Alopi Parshad And Sons Ltd. vs Union Of India (Uoi) on 20 January, 1960

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 20 January, 1960

Coram: J.C. Shah, K.N. Wanchoo, S.K. Das

In the matter titled Alopi Parshad And Sons Ltd. versus Union of India dated 20 January 1960, the Supreme Court of India delivered a judgment authored by Justice Shah, with the bench comprising Justices J.C. Shah, K.N. Wanchoo and S.K. Das. The case concerned the contractual relationship that had been created on 3 May 1937 when the firm known as M/s Alopi Parshad and Sons Ltd., hereinafter referred to as the Agents, entered into a written agreement with the Governor‑General for India in Council. Under the terms of that agreement, the Agents were appointed effective 1 October 1937 to act as purchasers of ghee that was to be supplied for the use of Army personnel. Clause 12 of the agreement required the Government of India to reimburse the Agents for the actual expenses that they incurred in the purchase of ghee, to cover the cost of empty tins, to pay for the expenses incurred in clearing Government tins from the railway, to meet any export land‑customs duty levied on ghee purchased and exported from markets situated in Indian States, and to pay any octroi duty, terminal tax or other local rates that were imposed on the ghee, together with certain other charges that the Agents might incur. In addition to these reimbursements, the Government also undertook to pay the Agents at rates that were specified in the agreement for three distinct categories: (1) the financing and overhead, commonly called mandi, charges that were incurred in the buying markets; (2) the cost of establishments and contingencies that the Agents were required to provide on the Government’s account for carrying out the purchase and supply of ghee; and (3) a buying remuneration for the service of acquiring the ghee. In consideration for the Government’s promise to pay a sum of one rupee and one anna for every one hundred pounds of net weight of finally accepted ghee, which was to be treated as a combined financing and overhead (mandi) charge, the Agents, by operation of clause 13, undertook to provide the necessary working capital and also agreed to bear all the costs, charges and expenses, including the financing and overhead charges, that they would incur in buying ghee in the market.

The agreement further required the Agents, by virtue of clause 14, to bear the establishment and contingency charges that were necessary for them to fulfill the terms of the contract, and in return the Government consented to pay a consideration of fourteen annas and six pies for every one hundred pounds of ghee that was accepted. Moreover, the Government promised to pay the Agents a remuneration for the services rendered in purchasing ghee at the rate of one rupee for each one hundred pounds of net weight of accepted ghee. The Agents, in accordance with the agreement, supplied ghee to the Government of India from time to time as and when it was required. The outbreak of the Second World War in September 1939 caused an enormous increase in the Government’s demand for ghee. Consequently, on 20 June 1942, the original agreement was revised by mutual consent of the parties. The revision altered the uniform rate that had previously been fixed at fourteen annas and six pies per hundred pounds of accepted ghee for establishment and contingencies, replacing it with a graded scale. Under the new scale, for the first five thousand tons of ghee supplied, the Agents were to be paid at the rate of rupee zero annas fourteen pies six per hundred pounds; for the next five thousand tons the rate was reduced to eight annas per hundred pounds; and for any supply exceeding ten thousand tons the rate was further reduced to four annas per hundred pounds. In a similar manner, the remuneration for services was also placed on a graded scale, with the rate of one rupee per hundred pounds applying to the first five thousand tons, eight annas per hundred pounds for the next five thousand tons, and four annas per hundred pounds for supplies beyond ten thousand tons. This modification of the rates became effective from 11 September 1940.

In the revised agreement, the payment for supplies exceeding ten thousand tons was set at a rate of one hundred pounds for each hundred pounds of ghee, while the remuneration for services was also graded: the first five thousand tons attracted a rate of one rupee per hundred pounds, the next five thousand tons a rate of eight annas per hundred pounds, and any amount beyond ten thousand tons a rate of four annas per hundred pounds. These modified rates became effective on 11 September 1940. On 6 December 1943 the agents sent a communication in which they requested that the remuneration for establishment and contingencies, the mandi and financing charges, and the buying remuneration be increased. They proposed a 25 percent increase in the buying remuneration, a 20 percent increase in establishment and contingencies, and a 112 percent increase in mandi and financing charges, arguing that the rates fixed in peacetime were entirely superseded by the altered wartime conditions. The Government of India gave no immediate response, and the agents continued to supply ghee until May 1945. On 17 May 1945 the Government, invoking its option under clause 9 of the original agreement, served a notice of termination. Five days later, on 22 May 1945, the Chief Director of Purchases replied, explaining that ordinarily no claim for rate revision could be considered during the term of the agreement, especially not with retrospective effect, but that an ex‑gratia compensation might be entertained if the agents could demonstrate circumstances justifying such a claim. The Director asked the agents to furnish their auditors’ report on the agency accounts for the ghee supplied, together with a detailed statement of the actual expenditures incurred. The termination notice of 17 May 1945 was subsequently waived by mutual consent, and under an arrangement dated 16 May 1946 the agents agreed to deliver five thousand tons of ghee by 31 October 1946, at which point the original agreement of 3 May 1937 would terminate. On 1 July 1946 the agents informed the Government that a contractual dispute had arisen and, invoking clause 20 of the 1937 agreement, appointed an arbitrator named Nigam on their behalf. The Government, in a letter dated 10 July 1946, nominated Rangi Lal as its arbitrator. Before the two arbitrators, the agents advanced their claim on four separate heads, the first of which asserted that the June 20 1942 agreement was not binding on them and that they were therefore entitled to …

In the arbitration proceeding the Agents presented four separate monetary claims. The first claim, recorded in Schedule A, sought the sum of Rs 23,08,372‑8‑0, which represented the difference between the buying remuneration, establishment charges and contingency charges that were due under the contract dated 3 May 1937 and the amount that had actually been received. The second claim, outlined in Schedule B, was conditional upon the arbitrators finding that the later agreement dated 20 June 1942 was binding; it demanded a revision of the rates applicable to establishment and contingency charges together with an additional payment of Rs 6,91,600‑4‑0 calculated at the revised rates. The third claim, described in Schedule C, asked for a revision of the mandi‑charge rates fixed by the same 20 June 1942 agreement and sought an additional amount of Rs 14,47,204‑6‑3 computed at the revised rates. The fourth claim, set out in Schedule D, sought damages of Rs 2,41,235 for the alleged wrongful termination of the contract in October 1946. The arbitrators were unable to reach a consensus on any of the claims and consequently referred the dispute to an umpire, Lala Achru Ram, who had been nominated for that purpose. The umpire held that the 20 June 1942 agreement was valid and that the claim in Schedule A was untenable. He further concluded that the claims in Schedules B and C did not arise out of the agreement and that he therefore lacked jurisdiction to determine them. Finally, he stated that the claim in Schedule D was outside the scope of the reference and that he was incompetent to give any finding on that portion of the dispute.

The umpire’s award was subsequently filed before the Subordinate Judge, First Class, in Delhi. The Agents moved to set aside the award, alleging that the umpire had committed misconduct by failing to provide them with a sufficient opportunity to present and substantiate their case. They further argued that the umpire erred in holding that the claims described in Schedules B, C and D either did not arise out of the contract or lay beyond the scope of the reference. The Subordinate Judge agreed that the umpire had been in error in leaving the claims in Schedules B and D undetermined, finding that both were within the reference’s scope. He held that the claim in Schedule C was correctly left undecided because it fell outside that scope. Moreover, the judge ruled that the award was vitiated by judicial misconduct, since the Agents had not been afforded an adequate chance to place their case before the umpire. Accordingly, he set aside the award but declined to supersede the reference, directing the parties to appoint new arbitrators in accordance with clause 20 of the original agreement for the further settlement of the dispute. The Union of India appealed this order to the High Court of East Punjab. Justice Khosla, hearing the appeal, affirmed the Subordinate Judge’s decision and concurred with the view that the umpire had acted improperly.

The learned Judge held that the umpire had been guilty of judicial misconduct. In his judgment he observed that the claim of the Agents, as set out in Schedules B and C, was not beyond the scope of the arbitration agreement. The Court noted that, by making this observation, the learned Judge apparently committed an error, because the Subordinate Judge had previously concluded that the claim described in Schedule C was beyond the arbitration agreement. No reasons were supplied by Khosla, J. for rejecting the Subordinate Judge’s conclusion, and the judgment therefore lacked an explanation for the departure from the earlier finding.

Appeal 31 of 1953, filed under the Letters Patent against the judgment of Khosla, J., was dismissed by a Division Bench of the High Court of East Punjab. The Division Bench remarked that the claim detailed in Schedule B arose out of the contract, but held that it was unnecessary to decide whether the claim described in Schedule C, which sought an increase in the financing and overhead mandi charges, had been properly excluded by the umpire. In the interim, the Agents, by a letter dated 2 August 1952, requested that the Government of India appoint their arbitrator under clause 20 of the agreement dated 3 May 1937 so that a fresh adjudication of the dispute could be undertaken, and they further informed the Government that they had again appointed Nigam as their arbitrator. The Government replied by a letter dated 14 August 1952, informing the Agents that it had filed an appeal against the Subordinate Judge’s judgment in Delhi, and asserting that, in view of the pending appeal, the question of appointing an arbitrator did not arise until the appeal was finally disposed of. Nevertheless, the Government, without prejudice to its right to prosecute the appeal, appointed Rangi Lal to act as arbitrator on its behalf.

After the appeal under the Letters Patent was finally decided by the East Punjab High Court on 16 December 1953, the appointed arbitrators proceeded to take up the reference. On 1 March 1954 the Agents presented their claim. They contended that the supplementary agreement dated 20 June 1942 was void and, in any event, that the representations made on 6 December 1943 and subsequently had induced the Chief Director of Purchases to assure them that their claim would be favourably considered by the Government of India. Relying on those assurances, the Agents continued to supply ghee in the quantities demanded by the Government, incurring what they described as “heavy extra expenditure.” They further asserted that they had repeatedly demanded an increase in the mandi and financing charges and that the Chief Director of Purchases, who possessed the requisite authority, had given them repeated verbal assurances that their demands would be met and had urged them to continue supplies for the successful prosecution of the war. On the basis that the Government of India was estopped from repudiating the claims set out in Schedules B and C, the Agents prayed for a declaration that the supplementary agreement of 20 June 1942 was void and not binding upon them, and for a decree directing the Government to pay them the sum of Rs 27,48,515.

The Agents sought interest at the rate of six per cent per annum accruing from 1 March 1954, and alternatively asked for a decree for the sum of Rs. 25,63,037‑7‑3 together with interest at the same six per cent rate from 1 March 1954 until the amount was recovered. The Government of India opposed this claim on several grounds. It denied that the Director of Purchases had given any assurances, and it rejected the allegation that the Agents had continued to supply ghee in reliance upon such assurances. The Government asserted that the Agents had kept supplying ghee without seeking any amendment to the original agreement because, as the Government presumed, they found it profitable to do so under the terms fixed by the supplementary contract dated 20 June 1942. Consequently, the Government denied all claims for additional buying remuneration, for mandi charges, and for establishment and contingency charges. It further contended that, even if any such claims existed, they fell outside the scope of clause 20 of the agreement, which had provided for submission to arbitration, and therefore the arbitrators had no jurisdiction to adjudicate those particular claims. The arbitrators, when considering the Agents’ claim and the Government’s denial, framed the points of contest as specific issues. On 2 May 1954 the arbitrators issued an award rejecting the primary claim on the ground that the supplementary agreement of 20 June 1942 was a valid and binding contract for consideration, and therefore the Agents could not claim additional remuneration. On the alternative, the arbitrators awarded the Agents an amount for establishment and contingency losses, fixing Rs. 80,994‑12‑6 as the actual loss they had suffered, and adding Rs. 11,27,965‑11‑3 to the sums already received from the Government for mandi and financing charges. In total, the arbitrators granted Rs. 13,03,676‑12‑6, with future interest calculated from 15 November 1949 until the date of realisation, together with costs. This award was filed in the Court of the Commercial Subordinate Judge, Delhi, on 2 June 1954. The Government of India then applied, invoking sections 30 and 33 of the Indian Arbitration Act, to have the award set aside on the grounds that it was invalid, improperly procured, and tainted by judicial misconduct on the part of the arbitrators. The Commercial Subordinate Judge observed that the arbitrators had made an apparent error in ordering the Union to pay the Agents additional remuneration and financing and overhead charges. However, the Judge held that because the specific questions had been expressly referred to the arbitrators for adjudication, the award was binding on the parties and could not be set aside merely on the basis of an apparent error. Accordingly, the Judge rejected the Government’s application to set aside the award. Dissatisfied with this decision, the Union of India appealed against the Subordinate Judge’s order.

The Union of India appealed to the High Court of East Punjab at Chandigarh. During the hearing, the counsel representing the Agents argued that the arbitrators had been specifically tasked with certain questions and that, therefore, the arbitrators were entitled to fashion an award based on quantum meruit. The High Court examined the record and concluded that no particular questions of law had been expressly referred to the arbitrators. Consequently, the Court held that the arbitrators’ decision was not final and could be challenged because it was tainted by errors apparent on the face of the award. The High Court thus overturned the Commercial Subordinate Judge’s order, set aside the arbitrators’ award, and ruled that there was no legal basis for granting any compensation to the Agents for any loss they might have suffered. The present appeal was filed with the permission of the High Court under clause 133(1)(a) of the Constitution.

The Court then considered the scope of its power to set aside an arbitral award on the ground of an apparent error. It explained that an award may be vacated on that ground only when the award itself, or any document attached to it such as a note stating the reasons, contains a legal proposition that forms the basis of the award and that proposition is erroneous, as illustrated in Champsey Bhara and Company v. Jivaraj Balloo Spinning and Weaving Company, Limited (L.R. 50 I.A. 324). However, when a specific question is submitted to an arbitrator and the arbitrator’s answer contains a legal mistake, that mistake does not render the award defeasible merely because it is apparent on its face, as held in In the matter of an arbitration between King and Duveen and Others (L.R. (1913) 2 K.B.D. 32) and Government of Kelantan v. Duff Development Company Limited (L.R. 1923 A.C. 395).

The Court then asked whether the parties had made a specific reference to the arbitrators, meaning a reference that invited the arbitrators to decide particular questions of law. It noted that if a specific question of law is referred, even an erroneous award binds the parties because the arbitrators were chosen to resolve those questions. The original reference, made by the Agents on 1 July 1946 and answered by the Government on 10 July 1946, was a general reference of the dispute under clause 20 of the agreement. Although the Subordinate Judge had set aside the award on that reference, the arbitration itself was not terminated; the reference was expressly kept alive, preserving the parties’ right to appoint new arbitrators under the agreement. Subsequent letters dated 2 August 1952 and 14 August 1952 again constituted a general reference to the arbitrators, indicating that the parties intended to serve notice under clause 20. While the arbitrators raised certain issues, those were merely intended to focus the parties on matters for adjudication. The Agents’ claim before the arbitrators was denied, and the arbitrators were authorized only to decide the disputes that had been raised. There was no foundation for finding that a specific legal question had been submitted.

Accordingly, the Court agreed with the High Court’s view that the reference was a general one and not a specific legal reference. Because the reference was not specific, the award could be set aside if it was shown to be erroneous on its face.

On August 2 1952 and again on August 14 1952 the parties sent letters that again referred the dispute to the arbitrators in a general manner. The letter of August 2 1952, identified as paragraph 14, showed that the Agents intended to give notice pursuant to clause 20 of their agreement. Although the arbitrators subsequently raised certain issues, those issues seemed intended merely to draw the parties’ attention to the matters that required adjudication. The Agents had presented a claim before the arbitrators, but both the claim itself and the arbitrators’ jurisdiction to consider that claim were rejected. According to the terms of the reference, the arbitrators were authorised only to decide the disputes that had been specifically raised. Consequently, there was no basis for concluding that the parties had made a particular reference that submitted a question of law for the arbitrators to decide. The Court therefore found that the reference remained a general one and not a specific legal question.

The Court concurred with the High Court’s view that the reference was general and not a specific question of law. Because the reference was not specific, the award could be set aside if it was shown to be erroneous on its face. The original contract dated 3 May 1937 had been altered by a supplementary agreement dated 20 June 1942, and the arbitrators had previously held that the modified contract bound the Agents. Under the amended contract a graded scale was established for payments relating to the establishment, contingencies, mandi charges and overhead expenses. Despite this, the arbitrators proceeded to award the Agents additional sums for establishment and contingencies as well as for mandi charges. Clause 14(a) read together with clause 12(b)(2) expressly stipulated the rate at which establishment and contingency charges were to be paid, and there was no dispute that the Government of India had paid the Agents those charges at the agreed rate for the actual quantity of ghee purchased. The arbitrators’ award indicated that the amount actually received from the Government amounted to Rs 6,04,700‑9‑0, whereas the Agents’ own accounts showed expenditures of Rs 6,77,542‑0‑3. Even assuming that the Agents incurred the extra expenditure under the heading “establishment and contingencies,” the contract clearly required payment only at the rates specified therein. The Court could not understand how the arbitrators could disregard the explicit covenants of the parties and award the Agents amounts that the Union of India had never consented to pay. Accordingly, the award of additional expenses under the heading of establishment and contingencies, together with interest, was found to be erroneous on its face.

Before the arbitrators, several arhatias who supplied ghee to the Agents appeared and produced extracts from their own books, demonstrating the amounts that were actually due from the Agents. Detailed charts were also submitted, showing the total amount payable under each expenditure heading for each arhatia. The arbitrators were satisfied that these statements reflected a general rise in prices and the cost of

In this case, the arbitrators observed that the prevailing labour rates had risen sharply and that other purchasers were obtaining ghee at prices considerably above the rates fixed by the contract; consequently, they concluded that the Agents were entitled to reimbursement of Rs 11,27,965‑11‑3. Nevertheless, the contract contained specific provisions in clause 13(a) read with clause 12(b) that fixed the rate at which financing and overhead charges were to be paid, and those provisions remained binding so long as the contract was not abandoned or altered by the mutual agreement of the parties, a power that the arbitrators did not possess to exceed the expressly stipulated amounts.

Mr Chatterjee, appearing on behalf of the Agents, advanced the argument that the outbreak of hostilities in the Second World War had wholly displaced the circumstances existing when the contract was originally concluded in May 1937, and therefore the parties could no longer be bound by the original terms. The Court found that argument to be factually inaccurate and legally untenable because the contract had been modified by mutual consent on June 20 1942, nearly three years after the war had begun, and the Agents were fully aware of the changed circumstances at the time the revised schedule for overhead charges, contingencies and buying remuneration was agreed. The Court further stated that a contract is not frustrated merely because the conditions under which it was made later change. Under Section 56 of the Indian Contract Act, a contract becomes void only when the performance of the agreed act becomes impossible or unlawful; the performance under the present contract had remained possible and lawful, and the Agents had indeed received the remuneration expressly stipulated. Accordingly, the Act does not permit a party to disregard the express covenants and claim a different rate on a vague plea of equity. The Court cited established principle that a turn of events such as an abnormal rise in prices, a sudden depreciation of currency or an unexpected obstacle does not, by itself, alter the bargain the parties made, unless the terms of the contract, when read against the factual circumstances, show that the parties never intended to be bound in a fundamentally different situation, in which case the contract ceases to bind not because of a discretionary notion of fairness but because the true construction of the agreement does not apply to the new situation.

The Court explained that it is not merely a matter of deeming it just and reasonable to qualify the terms of an agreement; rather, such qualification is required when, upon its true construction, the contract does not extend to the present circumstance. The Court further observed that when it is said that, in unusual situations, a court arrives at a decision that is “just and reasonable” (as Lord Wright stated in Constantine Steamship Line Ltd. v. Imperial Smelting Corporation Ltd., 1942 AC 154 at p. 186) or that the decision is one “which justice demands” (as Lord Sumner expressed in Hirji Mulji v. Cheong Yue Steamship Co. Ltd., (1926) AC 497 at p. 510), the result is achieved by giving the contract a fair construction that reflects an implication drawn from the presumed common intention of the parties, a principle articulated by Lord Simon in British Movietonews Ltd. v. London and District Cinemas Ltd. (L.R. 1952 A.C. 166 at pp. 185 & 186). The Court then stated that there is no general liberty for the judiciary to relieve a party from the duty to perform his contractual obligations merely because an unforeseen turn of events makes performance burdensome. This position reflects the law as it stands in both India and England, and the Court expressed the view that no sweeping rule exists, contrary to the contention of counsel Mr Chatterjee, which would permit a party to disregard explicit covenants on the ground of an unforeseen change since the contract’s formation. Mr Chatterjee vigorously argued that English law had, in recent years, developed a rule that lessened the sanctity previously ascribed to contracts, and he relied upon observations in British Movietonews Ltd. v. London and District Cinemas Ltd. (1951‑1 KB 190 at p. 201). In that case, Lord Justice Denning was reported to have said that, even if a contract’s wording, taken literally, covers the events that have occurred, the court may, when the subsequent turn of events is completely beyond the parties’ contemplation, conclude that reasonable parties could not have intended the contract to apply to the new situation; consequently, the court would read the contract’s words in a qualified sense, limit them to the circumstances originally contemplated, and refrain from applying them to the unforeseen turn, instead doing what is just and reasonable. The Court noted, however, that Denning’s observations were based on a substantial misapprehension of the decision in Parkinson & Co. Ltd. v. Commissioners of Works ((1949) 2 K.B.D. 632), a decision on which the learned Lord Justice had relied heavily. That view was subsequently rejected by the House of Lords on appeal in the British Movietonews case (1952 A.C. 166). Finally, the Court affirmed that Indian contract law contains no provision that justifies the view that a change of circumstances “completely outside the contemplation of the parties” at the time the contract was entered into permits a court, while holding the parties bound, to depart from the contract’s express terms.

In the case reported at (1949‑2 KB 632) the Court examined the true construction of a contract between a private contractor and the Commissioners of Works. The decision held that, although the contract did not expressly limit the contractor’s profit, the profit was to be confined to a fixed amount provided that any additional work did not substantially exceed a specified monetary value. The Court therefore implied a term that the Commissioners were not entitled to demand work that materially exceeded that specified sum. Importantly, the judgment did not rely on any broad principle such as that suggested by Denning, L.J., in the earlier citation (1951‑1 KB 190). Consequently, this Court cannot accept the argument advanced by Mr Chatterjee that the arbitrators were justified in disregarding the clear contractual provision that set out the remuneration payable to the Agents and in instead applying a quantum meruit basis.

Section 222 of the Indian Contract Act imposes on the employer a duty to indemnify the agent for the consequences of all lawful acts performed within the authority granted. Because of this statutory duty, the arbitrators were not authorised to award the Agents compensation that exceeded the amount expressly stipulated in the contract. The Agents’ claim was not an indemnity for lawful acts carried out on behalf of the Government of India; rather, it sought to recover charges that were higher than those fixed by the agreement. Such a claim therefore amounted to a demand for an increased rate of the agreed consideration, not to a claim for indemnity. Even if the Agents relied on assurances that they said were given by the Director in‑charge of Purchases, those vague assurances could not alter the contract in the absence of an explicit covenant modifying its terms. Since the supply of ghee was made under the contractual terms, the Agents were entitled only to the remuneration expressly provided for in that contract.

The contention that the Agents could claim remuneration at rates substantially different from those stipulated, on the ground of quantum meruit, is difficult to sustain. Quantum meruit compensation is awarded only where the price for work or services is not fixed by a contract. Where a contract does specify the consideration payable, quantum meruit cannot be granted because the contract already determines the amount due. Quantum meruit represents reasonable compensation that is implied when a contract is silent on price; an express stipulation governing the parties’ relationship under a contract, cannot be displaced by

In this case the Court noted that assuming the stipulation was unreasonable it was unnecessary to consider Mr Chatterjee's argument that a claim for compensation on a quantum meruit basis arose under clause 20 of the agreement. Even if such a claim could be decided by the arbitrators under clause 20 the Court held that under the facts before it compensation on that basis could not be claimed. The Court then addressed the contention that the principle of res judicata applied because of the decision in Letters Patent Appeal No 31 of 1953. The Court found that contention had no effect. It explained that the Subordinate Judge had set aside the arbitral award on the ground that the umpire had engaged in judicial misconduct and on the view that the claims set out in Schedules B and D were within the jurisdiction of the arbitrators. The High Court on appeal under the Letters Patent affirmed the order setting aside the award but it did not render a binding determination that the claim described in Schedule B—namely the claim for establishment and contingency charges— fell within the arbitrators competence under clause 20. The Court observed that the High Court of East Punjab in Appeal No 31 of 1953 had not been required to express an opinion on whether the claim in Schedule C was within the arbitrators jurisdiction and that the claims described in Schedule D were not raised in the second arbitration proceeding. Accordingly the Court agreed with the High Court that the arbitral award was liable to be set aside because it contained an error apparent on its face. Consequently the Court held that the appeal failed dismissed it and ordered costs against the appellant. Finally the Court recorded that the appeal was dismissed.