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Arbitral tribunal

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whether the Award of the learned Arbitrator tantamounts to a decree or not, the language used in Section 36 of the Arbitration and Conciliation Act, 1996, makes it very clear that such an Award has to be enforced under the Code of Civil Procedure in the same manner as it were a decree of the Court. The said language leaves no room for doubt as to the manner in which the Award of the learned Arbitrator was to be accepted.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.9763 OF 2011 (Arising out of SLP(C) No.18509 of 2009) Leela Hotels Ltd. … Appellant Vs. Housing & Urban Development Corporation Ltd. … Respondent J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. This Appeal has been … Continue reading

ARBITRATION=”Only because the respondent has accepted the final bill, the same would not mean that it was not entitled to raise any claim. It is not the case of the appellant that while accepting the final bill, the respondent had unequivocally stated that he would not raise any further claim. In absence of such a

1 “REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1735 OF 2006 Durga Charan Rautray …. Appellant Versus State of Orissa & Anr. …. Respondents J U D G M E N T JAGDISH SINGH KHEHAR, J. 1. The appellant was entrusted with the construction of balance work of earth … Continue reading

Arbitration and Conciliation Act, 1996: s. 9-Application for interim measures by court-Unregistered partnership firm in liquor trade-Application by one of the partners for appointment of receiver to take charge of business of the firm-Trial court dismissing the application on the ground that name of the applicant does not figure in the register of firms as partner of the firm-High Court allowed the application holding that s.69(3) of the Partnership Act is not attracted to an application u/s 9 of the Act-High Court further directed that the partners who were running the business would run the business as receivers till 31.12..2003 and from 1.1.2004 to 31.3.2004 the applicant and two other partners of his group would run the business as receivers s.9-Unregistered partnership firm-Application by one of the partners for directions to appoint receiver-Maintainability of- s. 9- “party “-Invoking s. 9-An application u/s. 9 is not a suit- ‘Parity’ is defined in s. 2(1 )(h) to mean a party to an arbitration agreement-So right conferred by s.9 is on a party to an arbitration agreement-Right conferred by s. 9 cannot be said to be one arising out of a contract-Filing of an application u/s 9 by a party by virtue of its being a party to.an arbitration agreement is for securing a relief which the court has power to grant before, during, or after arbitral proceedings by virtue of s.9 of the Act-The relief sought for in an application u/s 9 is neither in a suit nor a right arising from a contract-Party invoking s.9 may not have actually commenced arbitral proceedings but must be able to satisfy the court that the arbitral proceedings are actually contemplated or manifestly intended. =2004 AIR 1433, 2004(1 )SCR404 , 2004(3 )SCC155 , 2004(1 )SCALE297 , 2004(2 )JT352 =Held, order passed by court should fall within the meaning of expression ‘an interim measure of protection’ as distinguished from an alt time of permanent protection-It is a serious matter to appoint a receiver on a running business-This is not a case of oppression of minority by majority-A better course would have been to allow the conduct of the business continuing in the hands of the persons who were doing so but at the same time issuing such directions and/or devising such arrangement as would protect and take care of the interest of those who are not actually running the business-Purpose of enacting s. 9 is to provide ‘interim measures of protection’-Though order of High Court appointing a receiver on the partnership business is maintained, the rest of the order is set aside- Directions given inter alia, for running the business by the group of partners who were running it prior to interim order of High Court under their control but as receivers, and for appointment of an official as observer- Interim order-Partnership Act, I932-s.69(3). Held, Court u/s 9 is only formulating interim measures so as to protect the right under adjudication before the arbitral tribunal from being frustrated-Prima facie, the bar enacted by s. 69 of Partnership Act does not affect the maintainability of an application under s.9 of the Act-s. 69 of Partnership Act has no bearing on the right of a party to an arbitration clause to file an application under s.9 of the Act. M/s. Sundaram Finance Ltd. v. Ms. NEPC India Ltd, AIR 1999 SC 565, relied on. Kamal Pushpa Enterprises v. DR Construction Company, AIR (2000) SC 2676; Jagdish Chandra v. Kajaria Traders (Ind.) Ltd., AIR (1964) SC 1882 and Delhi Development Authority v. Kochhar Construction Work and Anr., [1998] 8 SCC 559, referred to. M/s. Shreeram Finance Corporation Ltd. v. Yasin Khan and Ors., [1989] 3 SCC 476, cited. Words and phrases: Word ‘before’ in s. 9 of Arbitration and Conciliation Act, 1996-Connotation of. CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 132 and 131 of 2004. From the Judgment and Order dated 18.12.2003 of the Madhya Pradesh High Court in M.A. No.2484 of 2003. Harish N. Salve, Dr. A.M. Singhvi, Kapil Sibaii, P. Chidambaram, R.F. Nariman, Vivek Tankha, Rohit Arya, C. Mukhopadhyaii, Manu Nair, Ms. Shalini, Rakesh K. Khanna, Aseem Mehrotra, Kanahaya Singh, Rajeev Singh, Rajesh Prasad Singh, Akshay Arora, P.K. Bansal, Pankaj Kr. Singh, K.L. Janjani and Ms. Abha R. Sharma for the appearing parties.

CASE NO.: Appeal (civil) 131-132 of 2004 PETITIONER: FIRM ASHOK TRADERS AND ANR. ETC. RESPONDENT: GURUMUKH DAS SALUJA AND ORS. ETC. DATE OF JUDGMENT: 09/01/2004 BENCH: R.C. LAHOTI & ASHOK BHAN JUDGMENT: JUDGMENT 2004(1)SCR 404 The following Order of the Court was delivered : Leave granted in both the SLPs. The dispute is among 12 … Continue reading

Arbitration Act, 1940-Sections 20 and 39(iv)-Arbitration and Conciliation Act, 1996-Sections 21 and 85(2)(a)-Application for appointment of arbitrator in terms of arbitration clause in case of dispute between parties-Trial Court holding that firm being unregistered as such application not maintainable even though applicant firm filed amendment application with regard to the same-High Court holding that since 1996 Act has come into force parties to relegate under the new Act-On appeal held : Since the arbitral proceedings commenced before coming into force of the 1996 Act, provisions of 1940 Act applicable and matter remitted to High Court-Furthermore firm must be registered at the time of the institution of the suit and not later-Also, the High Court is to consider the correctness of the order passed by trial court-Partnership Act, 1932- Section 69. Appellant-State Sugar Corporation and respondent-construction company entered into a contract. Dispute arose between the parties but the appellant did not appoint any arbitrator as per the arbitration clause in the contract. Respondent filed application under section 20 of the Arbitration Act, 1940. Civil Judge held it to be not maintainable as the respondent firm was not registered even though the respondent had admitted that it failed to make necessary averment in the plaint as regard registration of the firm inadvertently and had filed an application for amendment of the petition. Respondent then filed an appeal. High Court allowed the appeal directing that since the Arbitration and Conciliation Act, 1996 has come into force, parties are to relegate under the new Act Hence the present appeal. Appellant-State Sugar Corporation contended the application for appointment of an arbitrator was not maintainable under the 1940 Act and the 1996 Act as the respondent firm was not registered; and that in any event, the impugned judgment is unsustainable in law as the arbitral proceeding was initiated prior to coming into force of the 1996 Act. Respondent-firm contended that in a similar matter this Court directed the trial court to appoint an arbitrator in terms of arbitration clause of the contract between the parties, on remitting the matter, and as such there being a similar stipulation in the instant case, it must be acted upon. =Allowing the appeal, the Court HELD : 1.1. In the event it is found by the High Court that the Civil Judge was wrong in rejecting the application for amendment of the plaint and in fact the respondent-firm was registered under the Partnership Act, the question of throwing out the said suit on that ground would not arise. High Court would consider these questions. Further, it is true that the arbitral proceedings would not be maintainable at the instance of an unregistered firm having regard to the mandatory provisions contained in Section 69 of the Partnership Act, 1932. The firm must be registered at the time of institution of the suit and not later. [830-F-G] Delhi Development Authority v. Kochhar Construction Work and Anr., [1998] 8 SCC 559, relied on. Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., AIR (1964) SC 1882 and Firm Ashok Traders and Anr. v. Gurumukh Das Saluja and Ors., [2004] 3 SCC 155, referred to. 1.2. Disputes and differences between the parties arose in the year 1991 and the respondent filed an application under Section 20 of the Arbitration Act, 1940 in the same year. It invoked the arbitration clause in the agreement. The arbitral proceeding was set in motion. In terms of Section 21 of the Arbitration and Conciliation Act, 1996 the arbitral proceedings in respect of a particular dispute commences on a date on which the request for that dispute to be referred to arbitration was received by the respondent. Therefore, in respect of the arbitral proceedings commenced before coming into force of the 1996 Act, the provisions of the 1940 Act would apply. Hence, the matter is remitted to High Court for afresh consideration. [831-A-B; 832-A-B] Milkfood Ltd. v. M/s. GMC Ice Cream (P) Ltd., JT (2004) 4 SC 393, relied on. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5479 of 2004. =2004 AIR 4335, 2004(3 )Suppl.SCR826 , 2004(7 )SCC332 , 2004(7 )SCALE307 , 2004(7 )JT61

CASE NO.: Appeal (civil) 5479 of 2004 PETITIONER: U.P. State Sugar Corporation Ltd. RESPONDENT: Jain Construction Co. & Anr. DATE OF JUDGMENT: 25/08/2004 BENCH: N. Santosh Hegde & S.B. Sinha JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.4459 of 2004) S.B. SINHA, J : Leave granted. This appeal … Continue reading

Indian Arbitration and Conciliation Act, 1996: Section 11(5)-Appointment of arbitrator-Application by the legal heir of the deceased partner-Held, maintainable. Indian Partnership Act, 1932; Section 46-Rendition of accounts-Legal representative of a deceased partner-Right to sue-Held, survives on the legal representative. The Short questions involved in the appeals were: (a) Where right to sue for rendition of accounts survives on the legal representative of a deceased partner, are the legal representative not entitled to invoke arbitration clause contained in the Partnership Deed? (b) Whether the arbitration can be commenced by the heirs after the death of partner especially where the dispute had arisen during the life time of the partner? (c) Whether in view of section 46 read with section 48 of the Indian Partnership Act, 1932 as well as section 40 of the Arbitration Act, 1996. The legal representative of the deceased partner is entitled to claim appointment of arbitrator under the arbitration clause of the Partnership Deed? =2007 AIR 1517, 2007(4 )SCR295 , , 2007(4 )SCALE562 , 2007(4 )JT523

CASE NO.: Appeal (civil) 1526 of 2007 PETITIONER: Ravi Prakash Goel RESPONDENT: Chandra Prakash Goel & Anr DATE OF JUDGMENT: 21/03/2007 BENCH: Dr. AR. Lakshmanan & Altamas Kabir JUDGMENT: J U D G M E N T (Arising Out of SLP (C) NO. 6723 OF 2006) Dr. AR. Lakshmanan, J. Leave granted. The above appeal … Continue reading

Partnership Act : 1832 : Partnership firm-Re-registration-Effect of-Firm registered in 1949-Again registered comprising some of the original partners in 2005 with the same name-Earlier firm not dissolved-Held, registration of the firm in the same name again in 2005 does not affect the status of the firm. Arbitration and Conciliation Act, 1996 : ss. 9 and 11 (4) (b)-Interim order by District Judge u/s 9-Propriety of-Arbitration clause is an agency agreement-Agreement for a specific period having come to an end-Parties nominating their respective arbitrators but both the arbitrators so nominated failing to nominate presiding arbitrator-Application u/s 11 (4)(b) before Chief Justice of High Court for appointing third arbitrator-Meanwhile on application, District Judge granting interim order to maintain status quo until arbitral tribunal takes the matter-High Court vacating the interim order-Held, Adequate grounds are not made out at this interlocutory stage for interfering with order of High Court and parties are left to have their disputes resolved in terms of arbitration agreement-As agreed by both the parties, sole arbitrator appointed to decide the disputes between the parties-Except the question of maintainability of appeal filed by respondent before High Court on the pretext of re-registration, since, the appeal has been held to be maintainable, all the other questions are left open for decision by the sole arbitrator. Respondent no. 1, a partnership firm was constituted in the year 1949 bearing registration no. 71/1949. It was reconstituted in subsequent years taking in some additional partners. On 14.3.1991 the respondent-firm entered into an agency agreement with the appellant, a private limited company, engaging the latter as a raising contractor in respect of the mines for which the former had obtained leases from the State Government. On 25.3.1991 the respondent firm executed an irrevocable power of attorney in favour of the appellant authorizing it to administer the mines and sell the iron ore extracted therefrom. The agency agreement was to end on 31.3.2006. The appellant sought a further extension of the term but respondent no.1 was not willing for an extension. Disputes arose between the parties and by a letter dated 9.12.2005 the appellant invoked the arbitration clause in the agency agreement and nominated its arbitrator. The respondent firm registered itself again on 24.12.2005 bearing registration no. 595/2005. It, however, in turn also nominated an arbitrator. The arbitrators so nominated were to name the presiding arbitrator but since they failed to do so the appellant filed a petition under Section 11(4)(b) of the Arbitration and Conciliation Act, 1996 requesting the Chief Justice of the High Court to appoint the third arbitrator. While the said application was pending, the appellant company also filed an application under Section 9 of the Act before the District Judge for interim relief to permit it to continue to carry on the mining operations and to restrain the respondent from interfering with it. The District Judge directed status quo to be maintained until arbitral tribunal was constituted to adjudicate the dispute between the parties. The respondent filed an appeal before the High Court which held that since prima facie the agreement between the parties was not a specifically enforceable one in terms of the Specific Relief Act and since the terms of the agreement had expired, it was not appropriate to grant the interim order, and reversing the order of the District Judge, dismissed the application filed by the appellant-company. Aggrieved, the latter filed the instant appeal. It was contended for the appellant that it had entered into agreement with the firm bearing registration no. 71/1949, and since the appeal before the High Court was filed by the firm bearing registration no. 595/205, the same was not maintainable; that since the agreement entered with the appellant was, in the light of irrevocable Power of Attorney, co-terminus with the mining lease granted to the respondent firm, the same could not be terminated and would not come to an end by efflux time; and that powers under Section 9 of the Act, were independent of any restrictions placed by Specific Relief Act. =Dismissing the appeal, the Court HELD: 1. It was the appellant who filed the application under Section 9 of the Arbitration and Conciliation Act, 1996 impleading the respondent firm and its partners. The said firm represented by a partner, who even admittedly was a partner of the firm as constituted in the year 1949 and was also a party to the agreement with the appellant-company itself, had filed the appeal before the High Court. There is no case that the firm registered in the year 1949 had been dissolved. On the other hand, it was being reconstituted from time to time. Therefore, the fact that a firm in the same name was again registred in the year 2005, does not affect the status of the firm with which the appellant-company had a contract and the filing of the appeal by that firm represented by its partner. [Part 11] [187-B, C, D] 2. The effect of the agreement dated 14.3.1991 and the Power of Attorney dated 25.3.1991 admittedly executed between the parties and the rights and obligations flowing therefrom are really matters for decision by the Arbitral Tribunal. [Para 12] [187-F] 3.1. In the facts and circumstances, prima facie, it is not possible to say that the High Court was wrong in thinking that it may be a case where an injunction could not be granted in view of the provisions of the Specific Relief Act. But, that again will be a question for the arbitrator to pronounce upon. Suffice it to say that the position is not clear enough for this Court to assume for the purpose of this interlocutory proceeding that the appellant is entitled to specifically enforce the agreement dated 14.3.1991 read in the light of the Power of Attorney dated 2.5.3.1991. Of course, this aspect will be again subject to the contention raised by the appellant-company that the agreement created in his favour was co-terminus with the mining lease itself. But, these are the aspects to be considered by the Arbitral Tribunal Adequate grounds are not made out by the appellant at this interlocutory stage for interfering with the order of the High Court. In that view alone, it would be proper to decline to interfere with the order of the High Court and leave the parties to have their disputes resolved in terms of the arbitration agreement between the parties. [Para 13 and 14] [188-B, C, D, E] 4. The argument that the power under Section 9 of the Act is independent of the Specific Relief Act or that the restrictions placed by the Specific Relief Act cannot control the exercise of power under Section 9 of the Act cannot prima facie be accepted. Suffice it to say that prima facie exercise of power under Section 9 of the Act must be based on well recognized principles governing the grant of interim injunctions and other orders of interim protection or the appointment of a receiver. [Para 15] [188-F; 189-C, D] Firm Ashok Traders and Anr. v. Gurumukh Das Saluja and Ors., [2004] 3 SCC 155, held inapplicable. 5. It is seen that in spite of the parties naming their respective arbitrators in terms of the arbitration agreement, the arbitrators so appointed had not been able to nominate a presiding arbitrator. Since counsel on both sides agreed that this Court may appoint either a presiding arbitrator or a sole arbitrator for the purpose of resolving the disputes between the parties from the panel of names furnished, the Court appointed the sole arbitrator to decide on the disputes between the parties springing out the agreement dated 14.3.1991 and the Power of Attorney dated 25.3.1991. The arbitrator would be free to fix his terms in consultation with the parties. [Para 16] [189-D-G] Dr. A.M. Singhvi, Jaideep Gupta, Sr. Adv., Ashutosh Kaitan, P.K. Bansal, Deepak Khurana, Vishvjit Das, Umesh Kumar Khaitan, Amit Bhandari for the Appellant. A.K. Ganguly, Surya Prakash Mishra, K.K. Venugopal, Sr. Adv., S. Ravi Shankar, Rateesh, Barnali Basak, Visushi Chandana, S. Ravishankar, Yamunah Nachiar, S. Ravishankar for the Respondents.

CASE NO.: Appeal (civil) 2707 of 2007 PETITIONER: M/s Arvind Constructions Co. Pvt. Ltd RESPONDENT: M/s Kalinga Mining Corporation & Ors DATE OF JUDGMENT: 17/05/2007 BENCH: TARUN CHATTERJEE & P.K. BALASUBRAMANYAN JUDGMENT: J U D G M E N T CIVIL APPEAL NO. 2707 OF 2007 (Arising out of SLP(C) No. 3294 of 2007) P.K. … Continue reading

In the absence of arbitration clause, no case can be filed under arbitration act = mere use of the word ‘arbitration’ or ‘arbitrator’ in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words such as “parties can, if they so desire, refer their disputes to arbitration” or “in the event of any dispute, the parties may also agree to refer the same to arbitration” or “if any disputes arise between the parties, they should consider settlement by arbitration” in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that “if the parties so decide, the disputes shall be referred to arbitration” or “any disputes between parties, if they so agree, shall be referred to arbitration” is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future.”

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY   Arbitration Application No.141 of 2010 18-07-2011 Ms.Jain Irrigation Systems Limited,Jalgaon, Maharashtra,Joint Managing Director Shri Ajit Bhavarlal Jain Ms.Satyam Computer Services Limited, Mahindra Satyam Infocity,Madhapur, Hyderabad !COUNSEL FOR APPLICANT: Ms.C.Kodandaram, Senior Counsel COUNSEL FOR RESPONDENT: Ms.Shireen Sethana Baria :ORDER: This Arbitration Application has been taken out by the applicant … Continue reading

specific performance case, arbitration case , company petition -M/s.Merbanc Financial Services Limited (hereinafter referred to as "the company") is absolute owner of 1853.80 square yards in Plot No.7, Sector 1, HUDA Techno Enclave in Sy. No.64 of Madhapur village, Sherilingampally, Ranga Reddy District. The applicant approached the company for development of the said plot into a multi-storied building complex. They entered into a development agreement-cum-General Power of Attorney on 6.1.1999 (for brevity, "agreement"). Under the said agreement, the applicant was authorized to construct a multi- storied building complex on the said plot. The company has to secure exemption under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. As per Clause 3 of the agreement, the applicant shall invest his capital and construct the building complex as per mutually agreed plan and building specifications ensuring that the design and construction shall be sound and that it should confirm to statistical engineering practices. The applicant has to deposit security amount of Rs.20.00 lakhs. He paid a sum of Rs.5 lakhs towards security deposit at the time of the execution of the agreement. The balance security deposit of Rs.15 lakhs is payable within a fortnight from the intimation of fact of obtaining exemption order from the Urban Land Ceiling Authority by the company. As per Clause (14) of the agreement, the company has to liquidate its liability to Andhra Pradesh Industrial Development Corporation ("APIDC") and obtain original documents of title within five months from the date of the agreement. Some delay occurred in getting clearance from the Urban Land Ceiling Authority by the company. The applicant claims to have spent considerable amount in carrying out the developmental activity pursuant to the said agreement. The company took the stand that the applicant failed to pay balance security deposit amount of Rs.15 lakhs as per Clause 3(d) of the agreement and thereby, it issued letter dated 18.4.2000 terminating the agreement.The Supreme Court after taking into consideration the economic reforms in the country reduced the rate of interest awarded by the arbitrators from 18% to 9%, vide decision of the Supreme Court in=compensation not to be given for any remote or indirect loss or damage sustained by reason of breach of contract. Awarding of damages by Arbitrator on the claim made by contractor that he would have earned more profit if money due to him is paid in time is unsustainable as it is too remote a claim to be allowed.

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY C.A.No.480 of 2007 In C.P.No.113 of 2002 12-07-2010 A.Sridhar Lakshman M/s.Merbanc Financial Services Ltd. Rep. by Official Liquidator and others !Counsel for the Applicants: Sri P.Vinayaka Swamy Counsel for the Respondents: Sri M.Anil Kumar for Official Liquidator Sri S.Sriram Reddy for respondent No.5 :ORDER: This application under Section 34 … Continue reading

With regard to the effect of Section 42 of the Arbitration and Conciliation Act, 1996, the same, in our view was applicable at the pre-arbitral stage, when the Arbitrator had not also been appointed. Once the Arbitrator was appointed and the arbitral proceedings were commenced, the SIAC Rules became applicable shutting out the applicability of Section 42 and for that matter Part I of the 1996 Act, including the right of appeal under Section 37 thereof. 41 40. We are not, therefore, inclined to interfere with the judgment under appeal and the appeal is accordingly dismissed and all interim orders are vacated.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7562 OF 2011 (Arising out of SLP(C) No.25624 of 2010) YOGRAJ INFRASTRUCTURE LTD. … APPELLANT Vs. SSANG YONG ENGINEERING AND CONSTRUCTION CO. LTD. … RESPONDENT J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. The Appellant is … Continue reading

“Where the arbitration agreement between the parties is denied by the respondent, whether the Chief Justice or his designate, in exercise of power under section 11 of the Act, can appoint an arbitrator without deciding the question whether there was an arbitration agreement between the parties, leaving it open to be decided by the arbitrator?”

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7334 OF 2011 [Arising out of SLP [C] No.15286/2011] Bharat Rasiklal Ashra … Appellant Vs. Gautam Rasiklal Ashra & Anr. … Respondents J U D G M E N T R.V.RAVEENDRAN, J. Leave granted. Heard. 2. The appellant and first respondent are brothers. … Continue reading

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