High Court of Punjab and HaryanaCR/239/2012disposed of

Punjab State Industrial Develop. Corpor. Limited v. M/S Bhatinda Cotton Traders

2017-10-27The Chief Justice31 pages

"#$: 27.10.2017 Punjab State Industrial Development Corporation Ltd. .....Petitioner versus M/s Bhatinda Cotton Traders .....Respondent %& '(% ))*+ , ) Present :

Mr. Chetan Mittal, Senior Advocate with Mr. Vikas Mohan Gupta, Advocate, and Mr. Udit Garg, Advocate, for the petitioner.

Mr. Ashok Aggarwal, Senior Advocate with Mr. Sanjeev Sharma, Senior Advocate with Mr. Mukul Aggarwal, Advocate and Mr. Shekhar Verma, Advocate, for the respondent.

**** )*+ , ) This is a civil revision petition to quash an order dated 12.11.2011 passed by the learned trial Court, Barnala dismissing the petitioner's application under section 8 of the Arbitration and Conciliation Act, 1996 (for short 'the 1996 Act') in Civil Suit No. 137 of 2010 filed by the respondent.

The suit was filed for a declaration that the decisions taken by the petitioner vide its letter dated 30.06.2007 and 16/17.11.2007 are illegal and violative of the contractual terms finally settled between the parties under the "One Time Settlement Scheme" (OTS) of the year 2003 as modified by the OTS of the year 2004. The respondent also sought

enforcement of the agreement between the parties under the OTS Schemes which required the petitioner to transfer the shares of Abhishek Industries Ltd. in Unit?III on a pro?rata basis against the payment already made by the respondent together with interest and to transfer the remaining shares as per the terms of the OTS without the petitioner being entitled to charge any interest on the payment of the amounts due after 30.06.2007. The respondent sought a mandatory injunction directing the petitioner to transfer the remaining shares of Abhishek Industries Ltd. to the respondent at 16.27 per shares calculated on the basis of the terms of the OTS and after adjusting the amounts already paid together with interest w.e.f. 30.06.2007 and after adjusting the damages suffered by the respondent due to non? transfer of shares according to the terms of the OTS. The respondents also sought a declaration that a notification dated 06.02.2009 is not applicable between the parties as it does not have retrospective effect. 3.

The petitioner filed the application under section 8 of the 1996 Act for referring the disputes to arbitration in accordance with the arbitration agreement contained in a "Financial Collaboration Agreement" (FCA) entered into between the parties. The learned Judge rejected the application on the ground that although the FCA contains an arbitration agreement, the same was abandoned under a fresh agreement arrived at between the parties under the OTS.

I will refer to the facts relevant to the application under section 8.

An agreement dated 29.03.1996 was entered into between the petitioner and one Rajinder Gupta in which the respondent was referred to as

the 'Corporation' and Rajinder Gupta was referred to as the 'collaborator'. It is not necessary to refer to the agreement in any detail as it stood superseded by an agreement dated 09.11.2001 and in particular clause 35 thereof which I will set out shortly. Suffice it to note only a few provisions with a view to understanding the circumstances leading to the 09.11.2001 agreement. Clause?1 stated that the collaborator had incorporated M/s Abhishek Spinfab Corporation Ltd. Clause?2 stated that the terms of the agreement, as far as possible, would be reflected and incorporated in the Memorandum and Articles of Association of the Company. Clause?

5 provided that the respondent would invest in the equity capital of the company on 'proportionately matching basis' only after the project had been financed by the Central/State Government and after the collaborator had contributed at least half of its share of equity. Clauses 6 required the petitioner, the collaborator and a foreign collaborator to hold 26 percent, 34.54 percent and 4 percent of the equity shares of the company. The balance 35.46 percent shares were to be held by the public. Clause 21 prohibited the petitioner and the collaborator from selling their shares for a stipulated period without the written consent of the others. Clause 22 contained detailed provisions regarding the petitioner and the respondents' rights and obligations in connection with the buy back of the petitioner's shares by the respondents.

Clauses 32 and 33 contained an arbitration agreement. 6.

Thereafter an agreement dated 09.11.2001 was entered into between the petitioner referred to therein as the 'Corporation' on the one hand and the said Rajinder Gupta, M/s Trident Infotech Corporation Ltd. and Trident Udyog Ltd. thereinafter referred to as the 'first, second and third

collaborators' respectively on the other. The three collaborators were collectively referred to in the agreement as the "collaborators". Recital?C stated that in terms of the said agreement dated 29.03.1996, the respondent had invested an amount of 14.56 crores by subscribing to the equity share capital of the said company Abhishek Spinfab Corporation Ltd. (referred to therein as the ASCL). Recital?D stated that ASCL commenced production on 01.01.1998. Recital?G stated that ASCL had merged in Abhishek Industries Ltd. (therein referred to as 'AIL') and the scheme of merger and amalgamation was approved by this Court whereby 17 shares of AIL had been exchanged for every 27 shares of ASCL. Recital H reads as under:? ".

The COLLABORATORS had approached the CORPORATION for support in getting through the Scheme of Amalgamation of ASCL with AIL and for that they had agreed to enter into suitable arrangement to ensure that the shareholding of the CORPORATION allotted to it in amalgamated AIL in exchange for the shares of the CORPORATION in ASCL is purchased by them as envisaged in the Agreement dated 29th March, 1996 irrespective of the fact that ASCL has ceased to exist on its merger with AIL." 7.

Under clause?3, the respondent and the collaborators and their associates were to subscribe 29.63% and 48.98% of the equity shares of AIL. The public and others were to subscribe to the remaining 21.39% of the equity shares. Clause 16 prohibits the parties from transferring their shares for five years from 01.04.1998 i.e. the date of commencement of commercial production. Clauses 17, 25, 26 and 35 of the agreement read as under:?

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On 01.04.2003 the Government of Punjab formulated a One Time Settlement Scheme. The relevant provisions of the scheme read as under:?

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The collaborators inter?se by an agreement dated 19.05.2003 proposed M/s Trident Udyog Ltd. as the sole collaborator. The petitioner was not a party to this agreement. The agreement provided that Trident Udyog Ltd. would be the sole beneficiary of the shares to be purchased from the petitioner and would discharge all the obligations of the other collaborators and that the other collaborators have no rights or obligations under the Financial Collaboration Agreement dated 09.11.2001. Accordingly by a letter dated 21.05.2003 Trident Udyog Ltd. alone applied under the OTS dated 01.04.2003 on behalf of all the collaborators. Trident Udyog Ltd. stated that 23,75,99,000/? was due in terms of the OTS as per the calculations enclosed. As required by the OTS?2003, 10% thereof was forwarded as upfront consideration. The letter further stated as follows:? BBBB++2 # ' $<

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This brings us to the petitioner's letter dated 30/31.07.2003 addressed to the Trident Udyog Ltd. which is one of the most crucial documents in this case. A substantial part of the case turns on the interpretation of this letter. Though the letter has the heading "WITHOUT PREJUDICE", the parties are agreed that ultimately they acted upon it. The subject states: "Buy back of equity shares?OTS policy". The letter is with reference to the respondent's letter dated 21.05.2003. The petitioner's decision in respect of the respondent's letter dated 21.05.2003 was conveyed. Paragraphs 1, 5, 6 and the concluding part of the letter read as under:? )+ ' 5 @ C'

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There is no reply to this letter. However, the learned counsel appearing on behalf of the petitioner and the respondent stated that the letter was acted upon and invited me to proceed on the basis that the terms and conditions thereof were accepted and constituted a contract under the OTS

Scheme of 01.04.2003. Mr. Mittal qualified his statement by stating that by this letter the petitioner accepted the offer under the OTS scheme of 01.04.2003 but subject to the terms and conditions contained in the letter. I will proceed on this basis.

11.

From time to time certain amounts were paid and the proportionate numbers of shares were transferred by the petitioner to the respondent. By a letter dated 27.08.2003, the respondent stated that it was making payment of the balance 10% consideration inspite of certain issues not having been reconciled and that the payment was subject to the petitioner agreeing to an immediate transfer of the proportionate share holding. By a letter dated 30.06.2004 the respondent referred to certain outstanding issues and requested that the issue of tentative transfer of shares against the payment of one crore be resolved through arbitration clause 8 of the supplementary agreement dated 09.11.2001. The petitioner, however, by its reply dated 26.07.2004 stated that the OTS policy cannot be a subject matter of arbitration. The letter requested the respondent to convey its unconditional consent to the OTS policy within 10 days to enable it to encash the cheque/demand draft sent by the respondent. 12.

The correspondence thus far certainly indicates that there was no concluded contract till this stage. However, as stated earlier both Mr. Mittal, the learned senior counsel for the petitioner and Mr. Aggarwal, the learned senior counsel for the respondent stated that the letter dated 30/31.07.2003 was acted upon and agreed to between the parties by conduct. I have, therefore, proceeded on that basis.

13.

A Public Interest Litigation (PIL) being Civil Writ Petition No. 8592 of 2006 was filed by one Sarabjit Singh challenging the OTS inter?alia in so far as it was made applicable even to profit making organizations. The respondent is also a profit making organization. 14.

The respondent contends that it was ready and willing to pay the amounts and buy back the shares in terms of the OTS. However, the petitioner informed it that it would defer the transfer of shares as the Public Interest Litigation (PIL) was pending in this Court challenging the validity of the OTS scheme insofar as it was applicable to profit making organizations as well. The respondent's grievance is that this stand was unjustified as there was no order in the PIL restraining the respondent from acting on the agreement. As the OTS was expiring on 30.07.2007, the respondent submitted a bank guarantee of 35 crores to show its readiness and willingness to make the entire payment. The correspondence in this regard is as follows:?

14(A) By a letter dated 22/23.06.2007, the petitioner had infact called upon the respondent to pay the balance amount:? "< ''

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2007 addressed by the petitioner to the respondent was tendered in Court. The petitioner contended that what the respondent had submitted was a conditional guarantee and that the respondent had failed to furnish the undertaking as per the proforma required by the letter dated 22.06.2007. Ultimately by a letter dated 16/17.11.2007 the petitioner cancelled the OTS inter?alia on the ground that the respondent had failed to make the payment by the due date namely 30.06.2007. The petitioner contended that it was, therefore, entitled to revert to the Financial Collaboration Agreement (FCA) and called upon the respondent to remit an amount of 6358.95 lac. The respondent by a letter dated 18.10.2008 reiterated its contentions.

15 (A) As mentioned earlier, a Public Interest Litigation (PIL) being Civil Writ Petition No. 8592 of 2006 was filed by one Sarabjit Singh challenging the OTS inter?alia in so far as it was made applicable even to profit making organizations. During the pendency of the petition, the Government of Punjab issued a notification dated 06.02.2009 amending the clause 9.3.4 of Industrial Policy, 2003, by substituting the words " to be as " Clause?3 of the notification further stated that " !" # $% % &'(

The petitioner being a profit making company was affected by the notification.

(B) In view of the above notification, the PIL was disposed of by an order and judgment dated 10.02.2009 as it redressed the grievance in the PIL that the OTS ought not to be made available to profit making entities. 16.

This brings me to the present proceedings:?

On 09.06.2010 the respondent filed the said civil suit with which we are concerned. It is in this suit that the petitioner filed an application under section 8 of the Arbitration and Conciliation Act, 1996 which was rejected by the impugned judgment dated 12.11.2011. In the suit the respondent had challenged the said letters dated 30.06.2007 and 16/17.11.2007 claiming that it is entitled to the transfer of shares as per the OTS of 2003 read with the OTS of 2004 without further interest after 30.06.2007 and that the transfer ought to be at the price of 16.27 per share. The petitioner has also sought a

declaration that the notification dated 06.02.2009 cannot be applied retrospectively to its detriment and, therefore, is not applicable to it. 17.

This judgment falls broadly into two parts. The first arises on the facts narrated thus far. The second arises on account of a judgment of a Division Bench of this Court dated 23.12.2015 in a group of writ petitions the first of which was Civil Writ Petition No.8338 of 2009 ) * + %, ( # $ % . The petitioners therein who are similarly placed as the respondents before us challenged the notification dated 06.02.2009. Before dealing with the case relating to the first part I will refer to this judgment. The Division Bench had framed the following questions:? = (

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Collaboration Agreement. Thus where the earlier payment is not made, the petitioner is not even entitled to proceed as per the OTS. It must proceed as per the terms of the OTS and fall back on the FCA. This is obviously a reference to the terms in the OTS?2003 which stipulates that where the collaborator (i.e. the petitioner) does not complete the buy back, the buy back would be governed by the FCA.

18.

I will deal with the first part which involves the facts other than the effect of the judgment in Civil Writ Petition No.8338 of 2009. This involves essentially a consideration of the effect of the letter dated 30/31.07.2003.

19.

The entire amount under the OTS had admittedly not been paid. The respondent had merely furnished a bank guarantee and that too a conditional bank guarantee which was valid only for three days upto 30.06.2007. The respondent contends that although it was ready and willing to pay the balance amount under the OTS, it did not do so on account of the petitioner having refused to transfer the shares even upon receiving the full payment which was contrary to the terms of the OTS. It contends that the petitioner cannot take advantage of its own wrong. The petitioner on the other hand contends that it took the stand to protect itself in the event of the OTS in respect of the profit making enterprises being struck down in the PIL. In that event the petitioner would have parted with its only security namely the shares.

By the petitioner retaining the amount the respondent was not prejudiced in any manner whatsoever.

shares not being returned to it. For instance, that would have prevented the respondent from raising further capital which in turn would hamper its business.

20.

In the facts and circumstances of the present case, I am not inclined to express any opinion on the merits of the contentions between the parties. The rival contentions raise disputed questions of law and of fact. The merits of these contentions must be reserved for the arbitral tribunal. I do not say so as a matter of form but as a matter of substance for the case is not open and shut either in law or on facts. What I am concerned with is whether even these disputes are arbitrable under the arbitration agreement contained in the FCA of 09.11.2001 or whether they are not arbitrable in view of the agreement contained in the letter dated 30/31.07.2003 and in particular paragraph 6 thereof. I think they are.

21.

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If the respondent failed to complete the buy back of shares under the OTS, the rights of the parties would be governed by the OTS policy of 2003. The OTS policy of 2003 in turn provides: "In case the collaborators fail to complete buy back during the said period, the buy back shall be governed

by the provisions of the FCA and the amount already received would be adjusted against the interest accrued".

The letter dated 30/31.07.2003 did not discharge the respondent's liabilities unconditionally. The respondent's liabilities and obligations under the FCA would have stood discharged only if it had performed its obligation as per the terms of the letter dated 30/31.07.2003. Thus the parties would be governed by the FCA dated 09.11.2001 including the arbitration clause contained therein. The issue whether the respondent completed the buy back of the shares under the OTS or not or must be deemed to have done so or not would fall within the ambit of the arbitration clause. This view is supported by a judgment of the Supreme Court I will refer to shortly. Before referring to the judgment I would mention that I will deal with the effect of paragraph 6 of the letter dated 30/31.07.2007 later. For now I will construe the letter without reference to paragraph 6. Suffice it to mention that paragraph 6 does not affect this view to wit the effect of the arbitration clause at all. 22.

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The judgment though under Section 11 of the Act applies equally to cases under section 8 as one of the questions in an application under either section is whether the disputes are arbitrable or not.

24. The present case falls in the second category referred to in paragraph 22(ii) of the judgment cited supra albeit with a difference. This is a case where according to the respondent the parties had concluded the contract by accord and satisfaction of the mutual rights and obligations by entering into a contract contained in the letter dated 30/31.07.2003 and by the respondent allegedly having made full and final payment thereunder or having offered to make the full and final payment thereunder. Accord there is by virtue of the letter dated 30/31.07.2003. Whether there was satisfaction or not is a seriously disputed question of fact and of law. The letter dated 30/31.07.2003 did not discharge the FCA unconditionally. By its very terms it did not. Under paragraph 5(iii) of the letter dated 30/31.07.

2003, if the respondent failed to complete the buy back of the shares under the OTS, the parties are to be governed by the equity OTS policy announced by the Government of Punjab under the Industrial Policy of 2003 which in turn provides that if the collaborator fails to complete the buy back, the buy back would be governed by the provisions of the FCA. The obligations under the FCA would therefore be discharged only if the respondent completed the buy back as per the accord contained in the letter dated 30/31.07.2003.

Paragraph 51 of the judgment entitles the Chief Justice in such a case under section 11 to decide the issue himself or alternatively to refer the matter to arbitration with a direction that the question should be decided in the first instance. To such a question in an application under Section 8 the judgement applies with equal force.

25.

Whether there was satisfaction or not is an issue which in the facts of the present case I am inclined to leave for the decision of the Arbitrator. It would require an examination of the accounts and computation of interest. It would also require evidence as to whether the respondent made or offered to make the payment as per the terms of the agreement and the validity of the petitioner's insistence upon the undertaking and retention of the shares pending the PIL despite the alleged offer of full payment. I, therefore, see no reason to permit the respondent to avoid the arbitration agreement.

26.

Under paragraph 5(iii) of the letter dated 30/31.07.2003, if the respondent failed to complete the buy back of the shares under the OTS, the parties are to be governed by the equity OTS policy announced by the Government of Punjab under the Industrial Policy of 2003 which at the cost of repetition in turn expressly provided:? 9 ( &( <

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Thus, in the event of the respondent failing to complete the buy back of the shares, the parties would be relegated to the FCA. 27.

One of the issues that the arbitral tribunal would have to decide is whether the respondent had failed to complete the buy back of the shares under the OTS agreement. I have already referred to the rival contentions in that regard. It is not for me to adjudicate whether the respondent failed to complete the buy back under the OTS agreement or whether the petitioner prevented it from doing so. The nature of the arbitration clause in the FCA is wide enough to cover this dispute:?

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Clause 25 of the supplementary agreement dated 09.11.2001 refers to arbitration all differences and disputes between the parties on any clause or matter contained therein or the parties respective rights, claims or liabilities contained therein or otherwise whatsoever. The words "or otherwise whatsoever" make the ambit of the clause wider. The ambit is further widened on reading the words "or otherwise whatsoever" with the words that follow "in relation to or arising out of this agreement". These

words are of the widest amplitude. They would cover the disputes as to whether the payment under the agreement or any modification thereto has been made or not. It would, therefore, cover the issue as to whether the payments under the OTS settlement were made or not. 28.

The respondent's contention is that the settlement of 30/31.07.2003 constituted an accord and satisfaction and therefore, the FCA stood novated and the arbitration clause contained therein, therefore, ceased to exist. It must be noted here that the respondent's case is not that the letter dated 30/31.07.2003 by itself resulted in a novatio bringing to an end the FCA dated 09.11.2001. The respondent's case is one of accord and satisfaction. I will presume that the agreement constituted an accord. This, however, is not a clear case of the accord having been satisfied. In other words, this is not a clear case of accord and satisfaction. It cannot be said with any degree of certainty that there was accord and satisfaction. In a given case where accord and satisfaction are clearly established it could be said by a Court under section 8 and even under section 11 of the Act that there is no claim or dispute which can be referred to arbitration. However, where there is a dispute in that regard, it is open to the Court to leave it to the arbitral Tribunal to decide the same.

29.

The question then is whether paragraph 6 of the letter dated 30/31.07.2003 makes a difference. Mr. Aggarwal stated that the letter must be read as a whole and paragraph 5(iii) must be read with paragraph 6. I agree. He submitted that if Mr. Mittal's submission is accepted, clause?6 would be clumsy if not otiose. I cannot agree.

30.

Paragraphs 5(iii) and 6 of the letter dated 30/31.07.2003 can be easily reconciled. I will assume that paragraph 6 applies to the OTS?2003 as well as to the agreement contained in the letter dated 30/31.07.2003. I will also assume, therefore, that as far as the OTS agreement is concerned, there is no arbitration clause. That, however, would make no difference. On the contrary it is a factor entirely in the petitioner's favour. Had there been a separate arbitration clause in respect of the OTS of a different nature, it would have been necessary to decide which of the arbitration clauses would be applicable - the one in the FCA or the one in the OTS agreement. 31.

The petitioner rightly and understandably did not agree to the respondent's suggestion to introduce an arbitration clause in the settlement contained in the letter dated 30/31.07.2003. This is because the letter did not discharge the obligations under the FCA absolutely. That was contingent upon the respondent completing the buy back. The terms of the letter would have substituted those of the FCA upon the respondent fulfilling all its obligations especially by completing the buy back as per the letter. The respondent's failure to buy back would result in the parties reverting to the FCA. There was, therefore, no question of such a conditional agreement contained in the letter being subject to an arbitration agreement.

That would have been clumsy and in any event demanded a convoluted route of a reference to arbitration on one question under the OTS and thereafter a reference to the other questions to arbitration under the FCA. By refusing to subject the agreement contained in the letter to a separate arbitration clause the petitioner in fact streamlined the entire matter and made it workable.

32.

I am unable to accept Mr. Aggarwal's submission that the prayers in the suit cannot be entertained by an arbitral Tribunal. The letters dated 30.06.2007 and 16/17.11.2007 addressed by the respondent do not fall outside the ambit of the arbitration clause. By the letter dated 30.06.2007, the petitioner contended that the bank guarantee was a conditional bank guarantee and was valid only upto 30.06.2007 and that the conditions were contrary to the undertaking sought by the petitioner. It was further contended that the undertaking in the proforma stipulated by the petitioner had not been submitted. The petitioner called upon the respondent to make the payment and to submit the proforma. The respondent admittedly did not do so.

Whether the petitioner's insistence upon retraining the shares and demanding payment in the facts of the case including the pendency of the PIL justified the respondent's refusal to pay the amount for the buy back and instead furnishing a guarantee in lieu thereof constitutes satisfaction of the terms of the agreement contained in the letter dated 30/31.07.2003 or not are some of the serious disputes between the parties and there is no reason why the same ought not to be referred to arbitration.

33.

For the same reason the contentions raised in the petitioner's letter dated 16/17.11.2007 are those which fall within the ambit of the arbitration clause. The petitioner reiterated what was stated in the letter dated 30.06.2007. The petitioner further stated that the payment had not been made as per the OTS and the petitioner, therefore, cancelled the OTS and demanded payment of the entire amount as per the terms of the FCA. The petitioner raised a demand of 63.59 crores which according to the petitioner was due

as on 31.10.2007 alongwith further interest till payment. I cannot see how these disputes do not fall within the ambit of the arbitration clause. 34.

The contention that in view of the letter dated 30/31.07.2003 and in particular pargraph 6 thereof the arbitration agreement in the FCA ceased to exist is, therefore, rejected.

35.

This brings me to the notification dated 06.02.2009 issued by the Government of Punjab amending clause 9.3.4 of the Industrial Policy?2003 by making it inapplicable to the collaborators/promoters of the profit making companies. The petitioner's contention that it is not bound by the same as it does not have retrospective effect can always be raised as a defence before the arbitral Tribunal, construing the notification falls within the arbitrator's jurisdiction.

36.

The learned Judge held that once the terms of the FCA underwent change/modification which amount to novation of the contract as the terms under which the equity shares are to be bought back had been changed. The learned Judge construed the judgments of various Courts as holding that where there are material or substantial changes going to the root of the agreement, it is to be recorded in law as a new agreement and the rate of payment is a material part of the agreement to sale and a change in the payment thereof constitutes a new agreement. The learned Judge essentially relied upon paragraph 6 to hold that the petitioner had itself decided to give up the arbitration under the OTS. He held that it was not necessary in view thereof to go any further as the arbitration clause ceased to exist. 37.

With respect I am unable to agree with the judgment. Firstly, a mere change in the agreement does not constitute a novatio. The learned

Judge has not considered the effect of clause 5(iii) of the letter dated 30/31.07.2003 read with the term in the OTS of 2003 reverting the parties to the FCA in the event of the respondent failing to buy back the shares as per the said letter. I cannot, however, fault the learned Judge for what I have held may not have been placed before the learned Judge. 38.

There is yet another reason why the civil revision ought to succeed. I referred to the order and judgment of the Division Bench of this Court dated 23.12.2015 in Civil Writ Petition No.8338 of 2009 ) * + %, ( # $ % . The Division Bench has clearly held that the amendment introduced by the notification dated 06.02.2009 would be inapplicable only in cases where the OTS had been accepted and the entire payment thereunder had been made. Admittedly, the respondents had not made the full payment. Furnishing a bank guarantee does not constitute payment of the amount guaranteed. It only constitutes security for the payment which may be found to be due. The guarantee of 35 crores, therefore, did not constitute the payment of that amount.

At the cost of repetition the issue whether the respondent failed to make the payment or whether the respondent was prevented from making payment is another matter and can be decided by the arbitrator. The Division Bench expressly held that where the profit making companies have not made full payment, the rights and contentions between the respondent and such companies would be governed by the Financial Collaboration Agreement and not by the OTS. 39.

This judgment in effect prohibits the petitioner from extending the facility under the OTS to profit making enterprises. The judgment does not operate only against the petitioners therein. It is a judgment that declares

the rights and obligations of all parties similarly situated as the petitioners therein. The respondent has not taken any steps to have the judgment set aside.

40.

In any event, the least that must be said is that the effect of this judgment falls for the consideration of the arbitral tribunal. 41.

In the circumstances, the Civil Revision is allowed. The impugned judgment and order is set aside. The application under Section 8 is allowed. The parties are at liberty to take steps for the constitution of the arbitral tribunal. There shall be no order as to costs. -)*+ . ) /! !/ % Whether speaking/reasoned √Yes/No Whether reportable √Yes/No