Suit No. 260 of 1979

9th April, 2012

Petitioner Counsel: Mr. U. J. MAKHIJA, Mr. P. S. GIDWANI
Respondent Counsel: Mr. KAMRAN SHAIKH, S. I. MENON
Other Counsel: Ms. DAYA SHEWARAM, Smt. SITABAI SHEWARAM

Cases Cited:
Om Jai Shri Gurukrupa Co-operative Housing Society Ltd. Vs. Vasudha Vasant Dhavale & Ors., 2004(4) ALL MR 458=2004(4) Mh.L.J. 916 [Para 29,30]

JUDGMENT

JUDGMENT :- The plaintiff is a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960 (MCSA) on 27.09.1969 as a tenants partnership society under Rule 10(1)(5)(b) of the Maharashtra Co-operative Societies Rules, 1961 (MCSR).

2. It is the plaintiff's case that one M/s. Jhangiani Gurbuxani Construction Company constructed the plaintiff's society building having 11 flats and 2 garages in 1966. The builders sold the flats on ownership basis to the flat purchasers who occupied them after the completion certificate was issued by the Mumbai Municipal Corporation (MMC) on 19.11.1966. The flat purchasers formed a co-operative society under Section 10 of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). It is the plaintiff's case that on the date of registration of the society 12 persons holding 11 flats and 1 garage became members of the plaintiff's society. It is plaintiff's case that all the purchasers entered into separate agreements with the builders which the plaintiff relied upon.

3. In respect of the suit flat being Flat No. 9 on 2nd floor of Prakash Building one Sitabai Shewaram was shown as the purchaser from the aforesaid builders. She purchased 2 flats of 2 rooms and one kitchen with an area of 500 sq. ft. It is the plaintiff's case that Sitabai occupied the flats until November, 1969 having taken possession of it from the builders. She was the first person to occupy the suit flat.

4. It is also the case of the plaintiff's society that the building was constructed on the land taken from the owners of the land by the builders on free hold basis. A conveyance was executed on 17th June, 1972 by the builders' firm as owners in favour of the society. It conveyed to the society the land with the building consisting of 11 flats and 2 garages and open space described in the schedule thereof. There are 2 schedules to the conveyance. The first schedule describes the building structure on the plot of land conveyed to the society. The second schedule shows the names of the members. Sitabai is shown at serial No.9 having paid Rs.30,000/- as contribution towards flat and garages. That is however the flat purchased by her from the builders on ownership basis. Hence that amount is consideration paid by her to the builders pursuant to which she came into possession and occupation of the suit flat.

5. It is the case of the plaintiff that consequent upon the purchase by Sitabai she was alloted the user of the suit premises as member of the plaintiff's society.

6. It is the further case of the plaintiff that Sitabai illegally parted with possession of the suit premises in favour of the defendants in November, 1969 without the permission of the society and the defendants have been inducted in the suit premises illegally and unauthorizedly since then without the permission of the plaintiff's society. It is the plaintiff's case that the Sitabai was not entitled to part with possession of the premises in favour of the defendants under bye-law 71D and Regulation 4 of Form-A of the model bye-laws adopted by the plaintiff as the bye-laws of the society without the permission of the plaintiff as also the Registrar of the society. The plaintiff called upon Sitabai to remedy breach. She failed to comply. The plaintiff claimed that Sitabai was bound to pay charges to them at the rate of Rs.125/- per month by way of municipal taxes and outgoings which are paid until 31st January, 1971. Sitabai failed to pay thereafter. Hence the plaintiff terminated her copartnership tenancy by the notice of termination dated 28th January, 1972 and expelled her from the membership of the society under bye-law 12(1)(g).

7. The plaintiff sued for recovery of possession of the suit flat from Sitabai and the defendants under the dispute being an Arbitration case filed by the plaintiff on 10th January, 1973 in the Co-operative Court under Sections 9196 of the MCSA. The defendants challenged the jurisdiction of the Co-operative Court since they were not members of the society and the dispute was not between the society and its members. An award came to be passed but was set aside by the Appellate Curt on the ground of lack of the inherent jurisdiction of the Co-operative Court. Writ Petition challenging that Judgment has been dismissed and hence this Suit is filed for recovery of possession from the defendants as trespassers.

8. The essential case of the defendants is that Sitabai transferred the suit premises to them for consideration of Rs.30,000/- paid in cash without any written agreement. The defendants were put in possession of the suit flat in or before May, 1969 and not in November, 1969 as alleged by the plaintiff.

9. It is the case of the defendants that the original defendants came into the suit premises prior to the registration of the plaintiffs' society but yet they were wrongly not shown as members and Sitabai who had already sold and transferred the suit premises for consideration to the defendants was shown as the member. The defendants contend that since the original defendants came into the suit premises prior to the registration of the society but were not accepted as members, the society could not apply the provisions of bye-law 71D or Regulation 4 of Form-A against them. Bye-laws could have been adopted by the society only after the registration of the society and is, therefore, not applicable to the case of the defendants.

10. Based upon the aforesaid pleadings, the following issues were framed and answered as follows:

ISSUES
1.	Whether Smt. Sitabai Shewaram is a necessary party to the Suit as alleged in para 1 of the written statement ?	No.
2	Whether the plaintiffs are tenant Co-partnership type of Housing Society as alleged in para 1 of the plaint.	Yes.
3	Whether Smt. Sitabai Shewaram parted with possession of suit premises in November, 1969 as alleged in para 6 of the plaint.	No.
4	Whether the plaintiffs prove that the defendants were bound to obtain permission under 71D of the Bye Laws of the plaintiff and also by virtue Regulation 4 of Form A of the Bye Laws of the society.	No.
5	Whether the defendants prove that the aforesaid Bye Laws are not applicable to the defendants as the defendants have purchased the property before the said Bye Laws have come into force.	Yes.
6	Whether the plaintiffs had	Not
	directly or indirectly	shown,
	recognised the defendant	but need
	No.1 as a person who had	not be
	agreed to purchase the	answered.
	suit flat from Smt.Sitabai and as a person who had succeeded to the rights of the said Smt. Sitabai as alleged in para 5 of the written statement.
7	Whether the defendants are trespassers as alleged in para 7 of the plaint.	No.
8	Whether the plaintiffs	Not
	expelled Smt. Sitabai	required
	Shewaram from member-	to be
	ship of plaintiffs as alleged in para 11 of the plaint.	answered.
9	Whether the plaintiffs are entitled to obtain possession of suit premises from the defendants as alleged in para 17 of the plaint.	No.
10	What order ?	As per final order.
11	What decree ?	As per final order.

ISSUE NO.1 :

11. One Sitabai Shewaram has admittedly purchased the suit flat from the builders and developers under an agreement of flat purchase executed by her. This purchase was prior to the plaintiff-society being registered and prior to the society adopting the bye-laws. Sitabai is stated to have put the original defendants in possession of the suit premises. This suit is for recovery of possession from the parties inducted by Sitabai. The original defendant and the present defendants would alone contest the suit. Sitabai has never sought to contest the rights of the plaintiff-society. Hence Sitabai is not a necessary party to the suit. Hence Issue No.1 is answered in the negative.

ISSUE NO. 2 :

12. The plaintiff claims that they are tenants copartnership type of housing society. The byel-aws of the plaintiff-society adopted by the members of the society show that it is flat owners co-operative housing society limited. Bye-laws also make a reference to Tenants in Chapter XX under Rules 71 to 74. The society has to allot the tenements after its registration and after it acquired title of the land and the building of the society to the persons who subscribed to or offered to subscribe to the shares of the society of tenants under Bye-law 71. There is no real dispute and contest on this aspect, the contest being on when the society came into existence and when the bye-laws would constitute a contract between the society and its members. Hence the plaintiff-society may be taken to be a tenants copartnership society. Consequently Issue No.2 is answered in the affirmative.

ISSUE NO. 3 :

13. The plaintiff-society has claimed and deposed that Sitabai Shewaram parted with possession of the suit flat No.9 in the plaintiff society holding in November, 1969. This is a bare statement, left wholly unsubscribed.

14. As against this, the essential case of the defendants is that Sitabai transferred the suit premises to them for consideration of Rs. 30,000/- paid in cash without any written agreement. The defendants were put in possession of the suit flat by Sitabai in or before May, 1969 and not in November, 1969 as alleged by the plaintiff. The defendants have relied upon a number of documents to prove their possession. The plaintiff has not disputed the defendants' possession. The plaint itself shows that the defendants are in possession albeit unauthorizedly and illegally. The defendants must, therefore, show that they are in authorized possession, use and occupation of the suit flat.

15. This the defendants have sought to do by production of 2 receipts for gas connection marked as Exhibits D-32 and D-33 in evidence. Receipt No. 431443 issued by Burshane Ideal Gas storage and distribution company of India Ltd. is dated 22.05.1969. The document is issued by a public corporation. It may be taken to be a public document. The slip produced by the defendants is a carbon copy made out at the time the document was executed. It shows the receipt of Burshane Gas Cylinder for which a deposit of Rs.70/- is made. The carbon copy of the slip is the one handed over to the defendants and produced from their custody. The original document would be with the relevant department of the public corporation. The document is more than 30 years old at the time of its production. It carries a presumption of correctness of the handwriting as well as the signature thereon. The date of the document is most material. It is issued in the name of the original defendant No.1. If defendant No.1 was not put in possession prior to that date such a document could not have been issued.

16. The other document relied upon by the defendant is a bill/cash memo bearing No. 2482 of Cambata Industries Pvt. Ltd. for Rs. 226.41 made in the name of original defendant No.1. It shows her consumer number. It shows Ideal Gas Service as the sub-agent. It is the private document. It is required to be proved by direct oral evidence since it does not carry any presumption of its correctness as a public document. The defendant has sought to prove it through the evidence of an independent witness who is a partner of one M/s. Universal Gas Co. who are the agents of Burshane Gas for supply of gas cylinders. The witness has deposed that the earlier agents were Cambata Industries Pvt. Ltd. and their sub-agents were M/s. Ideal Gas Service. Ideal Gas Service closed down and their customers were transferred by M/s. Bharat Petroleum Corporation to the firm of deponent. The witness has identified the consumer number belonging to original defendant No.1. She has identified the flat as the suit premises and she has testified of the correctness of the service voucher No. 431443 of Burshane Gas issued on 22.05.1969. There is no cross-examination to challenge this evidence. Hence the plaintiff has failed to prove the specific positive case made out by it and such case is disproved by the documentary evidence led by the defendants. Hence Issue No.3 is answered in the negative.

ISSUE NOS. 4 & 5 :

17. The plaintiff-society is the tenancy partnership society and hence under Rule 10(1)(5)(b) it holds the land and building on free hold basis as conveyed to it under the Conveyance dated 17.06.1982. The society can allot flats to the members only after it is registered as such tenants partnership housing society and after it acquires title itself. The registration certificate of the society is dated 27.09.1969.

18. The admitted facts between the parties show that the society was registered on 27.09.1969. It adopted bye-laws thereafter. The suit property was conveyed to the society on 17th June, 1972. The society became the owner of the suit premises only on and from date of conveyance and could exercise rights of ownership only since then.

19. The society has to allot flats to those persons who had purchased flats and who were in possession at the relevant time. The members initially purchased flats from the aforesaid builders as set out in para 2 of the plaint itself. If any member has sold any flat prior to society being formed and registered and prior to the conveyance in favour of society, the society cannot allot any flat in the society to such person as its member. The society must then allot the flat to the transferee of such member who would then be the purchaser of such flat and in possession thereof. It is only from and after the registration of the society and the adoption of the bye-laws that the bye-laws would constitute a contract between society and its members and the society as well as members would be governed by the bye-aws. Hence it is only thereafter that that the aforesaid bye-laws could be made applicable to the then members of the society.

20. The aforesaid evidence shows that the original defendants came into possession of the suit premises in or before May, 1969 and consequently were in possession on the date the society was registered.

21. Minimum 10 members are required to register the society. Whoever be those 10 members, the registration of the society would enure for the benefit of all the persons in possession of the society premises at the relevant time. Once the defendants' possession and occupation of the suit premises is seen on the date of the registration, the plaintiff-society must accept them as members and the defendants cannot be taken to be trespassers. Such members need not have taken any permission of the plaintiff-society for transfer of the premises made to them as the society was not in existence as a legal entity until it was registered. Hence the original defendants should have been made members of the society but were not made members. Their transferor who had already transferred their right, title and interest before the society itself was formed and registered was sought to be shown as the member. The plaintiff society, however, had refused to accept the original defendants as members on the premise that the original defendants had not obtained the society's permission for such transfer.

22. Hence the bye-laws of the society cannot be made applicable to the original defendant or the present defendants. They would have applied to the original defendants and the present defendants only if they were accepted as members of the plaintiff-society. It is in this light that the Bye-law 71D and Regulation 4 of FormA are required to be seen. They run thus :

Bye-law 71D. A member to whom a tenement is allotted shall occupy it himself and shall not assign, underlet, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the Managing Committee.

Regulation 4 (Form A). No tenant shall assign, underlet, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the Society.

It may be mentioned that the society can allot the tenements only after its registration. Hence it must allot the tenement to such person who has the legal right by purchase from the developers or the previous owners on the date of its registration. Therefore, such person, who becomes a member under its bye-laws, is bound by the bye-laws and thereafter has to occupy the tenement itself and cannot assign or transfer it without the permission of the society.

23. A reading of bye-law 71D as also Regulation 4 of Form A itself shows that there is a provision against assignment or underletting by a member or tenant without the previous written consent of the society as also the registering authority. At the time the original defendant was put in possession of the suit flat there was no society that was registered. Hence no permission of the society or even the registering authority could be taken by the original defendants.

24. Though, therefore, the society has become owner of the suit flat pursuant to the conveyance dated 17.06.1972 and can take proceeding for recovery of the premises in the possession of its members or those trespassers from such persons who have not taken premises of the society when it was legally competent to grant permission as a legal entity and not for trespassers effected prior thereto, which it must accept upon the breaches committed by the members of any of the bye-laws or upon non payment of the society charges and taxes as is claimed by the plaintiff-society, it cannot take a similar action against the person in possession prior to its registration who should have rightfully been made a member of the society but who was not so made.

25. Hence Issue No.4 is answered in the negative and Issue No.5 is answered in the affirmative.

ISSUE NO. 6 :

26. Though the defendants have claimed that in fact the plaintiff-society has recognized them as members, there is no material evidence on this score. However that does not matter in view of the aforesaid legal position. Hence Issue No.6 is not required to be answered in view of the answers to issue Nos.4 & 5.

ISSUE NO. 7 :

27. Under Regulation 71, the person in occupation of any premises in the plaintiff-society could not be a tenant of the society unless he subscribed to such number of shares as the Managing Committee of the society prescribed. Regulation 71 runs thus:

71. No member shall be a tenant of the Society unless he subscribes to such number of shares as the Managing Committee prescribes.

28. It is the case of the defendants that the defendants always offered to be members of the society but the plaintiff-society never accepted the defendants or original defendants as such. Since the society has refused to recognize the defendants as its members, the defendants could not have subscribed to the shares of the society. It may be mentioned that in the original bye-laws produced by the plaintiff as Exhibit P-2, there are 11 members who are shown to have subscribed their names with their signatures to the bye-laws. Sitabai has not subscribed as a member of the plaintiff-society. The defendants claim that though they offered to be the members on such terms as the plaintiff-society may subscribe, the society has not accepted them as members. Consequently the original defendant and the present defendants have continued in occupation of the suit flat No. 9 in the plaintiff-society building without being allotted the suit flat and without being made members of the society though they were eligible to be made members on the date of the registration of the plaintiff-society.

29. The plaintiff-society has relied upon the judgment in the case of Om Jai Shri Gurukrupa Co-operative Housing Society Ltd. Vs. Vasudha Vasant Dhavale & Ors. 2004(4) Mh.L.J. 916 : [2004(4) ALL MR 458] to show that for the unauthorized user of the society's flat contrary to its bye-laws, an eviction award can be passed by the Co-operative Court upon the expulsion of the member under bye-law 12(1)(g) read with bye-law 12(1)(a) consequent upon the unauthorized transfer of the society's flat by the member to an outsider or unauthorized occupation of the outsider without the written permission of the society, which could issue the permission as a legal entity when the transfer was made. This, however, does not apply to a person who has been in possession of the premises prior to the registration of the society. The original defendant or the present defendants are, therefore, not trespassers in the suit flat. Issue No.7 is, therefore, answered in the negative.

ISSUE NO. 9 :

30. The defendants, therefore, cannot be taken to be unauthorized occupants who have come into occupation without the permission of the society. The judgment in the case of Om Jai Shri gurukrupa Co-operative Housing Society Ltd., [2004(4) ALL MR 458] (supra) as also the aforesaid regulation would apply only to the persons who would transfer their flats or induct third party after the society is registered. Similarly the society can claim recovery of possession as the owner of any premises for acts done only after it obtains registration and conveyance in its favour. The society must necessarily accept all the persons who are in possession of the premises of the society prior to its registration as its members. Accepting a person who was in possession earlier but who had inducted another person on whatever basis is a malafide act and cannot be accepted by the Court.

31. It is seen from the dispute between the parties that the plaintiff-society has illegally not accepted the original defendants as its members but sought to treat them as trespassers upon a false case in para 6 of the plaint itself that the Sitabai inducted the original defendants into the suit premises in November, 1969. That oral statement has not been substantiated or corroborated in the evidence of the plaintiff. That statement has to be rejected in view of the documentary evidence produced by the defendants by way of gas service voucher and the gas billing Exhibits D-32 and D-33.

32. Upon the aforesaid evidence the defendants cannot be taken to be in unauthorized or illegal occupation of the suit premises since the original defendants are not shown to have been inducted in the suit premises without the permission of the society or the Registrar of the Co-operative Society since there was no society at the time of their induction. The society itself became the owner of the suit premises only on 17.06.1972 well after the defendants were in occupation of the suit premises even upon the case of the plaintiff itself. Consequently Issue No. 9 is answered in the negative.

ISSUE NO. 8 :

33. The plaintiffs have passed the resolution on 23rd April, 1972 to expel Sitabai from the membership of the plaintiff-society. Her expulsion is under bye-law 12(1)(g). Bye-law 12 and the relevant sub bye-law (1) (g) run thus :

12. (1) A member may be expelled from the Society by the vote of not less than three-fourths of the members present and voting at a General Meeting of the Society on a motion that in the opinion of the Meeting such member has.

(g) without the previous written permission of the Managing Committee, let or sub-let or given on caretaker or leave licence basis or used for accommodating paying guests or disposed of in any other manner any portion of the dwelling accommodation/shops/godowns/garages.

34. The bye-laws constitute a contract between the plaintiff-society and its members. That would be the members as would be available, present and in possession of the flats in the building of the plaintiff-society on the date of its registration and thereafter.

35. Bye-law 12 (1) (g) does not even apply to Sitabai on the date it is sought to be applied because she was a person who had already transferred her right, title and interest to another and was not in possession of the suit flat. The plaintiff relies upon Bye-law 71D as also Regulation 4 of Form-A of the Bye-laws to show that without the previous permission of the society as also the Registrar the flat of any member could not be assigned underlet or vacated.

36. As seen above Sitabai never claimed to be a member at all. Sitabai has not applied for registration. Sitabai has not signed the bye-laws of the society adopting them. Sitabai has not claimed any rights against the plaintiff-society. Sitabai has inducted the original defendants since May, 1969, prior to the registration of the plaintiff-society, contrary to the false case made out by the plaintiff without any particulars about Sitabai having inducted the original defendants in November, 1969. Sitabai has not been sued.

37. Consequently it is seen that the alleged expulsion of Sitabai is an eyewash to deny the original defendant and the present defendants' rights of membership as transferee of Sitabai prior to the plaintiff-society being registered. The expulsion of Sitabai whilst she did not even continue to be a member is of no consequence whatsoever. It does not even arise between the parties to the Suit. Hence Issue No.8 is not required to be answered.

ISSUE NOS. 10 & 11 :

38. The plaintiff-society is not entitled to recover possession of the suit flat No. 9 in its building from the original defendant or the present defendants. It is only if the plaintiff-society had accepted the original defendants as members of the plaintiff, it could have sued to recover possession on any ground under the bye-laws from the original defendants. Since though the original defendants are shown to be in possession of the suit flat since prior to the registration of the plaintiff-society but were never made members, the original defendants are not seen to have been allotted the suit flat by the plaintiff-society. Consequently upon the claim of the plaintiff-society that it is a tenants copartnership society under Rule 10(1) (5)(b) of the MCSR, the relationship of the plaintiff-society as owner and defendant Nos.1 & 2 as the tenants has not been shown and is not established.

39. The plaintiff would be only entitled to recovery of non occupation charges in respect of the suit flat initially from Sitabai and later from the defendants. Sitabai having left the suit premises prior to the registration, the plaintiff-society has rightly not sued Sitabai. The plaintiff-society would not be able to recover any dues from Sitabai.

40. The original defendant as also the present defendants have continued to use and occupy of the suit premises. They are bound and liable to pay the society's charges and outgoings as also all the incidental expenses upon their occupation being non-occupancy charges, municipal taxes, property taxes, society's electricity charges, sinking funds, 2004(4) ALL MR 458water charges, salaries of the society's staff, building repair fund, parking charges (if the defendants are car owners) etc.

41. It may be mentioned that even under Section 70 of the Indian Contract Act, the aforesaid reasonable charges for the entire period of occupation by the original defendants and later the present defendants would have to be paid to the society as a quasi contract between the society and the defendants; the defendants cannot claim to live in the plaintiff-society gratuitously. Section 70 of the Indian Contract Act runs thus :

70. Obligation of person enjoying benefit of non-gratuitous act.Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

42. Hence though the plaintiff-society has not claimed recovery of the aforesaid charges from the defendants but only sought to recover possession (which is seen to be misconceived), the court must modify the relief to grant the plaintiff the aforesaid charges whilst rejecting the prayer for recovery of possession.

43. To that end the Court called upon the plaintiff-society to show the Court the amount payable by the defendants in respect of the aforesaid charges. Mr. Makhija on behalf of the society produced before the Court the society's letter dated 10.03.2012 showing the arrears in respect of the suit flat No. 9 in the plaintiff-society building as on 31.03.2012. The letter is taken on record. The plaintiff-society has rightly claimed the aforesaid charges. The Court cannot go into the arithmetic of the aforesaid charges. The aforesaid charges aggregate to Rs.4,75,566/-.

44. Keeping in mind that the defendants have been in occupation, use and possession of the suit premises since May, 1969 the aforesaid amount is rather reasonable.

45. The amount claimed by the plaintiff-society includes the transfer fees which would have to be paid only if the defendants are made members in the plaintiff-society upon transfer from another member. Since no transfer of the suit flat from another member is shown (which could have been shown only after the transferor become a member), no transfer fee can be levied by the society from the defendants. They would be the first lawful members of the society entitled to the allotment of the suit flat No.9 in society building.

46. The society has claimed interest @ Rs.9% per annum during the litigation period. This interest aggregatesto Rs.6,75,764/-. Since the plaintiff-society has consistently refused to make the original defendants or the present defendants members of the society and it is seen that they have made out a completely false case of the defendants having been come into use, occupation and possession of the suit premises since November, 1969, the plaintiff would not entitled to any interest upon the aforesaid amount.

47. However the relief of recovery of Rs.4,75,566/- is granted to the plaintiff for the various amounts payable by the defendants as parties in occupation and possession of the suit flat No. 9 in the plaintiff's building as per the plaintiff's letter dated 10.03.2012 which is taken on record of this suit. Issue Nos.10 & 11 are answered in the following order :

:: O R D E R ::

1. The suit as prayed is dismissed. Prayer clauses (a), (b) & (c) are rejected. The plaintiff-society shall not be entitled to recover possession of the suit flat No.9 in the plaintiff's building being Prakash Building or to any injunction against the defendants. The defendants shall pay the plaintiff-society Rs.4,75,566/- towards municipal taxes, property taxes, plaintiff-society's electricity charges, sinking fund, water charges, salary, maintenance charges, building repair fund, non-occupancy charges and parking charges (if the defendants park their car in the society premises). The plaintiff shall not be entitled to any transfer fees or to any interest on the aforesaid amount until the date of this Judgment. However the defendants shall pay interest @ Rs.16% per annum on the aforesaid amount from today until payment/realization.

2. Suit is disposed of accordingly.

Ordered accordingly.