Unitech Limited filed a consumer case on 08 Jul 2015 against Sandeep Mahajan in the StateCommission Consumer Court. The case no is A/158/2015 and the judgment uploaded on 10 Jul 2015.
Chandigarh
StateCommission
A/158/2015
Unitech Limited - Complainant(s)
Versus
Sandeep Mahajan - Opp.Party(s)
Vertika H Singh, Adv.
08 Jul 2015
ORDER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No.
:
158 of 2015
Date of Institution
:
07.07.2015
Date of Decision
:
08.07.2015
Unitech Limited, Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh-160017 through its Managing Director.
……Appellant/Opposite Party
V e r s u s
Sandeep Mahajan s/o Late Sh.Banwari Lal Mahajan, r/o House No.2503, Top Floor, Phase-XI, Mohali(Pb.).
Divya Mahajan daughter of Late Sh.Vishaw Mohan Joshi, r/o House No.2503, Top Floor, Phase-XI, Mohali(Pb.).
....Respondents/Complainants
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER
Argued by:Ms. Vertika H. Singh, Advocate for the applicant/appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This appeal is directed against the order dated
30.03.2015, rendered by the District Consumer Disputes Redressal Forum-II U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainants (now respondents) and directed the Opposite Party (now appellant), as under:-
“i) To refund Rs.9,32,083/- to the complainant alongwith interest @ 9 % per annum from the respective dates of deposit till realization
ii) To pay Rs.50,000/- as compensation for mental agony and harassment caused to the complainant;
To pay Rs.7,000/- as costs of litigation.
This order be complied with by the Opposite Party, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall carry interest @12% per annum from the date of this order till actual payment besides payment of litigation costs.”
The facts, in brief, are that the Opposite Party launched a project, in the name and style of Gardens (Sector 97) Uniworld City, Mohali, for which it widely publicized the offer of selling units/flats in the same. It was stated that the complainants were assured by the representative of the Opposite Party that the layout plans, in respect of the said project had already been approved by the Govt. of Punjab. As such, the complainants agreed to purchase a flat, vide application dated 28.06.2011, as s result whereof, they were allotted flat No.202, Block C-1, Floor-2, measuring 1050 sq. ft., in Mega Township ‘Uniworld City’ Sector 97, Mohali, Punjab vide allotment letter of the even date, Annexure C-1. The total sale consideration of the said unit was Rs.32,83,305/-. The complainants opted for construction linked plan. It was further stated that the complainants, in all, deposited the amount of Rs.9,32,083/-, (i.e. Rs.3 lacs vide receipt dated 28.06.2011, Annexure C-4, Rs.3,13,647/- vide receipt dated 07.09.2011, Annexure C-5 and Rs.3,18,636/- vide receipt dated 21.11.2011, Annexure C-6). It was further stated that, in response to the e-mail dated 24.11.2013, Annexure C-7, the complainants were informed by the Opposite Party vide e-mail dated 29.11.2013, Annexure C-8, that the construction was expected to commence in Tower C, in the 3rd quarter of 2014 (tentatively). It was further stated that vide e-mail dated 19.06.2014, Annexure C-9, it was informed that the construction would commence in 2-3 months. It was further stated that since no steps with regard to the construction of flat was taken by the Opposite Party, complainant No.1 again sent a notice dated 17.06.2014, to intimate him, the exact date of start of construction. It was further stated that, according to Clause 4 (a) under Article 4 of the Agreement, possession of the unit, in question, was to be delivered within 36 months from the date of execution of Buyer's Agreement dated 14.07.2011, Annexure C-11, subject to force majeure conditions. It was further stated that the period of 36 months had expired on 13.07.2014, yet, even construction had not been started by the Opposite Party, what to speak of offer of possession of the said unit.
It was further stated that the complainants approached the Opposite Party, through every possible means, to refund the amount paid by them, alongwith interest, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the amount of Rs.9,32,083/- alongwith interest @15% P.A.; pay compensation, to the tune of Rs.3 lacs, for mental agony, physical harassment, deficiency in rendering service and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.25,000/-.
The Opposite Party, in its written version, pleaded that the District Forum had no territorial Jurisdiction to entertain and decide the complaint. It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the Agreement and, in case of any dispute, the matter was to be referred to the Arbitration. Allotment of the unit, in question, in favour of the complainants was admitted. It was also not disputed that the amount of Rs.9,32,083/-, towards part price of the unit, in question, had been paid by the complainants, to the Opposite Party. Execution of the Buyer's Agreement dated 14.07.2011, Annexure C-11, in respect of the said unit, between the parties, was also not disputed. It was also admitted that possession of the unit, in question, was to be handed over within 36 months, from the date of execution of the Buyer's Agreement dated 14.07.2011, Annexure C-11, subject to the force majeure circumstances. It was stated that the Opposite Party had absolute intention of starting the construction work, and handing over possession of the flat to the complainants. It was further stated that the correct status of the project, in question, was intimated to the complainants time and again. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
In the rejoinder, filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.
The Parties led evidence, in support of their case.
After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 68 days, as per the applicant/appellant (as per the office report 51 days), was filed by the applicant/appellant. It was stated, in the application, for condonation of delay that on receipt of the order dated 30.03.2015, the same was sent to the Chandigarh Office of the applicant/appellant. It was further stated that, however, since one of the Legal Managers dealing with the case, resigned on 31.03.2015, and also the new Legal Manager Mr.Rohit Jindal, who joined on 01.04.2015, also resigned on 14.04.2015, as such the post of Legal Manager of Chandigarh office of the applicant/appellant, remained vacant, as a result whereof, the same (order impugned) did not come to the knowledge of its (applicants/appellant) Gurgaon Head Office. It was further stated that only on 08.06.2015 it came to the knowledge of Gurgaon Head Office of the applicant/appellant, that order impugned had been passed, whereafter, certified copy of the same (order impugned) was applied on 10.06.2015 , which was received on 11.06.2015 and the instant appeal was filed. It was further stated that, on account of the reasons, referred to above, there was delay, in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 68 days, as per the applicant/appellant (as per the office report 51 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab and Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bonafide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”
In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-
“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.
In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
“The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”
In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”
In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”
A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. Admittedly, the applicant/appellant, received certified copy of the order impugned. The stand taken by the applicant/appellant, that since the Legal Manager dealing with the case, had resigned on 31.03.2015, and the new Legal Manager, Mr.Rohit Jindal, who joined on 01.04.2015, also resigned on 14.04.2015, as such the post of Legal Manager of Chandigarh office of the applicant/appellant, remained vacant, as a result whereof, the same (order impugned) did not come to the knowledge of its Gurgaon Head Office, till 08.06.2015, does not merit acceptance. Not even a single document, has been placed, on the record, to prove that on account of the resignation of the alleged Legal Manager on 14.04.2015, his post remained vacant. Even otherwise, perusal of the record reveals that certified copy of the order impugned was received by the Counsel for the applicant/appellant, on 16.04.2015. It may be stated here, that the applicant/appellant, is a Limited Company, duly incorporated under the Companies Act 1956. There may be a number of Officers/Officials, in the Chandigarh Office of the applicant/appellant. Thus, any Officer/Official of the applicant/appellant, could have sent the case file, to its Head Office at Gurgaon, but he/she failed to do so. On the other hand, the applicant/appellant, failed to produce, on record, even a single document, to apprise this Commission, as to on which date, the case file was sent for obtaining approval of the Competent Authorities, for filing the appeal. It may be stated here that, once certified copy of the impugned order, was received on 16.04.2015, in the office of the applicant/ appellant, it was the bounden duty of the concerned Officer/Official(s), to take decision, within maximum two to three days, and forward the relevant file/ documents, to the Competent Authorities, for granting permission/approval to file the appeal. However, as stated above, there is nothing, on record, as to on which date, the file/documents and certified copy of the order impugned, were forwarded to the Competent Authorities of the applicant/appellant, seeking approval for filing an appeal. Why it took 68 days, as per the applicant/appellant (as per the office report 51 days), for obtaining approval of the concerned Authorities, for filing the appeal, is not known. Thus, in our considered opinion, no sufficient cause is made out, from the averments, contained in the application, for condoning the delay. It appears that after receiving certified copy of the impugned order, the concerned Officials of the applicant/appellant, slept over the matter, and, ultimately, woke up from their deep slumber, after 68 days, as per the applicant/appellant (as per the office report 51 days), when the instant appeal was filed. It could be said that the Officials of the applicant/appellant were not diligent, in pursuing the matter. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order. The applicant/appellant did not act, with due diligence, resulting into delay of 68 days (as per the office report 51 days), in filing the appeal, which is about two months, beyond the prescribed period of limitation. The cause set up by the applicant/ appellant, in the application, for condonation of delay, could not be said to be plausible. The mere fact that the Officials of the applicant/appellant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of an appeal, within the period prescribed, under Section 15 of the Act, does not mean that the applicant/appellant could be shown undue indulgence. The delay, in filing the appeal was, thus, intentional, wilful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 68 days, as per the applicant/appellant (as per the office report 51 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”
It is evident, from the principle of law, laid down in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicant/appellant, to take immediate steps to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the Officials of the applicant/appellant, just slept over the matter, and did not take the requisite steps to file the appeal, in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicant/appellant. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
Now coming to the merits of the case, the Counsel for the appellant, submitted that the District Forum had no territorial Jurisdiction, to entertain and decide the complaint, as the Buyer's Agreement dated 14.07.2011, Annexure C-11, was executed between the parties, at New Delhi Office of the Opposite Party. She further submitted that the allotment letter, in respect of the said unit, was issued by the Gurgaon Office of the Opposite Party, as also the payments were made at New Delhi. She further submitted that since no cause of action, accrued to the complainants, at Chandigarh, the District Forum was wrong, in entertaining the complaint, and deciding the same. She further submitted that even the complaint was not maintainable, as an arbitration clause, existed, in the Buyer's Agreement dated 14.07.2011, Annexure C-11, and, in case of any dispute, the matter was to be referred to the Arbitration. She further submitted that it was on account of the circumstances, beyond the control of the Opposite Party, that possession of the flat, in question, could not be offered or delivered so far. She further submitted that, as such, the order of the District Forum, being illegal and invalid, is liable to be set aside.
Whether, the District Forum at Chandigarh had territorial Jurisdiction, to entertain and decide the complaint is the question which requires determination. According to Section 12 of the Act, a consumer complaint could be filed, by the complainants, before the District Consumer Disputes Redressal Forum, within the territorial Jurisdiction whereof, a part of cause of action arose to them. No doubt, allotment letter, in respect of the unit, in question, was issued by the Gurgaon Office of the Opposite Party and the Agreement was also executed at New Delhi, yet it is evident from Annexure C-5 and C-6 that two cheques, in the sum of Rs.3,13,647/- and Rs.3,18,636/- respectively, were handed over by the complainants, to the Regional Office of the Opposite Party, at Chandigarh. These cheques were duly received by the authorized representative of the Opposite Party, at the Regional Office at Chandigarh and he signed copies of the receipts. Both these receipts are stamped by Unitech Limited, Regional Office, SCO 189-191, Sector 17-C, Chandigarh. Once, an authorized representative of the Opposite Party, at Regional Office, Chandigarh received payment, through cheques, copies whereof are Annexure C-5 and C-6, a part of cause of action accrued to the complainants, to file a complaint, before the District Forum at Chandigarh. The District Forum was, thus, right, in holding that it had territorial to entertain and decide the complaint, as a part of cause of action accrued to the complainants, at Chandigarh.
The Counsel for the appellant, however, placed on Ravi Kumar Vs. Unitech Limited and another, consumer complaint No.92 of 2015 and Saroj Aggarwal Vs. Unitech Limited and another, consumer complaint No.93 of 2015 both decided on 20.05.2015 by this Commission, in support of her contention, that the District Forum, Chandigarh had no territorial Jurisdiction, to entertain and decide the complaint. It was also contended by the Counsel for the appellant, that the Regional Office of the Opposite Party, at Chandigarh, was merely a facilitator and the cheques having been received by its authorized representative, at Chandigarh, did not mean accrual of cause of action, at Chandigarh, to the complainants. The perusal of the aforesaid cases, decided by this Commission, shows that, in the same, FDRS were issued by the Unitech Limited from New Delhi. The same bore the stamp of New Delhi office of the Unitech Limited. The same were also signed by the duly authorized signatory of New Delhi Office of the Unitech Limited, on the revenue stamp. It was also clearly revealed from copies of the FDRs that the FD office of Unitech Limited was situated at 2nd Floor, Plot No.136, Phase 1, Udyog Vihar, Gurgaon. In those cases, no doubt, the FDRs were surrendered in the Office of Opposite Party No.3 at Chandigarh, for obtaining maturity amount, which were stamped by the said Office at Chandigarh, but were sent to the Gurgaon Office, which, ultimately, had to pay the amount of maturity. It was, under these circumstance, held that the District Forum Chandigarh had no territorial Jurisdiction, to entertain and decide the complaint. In the instant case, as stated above, the payments aforesaid, through cheques, copies whereof are Annexure C-5 and C-6 were made by the complainants, to the authorized representative of the Unitech Limited, Regional Office, SCO 189-191, Sector 17-C, Chandigarh, and after receiving those cheques, receipts were issued by him at Chandigarh. These receipts were stamped by the Unitech Limited, Regional Office, SCO 189-191, Sector 17-C, Chandigarh. The facts of the instant case are clearly distinguishable, from the facts of Ravi Kumar's and Saroj Aggarwal's cases (supra). No help, therefore, can be drawn, by the Counsel for the appellant, from the aforesaid cases.
The next question, that falls for consideration, is, as to whether, the consumer complaint under Section 12 of the Act, was not maintainable, before the District Forum, on account of the reason, that an arbitration Clause existed, in the Buyer's Agreement dated 14.07.2011, Annexure C-11. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection Act, 1986, is required to be made, which reads as under;
“3.Act not in derogation of any other law.—
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Buyer's Agreement dated 14.07.2011, Annexure C-11, would not oust the Jurisdiction of the District Forum, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I. Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the appellant, being devoid of merit, must fail, and the same stands rejected.
There is, no dispute, about the factum that the complainants were allotted flat No.202, in the project of the appellant/Opposite Party, vide allotment letter dated 28.06.2011, under the construction linked plan. It was admitted by the appellant/Opposite Party that the complainants made payment of Rs.9,32,083/- towards part price of the said unit. The remaining payment was to be made, as per the stage of construction. The plan opted by the complainants, as stated above, was construction linked. Buyer's Agreement in respect of the flat, in question, was executed between the parties, on 14.07.2011. Possession, as per the Agreement was to be delivered within 36 months, from the date of execution thereof. The period of offer of possession expired on 13.07.2014. It was admitted by the appellant/Opposite Party, in its written statement that construction of the said flat had neither been started nor possession of the same could be offered to the complainants till date. Under these circumstances, the complainants could not wait indefinitely. The appellant/Opposite Party fleeced the complainants, of their hard earned money by making a false promise, that possession of the flat, in question, would be delivered within 36 months from the date of execution of the Buyers' Agreement i.e. by 13.07.2014, but it did not abide by its commitment. The appellant/Opposite Party utilized the amount deposited by the complainants, and earned profits thereon. Even till date the construction of flats has not been started. In these circumstances, by not refunding the amount deposited by the complainants with interest, the Opposite Party was deficient, in rendering service. The District Forum was, thus, right in holding that the complainants were entitled to the refund of amount, deposited by them alongwith interest.
A lot of mental agony and physical harassment was also caused to the complainants, on account of non- offer of possession of the flat, by the stipulated date or even by the date, the complaint was filed. Thus, the District Forum was also right in awarding compensation, in the sum of Rs.50,000/- to the complainants. By no stretch of imagination, it could be said to be unreasonable or excessive. On the other hand, it could be said to be reasonable and adequate.
No other point, was urged, by the Counsel for the appellant.
In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
For the reasons recorded above, the application for condonation of delay, being devoid of merit, is dismissed. Consequently, the appeal, is also dismissed being barred by time, as also on merits, with no order as to costs, at the preliminary stage.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion
Pronounced.
08.07.2015
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
(DEV RAJ)
MEMBER
Sd/-
(PADMA PANDEY)
MEMBER
Rg
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