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Whether it is necessary to adduce oral evidence to prove terms of lease deed?

IN THE HIGH COURT OF CALCUTTA

G.A. No. 1058 of 2016 and C.S. No. 100 of 2009

Decided On: 14.02.2018

Kanak Projects Limited

Vs.
Hooghly Printing Company Limited

Hon’ble Judges/Coram:Sahidullah Munshi, J.

Citation: AIR 2018 (NOC) 792 Cal

1. This is an application filed by the plaintiff praying for a judgment upon admission against the defendant for recovery of possession of the demised premises. A short background of this case is necessary for disposal of the present application. The plaintiff granted a lease in favour of the defendant on 22nd May, 1998 for the suit premises (hereinafter referred to as the ‘demised premises’) for a period of 30 years commencing from 1st April, 1998. Certain acts have been prohibited and some have been permitted by the lessor being the plaintiff herein to be done by the defendant/lessee in the demised premises. As per clause (ix) of the said lease deed, the defendant/lessee was permitted to cause internal space adjustment and reallocation of the service and utilities without adversely affecting the structural ability of the building. Such acts have been permitted to the defendant for proper utilization of the demised premises according to defendant’s need to make its operation viable. However, in the selfsame clause the lessor has mentioned that if required, the defendant may cover the open space between the main building of the demised premises and the structures in the demised premises which is presently being used as generator station only by fixing asbestos shed. In clause (xi) of the lease deed it is mentioned that if there be any breach or non-observance of any of the covenants, conditions and stipulations on the part of the lessee and on the happening of any such event, the lessor should give three months’ notice in writing under Registered Post with Acknowledgment Due to the lessee to remedy the breach and in case the lessee fails to remedy such breach, in that event it would be lawful for the lessor at any time thereafter to re-enter upon the demised premises or any part thereof. Clause (2) page 8 of the lease deed further shows that the lessor shall not object installation of modern plant and machineries and removal of the machineries’ scrap from time to time by the lessee and shall not obstruct movement thereof as also the movement of inputs and outputs to and from the demised premises.

2. According to the plaintiff, notwithstanding such permission to the defendant to install modern plant and machinery at the demised premises and to remove the same therefrom, no right has been given to the defendant by the said lease to make any construction thereat except for covering open space between the main building of the demised premises and the structure thereat being used as generator station by fixing an asbestos shed, if required.

3. On the allegation that the defendant proceeded to surreptitiously construct a concrete foundation within the demised premises of approximately 11 meters and 4 meters as a base for installation of a printing machine thereat and wherein the defendant excavated a portion of the foundation of the building comprised within the demised premises feeling that the defendant violated the terms and conditions stipulated in the lease deed, the plaintiff terminated the lease by a notice dated 26th December, 2008 as the defendant failed to remedy the breach for removing such foundation within the period specified in the said notice and thereafter proceeded to file a suit praying, inter alia, for recovery of possession of the demised premises by evicting the defendant therefrom. Prior to the present suit, the plaintiff also filed a suit being C.S. No. 268 of 2007 against the defendant and prayed, inter alia, for –

a) Decree for declaration that the defendant is not entitled to install any new plant and machinery within the demised premises;

b) Decree for declaration that the defendant is not entitled to install any additional or new plant and machinery and/or to construct any new foundation therefor within the demised premises;

c) Decree for perpetual injunction restraining the defendant, its servants, agents and/or assigns from proceeding any further with the installation of any new plant and machinery in the demised premises;

d) Decree for perpetual injunction restraining the defendant, its servants, agents and/or assigns from installing any new or modern plant and machinery within the demised premises.

4. The said suit being C.S. No. 268 of 2007 is still pending. Issues have been framed therein. In connection with the said suit being C.S. No. 268 of 2007 an interlocutory application being G.A. No. 3453 of 2007 was filed by the plaintiff and in connection thereto the defendant filed an affidavit-in-opposition. According to the plaintiff, in the said affidavit, the defendant has expressly admitted that for the purpose of installation of modern PM- 74 four colour Heidelberg offset printing machines the defendant erected a base block within the demised premises on the basis of a construction plan approved by the Kolkata Municipal Corporation. Therefore, the plaintiff has filed this application with necessary prayers for passing a judgment on admission against the defendant.

5. Mr. Saha appearing for the plaintiff/petitioner submitted that paragraph (f) at page 5 of the said affidavit being an annexure to the present application will sufficiently prove that the alleged violation of the relevant clauses of the lease deed which attracts termination of lease, has since been admitted by the defendant in another suit in between the parties, provisions of Order XII, Rule 6 are attracted.

6. Paragraphs f) to i) respectively at pages 5, 7 and 8 of the affidavit-in-opposition of the defendant at pages 179 to 181 of the petition shows the relevant admission and those are set out below:-

“f) The respondent states that for the purpose of installation of the said machine a foundation base was required to be constructed on the ground floor where such machine can be placed. For the purpose of preparing such base block for installation of the said offset machine and also for carrying out certain repair and maintenance of the ground floor, the respondent submitted the construction plan for the base block to the Director General (Building) of Kolkata Municipal Corporation (hereinafter referred to as “KMC”) for necessary approval. Along with the application for approval, the respondent has made available all the details regarding the said machine as also the certificate issued by its Engineer. A copy of the said letter dated 13th July, 2007 is annexed hereto and marked with the letter “A”.

(i) After receiving the said letter so far as the respondent is aware of the Director General (Building) of KMC forwarded the said application to the Executive Engineer (Building) and to their authorities for their consideration. Thereafter, the Assistant Engineer from the building department of KMC visited the site and duly inspected the present installation and verified all the details with regard to the proposed erection of base block. Subsequently, another engineer from Heritage Department of KMC also visited the site and made a detailed enquiry regarding the erection of such base block and took exclusive photographs of inside and outside of the building. Subsequently, the building department of KMC directed us to deposit the necessary fee for such erection of base block under Rule 3(2) of KMC Building rules and such fee was deposited by a draft bearing No. 984537 dated 1st of August, 2007 for a sum of Rs. 5,430/-. Such deposit was made on 1st of August, 2007.

g) The respondent states that following the said application and upon due verification and inspection the said municipal authority after receiving such payment by a communication dated 3rd August 2007 approved the proposal for erection of the base block for installation of the printing machine. The municipal authority has approved foundation of certain height and size to be constructed under strict supervision of the said Kolkata Municipal Corporation (KMC). A copy of the said letter dated 3rd August 2007 is annexed hereto and marked with the letter “B”.

h) I say that before approving the said erection responsible officers of the corporation had visited the site on several occasions, namely on 23.7.2007 and 25.7.2007 and after verification of all the records granted such approval.

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i) After getting such necessary approval, the petitioner started erecting such base block under the supervision of the KMC and the said work was completed in the month of September, 2007.

(i) I say that after completion of the said erection, KMC was duly informed and they have also duly inspected the said site. In fact, such erection was duly communicated to the building department along with the certificate of the engineer who had duly supervised the said construction of base block. A copy of the said certificate dated 5th of November, 2007 and the letter dated 10th of November, 2007 by which such communication was forwarded is annexed hereto and marked as Letter ‘C’.”

7. According to Mr. Saha, the admission is clear and unambiguous admission and this is sufficient for the Court to pass a judgment on admission. Therefore, according to Mr. Saha, the plaintiff is entitled to the decree prayed for in the suit. In order to buttress his such submission, Mr. Saha has placed reliance on the following decisions in the case of –

• Paritosh Ghosh – v. – Ashim Kumar Gupta & Ors., reported in MANU/WB/0682/2002 : (2002) 4 CHN 382;

• Nisha Rani Mookherjee – v. – Puran Chand Jain, reported in (2004) 10 SCC 637;

• Thimmappa Rai – v. – Ramanna Rai & Ors., reported in MANU/SC/2402/2007 : (2007) 14 SCC 63.

8. Mr. Sabyasachi Chowdhury appeared for the defendant and made elaborate submission in the matter. However, concluding submission has been made by Mr. Dutta on 7th February, 2018. Mr. Chowdhury submitted that portion of the affidavit as relied on by Mr. Saha does not amount to admission at all within the meaning of Order XII, Rule 6 of the Code of Civil Procedure (hereinafter referred to as the ‘said Code’). He further submitted that admittedly, a previous suit was filed challenging the alleged attempt for installation of machine by the defendant and it is exactly the issue in the said suit whether or not terms and stipulations of the lease deed permitted the defendant to make such installation and, therefore, during the pendency of the said suit, if a judgment on admission is passed it will be an attempt to pre-judge the issue in the earlier suit which ought not to be done. Mr. Chowdhury further submitted that all through, the plaintiff was aware of the alleged construction made by the defendant and, that too, such construction was challenged by the plaintiff in a writ petition being W.P. No. 219 of 2008 and the writ petition was dismissed by an order dated 24th February, 2015 by the Hon’ble Single Bench of this Court holding, inter alia, –

“The Kolkata Municipal Corporation has granted permission for installation. They, on inspection, are of the view that the installation and operation of the machine in question would not cause any damage to the existing building. The writ petitioners have not placed any material to contest the view of the Kolkata Municipal Corporation. In such circumstances, I find no merit in the writ petition …”
9. The said order was challenged before the Hon’ble Division Bench and the appeal was dismissed by an order dated 30th September, 2015 and observed –

“Rule 4 relied upon by Mr. Saha is applicable only in the case where a person intends to erect a new building or re-erect or make addition or alteration of any building. In the case before us neither was the respondent No. 7 seeking to erect a new building nor was he seeking to re-erect or make addition or alteration of any building. Therefore, Rule 4 had no manner of application. He merely wanted to make a masonary foundation. He applied for permission of the Kolkata Municipal Corporation and such permission was granted. The suit Court directed the Kolkata Municipal Corporation to furnish a report as to whether the foundation made by the respondent No. 7 pursuant to the permission granted by Kolkata Municipal Corporation had in any manner weakened the structure. The report filed by the Kolkata Municipal Corporation was in the negative. We are told that the report is under challenge. But nothing really turns upon whether the report is or is not under challenge. In case, it is found that the foundation constructed by the respondent No. 7 has, in fact, weakened the structure then it will be open to the lessee to seek appropriate remedy in accordance with law before the suit Court. The contention that the Kolkata Municipal Corporation could not have granted the permission without hearing the lessors, according to us, is altogether without any merit and, therefore, the writ petition was deservingly dismissed. The appeal is also dismissed. The observations made herein are for the purpose of disposal of this appeal and that shall not in any manner prejudice the rights and contentions of the parties in the pending suit nor shall the Trial Court be influenced by any observation made by us because the question for consideration before us is whether a notice to the lessor was required. Our view is that no such notice was required. Therefore the grant of permission was not bad.”
10. Mr. Dutta appearing for the defendant submitted that in the teeth of the aforesaid orders passed in the writ proceeding initiated at the instance of the lessor, there can be no basis for making any allegation that the defendant has acted illegally in making the alleged construction. Mr. Dutta has drawn the attention of the Court to a notice issued by the learned Advocate for the plaintiff whereby the defendant was required to restore the demised premises in its original condition within three months from the date of receipt of the said notice. The said notice, however, was issued under Section 111(g) of the Transfer of Property Act. He refers to his reply dated 16th January, 2009 to the aforesaid letter of the plaintiff’s Advocate wherefrom it would appear that the defendants denied the allegation of construction of the base foundation causing structural damage which was sub-judice in C.S. No. 268 of 2007. Mr. Dutta added that whether the admission is ambiguous or not it depends upon the facts of each case. He relies on a decision in the case of Jeevan Diesels and Electricals Limited – v. – Jashir Singh Chandha (HUF) & Anr., reported in MANU/SC/0355/2010 : (2010) 6 SCC 601. Mr. Dutta has submitted that the alleged admission in the affidavit filed by the defendant in C.S. No. 268 of 2007 does not amount to admission within the meaning of Order XII, Rule 6 of the Code. He further submits that once the legality of the alleged construction was challenged by the plaintiff and the same was held to be not illegal and particularly when the Hon’ble Division Bench dismissed the appeal observing that the plaintiff’s plea of getting notice from the Corporation was turned down, defendant’s case for passing of judgment on admission should be thrown. He submitted that the application cannot succeed and it should be dismissed. According to Mr. Dutta, clause (ix) of the lease deed permits the defendant to make internal space adjustment and reallocation of the service and utilities without adversely affecting the structural ability of the building. He submitted that had there been any chance of damaging the structural ability of the building, the Corporation would not have granted him permission to make the construction. According to him, since the permission has been accorded by the statutory authority, it should not be said that the defendant has made any construction which will affect the structural ability of the building. He further submits that as agreed by and between the lessor and the lessee, the lessor would not object installation of modern plant and machineries and removal of machineries’ scrap from time to time by the lessee. He submitted that this is sufficient permission by the lessor and on the exercise of which the lessee can install modern plant like the present one and there should be permission to make necessary alteration in the building.

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11. I have heard the learned Counsels appearing for the petitioner and the respondent at length and I have also perused the materials disclosed by the parties. The moot question is whether the defendant was permitted under the lease deed to make the alleged construction and whether the defendant has admitted such construction in his affidavit-in-opposition annexed to the petition. On consideration of the relevant clauses of the lease deed which is on record it appears that the lessor permitted the lessee to have internal space adjustment and reallocation of service and utilities without adversely affecting the structural ability of the building under clause (ix) of the lease deed. On perusal of the said clause (ix) of the lease deed it is plain and simple that minor changes have been permitted under the lease deed that is to say, that internal space adjustment and reallocation of service and utilities without adversely affecting the structural ability of the building. This is the first portion of clause (ix). The second portion of clause (ix) says – “if so required may cover the open space between the main building of the demised premises and the structures in the demised premises which is presently being used as generator station only by fixing asbestos shed.” Clause (ix) does not expressly or impliedly allow the lessee to make construction in the demised premises. The size of the construction as alleged in the petition is to the extent of approximately 11 meters and 4 meters as a base for installation of printing machine. The plaintiff has made this allegation of making construction of 11 meter/4 meter as a base for installation of a printing machine at paragraph 5 of the petition which has been dealt with by the respondent in their affidavit-in-opposition in paragraph 5 wherefrom it does not appear that the defendant has dealt with the allegation of construction of the base for installation of the printing machine. Therefore, it is apparent from the petition and the affidavits filed by the defendant that the defendant has not denied the allegation of making construction and in the affidavit in the earlier suit they have made admission of having made such construction. If an admission has been made by the defendant in the earlier proceeding on a suit between the selfsame parties, Court cannot shut its eyes regarding the entitlement of the plaintiff to have a judgment on admission within the meaning of Order XII, Rule 6 of the Code of Civil Procedure. Order XII, Rule 6 is set out below:

O. XII, R.6. Judgment on admissions. – (1) Where admission of fact have been made either in the pleading or otherwise, whether orally or in writing the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”

12. From the prayer in the present suit being C.S. No. 100 of 2009 it appears that the plaintiff has prayed for a decree for recovery of vacant and peaceful possession of the demised premises based on the pleading that –

1) The defendant was never authorized or empowered to make any construction by way of new foundation.

2) The defendant, in spite of repeated objections raised by the plaintiff, wrongfully, illegally and in breach and/or non-observance of any condition and covenants contained in the said deed of lease, surreptitiously constructed/cast a big foundation pad of approximately 11 meters/4 meters.

3) Plaintiff sent a letter dated 26th December, 2008 by Registered Post with Acknowledgment Due through its learned Advocate and gave three months’ time to remedy the breach, failing which it would be lawful for the plaintiff at any time thereafter to re-enter upon the demised premises.

13. Present suit has been filed on the above pleading which the defendant claims to have denied and disputed that the plaintiff is not entitled to get a decree on the alleged breach of terms of the lease deed. If it is found that the said defendant has admitted such fact in any other proceeding in between the parties, then there is no necessity to compel the plaintiff to go for trial of the suit. It is the settled law that an admission is the best evidence and if such an admission is clear and unambiguous, then the plaintiff is entitled to a decree as prayed for. Together with this proposition it has also to be taken note of by the Court as to whether the issue in question, that is, the construction made by the defendant is in violation of the specified terms under the lease agreement and whether even after taking into consideration of the so-called admission of the defendant in the affidavit filed in earlier suit whether anything is left out for decision on trial or not. If Court found that the alleged construction is not permitted under the deed of lease and thereafter if it is found that such construction has been admitted by the defendant, no triable issue is left.

14. As indicated earlier, the defendant in his affidavit in the prior suit being C.S. No. 268 of 2007 has admitted that he has made construction. Not only such admission has been made, the extent of the construction as mentioned in the petition, has neither been dealt with, nor has it been denied by the defendant for obvious reason that the defendant has nothing to deny about such construction because in the affidavit filed in the prior suit the defendant has already made an admission and if the allegation of construction in the present petition is again denied that will be a false statement on oath. On perusal of the provisions of the lease deed it is apparent that such construction was never permitted under the lease deed and in the event of violation of such prohibition under the lease deed the plaintiff has got a right of re-entry into the premises.

15. In the instant case, it is undisputed that notice was served upon the defendant requesting him to remedy the breach and to restore the demised premises in its original condition within three months from the date of receipt of the said notice. It is not the case of the defendant that they have not received the said letter dated 26th December, 2007 issued by the learned Advocate J. Sengupta for the plaintiff, rather by letter dated 16th January, 2009, the defendant’s learned Advocate wrote to Mr. J. Sengupta, learned Advocate for the plaintiff and denied that his client committed breach of terms, conditions and covenants of the deed of lease dated 22nd May, 2008. Although, on 16th January, 2009, the defendant says that they have not made any construction while replying to the plaintiff’s learned Advocate’s letter dated 26th December, 2008, but it is an undisputed rather admitted fact that the defendant made construction at the demised premises. In paragraph 3(f) of its affidavit in connection with G.A. No. 3453 of 2007 filed in C.S. No. 268 of 2007, affirmed on 22nd November, 2007, the defendant justified the cause for construction at the demised premises. The construction made by the defendant is also apparent from this Court’s orders dated 24th February, 2015 in W.P. No. 219 of 2008 and 30th September, 2015 as relied on by the defendant. It is pertinent to point out here that while affirming the order dated 24th February, 2015 passed by the Hon’ble Single Judge in W.P. No. 219 of 2008, the Hon’ble Division Bench, while affirming the said order on 30th September, 2015, clearly mentioned that –

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“The observations made herein are for the purpose of disposal of this appeal and that shall not in any manner prejudice the rights and contentions of the parties in the pending suit nor shall the Trial Court be influenced by any observation made by us because the question for consideration before us is whether a notice to the lessor 5 was required. Our view is that no such notice was required…”
16. The question whether the construction by itself is a violation of the terms and conditions of the lease deed and whether for such violation any right has accrued to the defendant to terminate the lease or not, is a legal question and in my considered view, is not a triable issue for which no evidence is required. The argument advanced by the learned Counsels appearing for the defendant that inasmuch as permission obtained from the Kolkata Municipal Corporation before making construction the construction cannot be said to be illegal or unauthorized. The word ‘unauthorized’ should be interpreted not in the context of Kolkata Municipal Corporation Act, but in the context of the agreed terms between the parties. In the present case, the terms and conditions incorporated in the lease deed were agreed by the parties and for any breach thereof, the defaulting party is bound to suffer the consequences. Therefore, legality of the construction need not be considered through evidence inasmuch as the defendant has admitted that they have made construction.

17. As held by the Hon’ble Supreme Court in the case of Thimmappa Rai (supra) an admission made by a party to the suit in an earlier proceeding is admissible as against him provided such an admission is a relevant fact. The admission made by the defendant is with regard to the construction at the demised premises and this construction has a direct nexus with the prohibition contained under the lease deed which entitles the lessor to re-enter into possession upon termination of lease. Therefore, the defendant is bound to suffer consequence of making such construction in violation of the terms of the lease deed.

18. This rule enables the plaintiff or the defendant to get rid of so much of the action, as to which there is no controversy. It empowers the court to pass judgments and decree in respect of admitted claims pending disposal of disputed claims in a suit. The whole object of incorporating the procedure of Order XII Rule 6 is to grant a quick relief to a litigant whenever the Court finds any legally enforceable admission, the Court helps the litigant to get quicker relief. This relief under Order XII Rule 6 can be made available against the party in whose favour admission has been made and such relief can be made available at any stage of the suit irrespective of whether issues have been framed or not. This rule under Order XII is an enabling provision which confers discretion on the Court in delivering a quick judgment on admission of fact. In the present case, the scope of the suit is limited to the violation of the terms and stipulations under the lease agreement which includes making the construction without leave of the lessor and in the affidavit the defendant has admitted such construction for which the plaintiff/lessor determined the lease. Therefore, in my opinion, this is a fit case where judgment on admission can be passed as no triable issue of the fact admitted by the defendant remains for adjudication.

19. Section 108 of the Transfer of Property Act deals with rights and liabilities of lessor and lessee. Sub-Section (p) of the said Section is relevant for the present purpose which is set out below:-

“108. Rights and liabilities of lessor and lessee.- In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:-

(A) Rights and Liabilities of the Lessor

(a) ….

(b) …

(c) …

(B) Rights and Liabilities of the Lessee

(d) …

(e) …

(f) …

(g) …

(h) …

(i) …

(j) …

(k) …

(l) …

(m) …

(n) …

(o) …

(p) He must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes;

(q) On the determination of the lease, the lessee is bound to put the lessor into possession of the property.”

20. The provisions of Section 111 will, therefore, be attracted for the aforesaid violation. Section 111 says about determination of lease – Section 111 sub-section (g) is relevant in the present case and is set out below :-

“111. Determination of lease.-A lease of immoveable property determines. –

(a) …

(b) …

(c) …

(d) …

(e) …

(f) …

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.”

21. In this case, the lessee has breached an express condition which provides that on breach thereof the lessor may re-enter. Therefore, on a combined reading of Section 108(p) and Section 111(g) of the Transfer of Property Act, 1882 and the admissions of the defendant as indicated hereinabove, the plaintiff is entitled to get a judgment on admission and as a consequence thereof is also entitled to a decree for eviction of the lessee/defendant from the suit premises.

22. As I have already pointed out that in this case evidence is not required, the Court is to form an opinion that on the basis of the materials disclosed before the Court and the documents placed for consideration by the parties, the Court can test the admission on the disclosed documents.

23. Section 91 of the Indian Evidence Act deals with evidence of terms of contracts, grants and other dispositions of property reduced to the form of documents. The lease deed is a document within the meaning of Section 91 and, therefore, no amount of oral evidence is required for elucidation of the terms and conditions stipulated under the said lease deed. The document speaks for itself. So also Section 92 is relevant in the present case which relates to exclusion of evidence of oral agreement. When the document itself is admitted, no oral agreement can improve the defendant’s case.

24. In view of the discussion made above the petition is disposed of by passing a judgment upon admission against the defendant for recovery of possession of the demised premises by evicting the defendant therefrom and the suit is, accordingly, decreed in favour of the plaintiff in terms of prayer (a) of the plaint. There will, however, be no order as to costs.

25. Department is directed to draw up and complete the decree as expeditiously as possible.

26. Mr. Chowdhury prays for stay of operation of this order for a period of two weeks, as he has got instruction to prefer an appeal from this judgment.

27. Mr. Sarathi Dasgupta, appearing for the plaintiff, has vehemently opposed the prayer as made by Mr. Chowdhury. However, such objection cannot be sustained as a party should not be deprived to test the order. To meet the ends of justice there shall be a stay of operation of this order for a period of three weeks.

28. Urgent Photostat certified copy of this order be delivered, if applied for, to the learned Counsels for the respective parties upon compliance with all usual formalities.

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