S.S Ganguly, J.:— This is a defendant's appeal from the judgment and decree passed by the learned Chief Judge, City Civil Court, Calcutta in Ejectment Suit No. 524 of 1972.
2. The suit was filed by Calcutta Vyapar Pratisthan Ltd., the plaintiff-respondent No. 1 as the landlords for eviction of Miss D. Ennis, the monthly tenant from a shop room forming part of premises No. 3, Russell Street, Calcutta wherein she had been running a fashionable hairdressing saloon. The grounds were (1) default in payment of rent since August 1966; (2) making additions and alterations to the shop room without the consent of the respondent No. 1 and (3) subletting, assigning and transferring the entire shop room without consent of the respondent No. 1. The suit was filed after service of notice under S. 13(6) of the West Bengal Premises Tenancy Act, 1956.
3. The suit was contested by one Mr. J.S Ardeshar, as the constituted attorney of the appellant. In the written statement filed by him he denied all the contentions of the respondent No. 1. Legality and service of the notice was also challenged.
4. After the filing of the suit, Raigarh Jute Mills Ltd., the plaintiff-respondent No. 2 became the owners of the premises No. 3, Russell Street including the disputed premises and the said company got itself added as a party to the suit, being plaintiff No. 2. The appellant filed an additional written statement whereby he challenged the title of the appellant No. 1 (respondent No. 1?) to the disputed premises. It was also added that Miss D. Ennis had left India due to bad health and that her business in the disputed premises was being looked after by her aforementioned constituted attorney under the supervision of her daughter.
5. On a consideration of the materials produced before him by the two parties the learned Trial Judge came to the conclusion that (1) the notice under S. 13(6) of the West Bengal Premises Tenancy Act which was legal, valid and sufficient in this case had been duly served upon the appellant; (2) that the appellant had been a defaulter in the matter of payment of rent since August 1966, but as she had deposited all arrears of rent under S. 17(1) of the Act she was entitled to the protection under S. 17(4) of the Act; (3) that the evidence on record failed to establish satisfactorily that the appellant had effected any addition or alteration in the disputed premises; (4) that the appellant had left the suit premises long before the filing of the suit after transferring the same to Mr. Ardeshar who has been running the business in the suit premises since then and (5) lastly that since in the original written statement the relationship of landlord and tenant was not denied, the denial of such relationship by the subsequent additional written statement could not be entertained. In view of the finding that the appellant had transferred the disputed premises to Mr. Ardeshar without the consent of the landlords, the learned Trial Judge decreed the suit. Hence, this appeal.
6. Only two points have been pressed before us from the side of the appellant. It is urged at the first instance that the notice under S. 13(6) of the West Bengal Premises Tenancy Act, 1956 was not served upon the appellant and it is also urged that the materials on record do not establish that the disputed premises had been transferred by the appellant to Mr. Ardeshar as found by the Ld. Trial Judge. The following points may, therefore, be framed for disposing of this appeal:—
1. Was the notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 duly served on the appellant?
2. Was the disputed premises transferred by the appellant to Mr. Ardeshar?
3. To what relief, if any, is the appellant entitled?
Point No. 1.
7. The Notice in this case was sought to be served on the appellant in two ways. A letter containing the notice was sent to the appellant at the disputed premises under registered post with acknowledgement due. It came back unserved with the endorsement ‘left’ (Exts. 3, 4 and 5). A copy of the notice was also sought to be served upon the appellant manually through an employee of the respondent's solicitor, vide deposition of Radha Ballav Chatterjee, P.W 5. The said employee visited the disputed premises but since he could not trace out the appellant and nobody could tell him the then whereabouts of the appellant he affixed that copy of the notice on the front door of the disputed premises in presence of witnesses, Exts. 3(a) and 3(b). Service by both the modes was challenged from the side of the appellant and it was urged that in spite of all their efforts as detailed above the respondents failed to serve the notice on the appellant.
8. From what has been stated above it becomes quite clear that the notice in this case was not or rather could not in fact be served on the appellant. The fault in this regard did not lie with the respondents. From the evidence of appellants own witness, Binod Bihari Mukherjee, D.W 1, it appears that the appellant left India 7/8 years ago and that she has not come back to India since them. Before executing the present Power of Attorney in favour of the Ardeshar, the appellant executed another power of attorney in his favour long before 7/8 years ago. The witness does not agree that the appellant left India in 1966 after executing the first Power of Attorney and that she never came back to India thereafter. But he cannot say where the appellant went after executing the first Power of Attorney nor can he say anything about the present whereabouts of the appellant excepting that she has been residing in London. The appellant did not examine herself or her daughter Camplin nor did she examine Mr. Ardeshar who allegedly together with her said daughter has been looking after her business which is being run in the suit premises. The two Powers of Attorney were also not exhibited. In the circumstances stated it may be held without any hesitation that the appellant had left India without leaving behind her foreign address and without authorising anybody to accept letters, notice, etc. on her behalf long before the time when the postal peon and Radha Ballav Chatterjee went to the disputed premises, one to deliver the letter containing the notice and the other to serve a copy of the notice on her in December 1976. The question is if in view of what has been stated above the notices may be said to have been “served” upon the appellant.
9. Section 13(6) of the West Bengal Premises Tenancy Act requires that the landlord should ‘give’ a notice to the tenant before filing the suit for eviction. It does not provide any procedure whatsoever for giving that notice. It has been held in Md. Shahariyar Baig v. R.P Bhal, (1986) 2 Cal HN 19, following Radharani v. Angurbala, (1961) 65 Cal WN 1119 and Satya v. Suresh, (1961) 65 Cal WN 1239 that all the modes prescribed for service of notice in S. 106 of Transfer of Property Act will be available for service of a notice under S. 13(6) of the West Bengal Premises Tenancy Act.
10. The second para of S. 106 of the Transfer of Property Act contemplates service of the notice (1) by post. (2) by personal tender or delivery to the tenant or (3) to one of his family or servants at his residence and lastly (4) by affixation to a conspicuous part of the property demised in case the above second and third modes of service by tender and delivery be not practicable. We have already seen that an effort was made to serve the notice on the appellant by registered post and further that even though an attempt was made to tender or deliver the notice personally to the appellant, the said attempt having failed the notice was served by affixation to a conspicuous part of the disputed premises.
11. Mr. Mukherjee, the learned Advocate for the appellant, submits at the first instance that the presumption of service as per Ss. 27 and 28 of the Central and the State General Clauses Act, respectively will not be available to the service of the notice by post and he refers Shahariyar Baig v. R.P Bhal (1986 (2) Cal HN 19) (supra) and Manoranjan v. Suchitra, (1988) 1 Cal HN 219 : (AIR 1989 Cal 14) in this regard. It was held in these two decisions that the presumption of service of a notice sent by post as per the provisions of the Central and State General Clauses Act will not be available to a notice sent under S. 13(6) of the West Bengal Premises Tenancy Act since the said section does not authorise or permit service of notice by post and since there was no law specifically permitting the notice under S. 13(6) of the West Bengal Premises Tenancy Act to be served in accordance with any of the modes prescribed by S. 106 of the Transfer of Property Act. With due respect to the Hon'ble Judges who delivered these judgments we must confess, however, that it has not been possible for us to agree with this view. This is because we are of the opinion that provisions of S. 106 being part of the General Law i.e the. Transfer of Property Act may be invoked to the extent not repealed or replaced by the Special Law viz., the West Bengal Premises Tenancy Act, 1956 for carrying into effect the purpose and provisions of the latter and that this without any further legislation will automatically attract the presumption of service as per S. 27/28 of the Central/Gengal General Clauses Act. We are, however, not inclined to refer the question to a higher Bench since we are of the view that the present appeal can be disposed of on the materials on record even without doing that. Even without the presumption under the General Clauses Act there is the presumption under S. 114 of the Evidence Act as mentioned by the Hon'ble Judges themselves in the aforementioned cited decisions. Even as per the said presumption it will be possible to presume that the letter containing the notice which was correctly addressed and sent under registered post duly reached the disputed premises for being tendered to the appellant and that since she was not available there it came back unserved to the sender.
12. Mr. Mukherjee urges next that even though under the second para of S. 106 of the Transfer of Property Act a letter which comes back with the endorsement ‘refused’ may be treated as being served that cannot apply to a letter which comes back with the endorsement ‘left’. This is because the element of tender is present in the former but not in the latter. Mr. Mukherjee cites K. Narasimhiah v. M.C Singri Gowda, AIR 1966 SC 330, where it is observed that if in law even a tender may amount to ‘giving’ for example where the tender is refused and that hence ‘giving’ cannot be considered as complete as soon as a notice is despatched to the person for whom it is meant for example, where it never gets tendered to that person. He also cites Shahariyar Baig v. R.P Bhal, (1986) 2 Cal HN 19, where following Harekrishna v. Hahnemann, (1966) 70 Cal WN 262 and Surajmull v. Samadarshan, ILR (1969) 1 Cal 379 : (AIR 1969 Cal 109), it was held that there was no service where the letter containing the notice comes back to the sender with the endorsement ‘left’. Mr. Bachhawat argues that in such a case as the present where the tenant goes away from the tenanted premises without informing his landlord and without leaving anybody there to accept all letters addressed to him on his behalf and without leaving appropriate instructions with the postal authorities, a properly addressed notice which comes back with the endorsement ‘left’ may be said to have been served on the addressee. He cites Madan and Company v. Wazir Jaivir Chand, (1989) 1 SCC 264 : (AIR 1989 SC 630), where Harekrishna v. Hahnamann (supra) and Surajmal v. Samadarshan (supra) were both cited and practically overruled on this point. We quote below the entire para 6 of the judgment (pages 269-270) (of SCC): (at pp. 633-634 of AIR) the observations wherein appear to be particularly relevant:—
“We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to clause (i) of S. 11(1) and the proviso to S. 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insist that before any amount of rent can be said to be in arrears a notice has to be served through post. All that a landlord can do to comply with this provision is to post a registered letter acknowledgement due or otherwise containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It isrthen presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters, when the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a court under Order V of the C.P.C The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as “not found”, “not in station”, “addressee has left” and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for sometime, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letter addressed to him for sometime until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him. In this situation, we have to choose the more reasonable, effective equitable and practical interpretation and that would be to read the word “served” as “sent by post”, correctly and properly addressed to the tenant, and the word “receipt” as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.”
13. The observations regarding absentee tenants apply with all force to the peculiar facts of the case at hand. True in this case the mode of service prescribed by the relevant Act being S. 11(1)(i) proviso and 12 of Jammu and Kashmir Houses and Shops Rent Control Act, 1966 was by registered post and this naturally attracted the presumption of service under S. 27 of the (Central) General Clauses Act. But then as we have pointed out above, the presumption under S. 114 of the Evidence Act will still be available here and the observations just quoted will therefore apply to the facts of the case at hand with full force moreso as there is no denial from the appellants side that the postal peon had actually been to the disputed premises for delivering the letter containing the notice to the appellant. From the evidence on record we have already concluded that the appellant had been out of India when the postman went to the disputed premises in search of her. Nobody knew where she had gone and it is nobody's case that she had authorised anybody to accept the letters meant for her on her behalf or that she had instructed the postal Authorities to send them to her at her the then address. She obviously did not inform her landlords when she left this country and nor did she leave with them her the then foreign address. The landlords did whatever they could to make the notice available to the appellant and if they failed to do that this was because she had been herself scarce from the disputed premises a long time before that. Considering all the circumstances, therefore, we are inclined to hold that the notice under registered post may be taken to have been served on the appellant in this case.
14. Now about the efforts of the respondent to have the notice served manually on the appellant. It appears from the evidence of the respondent's witness Radha Ballav Chatterjee, P.W 5 that at the disputed premises he enquired about the whereabouts of the appellant, that nobody there could provide him with the answer and that lastly he served the notice by affixing it to the front door of the disputed premises. Since the appellant was not in India at that time and nobody said that she maintained a separate residential address in spite of her absence from the country service of the notice personally on her or one of her servants or relatives at her residence would not have been possible or practicable and, therefore, service by affixation at the disputed premises was justifiable in view of the provisions of second part of S. 106. It may be pointed out that the validity of service by affixation was also upheld in J. Mc Gaffin v. L.I.C.I, (1977) 81 Cal WN 629 : (AIR 1978 Cal 123).
15. Considering all the circumstances we are inclined to hold agreeing with the learned Trial Judge that both the notices — one sought to be served by registered post and the other manually were ‘served’ on the appellant. The point is decided accordingly in favour of the respondents.
Point No. 2.
16. The respondents' case as per their plaint (para 4) is that the appellant left India after subletting/assigning and/or transferring the suit premises without their consent, written or verbal, long after the commencement of the West Bengal Premises Tenancy Act, 1956. This allegation was only a denied in the written statement in a general way (para 7). On a consideration of all the materials on record the learned Trial Judge came to the conclusion that the appellant had left the disputed premises after transferring the same to one Mr. Ardashar sometime in 1966 without written consent of the respondent and that thereby she had committed breach of the provisions of the S. 13(1)(a) of the West Bengal Premises Tenancy Act. These conclusions have been challenged from the side of the appellant. It is urged that the conclusions of the learned Trial Court are based merely on surmises and that the learned Trial Judge ought to have held that Mr. Ardeshar has been looking after the business of the appellant in the disputed premises in his capacity as her constituted attorney.
17. In coming to his conclusion in this regard the learned Trial Judge relied upon the assessment order of the Income-tax Officer for the year 1973-76 (Ext. 1). It appears from this order that K.C Ardeshar and Company of which the partners were Mrs. K.C Ardeshar and Mr. J.S Ardeshar was the assessee with regard to the business which was being carried on in the disputed premises. The name of the appellant is nowhere to be found in the assessment order. Besides this there is also evidence coming from the respondents' witness. Thus the Secretary of the respondent Mannalal Begwani, P.W 3 says that a few months after the respondents had purchased the disputed premises the appellant stopped running her business and that Mr. J.S Ardeshar has been carrying on the business of the appellant therefrom. The case which was sought to be made out from the side of the appellant to the effect that Mr. Ardeshar has been looking after the appellant's business on her behalf along with her daughter stood totally disproved as none amongst the appellant, her daughter and Mr. Ardeshar was examined and as the so-called two powers of attorney and the books of accounts of the business were not exhibited. There is also evidence coming from the side of the respondents that Mr. Ardeshar had no relation with the appellant and that neither he had any business connection with her. The long and the short of the situation is, therefore, that long ago — in or about 1976 (1966?) — the appellant had gone away from the disputed premises installing a person, who was a complete stranger to her in the disputed premises permitting or authorising him to carry on the business therefrom but not on her behalf. There is not even a suggestion, not to speak of any evidence either documentary oral to show that on any occasion after Mr. Ardeshar had come into possession of the disputed premises, the appellant was in possession of the same all by herself or even jointly. From these circumstances it may be deducted without any hesitation whatsoever that it is Mr. Ardeshar alone who has been in exclusive possession of the disputed premises since long before the filling of this suit presumably under some arrangement with the appellant. These being the salient features of the situation it becomes very difficult to disagree with the conclusions which the learned trial Judge has drawn in this regard.
18. Mr. Mukherjee submits that the evidence on record establishes, it at all, the present possession of Mr. Ardeshar in the disputed premises and further that from possession it cannot be concluded that the suit premises were transferred, assigned sublet to Mr. Ardeshar.
19. Section 13(1)(a) of the West Bengal Premises Tenancy Act runs as follows:—
“13(1)(a): Where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sub-lets in whole or in part the premises held by him.”
20. Do the facts established by evidence in this case make out that the disputed premises were assigned, transferred or sublet by the appellant to Mr. Ardeshar who was totally a stranger to her?
21. There is no dispute that “subletting means transfer of an exclusive right to enjoy the tenanted premises in favour of a third party in lieu of payment of some compensation or rent; Dipak Banerjee v. Lilabati Chakraborty., AIR 1987 SC 2055; Delhi Stationers v. Rajendra Kumar, (1990) 2 SCC 331 : (AIR 1990 SC 1208).
22. What, however, do “assign” and “transfer of premises” as appearing in S. 13(1)(a) mean?
23. They obviously do not mean the same thing since in that case only one of them and not both would have been used. In J. Mc Guffin v. LICI, (1977) 81 Cal WN 629 : (AIR 1978 Cal 123) it was held that “transfer of premises” means parting or transfer of possession of the tenanted premises either in whole or in part. In Anant Trimbak v. Vasant Pratap, AIR 1980 Bom 69 reference was made to Murray's Dictionary and Wharton's Law Lexicon, 14th Edn. According, to the former “assign” means to transfer or formally make over to another and according to the latter, it (i.e “assign”) denotes generally to transfer of property, especially personal estate or set over a right to another. Assign, therefore, means transfer of property or a right to another. In the context of S. 13(1)(a) therefore “transfer of premises” means transfer of possession of the tenanted premises whereas “assign” means transfer of tenancy with all that goes with it. We are not inclined to agree with Mr. Mukherjee that “transfer of premises” means transfer of the tenancy nor with the decision in Lall and Co. v. Sh. A.R Chadha, ILR (1970) 1 Delhi 202 where it was held that without registration under. The Indian Registration Act there could not be any assignment. The Act says nowhere that an assignment or transfer of premises must be in accordance with the provisions of the Transfer of Property Act to make it a ground of eviction and nor do we think that such an interpretation will be reasonable or proper. We also do not think that Roop Chand v. Gopi Chand, AIR 1989 SC 1416 which was cited to buttress the argument that “transfer of premises” meant something more than transfer of possession will be of any avail to the appellant. This was a decision on S. 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 which makes even mere parting of possession a ground of eviction. The decision nowhere says or even suggests that “transfer of premises” cannot be interpreted to mean parting of possession. The decision obviously has no application to the present case. In Kamal Kumar v. Ashalata, being an unreported single Bench decision of this Court in F.A No. 848 of 1967 cited from the side of the appellant it was held that only transfer of possession does not bring a case under the purview of S. 13(1)(a) of the Act. The judgment in this case was delivered on 26-6-73 and it cannot no longer be considered as good law in view of the decision to the country in J. Mc Gaffin v. L.I.C.I, (1977) 81 Cal WN 629 : (AIR 1978 Cal 123), a Division Bench judgment of this Court delivered on 8-3-77. Nor do we think that Dipak Banerjee v. Lilabati Chakraborty., AIR 1987 SC 2055 helps the appellant in any way. In this case it was held that in order to prove sub-tenancy it has to be proved that (1) the alleged sub-tenant has exclusive right of possession or interest in the premises or part of the premises and (2) secondly, that the right must be in lieu of some compensation or rent. It is urged by Mr. Mukherjee that the story of a subletting was bound to fail in this case since payment of rent was neither pleaded nor proved. We find it very difficult to agree with this view. The law by now is well settled in such a case as the present where a third party is found to be in exclusive possession of the tenanted premises, the burden lies on the tenant to explain the situation, this being within his special knowledge, and in the absence of direct and cogent evidence from either party the Court will be entitled to consider the available circumstantial evidence and the probabilities to be drawn from the same and conclude that the premises were sublet and/or that the parting with possession was for payment of consideration; Central Calcutta v. H.S Mehta, (1976) 1 Cal LJ 500; Prabhabati v. R.R Joneja, (1978) 82 Cal WN 684 : (AIR 1979 NOC 13); Anath v. Ashim, (1977) 2 Cal LJ 153; Nandlal v. Monika Banerjee, (1985) 89 Cal WN 447. Views of the Supreme Court also appear to be quite the same, vide Southern Command v. V.K.N Nambiar, (1988) 2 SCC 292 : (AIR 1988 SC 2126) and Rajbir Kaur v. Chokesiri and Co., (1989) 1 SCC 19 : (AIR 1988 SC 1845); Dipak v. Sm. Lalabati (AIR 1987 SC 2055) (supra) and the unreported single Bench decisions of this Court in Mrs. R.S Agha… v. Sk. Ainul Hoq…. 927 of 1982* which followed it, cannot be of any avail to the appellants sihce even though there is no direct evidence in this case on payment of consideration or rent this may be presumed in view of the fact that not the tenant i.e the appellant but a different person has been proved to be in exclusive possession of the disputed premises since quite a long time. Mr. Mukherjee also draws our attention to the fact that the respondents' principal witness Mr. Begwani did not so much as even mention the word “transfer” in his allegation against the appellant. This is true. But the witness said that the appellant had assigned the disputed premises and he also refused to accept the suggestion that the appellant had not transferred the disputed premises. It is quite obvious, therefore, as to what the witness meant and we are not inclined to put any importance to the unintended omission in his evidence.
24. We have already concluded above that Mr. Ardeshar has been in exclusive possession of the disputed premises since long before the institution of the suit. There is evidence on record — not contradicted from the side of the appellant — that Mr. Ardeshar has no relation with the appellant and that nor has he any business connecting with her. The burden, therefore, lay on the appellant to explain the circumstances under which instead of herself, Mr. Ardeshar was in possession of the disputed premises. The appellant having failed to explain the situation it may be safely presumed, therefore, that the appellant had transferred the premises and/or assigned his interest therein to Mr. Ardeshar against payment of monetary consideration. The situation being what it is, it will also be permissible to infer sub-letting even though there is no specific evidence on the point of payment of rent. The requirements of Section 13(1)(a) have been fully met with in this case. This is the finding of the learned Trial Judge and we confirm it. The point is, therefore, decided against the appellant.
25. Since points Nos. 1 and 2 have been decided against the appellant the present appeal must fail and the appellant is not entitled to get any relief in it. The point is decided accordingly.
26. In view of what has been stated above the present appeal fails. Hence, ordered, that the appeal is hereby dismissed on contest with full costs to the respondents. The judgment and decree passed by the learned trial Judge are hereby confirmed. The respondents are hereby restrained from evicting the appellant from the disputed premises in execution of the decree till the expiry of October, 1990. Provided she goes on depositing mesne profits at the rate of the rent month after month regularly — amount payable for a month to be deposited within 15th of the month following and in case of a single default in which the respondent will be at liberty to take possession of the disputed premises through execution of the decree. Xeroxed and certified copies may be given to the parties as expeditiously as possible on the usual undertakings and on payment of the required fees.
S.P Rajkhowa, J.:— 27. I agree.
Appeal dismissed.
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