to deposit the Cheques at Supply Depot at Mandir Hasaud for uplifting the MS/HSD load. Since the Depot has accepted the instruments, we thought the facility of Cheque deposition at Mandir Hasaud may have extended to us. 11. In show cause notice, except mention of the clauses, no details with regard to specific breaches under other clauses have been mentioned and as such, there was no opportunity available to the petitioner to respond to the same. 12. Clause 55(G) is a non obstante clause. The respondent No. 1 and 2/Corporation has liberty to terminate the agreement on happening of certain processes. In case of Clause 55(G), there is a provision to make a demand and if the payment is not made within four days, the Corporation may terminate the agreement immediately. Clause 55(K) provides that if there is any breach in the opinion of the Chief/Senior Regional Manager/Regional Manager, the decision of the Corporation shall be final. 13. The respondent No. 1 and 2/Corporation could have taken a decision when the first cheque was dishonored after demanding the amount and in the event of non-payment within a period of four days. The respondent No. 1 and 2/Corporatoin has not taken any steps till all the payments have been made. Thus, it cannot be held that the officers of respondent No. 1 and 2/Corporation have exercised their power under the provisions of the agreement in accordance with its letter and spirits. Thus, it may safely be held that the decision of the respondent No. 1 and 2/Corporation was not in exercise of its power under Clause 55(G) of the dealership agreement. The order appears to be arbitrary and unreasonable. 14. In Kisan Sahkari Chini Mills Limited and Ors. v. Vardan Linkers and Ors., relied on by the respondent No. 1 and 2/Corporation, the Supreme Court has held that in exercise of a writ jurisdiction, if the High Court finds that the exercise of power in passing an order was not arbitrary and unreasonable, it should normally desist from giving any finding on disputed or complicated question of fact as to whether there was a contract, and relegate the petitioner to the remedy of a civil suit. In the case on hand, there is no dispute with regard to the existence of an agreement in dispute or complicated question of facts. The facts are admitted and the impugned order was passed not in accordance with the agreement, but the same was passed in an unreasonable and arbitrary manner. Thus, this Court has jurisdiction to entertain the dispute even if there is a provision for reference of dispute to the Arbitrator under agreement clause No. 66. 15. With regard to the contention of the respondents that the disputed had arising out of a contract is noticed to be rejected on a simple ground that the IOCL has been held as an organ or instrumentality of the State as contemplated under the provisions of Article 12 of the Constitution of India. (See Mahabir Auto Stores and Ors. v. Indian Oil Corporation and Ors.). Thus, the arbitrariness, discrimination and unreasonableness exercised on the part of respondent No. 1 and 2/Corporation can be examined by this Court under the writ jurisdiction. 16. The Supreme Court, in Hindustan Petroleum Corporation Limited and Ors. (supra), while considering termination of dealership observed as under: 31. The cancellation of dealership agreement of a party is a serious business and cannot be taken lightly. In order to justify the action taken to terminate such an agreement, the authority concerned has to act fairly and in complete adherence to the rules/guidelines framed for the said purpose. The non-service of notice to the aggrieved person before the termination of his dealership agreement also offends the well-established principle that no person should be condemned unheard. It was the duty of the petitioner to ensure that Respondent No. 1 was given a hearing or at least serious attempts were made to serve him with notice of the proceedings before terminating his agreement. 33. The guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. 17. In the case on hand, the respondent No. 1 and 2/Corporation has failed to exercise its power in accordance with the provisions of Clause 55(G) or (K) of the dealership agreement as the power could have been exercised immediately after notice, if on demand of notice, payment was not made. Here, payment with interest was made and thereafter, the show cause notice was issued. So far as other grounds in respect of cause of action under the provisions of the Act, 1881 is concerned, it is not necessary to go into the cause of action arising under the provisions of the Act, 1881 as the said issue is not in question in this petition. It is a case of acquiescence and implied waiver of rights on the part of the respondent No. 1 and 2/Corporation. 18. As regards allotment of the dealership to other person on ad hoc basis is concerned, the allotment has not been made on permanent basis. The allotment was simply an ad hoc arrangement which does not confer any right on the ad hoc allottee. 19. For the reasons stated hereinabove, the impugned order dated 21.12.2009 (Annexure P/1) is quashed. However, it is made clear that it is open to the respondent No. 1 and 2/Corporation to take appropriate action, if there is any breach of agreement, in accordance with the provisions of the agreement, rules and guidelines, if so advised, in future. 20. Accordingly, the writ petition is allowed. No order as to costs.