The Printers (Mysore) Private Ltd. Vs.
Pothan Joseph [1960] INSC 91 (27 April 1960)
GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1960 AIR 1156 1960 SCR (3) 713
CITATOR INFO :
R 1973 SC2071 (5) R 1989 SC 839 (19)
ACT:
Arbitration Agreement-Power of court to stay
legal proceedings-Order by trial court refusing stay of proceedings affirmed in
appeal--supreme Court, if and when can interfere with concurrent exercise of
discretion by the courts below-Arbitration Act, 1940 (x Of 1940), s. 34
Constitution of India, Art. 136.
HEADNOTE:
The respondent was the Editor of the Deccan
Herald, owned and published by the appellant, and the two contracts executed by
the parties contained an arbitration clause that if in the interpretation or
application of the contract any difference arose between the parties the same
shall be referred to arbitration and the award shall be binding between the
parties and also provided for, apart from his monthly salary, the payment of 10%
of the profits to the respondent. Upon the termination of his services by the
appellant, the respondent brought a suit for accounts and payment of the
profits found due to him. The appellant by an 714 application pleaded that the
suit ought to be stayed under S. 34 of the Arbitration Act, 1940, and the
dispute referred to arbitration in accordance with the agreement between the
parties. The trial judge refused to exercise his discretion in favour of the
appellant and refused to stay the suit. On appeal the High Court confirmed the
decision of the trial court. The appellant came up to this Court by special
leave under Art. 136 of the Constitution:
Held, that the power conferred on the court
by S. 34 Of the Arbitration Act, 1940, is discretionary and even though the
conditions specified therein were fulfilled no party could claim there under a
stay of legal proceedings instituted in a court as a matter of right. But the
discretion vested in the court is a judicial discretion and must be exercised
as such in the facts and circumstances of each case. No inflexible rules can,
therefore, be laid down f or its exercise and the court has to act according to
common sense and justice.
Gardner v. Jay, (1885) 29 Ch. D. 50, referred
to Where the discretion under the section has been properly and judiciously
exercised by the trial court the appellate court would not be justified in interfering
with such exercise of discretion merely on the ground that it would have taken
a contrary decision if it had considered the matter at the trial stage. But if
it appears to the appellate court that the trial court has exercised its
discretion unreasonably or capriciously or has ignored relevant facts or has
approached the matter unjudiciously, it would be its duty to interfere.
Charles Osenton & Co. v. jhanaton, (1942)
A. C. 130, referred to.
The words " interpretation and
application of the contract frequently used in arbitration clauses, as they
have been in the contracts in question, cover not only disputes relating to the
construction of the relevant terms of the contract but also their effect, and
unless the context compels a contrary construction, a dispute relating to the
working of the contract falls within such a clause.
But the Supreme Court would not lightly
interfere under Art.
136 of the Constitution with the concurrent
exercise of discretion of the courts below under s. 34 Of the Act. Before it
can justly do so, the appellant must satisfy the Court, on the relevant facts
referred to by the courts below, that they exercised their discretion in a
manifestly unreasonable or perverse way which was likely to defeat the ends of
justice.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 107 of 1960.
Appeal by special leave from the judgment and
order dated September 21, 1959, of the Mysore High Court, Bangalore, in Misc.
Appeal No. 68 of 1959.
Purshottam Prikamdas, S. N. Andley, J. B. DadaChanji,
Rameshwar Nath and P. L. Vohra, for the appellant.
715 K. R. Karanth and Naunit Lal, for the
respondent.
1960. April 27. The Judgment of the Court was
delivered by GAJENDRAGADKAR, J. The respondent, Pothan Joseph, who was working
as the Editor of the Deccan Herald owned and published by the appellant, The'
Printers (Mysore) Private Ltd., in Bangalore has filed a suit against the
appellant on two contracts executed between the parties on April 1, 1948, and
February 20, 1953, respectively, and has claimed accounts of the working of the
Deccan Herald newspaper from April 1, 1948, to March 31, 1958, as well as
payment of the amount that may be found due to him from the appellant tinder
the provisions of cls. 2(d) and 1(d) of the said contracts. The services of the
respondent were terminated by the appellant by its letter dated September 28,
1957, in which the respondent was told that the termination would take effect
from March 31, 1958. However, by a subsequent letter written by the appellant
to the respondent on March 17, 1958, the respondent was told that his services
had been terminated with immediate effect and he was asked to hand over charge
to his successor, Mr. T. S. Ramachandra Rao.
Thereafter on July 14, 1958, the respondent,
filed the present suit against the appellant.
The appellant contended that the two
contracts on which the respondent's claim was based were subject to an
arbitration agreement, and so it was not open to the respondent to file the
present suit against the appellant. The appellant, therefore, requested the
Court under s. 34 of the Indian Arbitration Act, 1940, (hereinafter called the
Act), to stay the proceedings initiated by the respondent and refer the dispute
to arbitration in accordance with the arbitration agreement between the
parties.
The learned trial judge who heard the
appellant's application, however, exercised his discretion against it and
refused to stay the proceedings in the respondent's suit. Thereupon the
appellant preferred an appeal in the Mysore High Court but his appeal failed
and the High Court confirmed the order passed by the trial court though for
different reasons. The High 716 Court, however, thought that the learned trial
judge, in dealing with the appellant's application " bad gone much further
than he should have done, and hence it was desirable that the case should be
tried by some other judge ". The respondent did not object, and so the
High Court directed that the suit may be transferred to the file of the
Additional Civil Judge, Bangalore. The appellant then applied to the High Court
for a certificate. His application was, however, rejected on the ground that
the decision under appeal could not be considered as a judgment, decree or
final order under Art. 133(1) of the Constitution ; on that view it was thought
unnecessary to decide whether on the merits the case was fit to be taken in
appeal to this Court. Then the appellant applied for and obtained special leave
from this Court. That is how this appeal has come before us; and the substantial
point which arises for our decision is whether the courts below were in error
in refusing to stay the suit filed by the respondent against the appellant in
view of the arbitration agreement between them.
Before we deal with the merits of the
contentions raised by the parties in this appeal it is necessary to set out
briefly the relevant facts leading to the present litigation. The appellant is
a printing company and it owns and publishes the Deccan Herald in English and
Prajavani in Kannada at Bangalore. By a contract dated April 1, 1948, the
appellant engaged the respondent as Editor of the Deccan Herald for a period of
five years on terms and conditions specified in the said contract. As provided
by el. (5) of the said contract the period of the respondent's employment was
extended by another five years by a subsequent contract entered into between
the parties on February 20, 1953. As we have already mentioned the services of
the respondent came to be terminated abruptly on March 17, 1958. It appears that
by his letter dated October 16, 1957, the respondent made certain claims
against the appellant under the provisions of the Working Journalists Act.
Besides, he demanded 1/10th of the profits made by the Deccan Herald from 1948
up to the date of the termination of his service under the two respective
contracts. This claim was 717 denied by the appellant. Correspondence then
ensued between the parties but since no common ground was discovered between
them the respondent filed the present suit. His case is that the two contracts
entitled him to claim 1/10th of the profits made by the Deccan Herald during
the period of his employment,, and so he claims an account of the said profits
and his due share in them.
The learned trial judge found that the
respective contentions raised by the parties before him showed that there was
no dispute as such between them which could attract the arbitration agreement.
He also held that an attempt was made by the parties to settle their
differences amicably through the mediation of Mr. Behram Doctor but the said
attempt failed because the appellant was not serious about it and was just
trying " to protract, defeat and delay the plaintiff 's moves".
According to the learned trial judge a plea of limitation would fall to be
considered in the present suit and it was desirable that the said plea should
be tried by a competent court rather than by arbitrators. He was, however, not
impressed by the respondent's contention that his character had been impeached
by the appellant and so he should be allowed to vindicate his character in a
trial before a court rather than before the arbitrators. In dismissing the
appellant's claim for stay of the suit the learned judge observed that if the
accounts of the Deccan Herald had not been separately maintained it would be
competent for a qualified accountant to allocate expenses and capital expenses
among the different activities of the appellant and then very little would be
left for arbitrators to decide. He had no doubt that the contract by which the
respondent was entitled to claim 1/10th share in the profits of the Deccan
Herald necessarily postulated that the accounts of the Deccan Herald would be
separately maintained. On these considerations the trial judge refused to stay
the suit.
When the matter went in appeal the High Court
held that the dispute between the parties did not fall within the arbitration
agreement. The High Court also considered the other points decided by the trial
court; it held that Mr, Behram Doctor had not been 93 718 appointed as an
arbitrator between the parties and that the proceedings before him merely
showed that the parties were exploring the possibility of having an
arbitration. It observed that the appellant company was a big concern and
referred to the respondent's apprehension that it was in a position to dodge
the respondent's claim. However, the High Court was not impressed by these
apprehensions, and it was not inclined to find fault with the conduct of the
appellant in the trial court. It was also not satisfied that the question of
limitation which would arise in the suit as well as the question of
interpreting the contracts could not be properly tried by arbitration. It
recognised that there had been a complete change of front on the part of the
appellant in regard to the pleas raised by the appellant under the arbitration
agreement when the matter was discussed before Mr. Behram Doctor, and when it
reached the court in the form of the present suit. The High Court then
considered other facts which it thought were relevant. It stated that there was
great deal of bad blood between the parties and there was no meeting ground
between them. The appellant's plea that recourse to arbitration may help an
early disposal of the dispute did not appeal to the High Court as sound, and
so, on the whole, the High Court thought that the order passed by the trial
court refusing to stay the proceedings in suit should be confirmed. The
appellant contends that the reasons given by the High Court in refusing to stay
the suit are not convincing and that the discretion vesting in the High Court
in that behalf has not been properly or judiciously exercised.
Section 34 of the Act confers power on the
court to stay legal proceedings where there is an arbitration agreement subject
to the conditions specified in the section. The conditions thus specified are
satisfied in the present case, but the section clearly contemplates that, even
though there is an arbitration agreement and the requisite conditions specified
by it are satisfied, the court may nevertheless refuse to grant stay if it is
satisfied that there are sufficient reasons why the matter should not be
referred in accordance with the arbitration agreement. In other words, the
power to 719 stay legal proceedings is discretionary, and so a party to an
arbitration agreement against whom legal proceedings have been commenced cannot
by relying on the arbitration agreement claim the stay of legal proceedings
instituted in a court as a matter of right. It is, however, clear that the
discretion vested in the court, must be properly and judicially exercised.
Ordinarily where a dispute between the parties has by agreement between them to
be referred to the decision of a domestic tribunal the court would direct the
parties to go before the tribunal of their choice and stay the legal
proceedings instituted before it by one of them. As in other matters of
judicial discretion, so in the case of the discretion conferred on the court by
s. 34 it would be difficult, and it is indeed inexpedient, to lay down any
inflexible rules which should govern the exercise of the said discretion. No
test can indeed be laid down the automatic application of which will help the
solution of the problem of the exercise of judicial discretion. As was observed
by Bowen, L. J., in Gardner v. Jay (1) " that discretion, like other
judicial discretion, must be exercised according to common sense and according
to justice. " In exercising its discretion under s. 34 the court should
not refuse to stay the legal proceedings merely because one of the parties to
the arbitration agreement is unwilling to go before an arbitrator and in effect
wants to resile from the said agreement, nor can stay be refused merely on the
ground that the relations between the parties to the dispute have been
embittered or that the proceedings before the arbitrator may cause unnecessary
delay as a result of the said relations. It may not always be reasonable or
proper to refuse to stay legal proceedings merely because some questions of law
would arise in resolving the dispute between the parties. On the other hand, if
fraud or dishonesty is alleged against a party it may be open to the party
whose character is impeached to claim that it should be given an opportunity to
vindicate its character in an open trial before the court rather than. before
the domestic tribunal, and in a proper case the. court may consider that fact
as relevant for deciding (1) (1885) 29 Ch. D 30 58, 720 whether stay should be
granted or not. If there has been a long delay in making an application for
stay and the said delay may reasonably be attributed to the fact that the
parties may have abandoned the arbitration agreement the court may consider the
delay as a relevant fact in deciding whether stay should be granted or not.
Similarly, if complicated questions of law or constitutional issues arise in
the decision of the dispute and the court is satisfied that it would be
inexpedient to leave the decision of such complex issues to the arbitrator, it
may, in a proper case, refuse to grant stay on that ground; indeed, in such
cases the arbitrator can and may state a special case for the opinion of the
court under s. 13(b) of the Act. Thus, the question as to whether legal
proceedings should be stayed under s. 34 must always be decided by the court in
a judicial manner having regard to the relevant facts and circumstances of each
case.
Where the discretion vested in the court
under s. 34 has been exercised by the trial court the appellate court should be
slow to interfere with the exercise of the said discretion. In dealing with the
matter raised before it at the appellate stage the appellate court would
normally not be justified in interfering with the exercise of discretion under
appeal solely on the ground that if it had considered the matter at the trial
stage it would have come to a contrary conclusion. If the discretion has been
exercised by the trial court reasonably and in a judicial manner the fact that
the appellate court would have taken a different view may not justify interference
with the trial court's exercise of discretion. As is often said, it is
ordinarily not open to the appellate court to substitute its own exercise of
discretion for that of the trial judge; but if it appears to the appellate
court that in exercising its discretion the trial court has acted unreasonably
or capriciously or has ignored relevant facts and has adopted an unjudicial
approach then it would certainly be open to the appellate court-and in many
cases it may be its duty-to interfere with the trial court's exercise of
discretion. In cases falling under this class the exercise of discretion by the
trial 721 court is in law wrongful and improper and that would certainly
justify and call for interference from the appellate court. These principles
are well established;
but, as has been observed by Viscount Simon,
L. C., in Charles Osenton & Co. v. Johnston (1) " the law as to the
reversal by a court of appeal of an order made by a, judge below in the
exercise of his discretion is well established, and any difficulty that arises
is due only to the application of well settled principles in an individual
case".
In the present case there is one more fact
which has to be borne in mind in dealing with the merits of the controversy
before us. The appellant has come to this Court by special leave under Art.
136; in other words, the appellant is not entitled to challenge the correctness
of the decision of the High Court as a matter of right. It is only in the
discretion of this Court that it can be permitted to dispute the correctness or
the propriety of the decision of the High Court, and so in deciding whether or
not this Court should interfere with the order under appeal it would be
relevant for us to take into account the fact that the remedy sought for by the
appellant is by an appeal which is a discretionary matter so far as this Court
is concerned. It is in the light of these principles that we must consider
whether or not the appellant's complaint against the High Court's order can be
upheld.
The first point which calls for a decision
relates to the construction of the contracts between the parties. As we have
already stated two contracts were executed between them but their terms are
substantially the same and so we may deal with the subsequent contract which
was executed on February 20, 1953 (P. 2). Under this contract the respondent
was engaged as the Editor of the Deccan Herald and his salary was fixed at Rs.
1,500 permensem under paragraph 1 (a). Paragraph 1(b) and (c) deal with the
other amenities to which the respondent was entitled. Clause (d) of paragraph 1
provides that when the newspaper shows a profit in the annual accounts the
Editor shall be entitled to 1/10th share of it is on this clause that the
respondent's claim in the present proceedings is (1) [1942] A.C 130, 138.
722 based. The terms on which the respondent
had to remain in the service of the appellant are specified in paragraph 2(a)
and (b). Paragraph 3 provides for the renewal of the contract for a further
period of five years if it is found that such renewal is for the mutual
advantage of the parties. This paragraph also provides that during the
continuance of his employment the respondent shall not directly or indirectly
be interested in any other newspaper business than that of the appellant or any
other journalistic activities in competition with that of the appellant. It
also stipulates that if the contract is determined the respondent shall not for
a period of three years thereafter be directly or indirectly interested in any
newspaper business of the same kind as is carried on by the appellant within
the Mysore State. It would thus be seen that this paragraph shows the liability
imposed on the respondent as a consideration for the benefit conferred on him
by paragraph 1 in general and cl. (d) of the said paragraph in particular.
Paragraph 4 contains an arbitration agreement. It provides that if in the
interpretation or application of the contract any difference of opinion arises
between the parties the same shall be referred to arbitration. The arbitrator
can be named by both the parties but if they failed to choose the same person
each side will choose an arbitrator and the two will elect another person to
complete the panel. Their award shall be final and binding on both the parties.
The High Court has held that the present suit
is outside the arbitration agreement because neither party disputes the
applicability of the terms of the contract in the decision of the dispute. The
High Court thought that in the context the words 'application of the contract'
meant a dispute as to the applicability of the contract, and since the
applicability of the contract was not in question and no dispute as to the
interpretation of the contract arose, the High Court held that paragraph 4 was
inapplicable to the present suit. Mr. Purshottam, for the appellant, con. tends
that the construction placed by the High Court on the word " application
" is erroneous. According to him, any difference of opinion in regard to
the application of the contract must in the context mean 723 the, working out
of the contract or giving effect to its terms. In our opinion, this contention
is well founded.
The words 'interpretation or application of
the contract' are frequently used in arbitration agreements and they generally
cover disputes between the parties in regard to the construction of the
relevant terms of the contract as well as their effect, and unless the con-'
text compels a contrary construction, a dispute in regard to the working of the
contract would generally fall within the clause in question. It is not easy to
appreciate what kind of dispute according to the High Court would have
attracted paragraph 4 when it refers to a difference of opinion in the
application of the contract. Since both the parties have signed the contract
the question about its applicability in that form can hardly arise. Differences
may, however, arise and in fact have arisen as to the manner in which the
contract has to be worked out and give effect to, and it is precisely such
differences that are covered by the arbitration agreement. We would accordingly
hold that the High Court was in error in coming to the conclusion that the
present dispute between the parties was outside the scope of paragraph 4 of the
contract.
If the High Court had refused to stay the
present proceedings only on this ground the appellant would no doubt have
succeeded; but the High Court has based its decision not only, nor even mainly,
on the construction of the contract. The tenor of the judgment suggests that the
High Court considered the other relevant facts to which its attention was
invited and the material findings recorded by the trial judge, and though it
differed from some of the findings of the trial judge, on the whole it felt no
difficulty in coming to the conclusion that there was no reason to interfere
with the trial court's exercise of discretion under s. 34. That is why, even
though the appellant has succeeded before us on the question of the
construction of the arbitration agreement, having regard to the limits which we
generally impose on the exercise of the jurisdiction under Art. 136, he must
still satisfy us that we would be justified in interfering with the concurrent
exercise of discretion by the two courts below, and that would inevitably depend
upon the other 724 relevant facts to which both the courts have referred, and
on which both of them have relied though in different ways.
What then are the broad features of the case
on which the trial judge and the High Court have respectively relied ? It is
clear that the present dispute is not the result of an ordinary commercial
transaction containing an arbitration clause. The contract in question is
between a journalist and his employer by which the remuneration of the
journalist has been fixed in a somewhat unusual manner by giving him a
specified percentage in the profit which the Deccan Herald would make from year
to year. According to the respondent he was surprised when the General Manager
of the paper informed him that 75% of the overall expenditure incurred in the
several activities of the appellant was being charged to the Deccan Herald, and
that the capital liabilities were charged in the same proportion; he thought
that this system of accounting adopted by the appellant was repugnant to the
material provisions in his contract. Indeed his case is that after he came to
know about this system he protested to the Director, Mr. Venkataswamy, who has
been taking active part in the affairs of the appellant, and Mr. Venkataswamy
assured him that as from the beginning of 1955 the accounts were being
separately maintained. It would appear that the information received by the
respondent from the General Manager disillusioned him and that appears to be
the beginning of the present dispute, according to the respondent's letter of
May 24, 1955, (D. 1). On February 18, 1956, the respondent invoked the
arbitration agreement and told Mr. Venkataswamy that Mr. Behram Doctor had
agreed to work as arbitrator and give his award (D. 2). Mr. Venkataswamy who
was addressed by the respondent as the Managing Director told him by his reply
of March 5, 1956, that he was not the Managing Director and added that in his'
view it was not open to the respondent to invoke cl. 4 of the contract because
he was aware that no monies were payable to the respondent under el. 1(d). It
would thus be seen that Mr. Venkataswamy's immediate response to the respondent's
request for arbitration was that the respon725 dent could not invoke the
arbitration clause (D. 3). It is true that on April 23, 1956, Mr. Venkataswamy
attempted to explain this statement by saying that all that he intended to
suggest was that no occasion for invoking the arbitration agreement had arisen.
That, however, appears to be an unsatisfactory explanation (D. 10). Even so,
Mr. Venkataswamy agreed to meet Mr. Behram Doctor and so on March 9, 1956, the
respondent gave to Mr. Venkataswamy the address of Mr. Behram Doctor and asked
him to see him (D. 5). He informed Mr. Behram Doctor accordingly (D. 6). It
appears that subsequently Mr. Behrain Doctor met both the respondent and Mr.
Venkataswamy on May 9, 1956. The proceedings of this meeting which have been
kept by Mr. Behram Doctor and copies of which have been supplied by him to both
the parties indicate that Mr. Behram Doctor attempted to mediate between the
parties and presumably the parties were agreeable to secure the mediation of
Mr. Behram Doctor to resolve the dispute. We ought to add that the copy of the
said proceedings produced by the appellant contains a statement that Mr.
Venkataswamy at the outset told Mr. Behram Doctor that he had; come on an
unofficial visit and was speaking without the consent of the other directors.
This statement is, however, not to be found in the copy supplied by Mr. Behram
Doctor to the respondent.
Prima facie it is not easy to understand why
Mr. Behram Doctor should have omitted this material statement in the copy
supplied by him to the respondent. That, however, is a matter which we do not
propose to pursue in the present appeal. It is thus clear that though Mr.
Behram Doctor was not appointed an arbitrator and no reference in writing was
made to him an attempt was made by the parties to settle the dispute with the
assistance of Mr. Behram Doctor, and that attempt failed. Having regard to the
facts which have come on the record it may not be unreasonable to infer that
the appellant was not too keen to pursue the matter on the lines originally
adopted by both the parties before Mr. Behram Doctor.
It also appears that for some years the,
accounts of the Deccan Herald had not been separately kept as 94 726 they
should have been according to the respondent's case.
The respondent alleges that they have not
been kept separately throughout the ten years ; but that is a matter which is
yet to be investigated. If the accounts are not separately kept the question of
allocating expenditure would inevitably arise and that can be decided after
adopting some ad hoc principle in that behalf. A plea of limitation has also
been indicated by the appellant and it has been suggested that the first
contract having merged in the second it is only under the latter contract that
the respondent may have a cause of action. "Thus the effect of the two
contracts considered together may have to be adjudged in dealing with the
question of limitation. It has also been suggested that the respondent knew how
the accounts were kept from year to year and in substance he may be deemed to
have agreed with the method adopted in keeping the accounts. If this point is raised
by the appellant it may involve the decision of the question about the effect
of the respondent's conduct on his present claim. The appellant has also
suggested that the respondent has adopted an attitude of blackmailing the
appellant and the respondent treats that as an aspersion on his character. The
relations between the parties have been very much embittered and the respondent
apprehends that the appellant, being a powerful company, may delay and seek to
defeat the respondent's claim by protracting the proceedings before the
arbitrators. It now looks impossible that the parties would agree to appoint
one arbitrator, and so if the matter goes before the domestic tribunal the two
arbitrators appointed by the two parties respectively may have to nominate a
third one to complete the constitution of the domestic tribunal, and that it is
said may easily lead to a deadlock. In the trial court attempts were made to
settle this unfortunate dispute but they failed and the respondent's grievance
is that the appellant adopted an unhelpful and no cooperative attitude.
It appears fairly clear that when the parties
entered into the present contract and agreed that differences between them in
regard to the interpretation and application of the contract should be referred
to 727 arbitration they did not anticipate the complications which have
subsequently arisen. That is why an arbitration agreement may have been
introduced in the contract in question. All these facts have been considered by
both the courts, and though it is true that in their approach and final
decisions in respect of these facts the two courts have differed in material
particulars, they have in the result agreed with the conclusion that the
discretion vested in them should be exercised in not granting stay as claimed
by the appellant. Under these circumstances we do not think we would be
justified in substituting our discretion for that of the courts below. It may
be that if we were trying the appellant's application under s. 34 we might have
come to a different conclusion; and also that we may have hesitated to confirm
the order of the trial court if we had been dealing with the matter as a court
of first appeal; but the matter has now come to us under Art. 136, and so we
can justly interfere with the concurrent exercise of the discretion by the
courts below only if we feel that the said exercise of discretion is patently
and manifestly unreasonable, capricious or perverse and that it may defeat the
ends of justice. Having regard to all the circumstances and facts of this case
we are not disposed to hold that a case for our interference has been made out
by the appellant. That is why we dismiss this appeal but make no order as to
costs throughout.
Appeal dismissed.
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