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Official Liquidator, Nagpur Glass Works Ltd. Vs. (In Liquidation) V.D.P. Ogale and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai High Court
Decided On
Case NumberCompany Application Nos. 35 and 37 of 1969
Judge
Reported in(1971)73BOMLR333; [1971]41CompCas524(Bom); 1970MhLJ686
ActsCompanies Act, 1956 - Sections 48, 115, 235, 477, 477(5), 477(6), 478, 488, 534 and 543
AppellantOfficial Liquidator, Nagpur Glass Works Ltd.
Respondent(In Liquidation) V.D.P. Ogale and ors.
Appellant AdvocateB.A. Masodkar, Adv. for the official liquidator
Respondent AdvocateC.P. Kalele, ;Y.S. Athale, ;B.A. Wazalwar, ;Shanker Anand, ;V.H. Chati, ;V.R. Padhye and ;A.S. Bobde, Advs.
Excerpt:
company - order for examination - sections 48, 115, 235, 477, 478, 488 and 534 of companies act, 1956 - ex parte order passed for private examination of directors of company - company under winding up - order sought to be revoked - purpose of obtaining order of private examination under section 477 was solely for prosecution of misfeasance summons - order of examination vexatious - court has jurisdiction to vacate such order - applicants made out adequate ground for revoking order for examination - held, said order liable to be said aside. - - the word 'publicly' has been used in the chamber summons inadvertently and the description on the docket of the chamber summons as well as the averments in the statement dated 13th june, 1969, clearly indicate that what was sought was private.....nain, j.1. these are two applications for the renovation of the ex parte order dated 27th august 1969, for the examination of the directors of the nagpur glass works ltd. - a company under winding-up under the provisions of section 488 of the companies act, 1956. the said order was made by the learned company judge sitting in chambers at bombay.2. there is a controversy between the directors on the one hand and the official liquidator on the other as to whether the examination is a private examination under the provisions of section 477 or public examination under section 478 of the companies act. section 477 gives power to the court to summon persons suspected of having property or books or papers of the company or who are suspected to be indebted to the company or who are capable of.....
Judgment:

Nain, J.

1. These are two applications for the renovation of the ex parte order dated 27th August 1969, for the examination of the directors of the Nagpur Glass Works Ltd. - a company under winding-up under the provisions of section 488 of the Companies Act, 1956. The said order was made by the learned company judge sitting in chambers at Bombay.

2. There is a controversy between the directors on the one hand and the official liquidator on the other as to whether the examination is a private examination under the provisions of section 477 or public examination under section 478 of the Companies Act. Section 477 gives power to the court to summon persons suspected of having property or books or papers of the company or who are suspected to be indebted to the company or who are capable of giving information concerning the promotion, formation, trade, dealings, property, books or papers or affairs of the company. Section 477 provides for private examination of such person. Section 478 provides that, when the official liquidator makes a report to the court stating that in his opinion a fraud had been committed by any person in the promotion or formation of the company, or by any officer of the company in relation to the company since its formation, the court may, after considering the report, direct that that person or officer shall be publicly examined. While section 477 appears to be for the purpose of getting information about the indebtedness, property, books and papers of the company and other matters stated therein, section 478 contemplates ultimately a claim for damages for fraud. An order under section 478 cannot be made without a report of the official liquidator that in his opinion a fraud had been committed.

3. The controversy as to the nature of the examination ordered appears to have arisen out of the mistake committed by the official liquidator. On 14th June, 1969, he took out a chamber summons for an order of examination. This chamber summons is dated 14th June, 1969, and had been renumbered 37 of 1969 in the Nagpur Bench of the Bombay High Court. Relief (a) prayed for in the said summons is 'that the person mentioned in the schedule hereto be publicly examined as to the promotion, formation and conduct of the business of the company ...........'. In support of this, as is usual, the official liquidator prepared a statement for the benefit of the learned company judge. This statement is dated June 13, 1969. In the body of the report the official liquidator states, 'the official liquidator is therefore desirous of heaving the said directors and other officers examined under section 477 of the Companies Act .......' On the said summons, an order was made by the learned company judge on 27th August, 1969. It says, 'summons absolute. The notice for public examination should be returnable after four weeks ........' Pursuant to this order, a summons was issued to the directors. This summons is dated 8th October, 1969, and on the docket it bears the description 'summons to witness for examination under section 477'. In the body of the summons a also it states, 'whereas by an order of the court dated the 27th day of August, 1969, made herein it was ordered that you Shri .........., ex-director be examined under the provisions of section 477 touching the affairs of the company ........' On 29th January, 1970, respondents Nos. 1 and 14 made an application for revocation of the order dated 27th August, 1969. In the said application the order is described as having been made under section 477. On 20th December, 1969, the respondent No. 6 made a similar application for revocation. He has described the application to be for revocation of an order under section 477/4/8 of the Companies Act. On 20th February, 1970, the official Liquidator filed his reply to these two applications for revocations. In the said reply, it is stated that the official liquidator intended the proceeding to be for private examination and that it was only due to mistake that the word 'publicly' was put in the prayer clause of the chamber summons. He states that the application itself was under section 477 of the Companies Act, and that the said application was granted and that the examination that was sought was under that provisions and not under section 478. The official liquidator submitted that to docket would show that the provisions of section 477 were invoked and that it was never his intention to invoke the provisions of section 478. He also argues that the procedure required to be followed was under section 477 and not under section 478. He submits that the words 'publicly' was inadvertently used and that the examination should proceed only under section 477 and not under section 478 of the Companies Act.

4. It would appear to me that the official liquidator intended to obtain an order for private examination under the provisions of section 477 of the Companies Act. He follows the procedure prescribed for an order to that effect. The word 'publicly' has been used in the chamber summons inadvertently and the description on the docket of the chamber summons as well as the averments in the statement dated 13th June, 1969, clearly indicate that what was sought was private examination. The mistake on the part of the official liquidator in the chamber summons has correspondingly led to the mistake in the order of the court. I am, therefore, of the opinion that what was sought and what has been ordered is a private examination of the director under the provisions of section 477 and not a public examination under section 478 of the Companies Act.

5. The ground on which the revocation is sought is that the order sought to be revoked has been obtained mala fide and with an ulterior motive, that is with a view to elicit further information from the directors so as to prosecute a misfeasance summons previously taken out under the provisions of section 543 of the Companies Act. The contention is that the order has been obtained for the sole purpose of eliciting information for the better prosecution of a misfeasance summons. It is further contended that the said order has not been obtained for the effective prosecution of the winding-up but to facilitate the prosecution of the misfeasance summons. It is, therefore, for ulterior or collateral purpose and is otherwise vexatious and oppressive and, therefore, it ought to be revoked.

6. A few dates are material. The winding-up order was made on 16th February, 1962. Misfeasance summons under section 543 of the Companies Act was taken out on 15th February, 1967, that is on the last day of the limitation allowed by section 543 of the Companies Act. A chamber summons for an order for private examination was taken out on 14th June, 1969, supported by a statement dated 13th June, 1969, and the order itself was made on 27th August, 1969.

7. The question of fact that arises for consideration is whether the application for private examination was made solely for the purpose of enabling the official liquidator to prosecute the misfeasance summons under section 543 of the Companies Act or for the purposes of effective prosecution of the winding-up itself. In this connection, a reference to the reply filed by the official liquidator on February 20, 1970, to the application for revocation is necessary. The following passages appeal in the said reply :

'1. The examination under section 477 is meant for the through investigation of the proceedings so as to arrive at the correct liability or otherwise of the concerned parties.

2. The official liquidator has taken out the summons under section 477 after fully satisfying himself that it is in the interest of the company under liquidation to examine the respondents under that provisions. This will in fact aid the administration of justice and also the proceedings initiated under section 534 of the companies Act. It is submitted that such an examination is only with a view to find out as to whether the various charges of misfeasance and breach of trust could be supported or not. There is no question of any fishing enquiry as alleged under the provisions of section 477 or under section 478 since the examination contemplated under those provisions is a matter of investigation into the affairs of the company and acts of its officers.

3. The summons is neither oppressive nor vexation but has been issued in the interest of justice as well as in the interest of the company with a view to have further information to facilitate the progress of the misfeasance summons filed against the respondents.'

8. The applicants, for revocation, made an attempt at pointing out to me certain averments in the statement of the official liquidator, dated 13th June, 1969, in support of the chamber summons for an order of private examination. Mr. Masodkar on behalf of the official liquidator objected to the applications' referring to those averments and in support of his objection he drew my attention to the judgment of the Supreme Court in Satish Churn Law v. H. K. Ganguly. The Supreme Court observes that the rules framed by the Supreme Court for examination under section 477 do not contemplate any right of inspection of the statement of the official liquidator. Rule 243 contemplates an order ex parte and the scheme of the rule further emphasizes the fact that all these enquiries are intended to be confidential proceedings. The persons whose examination is sought to be held had therefore no right to inspect the statement made by the liquidator on which the order of the court proceeds. Further, rule 360 gives the right of inspection only in respect of the file of the proceedings of liquidation. The order passed by the court and the summons issued thereon under rule 243 may be regarded as forming part of the file of the proceedings of liquidation, but having regard to the nature of the statement made by the official liquidator on which the judge's order is passed, it is not part of the file of the proceedings of liquidation. The person summoned, even if he is an officer or director of the company, is, therefore, not entitled to inspection thereof relying upon rule 360.

9. Mr. Masodkar argued that if the nature of the statement is that it is a confidential document and the directors have no right to inspect it, they can never rely on the said statement. There appears to be substance in that argument. That however, does not take away the jurisdiction of the company judge to refer to the said statement. The statement is intended to enable the company judge to make an ex parte order on its basis. The order having been made on the basis of that statement, when an application for revocation is made the judge hearing the application for revocation must inevitably refer to the averments in the statement and find out on what averments the ex parte order was obtained and whether there are mis-statements or omissions and whether there is any adequate ground on which the order ought to be revoked. There appears to me to be nothing to prevent the court from referring to averments in the said statement and it is not so contended on behalf of the official liquidator.

10. The statement filed by the official liquidator contains the following passages :

1. The official liquidator is, therefore, desirous of having the said directors and other officers examined under section 477 of the companies Act with a view to eliciting further information from the said directors and other officers so that he could prosecute misfeasance summons filed by the official liquidator against the said directors and other officers in this hon'ble court; a list of points on which the auditors have found the directors and other officers guilty of misfeasance is given below.

2. The official liquidator has therefore taken out a summons for examination of the directors and other officers of the company. The official liquidator submits that it is absolutely essential that the said director and other officers are examined by this hon'ble court so that further information may be elicited from them with a view to prosecuting the misfeasance summons filed against them efficiently.'

11. On the basis of the averments made in the reply of the official liquidator and the statement filed by the official liquidator in support of the chamber summons for an order under section 477 of the Companies Act, I have no hesitation in coming to the conclusion that the purpose of obtaining the order of private examination under section 477 of the Companies Act was solely for the prosecution of the misfeasance summons.

12. The jurisdiction of the court to revoke an order for private examination is not disputed on behalf of the official liquidator. In fact, in the Supreme Court case, referred to above Satish Churn Law v. H. K. Ganguly it is observed that under rule 243 an application for an order for examination under section 477 may be made ex parte, and the company judge may, if the is satisfied that the interest of the company will be served by the examination of a person - be he an officer of the company or other person - make the order. The primary test for making the order is whether it is just and beneficial to the business of the company. But the power conferred by the section is very wide and the court must guard itself against being made an instrument of vexation or oppression. The order which is made ex parte is not final; it is always open to a person summoned to apply for vacation or modifying the order on the ground that it has been obtained without placing all the requisite materials before the court or by mis-statement of facts or on other adequate grounds, and the court has jurisdiction in proper cases, i.e. where it is satisfied that the order is vexatious, or oppressive, or where other adequate grounds exist, to discharge the same.

13. In the Supreme Court case referred to above the judgment of the Bench of the five judges was delivered by Shah J. A single judge sitting as a company judge in the Calcutta High Court had refused to revoke the ex parte order for private examination. On appeal, a Division Bench of the Calcutta High Court revoked the said order. Against the said order of revocation, the appeal in the Supreme Court was filed. There was in the Calcutta case no misfeasance summons pending. In the judgment, some English cases are referred to viz., In re North Australian Territory Co., In re Metropolitan Bank : Heiron's case and In re Marvel Hose Ltd. In the said judgment, their Lordships observed that the relevant provisions of the English Companies Act, 1862 (25 and 26 Vict., c. 89), the English Companies Act, 1929 (19 and 20 Geo V, c. 3) and the English Companies Act, 1948 (11 and 12 Geo. VI c. 88) on the question relating to examination of officers of the company or other persons are substantially the same as section 477 of the Indian Companies Act, 1956, and the principles laid down by the superior courts in England, which have been assimilated in the practice of company winding up by the court in India are useful in determining the nature of the proceeding. The said judgment proceeds to decides as follows :

'The jurisdiction to vacate or modify an ex parte order under rule 243 being granted the question which falls to be determined is whether the order passed by Mr. Justice Mitter was oppressive or vexatious or otherwise liable to be vacated or modified for adequate grounds. In our view, there is no ground for holding that the order is liable to be vacated or modified. It was never even suggested in the High Court that the order for examination was per se oppressive or vexatious. This is not a case in which the order is sought to facilitate the progress of an action filed by the official liquidator against the appellant, nor is there reason to hold that the order is sought in aid of some collateral purpose - a purpose other than effective progress of the winding-up in the interest of the company.'

14. In re Aruna Purshottam Sonawala and Colaba Land and Mills Co. Ltd., an application was made for revocation of an order made under section 477 of the Companies Act. My learned brother, Mr. Justice Tuljapurkar, held that the fact that a misfeasance summons is taken out against a person under section 543 of the Companies Act, 1956, which is pending, does not prevent private examination of such person under section 477 of the Act. An officer of a company can be summoned for examination irrespective of whether he had in his possession any property, books or papers of the company or not, whether he is indebted to the company or not, or whether or not the court deems him capable of giving information. An officer of a company, unless the contrary is established, must under section 477 of the Companies Act, 1956, be always deemed a person who will be in a position to furnish information, inter alia, about his conduct with regard to the management of the company and concerning its trade, dealings, property, books or affairs of the company. A person seeking to have the order passed under section 477 discharged nuts show that not only an action at the instances of the liquidator is pending against him but his private examination is sought solely for the purpose of facilitating the progress of that action against him or for the purpose of harassing him. Mere possibility that items or topics which are the subject-matter of the misfeasance summons under section 543 might crop up while the person is being examined under section 477 cannot be a ground for holding that a private examination will be oppressive or vexatious. A passage in the judgment reads as follows :

'In my view what must be shown by a person who is affected by the order directing his private examination is that not only an action at the instances of the liquidator is pending against him but that his private examination is sought solely for the purpose of facilitating the progress of that action against him or that his private examination was sought by the official liquidator either for harassing him or solely for the purpose of facilitating the progress of the misfeasance summons taken out against him.'

15. In my opinion, therefore, the order which is made ex parte is not final; it is always open to a person summoned to apply for vacating or modifying the order on the ground that it has been obtained without placing all the requisite materials before the court or by mis-statement of facts or on other adequate grounds, and the court has jurisdiction in proper cases, i.e. where it is satisfied that the order is vexatious, or oppressive, or where other adequate grounds exist, to discharge the same. This jurisdiction may be exercised where the order for examination is per se oppressive or vexatious, or where the order is sought to facilitate the progress of an action filed by the official liquidator against the applicants, or the order is sought in aid of some collateral purpose - a purpose other than effective progress of the winding-up in the interest of the company. Such action may be by way of a misfeasance summons. If the order has been obtained solely for the purpose of facilitating the progress of the misfeasance summons taken out against a director that will be an adequate ground on which the order ought to be revoked.

16. Mr. Masodkar, appearing on behalf of the official liquidator, contended that every summons taken out for private examination under section 477 or for public examination under section 478 of the Companies Act is for the effective prosecution of the winding-up. He contended that proceedings under section 543, that is, misfeasance proceedings, are in themselves for effective prosecution of the winding-up; the private or public examination promotes the winding-up as it results in the collection of assets or damages which are also part of the assets of the Company. He drew my attention to the provisions of section 477 sub-sections (5) and (6) and pointed out that, where after the examination of a director or an officer of the company, such director or officer admits that he is indebted to the company the court may order him to pay the admitted amount to the official liquidator. Sub-section (6) provides that, if such officer or director admits that he had in his possession any property belonging to the company, the court may order him to deliver to the provisional liquidator such property. Sub-section (7) directs that orders made under sub-sections (5) and (6) shall be executed in the same manner as decrees for the payment of money or for the delivery of property under the Code of Civil Procedure, 1908, respectively. Mr. Masodkar contended that, where the court finds as a result of an investigation under section 477 of the Companies Act that some such person is indebted to the company or holds the property of the company, the court will have no power to make an order of payment or restoration except in cases where the claim is admitted, For the non-admitted part of the claim for which a director or officer becomes liable, there is no provisions under section 477 for an effective order an ultimately the official liquidator will have to resort to the provisions of section 543 of the Companies Act. He pointed out that in section 478 there is no provisions for order of payment of damages assessed and resort must be had to the provisions of section 543 for making such order. He therefore argued that private or public examination is an aid to misfeasance summons and they are two stages of the same proceedings. He also argued that the private examination is intended to enable the official liquidator or judge whether there is a case under section 543 and if he come to the conclusion that there is no case under section 543 of the Companies Act, he may drop the proceedings. He further contended that, unless the proceedings for private examination are oppressive or vexatious or lead to harassment there can be no revocation.

17. The Supreme Court judgment in Satish Churn Law v. H. K. Gangly provides that an order under section 477 may be revoked where it has been obtained without placing all the requisite materials before the court or by mis-statement of facts, or where it is oppressive or vexatious or an other adequate grounds. Such adequate grounds may be that the order has been obtained to facilitate the progress of an action filed by the official liquidator against the director, or that it has been obtained in aid of some collateral purpose - a purpose other than effective progress of the company. It would appear from the judgment of the Supreme Court that if the order is sought or obtained to facilitate the progress of an action filed by the official liquidator against the director or officers, it is an adequate grounds for revocation. In my opinion, such an order would also be for a collateral purpose. Lord Justice Bowen had described the power under section 115 of the English Companies Act, 1862, which corresponds to section 477 of the Companies Act, 1956, as inquisitorial power in In re North Australian Territory Co., the use of such inquisitorial power to find materials for the misfeasance summons if the order is obtained solely for that purpose would be oppressive and vexatious and not for the purposes specified in such 477, that is, for discovery or laying hands on the property or assets of the company for the purpose of distribution and winding-up.

18. The second contention taken by Mr. Masodkar on behalf of the official liquidator is that, when the Supreme Court judgment states that when an order is sought to facilitate the progress of an action filed by the official liquidator against the directors, it may be a ground for revoking the order, the Supreme Court in referring to an independent action, that is, in India a suit filed by the official liquidator against director. A misfeasance summons was not within the contemplation of the Supreme Court and the observations of the Supreme Court do not apply to a misfeasance summons.

19. In this connection, it must be observed that in the Supreme Court case, there was no misfeasance summons pending in the Calcutta High Court. In the judgment, the Supreme Court had referred to three cases which I have set out hereinabove. In In re Metropolitan Bank : Heiron's case, a voluntary liquidator commenced an action for damages against a Mr. Heiron a director of the bank, for having made false representations to the bank concerning the position and credit of a customer whereby the bank lost some Pounds 3000, and for balances claimed from him. In this action, the liquidator applied for public examination of a director. It was held that the liquidator had already obtained from the defendant the answers to the interrogatories and thereafter further answers wish are refused and it was then that he came and sought to take advantage of the inquisitorial power conferred on him by the Companies Act. It was, therefore, held that, having subjected the defendant to searching interrogatories, the liquidator-plaintiff asked to interrogate him again, the plaintiff must be content with the answers be obtained. It is true that in this case there was an independent suit against a director. Similarly in the case of In re North Australian Territory Co. The liquidator filed with the leave of the court an action against another company for setting aside an agreement of purchase and obtained an order for affidavit of documents but the court declined to make an order for production of documents, or the examination of the company's secretary on interrogatories, on the ground that no defence having been filed, the discovery was premature in that stage of the action. The liquidator thereafter obtained an order for examination of the secretary before an examiner under section 115 of the Companies Act, 1862. In that examination, the secretary refused to answer a question relating to the matters in issue in the action. It was held that, as the liquidator had shown no reason for seeking the discovery except to assist him in the action, and so to evade the order of the court postponing discovery in the action, and for that reason, the witness was justified in refusing to answer the question. In this case also it would appear that there was in independent action by a suit. In the third case of In re Marvel Hose Ltd. an order which was regarded as premature and oppressive in the circumstances of the case was discharged by the court. In that case, the question of an independent action did not arise. These are the three cases referred to in the Supreme Court judgment on which is based the observation of their Lordships that 'this is not a case in which the order is sought to facilitate the progress of an action filed by the official liquidator against the appellant.'

20. It appears to me that there is no distinction between an independent action taken by the official liquidator against the directors for an order of payment of a debt or damages and a misfeasance summons taken out under section 543 of the Companies Act. Misfeasance proceedings are of the nature of a suit and are tried as such by virtue of section 141 of the Civil Procedure Code which provides that the procedure provided in the Civil Procedure Code in regard to suits shall be followed, so far as it can be made applicable in all proceeding in any court of civil jurisdiction. In the case of Kumarpuram Sheshadri Doraswamy v. Pestonjee Jamasjee Padshah it was held in respect of section 214 of the Indian Companies Act, 1882, which corresponded to section 235 of the Indian Companies Act, 1913, and now corresponds to section 543 of the Companies Act, 1956, that section 214 of the Indian Companies Act, 1882, gave no new rights but simply provided a summary mode of enforcing rights which must otherwise have been enforced by suit. The section authorises the recovery at the instance of the liquidator, creditor or a contributory of the company in liquidation first of moneys for which the defendant had become accountable to the company and, secondly, the pecuniary loss sustained by the company through the misfeasance or breach of duty of the defendant. In the later case of Vadilal Chatrabhuj Gandhi v. Thankorelal Chimanlal Munshaw another Division Bench of the Bombay High Court consisting of Chagla C.J. and Dixit J. held that proceeding under section 234 and 235 of the Companies Act, 1913, by way of misfeasance summons were very similar to proceeding in the nature of a suit and fall within the scope of the words 'in any suit or other legal proceedings' in section 141, Civil Procedure Code. It was consequently held that the procedure provided in the Code, in so far as it could be made applicable, should be applied to such proceedings and since there was nothing in section 235, Companies Act, which rendered the provisions of Order 23, rule 3, Civil Procedure Code, inapplicable to misfeasance proceedings, a compromise which was a fair and proper one should be given effect to by the court.

21. Mr. Bobbed, on behalf of the respondents Nos. 10, 11, and 13 contended that if, instead of being items in misfeasance summons, the same items had been contained in a plaint in a independent suit, it should not make any difference bookcases after all section 543 was a summary remedy and a suit in respect thereof was not barred. If an order for private examination in furtherance of such suit could be said to be for collateral purpose and not for the purpose of the winding-up, would not such order be for collateral purpose if the same charges were made in the misfeasance summons The collateral or ulterior purpose in obtaining an order for private examination may be achieved for a suit or for a misfeasance summons. As long as the purpose of the order was to collect material for misfeasance summons and not to achieve the specific purpose of section 477 it was a collateral or ulterior purpose. It makes no difference whether the material was being collected for a suit or for misfeasance summons. There appears to be considerable force in this argument and in that view, I am supported by the judgment of Mr. Justice Tuljapurkar in In re Aruna Purshottam Sonawala and Colaba Land and Mills Co. Ltd. Mr. justice Tuljapurkar observed :

'In my view, what must be shown by a person who is affected by the order directing his private examination is that not only an action at the instances of the liquidator is pending against him but that his private examination is sought solely for the purpose of facilitating the progress of that action against him or that his private examination is sought for the purpose of harassing him. In the present case no materials have been brought on record by the applicant to show that his private examination was sought by the official liquidator either for harassing him or solely for the purpose of facilitating the progress of the misfeasance summons taken out against him.'

22. It would appear from the above passage that Mr. Justice Tuljapurkar was equating an action to at the instance of the liquidator against the directors with the misfeasance summons taken out against them. In my opinion, there will be no difference where the order under section 477 has been obtained for the purpose of facilitating the progress of a misfeasance summons against the directors, instead of facilitating the progress of a suit against them.

23. In the result, I hold that the applicants have made out adequate ground for revoking the order dated 27th August, 1969, for private examination under the provisions of section 477 of the Companies Act, 1956. The said order is, therefore, hereby revoked and vacated.

24. In the circumstances of the case, there will be no order as to costs.


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