M/S. DILAWARI EXPORTERSversusM/S. ALITALIA CARGO & ORS.

                       [2010] 4 S.C.R. 927


                  M/S. DIL~WARI EXPORTERS                        A
                               v.
                 M/S. ALITALIA CARGO & OR$.
                 (Civil Appeal No. 8699 of 2002)

                        APRIL 16, 2016                           B
     .
   .;:


               [D.K. JAIN AND T.S. THAKUR; JJ.)

      Contract Act, 1872 - ss. 186, 187, 188 and 237 - Agent's
act - Whether binding on the Principal - Exporter/consigner C
entering in contract of shipping consignment with shipper, who
was an agent of carter - Complaint by consigner against the
carter as well as shipper - Complaint dismissed by National
Consumer Commission holding that there was no privity of
contract between the consigner and the carter - He~d: The        o
Principal is bQy,nd by the acts or obligation$ of the agent, if
the agent has by 1his words or conduct induced third persons
to believe that such acts were within scope of hi~ authority -
The onus to prove that the act of agent was within scope of
his authority, is on the person claiming against the Principal · E
- On facts, it is proved that shipper was the agent of the carter
- Carter is bound by the acts of its agent i.e. shipper- Matter
remitted to Commission to decide on merits - Evidence -
Onus to prove - Carriage Act, 1865 - s. 4;11 Schedule, rr.
5,6, 10 and 11.                                                   F
    The appellant obtained an export order, it handed
over the consignment to respondent No. 3 (Cargo
clearing agent of respondent No. 1) for onward dispatch.
For this, House Air Waybill! was prepared by respondent G
No. 3. Simultaneously respondent No. 1 prepared Master
Air Waybill.

         Since the consignment did not reach the destination
                              927                                H
    928    SUPREME COURT REPORTS             [2010] 4 S.C.R.

A by the stipulated date, the importer cancelled the order.
  The appellant filed complaint before National Co;isumer
  Dispute Redressal Commission alleging deficiency in
  service on the part of the respondents, in particular by
  respondent No.1. The Commission dismissed the
B complaint on the preliminary ground that the appellant
  had no locus standi to file the complaint against
  respondent No. 1 as there was no privity of contract
  between the appellant and respondent No. 1.

C       Allowing the appeal and remitting the matter to
    National Consumer Dispute Redressal Commission, the
    Court

       HELD: 1. In the light of s. 4 of the Carriage Act 1865
D and rr. 5, 6, 1O and 11 of the Second Schedule to the Act,
  the Commission was right in saying that the "air waybill"
  is prima facie evidence of the conclusion of the contract;
  of the receipt of the cargo and of the conditions of
  carriage. However, the Commission has failed to examine
E the question in regard to the capacity in which
  respondent No.3 was operating and had collected the
  cargo from the appellant for being shipped, i.e. the nature
  of relationship between respondent No.3 and respondent
  No.1. [Paras 9 and 10) [938-E-G; 939-A-C]
F
       2. Section 186 of the Contract Act, 1872 lays down
  that the authority of an agent may be expressed or
  implied. As per Section 187 of the Contract Act, an
  authority is said to be express when it is given by words
G spoken or written, and an authority is said to be implied
  when it is to be inferred from the circumstances of the
  case; and things spoken or written, or the ordinary
  course of dealing, which may be accounted

H
.DILAWARI EXPORTERS v. ALITALIA CARGO & ORS. 929


circumstaoces of the case. Section 188 of the Contract A
Act prescribes that an agent having an authority to do an
act has authority to do every lawful thing which is
necessary in order to do such act. Section 237 of the
Contract Act provides that when an agent has, without
authority, done acts or incurred obligations to third B
persons on behalf of his principal, the principal is bound
by such acts or obligations, if he has by his words or
conduct induced such third persons to believe that such
acts and obligations were within the scope of the agent's C
authority. There is no gainsaying that onus to show that
the act done by an agent was within the scope of his
authority or ostensible authority held or exercised by him
is on the person claiming against the principal. This, can
be shown by practice as well as by a written instrument. · 0
[Para 11] [939-D-G]

     3. Respondent No.3 had an express authority to
receive the cargo for and on behalf of respondent No.1.
This is manifest from the Master Air Waybill issued and        E
signed by respondent No.3 on the Air Waybill printed by
respondent No.1. But for the said authority, respondent
No.3 could not use the Air Waybill proforma printed by
respondent No.1. Though it is true that in the said Air
Waybill the name of the Shipper has been mentioned as          F
that of respondent No.3 but the said Air Waybill has also
been signed by respondent No.3 as the agent of the
carter - respondent No.1. The other relevant particulars
like, the name of the consignee, the number of the House
Air Waybill; etc. tally with the House Air Waybill issued by   G
respondent No.3 to the appellant clearly showing the
name of the consignor as that of the appellant. From the
said documents, it would, appear that respondent No.3
was, in fact, acting in dual capacity - one as a Shipper
                                                               H
    930      SUPREME COURT REPORTS                [2010] 4 S.C.R.


A on behalf of the appellant and the other as an agent of
  respondent No.1. That being so, respondent No.1 was
  bound by the acts of their agent, viz. respondent No.3,
  with all its results. While holding that there was no privity
  of contract between the appellant and respondent No.1,
B this vital aspect of the matter escaped the attention of the
  Commission thus, vitiating its order. [Para 13] (940-C-G]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8699 of 2002.
c
        From the Judgment & Order dated 15.4.2002 of the
    National Consumer Disputes Redressal Commission, New
    Delhi in Original Petition No. 156 of 1995.

          Arvind Kumar Gupta for the Appellant.
D
        Sanjay Gupta, Nina Gupta, lshita Sehgal, Akshat Goel,
    Bina Gupta for the Respondent.

          The Judgment of the Court was delivered by
E
        D.K. JAIN, J. 1. Challenge in this appeal under Section
  23 of the Consumer Protection Act, 1~86 (for short "the Act")
  is to the order dated 15th April, 2002 passed by the National
  Consumer Disputes Redressal Commission (for short "the
F Commission") in Original Petition No. 156 of 1995. By the
  impugned order, the Commission has dismissed appellant's
  complaint alleging deficiency in service on the part of M/s
  Alitalia Cargo, respondent No.1 in this appeal, on the ground
  that there was no privity of contract between the appellant and
G respondent No.1. Respondent Nos. 2 and 3 in this appeal are
  M/s Omni Marg Travels (Pvt.) Ltd., General Sales Agents and
  M/s Fourways Movers (P) Ltd., Cargo Clearing Agents of
  respondent No.1 respectively.

H
 DILAWARI EXPORTERS v. ALITALIA CARGO & ORS. 931
                [D.K. JAIN, J.]

      2. The salient facts giving rise to the present appeal are   A
 as follows:

       The appellant is engaged in the business of export of
  readymade garment$ and handicrafts. They obtained an order
  from one M/s 0.0. Sales, a concern based in New York, USA B
  for supply of 2050 pairs of Cotton Gents Dhotis, 150 sets of .
  Cotton Ladies Ghagra-Choli, 150 pieces of Dupatas, etc. As
  per the agreement between the appellant and the said concern
  of New York, USA, these artides had to reach New York, USA
  before 10th of October, 1994. Accorµingly, the appellant C
  handed over the consignment of the said. articles to respondent
  No.3 - M/s Fourways Movers (P) Ltd. on 4th October, 1994 for
. onward dispatch to New York, for which a House Air Waybill
  No. FMPL 0841 was prepared by respondent No.3. For the
  sake of ready reference, the said Bill is reproduced hereunder: D

 "Shippers Name and Address:
 Mis. DILWARI EXPORTERS Not Negotiable HAWB NO.
 1-8 JANGPURA-8,                       FMPL   0841
 MATHURA ROAD,                                                     E
 NEW DELHl-14 INDIA
                        HOUSE ·AIR WAYBILL
                        FOURWAYS MOVERS PVT. LTD.
                        3916-7A, COMMUNITY CENTRE
                        EAST OF KAILASH,
                        NEW DELHl-110065                           F

 Consignee's Name and Address
 MIS D.D. Sales, 110-53
 62ND DRIVE, FOREST HILLS N.Y.
 11375, U.S.A.                                                     G

 Issuing Carter's Agent (Name and City)
 FOURWAYS MOVERS P. LTD.         Accounting Information
 NEW DELHI                       "FREIGHT : PREPAID"

                                                                   H
    932        SUPREME COURT REPORTS                          [2010) 4 S.C.R.


A   Agent's IATA CODE
    14-3-3775

    Airport of Departure (Addr. Of first Carter) MASTER AWB NO.
    NEW DELHI I AZ                               055 - 2342 9276
B   By First Carter               Routing & Destination
    NYC                           p;z
    Airport of Destination        Currency   Declared Value Declared
                                             for Customs    Value for
c                                                           Customs
                                                           US$29441. 70
    NEW YORK                      INR        NVD
                                  Amount of Insurance
                                  Rs.1012706-00
    The landing information
    NOTIFY: SAME AS ABOVE. PLS. INFORM CONSIGNEE
D   IMMEDIATELY ON ARRIVAL OF SHIPMENT AT DESTINATION.
    TEL. NO. (718)- 896-0575. ORIGINAL VISA (3 SETS) COPY OF
    INVOICE (3 SET) PACKING LIST (3 SET), ALL INDIA
    HANDICRAFT BOARD CERTIFICATE AND DECLARATION TO
    ACCOMPANY WITH THE SHIPMENT.
E   Carter    CommOdity Chargeable Ratel           Total    Nature and Quantity
    Weight    Item No.  Weight     Charge                   of Goods {Incl.
                                                            POWERLOOM COTTON
                                                            GENTS DHOTIES & INDIA
                                                            ITEM GARMENTS HAND/
                                                             EMDI PRINTED/ ZARI/
                                                            APPLIQUE/         BEAD/
F   MIRROR                                                   WORK {PIL COTTON
                                                            LADIES CHOU GHAGRA
                                                            SET & DUPTATTAS)
                                                            AS PER INV. NO.
                                                            DE/EXP/358194-95
                                                            Dt. 28-9-94 RBI : DD :
                                                            008597

G
    48      1360-0K     1360-0K     85.00       115600-00   IEC:NC:05880 0952
    Prepaid Weight      Collect     Other Charges
            Charge
    215600-00           AWB: 60-00 HAWB: 150-00 SB: 175-00
                        CTG: 500-00 APT: 545-00
                                    INS: 2886-00
H
DILAWARI EXPORTERS v. ALITALIA CARGO & ORS. 933
               [D.K. JAIN, J.]
Total other charges Due Agent                                                         A
1230-00

Total other Charges Due Carter
2886-00

                    FOURWAYS MOVERS PVT. LTD., NEW DELHI

Total' prepaid
119716-00                       4/10/94    NEW DELHI INDIA v.k.                       B
                     Signature of Issuing Carter or its Agent
                      055 - 2342 9276

                     ORIGINAL 3 (FOR SHIPPER)"

Simultaneously, a Master Air Waybill on a numbered (055 -
2342 9276) proforma printed by "ALITALIA" - respondent No.1                           c
was prepared. The said Air Waybill, containing relevant
particulars, is also reproduced. herein below:

"DEK 2342 9276                                                       055- 2342 9276
Shippers Name and Address:
Mis. FOURWAYS MOVERS P. LTD.                    Not Negotiable
                                                                                      D
39/6, 7-A COMMUNITY CENTRE,                     Air Way Bill
EAST OF KAILASH,                                                     ALITALIA
NEW DELHl/INDIA                                    Issued by
                                                Alltalia S.p.A.
Consignee's Name and Address

MIS D.D. Sales, 11053                                                                 E
62ND DRIVE, FOREST HILLS N.Y.
11375, U.S.A.

Issuing Carter's Agent (Name and City)                       Accounting Information
FOURWAYS MOVERS P. LTD.
NEW DELHI                                                   "FREIGHT : PREPAID"

Agent's IATA CODE                     Account No.
                                                                                      F
14-3-3775                             73279

Airport of Departure (Addr. Of first Carter) and requested Routing

NEW DELHI I AZ.

By First Carter         Routing & Destination                                         G
NYC                     AZ




                                                                                      H
    934         SUPREME COURT REPORTS                                [2010] 4 S.C.R.

A   Airport of Destination     Currency     Declared Value for     Declared Value for
                                            Customs                Customs

    NEW YORK                                           NVD         US$ 43698.60

                                            Amount of Insurance
                                            Rs.1503101-00
B   The landing information

    NOTIFY: SAME AS ABOVE. PLS. INFORM CONSIGNEE IMMEDIATELY ON ARRIVAL OF
    SHIPMENT AT DESTINATION. TEL. NO. (718)-896-0575. ONE ENV. CONTG. DOCS ATID.
    ORIGINAL VISA (3 SETS) COPY OF INVOICE (3 SET), PACKING LIST, MALL INDIA
    HANDICRAFT BOARD CERTIFICATE AND DECLARATION TO ACCOMPANY WITH THE
    SHIPP.ENT

C   Carter Commodity Chargeable           Rate/     Total         Nature and Quantity of
    Weight Item No.  Weight               Charge                  Goods (Incl.
                                                                  POWERLOOM COTTON
                                                                  GENTS DHOTIES & INDIA




D                                                             ITEM GARMENTS
    48        1993-0KQ       1993-0K      85.00     169405-00 GRl:AG:493861
                                                              493995, 493896

                                                                  HAWS NO: 0841, 0842
    Prepaid  Weight           Collect       Other Charges
             Charge
E   169405-oo                 AWB: 60-00 HAWB: 300-00 SB: 250-00

                           CTG: 500-00 APT: 800-00 INS:4284-00
                                        INS: 2886-00
    Total other charges Due Agent
    2010-00
    Total other Charges Due Carter
    4284-00
F                                   FOURWAYS MOVERS

                              4/10/94      NEW DELHI           INDIAv.k.
                              Signature of lssui ng Carter or its Agent
                              055 - 2342 9276

                              ORIGINAL 3 (FOR SHIPPER)"
G
    On 6th October, 1994, a carting order was prepared by
    "ALITALIA AIRLINES" handing over the consignment to AAI,
    Cargo Terminal (NITC), IGI Airport, New Delhi-110037 for
    shipment by Flight AZ-1905. The carting order bore the
H
DILAWARI EXPORTERS v. ALITALIA CARGO & ORS. 935
               [D.K. JAIN, J.]

are ad idem that the said House Air Waybill as also the Master     A
Air Waybill were issued under the seal and signatures of Mis
Fourways Movers (P) Ltd - rpspondent No.3. It is pertinent to
note at this juncture itself that House Air Waybill No'.0841 had
the Master Air Waybill ·No.055 - 2342 9276, the running Bill
number printed on ALITALIA's printed bill book. Similarly, the     8
House Air Waybill No.0841 was recorded on the Master Air
Waybill.

     3. Since the consignment did not reach New York by the        c
stipulated date, Mis. D.D. Sales, the importer, cancelled the
order on or around 16th October, 1994 and claimed damages
from the appellant. The consignment reached the destination
only on 20th October, 1994.
                                                                   D
     4. Alleging deficiency in service on the part of the
respondents, in particular by respondent No.1, the appellant
filed a complaint before the Commission claiming Rs.22.46
lakhs towards the value of the consignment along with interest
at the rate of 18% per annum thereon and Rs.15 lakhs as            E
special damages.

     5. The complaint was contested by respondent No.1,
repudiating the claim mad.e by the appellant. In the counter       F
affidavit filed by respondent No.1, while denying any negligence
on their part resulting in deficiency in service, by way of a
preliminary objection, it was pleaded that there was no privity
of contract between them and the appellant and, therefore, the
complaint was liable to be dismissed on that short ground. The     G
stand of respondent No.1 before the Commission was that the
Air Waybill No.055 2342 9276 dated 4th October 1994, which
was issued by respondent No.3 "on behalf of respondent No.1"
did not mention the flight number and the date in the column
                                                                   H
    936      SUPREME COURT REPORTS                     [2010] 4 S.C.R.


A   provided for the same, since airlifting of cargo was always
    subject to load/space. It was reiterated that House Air Waybill
    No.0842 dated 4th October 1994 was neither issued by
    respondent No.1 nor on its behalf. Both the parties led evidence
    before the Commission by way of affidavits. Upon consideration
B   of the evidence on record, the Commission dismissed the
    complaint on.the afore-stated ground, namely, the appellant had
    no locus standi to file the plaint against respondent No.1. While
    holding so, the Commission observed thus:

c
          "It is not disputed by the parties that Air Waybill (sic) alone
          is a contract between the parties. Firstly we see that part
          Ill Chapter II of Schedule II of the Act does not even
          remotely refer to any other·document except Air Waybill
D         (sic). We find that on the Air Waybill (sic) which happens
          to be prima facie evidence of conclusion of contract of the
          receipt of Cargo and the conditions of Carriage, the name
          of the Shipper is shown as Fourway Movers Pvt. Ltd., O.P.
          No. 3, and not that of the Complainant nor is there any
E         evidence/indication of any such capacity of the
          Respondent No.3 on the Air Waybill (sic). Therefore, it will
          not be possible to reach in the Air Waybill (sic) what is not
          set out or indicated therein. It is for this reason that we tend
          to agree with Respondent No.1 and accept its plea that
F         the complainant has no locus-standi to file the present
          complaint against Respondent No.1, the Airline. Things
          would have been different if at the time of booking the
          cargo the Respondent No.3 had issued a communication
          to Respondent No.1 that it was acting as agent of the
G         complainant."

          The Commission, thus, declined to go into the merits of


H
DILAWARI EXPORTERS v. ALITALIA CARGO & ORS. 937
               [D.K. JAIN, J.]

the complaint though it did observe that there was a lot that    A
could be said on merits of appellant's case.

     6. Being aggrieved, the appellant - claimant is before us
in this appeal.
                                                                 B
     7. Mr. Arvind Kumar <;7upta, learned counsel appearing on
behalf of the appellant, submitted that the Commission
committed a serious error of law and on facts in dismissing the
complaint on the sole ground that the appellant had failed to    c
prove any privity of contract between them and the carrier i.e.
respondent No.1. According to the learned counsel, it is clear
from the House Air Waybill as also the Master Air Waybill No.
055 2342 9276, that both the bills were prepared·
contemporaneously by r~spondent No.3 as respondent No.1 - D
carter's agent when the consignment was handed over to them,
and since the House Air Waybill records the appellant as the
Shipper and respondent No.3 as the Issuing Carter's Agent,
the mention of respondent No.3 as the Shipper as well as the
Issuing Carter's Agent in the Master Air Waybill is of no E
consequence. It was strenuously urged that from the said Air
Waybills, it is clear that respondent No.3 was acting as an
agent of respondent No.1 and, therefore, the said respondent,
as principal, was bound by all the acts of omission and
commission of his agent. It was asserted that the Commission F
failed to apply its mind on t.his aspect of the matter and,
therefore, erred in holding that there was no privity of contract
between the appellant and respondent No.1.

                                                                 G
     8. Mr. Sanjay Gupta, learned counsel appearing on behalf
of respondent No.1, on the other hand, supported the decision
of the Commission and submitted that since the Master Air
Waybill is the only contract of carriage between the Consignor
                                                                 H
    938      SUPREME COURT REPORTS                    [2010] 4 S.C.R.


A and the Carter and in the said Bill, respondent No.3 having
  been nG.1!1ed as the Shipper and Mis D.D. Sales of New York
  as the consignee, respondent No.1 had no liability towards the
  appellant, notwithstanding the fact that the appellant had been
  named as the Shipper in House Air Waybill No. 0841. It was
B submitted that since as per Part Ill of Chapter II of the Second
  Schedule to the Carriage by Air Act, 1972 (for short "the
  Carriage Act"), it is the consignor who is required to make out
  the Air Waybill and handover the same to the carrier, it was the
C responsibility of the consignor to see that all the particulars and
  details of the cargo inserted in the Air Waybill are correct. It
  was thus, argued that respondent No.1 not being a party to the
  contract of carriage vis-a-vis the appellant, the said respondent
  cannot be held to be liable for any delay in delivery of the
  consignment in question.
0

         9. There is no quarrel with the proposition that as per
    Section 4 of the Carriage Act. Rules contained in the Second
    Schedule govern the rights and liabilities of carriers,
E   consignors, consignees, etc. Rules contained in the Second
    Schedule apply to all international carriage ot persons,
    baggage or cargo performed by aircraft for reward. Chapter II
    of the said Schedule enumerates the documents of carriage.
    Rule 5 of Part Ill of the said Chapter stipulates that every carrier
F   of cargo has the right to require the consignor to make out and
    hand over to him a document called as "air waybill"; every
    consignor has the right to require the carrier to accept this
    document. Rule 6 provides that the air waybill shall be made
    out by the consignor in three original parts and be handed over
G   with the cargo in the manner prescribed therein. Rule 1Omakes
    the consignor responsible for the correctness of the particulars
    and statements relating to the cargo which he inserts in the air
    waybill. As per Rule 11, the air waybill is prima facie evidence
H   of the conclusion of the contract, of the receipt of the cargo and
DILAWARI EXPORTERS v. ALITALIA CARGO & ORS. 939
       .       [D.K. JAIN, J.]

of the conditions of carriage. In the light of these provisions, we   A
agree with the Commission that the "air waybill" is prima facie
evidence of the conclusion of the contract; of the receipt of the
cargo and of the conditions of carriage.

                                                                      B
     10. However, the question which, in our view, the
Commission has failed to examine is in regard to the capacity
in which respondent No.3 was operating and had collected the
cargo from the appellant for being shipped to New York. In other
words, what was the nature of r~lationship between respondent         C
No.3 and respondent No.1?


      11. Section 186 of the Indian Contract Act. 1872 (for short
"the Contract Act") lays down that the authority of an agent may
be expressed or implied. As per Section 187 of the Contract           D
Act, an authority is said to be express when it is given by words
spoken or written, and an authority is said to be implied when
it is to be inferred from the circumstances of the case; and
things spoken or written, or the ordinary course of dealing, which
may be accounted circumstances of the case. Section 188 of            E
the Contract Act prescribes that an agent having an authority
to do an act has authority to do every lawful thing which is
necessary in order to do such act. Section 237 of the Contract
Act provides that when an agent has, without authority, done
acts or incurred obligations to third persons on behalf of his        F
principal, the principal is bound by such acts or obligations, if
he has by his words or conduct induced such third persons to
believe that such acts and obligations were within the scope
of the agent's authority. There is no gainsaying that orus to         G
show that the act done by an agent was within the scope of his
authority or ostensible authority held or exercised by him is on
the person claiming against the principal. This, of course, can
be shown by practice as well as by a written instrument.
                                                                      H
    940     SUPREME COURT REPORTS                 [2010) 4 S.C.R.


A     12. Thus, the questior:l·for consideration is whether on the
                        1
  evidence obtaining in the instant case, can it be said that
  respondent No.3 had an express or implied authority to act on
  behalf of respondent No.1 as their agent~ If respondent No.3
  had such an authority, then obviously respondent No.1 was
B bound by the commitment respondent No.3 had made to the
  appellant.

        13. Having examined the question in the light of the two
C afore-extracted "air waybills", which, according to both the
   contesting parties, are determinative of terms and conditions
   of contract between them, we are of the opinion that respondent
   No.3 had an express authority to receive the cargo for and on
   behalf of respondent No.1. This is manifest from the Master Air
D Waybill No.055 - 2342 9276 issued and signed by respondent
   No.3 on the Air Waybill printed by respondent No.1. But for the
   said authority, respondent No.3 could not use the Air Waybill
   proforma printed by respondent No.1. Though it is true that in
   the said Air Waybill the name. of the Shipper has been
E mentioned as that of respondent No.3 but the said Air Waybill
   has also been signed by respondent No.3 as the agent of the
   carter - respondent No.1. The other relevant particulars like,
   the name of the consignee, the number of the House Air Waybill
  ·(0841 ), etc. tally with the House Air Waybill issued by
F respondent No.3 to the appellant clearly showing the name of
   the consignor as that of the appellant. From the said documents,
   it would, appear that respondent No.3 was, in fact, acting in
   dual capacity - one as a Shipper on behalf of the appellant and
   the other as an agent of respondent No.1. That being so,
G respondent No.1 was bound by the acts of their agent, viz.
   respondent No.3, with all its results. We are of the opinion that
   while holding that there was no privity of contract between the
   appellant and respondent No.1 this vital aspect of the matter

H
DILAWARI EXPORTERS v. ALITALIA CARGO & ORS. 941
               [D.K. JAIN, J.]

escaped the attention of the Commission thus, vitiating its        A
order.

     14. In view of the afore-going discussion, we have no
option but to allow the appeal and set aside the impugned order.
We order accordingly and remit the matter back to the              B
Commission for fresh adjudication of the claim preferred by the
appellant on merits. However, in the facts and circumstances
of the case, there will be no order as to costs.

K.K.T.                                        Appeal allowed.      C