“Judicial Authority” under Section 8 of the Arbitration and Conciliation Act, 1996

Section 8 of the Arbitration and Conciliation Act, 1996 (“Act”) makes it mandatory for a “judicial authority” to refer the parties to arbitration given certain conditions are satisfied.[1] However, Act does not define as to what a “judicial authority” can be. Hence, confusion is inevitable as regard the authorities which can come under the ambit of this term.

Under Section 8, power is conferred not on an administrative authority, but on a judicial authority; and hence, such an authority has to act judicially while considering Section 8 of the Act.[2]If a body is acting judicially, then need of compliance with certain judicial principles becomes necessary, for eg., compliance with the principle of natural justice. It is in this light that one has to see the scope of the term “judicial authority”.

Term “Judicial Authority” would certainly include the court as defined in Section 2(e) of the Act. However, it would also include other courts and may even include a special tribunal like the Consumer Forum.[3]Inclusion of such term, and not the court per se, can also be attributed to the fact that least intervention should be done in matters related to arbitration.[4]

Supreme Court of India (“Supreme Court”), while deciding the case of Management Committee, Montfort Senior Secondary School v. Vijay Kumar, considered the scope of the term “judicial authority”.[5] In this case, court referred to an English judgment:

“In R. v. London County Council [(1931) 2 KB 215 : 100 LJKB 760 : 144 LT 464 (CA)] judicial authority was defined as under:

“It is not necessary that it should be a court in the sense in which this Court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition and it is not necessary to be strictly a court.”

It can be said that, as long as an authority is competent to exercise “judicial functions”, it can very well come under the ambit of Section 8. The interpretation of this term becomes important when one is concerned with “first statement on the substance of the dispute”. In other words, the important question is as to before which authority, or “judicial authority”, can a person waive his right by not challenging the action because of the presence of arbitration clause. There can be a situation where a defendant submits such a statement before an authority which is not judicial in nature. In such case, it would be hard to say that Section 8 of the Act would be applicable.

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[1]See  Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., (2005) 7 SCC 234; Kalpana Kothari v. Sudha Yadav, (2002) 1 SCC 203; Rashtriya Ispat Nigam Ltd. v. Verma Transport Co., (2006) 7 SCC 275

[2] SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618

[3] Id; See also Fair Air Engineers Pvt. Ltd v. N.K. Modi (“the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act”)

[4] Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552, ¶ 125

[5] Management Committee, Montfort Senior Secondary School v. Vijay Kumar, (2005) 7 SCC 472

Retrospective Application of an amended Procedural Law: Right of Action v. Right of Forum

Unless otherwise mentioned in the text of a statute, usually it has a prospective application. The main purpose behind such a principle is to avoid multiplicity of proceedings and litigation for the decided matters. However, this principle of prospective application is not applicable where a provision is of procedural nature. Such a prospective application is applicably only to the substantive part of a statute.

One such issue had come before the Supreme Court (“Court”) in the case of Ramesh Kumar Soni v. State of Madhya Pradesh wherein Court held that enactment of a procedural provision usually has a retrospective application. This is because of the fact that a person has a “vested right of action” but not a “vested right of forum”. In this case, following the passage of Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 1973, offences under Section 467, 468 and 471 of Indian Penal Code, 1860, were made triable by the Court of Sessions instead of a Magistrate of First Class. Subsequently, a reference was made to the M.P. High Court for clarifying the applicability of this amendment. By its order, Full Bench of the High Court held that all cases pending before the Court of Judicial Magistrate First before the amendment remained unaffected and were triable by the Judicial Magistrate First Class.

At a time when investigation was pending in his case, appellant, relying on this decision of Full Bench of the High Court, filed an application before the Judicial Magistrate for remission of his case ("his case was transferred to the Court of Sessions"). The same was rejected by the Judicial Magistrate and was consequently affirmed by the High Court. In appeal, Supreme Court held that a case must be deemed to be instituted only when the Court competent to take cognizance of the offence alleged therein does so. In this situation, no charge-sheet was filed before the court, and hence, no case was pending before the judicial magistrate when amendment came into effect. However, Supreme Court did not concur with the Full Bench  of High Court in relation to the prospective application of the Amendment Act.

As far as the question of retrospective application of amendment Act was concerned, Court referred to its decision in the case of Hitendra Vishnu Thakur and Ors. etc v. State of Maharashtra and Ors. (1994) 4 SCC 602, wherein it summed up the legal position with regard to the procedural law being retrospective in its operation and the right of a litigant to claim that he be tried by a particular Court. Following were the principles laid down by the court:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless  made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be  retrospective in its application, should not be given an extended meaning and should be strictly  confined to its clearly defined limits. 

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. 

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. 

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. 

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.”

However, for the cases decided by a court before change in the law, the same shall not become illegal merely because an amendment has changed the forum of trial. If allowed, it will lead to multiplicity of litigation [See: Baburam v. C.C. Jacob and Ors. (1999) 3 SCC 362]. Hence, Court referred to its decision in the case of Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1636 whereby it held that

“amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure”

Apart from the applicability of an act, court also referred to the prospective application of a precedent, a doctrine invoked by this court for the first time in I.C. Golak Nath and Ors. v. State of Punjab and Ors. AIR 1967 SC 1643. By this principle, all actions taken contrary to the declaration of law, prior to the date of the declaration are validated (“in larger public interest”).

In conclusion, it can be said that though a person can move to new forum by virtue of change in law, he cannot do so if the case has already been decided. Otherwise, there will appear a problem every time a change in law is carried out. That would certainly not be in public interest.

"Written" Agreement Requirement under Indian Arbitration and Conciliation Act

Though an oral agreement is valid under under Indian Contract Act, 1872, Section 7(3) of the Arbitration and conciliation Act, 1996 (“Act”) makes it mandatory for the parties to execute the arbitration agreement in writing. Section 7(4) of the Act stipulates the conditions which are to be fulfilled before an agreement can be considered as written:

Section 7(4): An arbitration agreement is in writing if it is contained in-

a)      a document signed by the parties;

b)      an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or

c)      an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other

Clause (a)

As long as there is an existence of a signed document, not much difficulty arises. If there is a document, and has been signed by the parties; there is no need to go further. In the case of Ghanshyam Sharma v. South City Projects, Calcutta High Court held that “if there is an arbitration agreement contained in a document signed by the parties, the requirement of Section 7(4) is complete and one need not progress to clauses (b) and (c) thereof”. Hence, as far as Section 7(4)(a) is concerned, it is more a matter of evidence than interpretation, i.e., if there is an existence of a signed arbitration agreement, the same merely has to be produced before the judicial authority.

As far as the term “document” is concerned, the definition of the same has not been provided in the Act. However, General Clauses Act, 1897 provides that

“document shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose or recording that matter.”

Though it is an established principle that a special act overrides a general act, reference to General Clauses Act may be made (“with precaution”) since Arbitration and Conciliation Act does not provide for the definition of “document”. However, the same would have to be done with precaution.

Clause (b)

With technology becoming more advanced, usage of new modes of communication for business transactions is predictable. Section 7(4)(b) of the Act provides that an arbitration agreement is in writing if it is contained in “exchange” of letters, telex, telex and other means of communication provided that they provide a “record” of the “agreement”.

In Great Offshore Limited v. Iranian Offshore Engineering, (2008) 14 SCC 240, while considering the validity of a document received by “fax machine,” court was of the opinion that

“Section 7(4)(b) states that an agreement is in writing if it is contained in “an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement”. This section covers agreements that are sent via facsimile (fax) as they are “other means of telecommunication”. “Fax” is defined as “a machine that scans documents electronically and transmits a photographic image of the contents to a receiving machine by telephone line” or “a document received by such a machine. This definition clearly provides that a fax falls under “other means of telecommunication”. Thus, faxed agreements are acceptable under Section 7 of the Act.”

Hence, any means of communication which can provide a record of the agreement would be good enough to come under the ambit of this clause. Also, the term “other means of communication” makes it possible for a new technology (“presently, which is not in existence”) to be included under this clause in future.

As far as the term “record” is concerned, Calcutta High Court, in P.T. Tirtamas Comexindo vs Delta International Limited held that term “record” means the record of bilateral consent of the parties. If there is a unilateral consent, the requirements of Section 7(4)(b) cannot said to have been fulfilled. Indeed, without presence of consent, it would not be proper to hold an arbitration agreement valid.

Clause (c)

Last, but not the least, is clause (c) which provides that an arbitration agreement is in writing if it is contained in “an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other” [See: DDA v Jain Rolling Mills (Delhi High Court)]. The language of this clause is not difficult to interpret. However, there is one point which ought to be remembered. Statement of claim and defence is not restricted to the submission in an arbitration proceeding, but to any suit. In S.N. Prasad v. Monnet Finance Ltd. and Ors., Supreme Court held that.

“the words, 'statements of claim and defence' occurring in Section 7(4)(c) of the Act, are not restricted to the statement of claim and defence filed before the arbitrator. If there is an assertion of existence of an arbitration agreement in any suit, petition or application filed before any court, and if there is no denial thereof in the defence/counter/written statement thereto filed by the other party to such suit, petition or application, then it can be said that there is an "exchange of statements of claim and defence" for the purposes of Section 7(4)(c) of the Act”

The points discussed in this post are only a few general points which one can consider while interpreting “written” agreement requirement.

Consumer Forum and Authority of an Agent to Represent a Consumer

Analysis –

“Can a person under the cover of being an agent represent large number of persons before forums created under Consumer Protection Act, 1986 (hereinafter “Act”)?”, this was the question addressed by the Supreme Court in its recent decision where two appeals had been clubbed, one filed by Bar Council Of India and the other by C. Venkatachalam. The issue in these appeals was whether a person, who is not a legal practitioner, can represent a large number of parties before Consumer Forums. In general, these forums have been established for a specific purpose and achieving that very purpose in the most imperative obligation. It would be necessary here to know the object lying behind the enactment of Consumer Protection Act. “Protection of the interests of consumers” is the most significant reason which can be attributed to this act, and interests of consumers can be preserved only if they are able to obtain justice swiftly and economically. Taking recourse of legal professionalism by means of hiring an advocate does not turn out viable when the compensation demanded is not considerable enough. Rule 2(b) of Consumer Protection Rules, 1987 defines the term “agent” as the person authorised by a party to represent it before the consumer commission. It was contended on behalf of the appellants that arguing before consumer forums needs legal expertise, and further it was argued that arguing in front of the court is limited only to a class of persons namely advocates. Reliance was placed on Section 29 and 33 of the Advocates Act, 1961 which respectively provide that only an advocate can practice and no person can practice as an advocate unless enrolled. Cheap and Speedy redressal are some of the most important mechanisms which need to be made exercisable by each and every consumer, otherwise the very purpose for having the Act will be defeated. But, at the same time it is equally important to ensure that agents in the name of authorization start exploiting the procedure professionally. And, under such a situation when it appears to the court that such agents are exercising this right professionally, courts are empowered to terminate their authorization. It would be important here, in this specific situation, to understand the significant difference between a quasi-judicial body and a civil court. Quasi-judicial bodies in general function in accordance with the Principle of Natural Justice, and further they are not bound to follow procedural laws e.g. Code of Civil Procedure, 1908 etc. On the other hand, civil courts are obliged to function in accordance with the procedural laws. Doubt as regards the misuse of this authority by the agents was handsomely addressed by the Supreme Court, and it clearly opined that judges of Consumer Forums are in position to see whether agents misuse this authority or not. This case can be considered to be a landmark judgment setting a precedent for the matters in relation to the consumer disputes where an agent represents a consumer before the forum.

Case Name - C. Venkatachalam v. Ajitkumar C. Shah & others , Bar Council Of India v. Sanjay R Kothari & Others

Treatises Citied by the Supreme Court –

Ø  Blackstone's Commentaries on the Laws of England

Ø  Administrative Law by M.P. Jain

Ø  H.M. Seervai’s Constitutional Law of India

Cases Cited –

1.      Interpretation of Statutes –

R.M.D. Chamarbaugwalla and Another v. Union of India and Another AIR 1957 SC 628-

“In interpreting the statute the legislative intent is paramount and the duty of the Court is to act upon the true intention of the legislature.”

Anandji  Haridas  &  Company  Private  Limited  v.  Engineering  Mazdoor  Sangh  and Another  (1975)  3  SCC  862

“As  a  general  principle  of  interpretation where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is  to  be  gathered  from  the  language  of  the  statute  itself  and  no  external  evidence  such  as parliamentary  debates, reports of the Committees  of the Legislature  or  even the statement  made by  the  minister  on  the  introduction  of  a  measure  or  by  the  framers  of  the  Act  is  admissible  to construe those words.”

Kartar Singh v. State of Punjab (1994) 3 SCC 569

“Though normally the plain ordinary grammatical meaning of an enactment  affords  the  best  guide  and  the  object  of  interpreting  a  statute  is  to  ascertain  the intention of the legislature enacting it, other methods of extracting extracting the meaning can be resorted  to  if  the  language  is  contradictory,  ambiguous  or  leads  really  to  absurd  results  so  as  to keep at the real sense and meaning”

District  Mining  Officer  and  Others  v.  Tata  Iron  and  Steel  Company  and  Another (2001) 7 SCC 358

"A statute is an edict of the legislature and in construing a statute, it is necessary to seek the  intention  of  its  maker. A statute  has to be construed according to the  intent  of them that make it and the duty of the court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature." 

Bhatia  International  v.  Bulk  Trading  S.A.  and  Another  (2002)  4  SCC  105

"The conventional way of interpreting a statute is to seek the intention of its makers. If a statutory provision is open to  more than  one  interpretation then the Court has to  choose that interpretation which represents the true intention of the legislature."

2.      Consumer Disputes

Lucknow  Development  Authority  v. M.K.  Gupta  (1994)  1  SCC  243

“The  provisions  of  the  Act  have  to  be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach  subject to that it should not do any violence to the language of the provisions and is not contrary to the attempted objective of the enactment. In other words, according to the purpose of enactment the interest of the consumer is paramount.”

Laxmi Engineering Works v.  P.S.G. Industrial Institute (1995) 3 SCC 583

 "10.  A  review  of  the  provisions  of  the  Act  discloses  that  the  quasi-judicial bodies/authorities/agencies  created  by  the  Act  known  as  District  Forums,  State Commissions and the National Commission are not courts though invested with some of the  powers  of  a  civil  court.  They  are  quasi-judicial  tribunals  brought  into  existence  to render  inexpensive  and  speedy  remedies  to  consumers.  It  is  equally  clear  that  these forums/commissions  were  not supposed to supplant but supplement the  existing  judicial system.  The  idea  was  to  provide  an  additional  forum  providing  inexpensive  and  speedy resolution  of  disputes  arising  between  consumers  and  suppliers  of  goods  and  services. The  forum  so  created  is  uninhibited  by  the  requirement  of  court  fee  or  the  formal procedures  of  a  court.  Any  consumer  can  go  and  file  a  complaint.  Complaint  need  not necessarily  be  filed  by  the  complainant  himself;  any  recognized  consumers'  association can espouse his cause. Where a large number of consumers have a similar complaint, one or  more  can  file  a  complaint  on  behalf  of  all.  Even  the  Central  Government  and  State Governments can act on his/their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market  dominated  by  large  trading  and  manufacturing  bodies.  Indeed,  the  entire  Act revolves round the consumer and is designed to protect his interest.

Dr. J.J. Merchant and Others v. Shrinath Chaturvedi (2002) 6 SCC 635

"7.  ...One  of  the  main  objects  of  the  Act  is  to  provide  speedy  and  simple  redressal  to consumer  disputes  and  for  that  a  quasi-judicial  machinery  is  sought  to  be  set  up  at  the district,  State  and  Central  level.  These  quasi-judicial  bodies  are  required  to  observe  the principles of  natural justice and  have been  empowered to give relief  of a specific nature and  to  award,  wherever  appropriate,  compensation  to  consumers.  Penalties  for  non-compliance  with  the  orders  given  by  the  quasi-judicial  bodies  have  also  been  provided. The  object and purpose  of  enacting the  Act is to render simple,  inexpensive and speedy remedy to the consumers  with complaints against defective  goods and deficient services and  the  benevolent  piece  of  legislation  intended  to  protect  a  large  body  of  consumers from  exploitation  would  be  defeated.  Prior  to  the  Act,  consumers  were  required  to approach the civil court for securing justice for the wrong done to them and it is a known fact that decision in a suit takes years..”

Common  Cause,  A  Registered  Society  v.  Union  of  India  and  others  (1997)  10  SCC 729,

"The  object  of  the  legislation,  as  the  Preamble  of  the  Act  proclaims,  is  "for  better protection of the interests of consumers".

Click Here for the Judgment 

Tourist Vehicles are not allowed to carry luggage on the Roof

An interesting judgment has been delivered by the Supreme Court recently in Sharma Transport v. State of Maharashtra through a special leave where six appeals and three writ peitions were jointly taken up by the Court. The main issue in the petition was whether transporters are allowed to put up the luggage on the roof of a tourist vehicle. Court decided the issue with reference to the appeal filed by Sharma Transport. Reference had been made to Central Motor Vehicles Rules, 1989 ( hereinafter “Rules”) along with Motor Vehicles Act, 1988. It was contended by the petitioner that they had a right to carry luggage of the passengers on the roof of the vehicle, and if not allowed to do so, their right under Article 19(1)(g) of the Indian Constitution would be violated. It was contended by the state that as it is clearly mentioned in t Rule 128 (9) of Central Motor Vehicles Rules, 1989 that the transporters should provide space for the luggage of the passengers at the rear and the sides of the vehicle, and prohibits carrying the luggage on the roof of the vehicle. Petition filed by the appellant was rejected by the Bombay High Court primarily on the ground that:

“We are not accepting the submission of the petitioner that in the absence of a specific restriction in regard to having luggage holds/carrier on the roof of the vehicle the petitioners cannot be prevented from carrying the goods/luggage on the roof of the vehicle. On the contrary we are of the clear view that luggage has to be stored at the places specifically permitted by sub rule 9(i) viz., at the rear or at sides or both, but not the roof of the vehicle.”

It was contended by the learned counsel for the state that carrying luggage on the roof of a tourist vehicles increases the chances of accident, and which consequently lead to the danger which passengers have to bear. A specific limit on the luggage to be carried by the passengers has been provided under the Rules, and transporters are legally bound to follow such limit. Section 2 (43) of the Motor Vehicles Act, 1988 defines the meaning of the expression `tourist vehicle' to mean a contract carriage, constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf. Counsel for the appellant argued by relying on the Rule 93 of the Rules and thereby incorporating it with Rule 128 (9) which mentions the places where luggage are to be kept in. But, their contention was evidently rejected by the court principally on the ground that that rule specified “tractors/articulated vehicle” and it cannot in any manner be related to the tourist vehicle, which was in dispute in the present case. Rule 128(9) of the Rules states

(9) Luggage.--(i) Luggage holds shall be provided at the rear or at the sides, or both, of the tourist vehicle with sufficient space and size, and shall be rattle proof, dustproof and waterproof with safety arrangements;

Supreme Court dismissed the appeal while pronouncing that –

Rule 128 (9) is a special provision meant for laying down specifications for a tourist vehicle. The sub-Rule specifically provides that in a tourist vehicle, the permit holder should only provide luggage holds at the rear or at the sides or both, of the tourist vehicle with sufficient space and size. When the Rules specifically make a provision in regard to the place where luggage holds shall be provided by necessary implication, it goes to exclude all the other places of the tourist vehicle for being used as luggage holds. In our view, since the language of the Rule is clear and unambiguous, no other construction need be resorted to understand the plain language of the sub-Rule (a) of Rule 128 of the Rules. Rule 128 is a special provision for tourist vehicles which excludes General Rule 93 to the extent of conflict between the former and the later.

In addition to this, certain case laws had been discussed by the Court to make it clear and unambiguous that when the plain and simple reading of a statue is able to signify the intention of the legislature, then there is no need to make it more complicated by resorting to assumptions which are not required.

Case Laws on the Interpretation of Statues –

In this case – Sharma Transport v. State of Maharashtra

“The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the Statute gives a different indication of such meaning and is likely to lead to absurd result, in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. When the language used in the statute is clear and unambiguous, it is the duty of the court to give effect to it.”

Grasim Industries Ltd. v. Collector of Customs, Bombay, (2002) 4 SCC 297

“10. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided...”

Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111

“24. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law.

25. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.”

Harshad S. Mehta v. State of Maharashtra,(2001) 8 SCC 257

“34. There is no doubt that if the words are plain and simple and call for only one construction, that construction is to be adopted whatever be its effect...”

Union of India v. Hansoli Devi, (2002) 7 SCC 273

“9...It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act...”

Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh,(2001) 3 SCC 594

“12. Thus when there is an ambiguity in terms of a provision, one must look at well-settled principles of construction but it is not open to first create an ambiguity which does not exist and then try to resolve the same by taking recourse to some general principle.”