Appellate Division Cases
M/S. Concord Engineers and Construction Ltd. ……………Appellant.
The Chief Engineer Road and Highways Department,
Government of the People’s Republic Bangladesh, Sarak Bhaban, P.S. Ramna,
The Arbitration Act. (X of 1940), Section 1(6), 8,.16, 20 31. 32, 33 (3).
The Code of Civil Procedure (V of 1908), Section 11, 151.
The Limitation Act Article 158.
40 DLR(AD)56, 6 DLR 478.
Whether the plaint is liable to be rejected being barred by section 32 of the Arbitration Act (13)
Since the award was a nullity and void ab initio which need not be avoided as stated above, no such requirement required to be complied with for setting aside the award and the same has no validity or existence in the eye of law. Similarly the question of limitation of filing of the objection within 30 days as required under section 158 of the Limitation Act is unwarranted and uncalled for because the award being a nullity and void abinitio and need not be avoided, no question of limitation is applicable as the illegality is apparedt no the face of the record and the Court Should take judicial notice of it and it and it and in the facts and circumstances of the instant case, it is not necessary that a party should file objection to the award under section 30 within the period prescribed under section 158 of the Limitation Act (23)
Rafique -Ul-Haq, Senior Advocate instructed by Mvi Md. Wahidullah Advocate-on-Record. For the Appellant.
Fida M. Kamal, Additional Attorney General, ( Mr. Borhanuddin, Deputy Attorney General and Mr. Karuna Moy Chakma, Assistant Attorney General, with him), instructed by Mr. Ahsanullah Patwary, Advocate-on-Record. ……..For the Respondent
1. Mohammad Fazlul Karim J: – This appeal at the instance of the plaintiff-appellant is directed against the judgment and order dated 4t h April 1996 passed by the High Court Division in Appeal From Original Order No.82 of 1993 allowing the appeal setting aside those dated 30.11.1992 of the Subordinate Judge, First Court, Dhaka in Miscellaneous Case No.71 of 1991 declaring the award dated 21.9.1991signed and delivered by the sole Arbitrator Mr. Justice Sultan Hossain Khan making the same a rule of the Court to be without jurisdiction and a nullity in the eye of law.
2. Facts relevant for disposal of the appeal, inter alia, are that the Government of the People’s Republic of Bangladesh decided to construct some flyovers in the city of Dhaka, one at Mohakhali and another Banani and for this purpose they floated tender from intending contractors. Many contractors including the appellant participated in the said tender and on scrutiny their bid was found to be the lowest and as such the same was accepted by the Government of Bangladesh for construction of the said flyovers. After acceptance of the same a work order was issued to the contractor. Subsequently a formal contract dated 3.9.1990 between the parties was signed. After the conclusion of the said contract, about 5/6 months later the Government has cancelled the contract and decided not to go with the construction of those flyovers in the city of Dhaka. Being aggrieved by the said cancellation of the agreement the appellant in terms of the aforesaid agreement referred the matter of cancellation to the Additional Chief Engineer and claimed an amount of Tk. 30(thirty) Core and odd as compensation on the ground that after conclusion of the agreement they had already undertaken various works and they had procured men, materials and specialized agencies for the purpose of completion of the construction of the said flyovers and sudden cancellation of the contract would cause them huge loss. On receipt of the claimed from the appellant, the Additional Chief Engineer vide Memo dated 10.4.1991 requested the appellant to submit their claim in details and item-with all related papers to the concerned Executive Engineer. The Additional Chief Engineer by his aforesaid Memo also informed that he will give his decision in the matter on getting their claim with comments of the concerned officer. The concerned Executive Engineer by his Memo dated 29.4.1991 also requested the appellant concerned Engineers to furnish all related documents and explanations in support of their claim to facilitate determination of the same by the Additional Chief Engineer. The appellant without complying with the said request of the Additional Chief Engineer. The appellant without complying with the said request of the Additional Chief Engineer wrote to the Chief Engineer invoking clause B. 6.31 of the agreement and requested him to appoint an Arbitrator on his behalf in the matter informing him that they had already appointed Mr. Justice Sultan Hossain Khan as their Arbitrator in the matter to settle the dispute between the parties as the Additional Chief Engineer did not settle the dispute. The Chief Engineer on receipt of the letter dated 29.4.1991 did not appoint any arbitrator on his behalf and after waiting for six weeks the appellant requested their appointed Arbitrator to start arbitration proceeding as sole arbitrator. In that view of the matter the Arbitrator appointed by the appellant as per provisions of the Arbitration Act, 1940, assume jurisdiction in the instant case as an sole Arbitrator and notified both the parties to appear before him and submit their case in writing. It appears that the appellant in pursuance of that notice appeared before the Arbitrator and submitted their statement of claim. On the other hand, the respondents though prayed for time but subsequently they did neither file any written Objection nor participated in the proceedings and in that view of the matter the Arbitrator concluded the proceeding exparte against the respondents and gave an award amounting to Tk.15 Crore and odd as compensation in favour of the appellant. The learned Arbitrator signed and delivered the award on 21.9.1991 with notice to both the parties but the respon-dents did not appear before the Arbitrator nor signed the Award. After the pronouncement of the said Award, the Arbitrator send the same to the Court of Subordinate Judge, First Court Dhaka on 6.10.1991 for making the said award a rule of the court.
3. On receipt of the said award along with relevant files the learned Subordinate Judge issued notice fixing 30.11.1991 for filing objection, if any, by the parties. It further appears that the respondents in response to that notice appeared before the learned Subordinate Judge and took few adjournments for the purpose of submitting written objection and ultimately on 21.13.1992 they filed the written objection under section 16 read with section 31 of the Arbitration Act. The learned Subordinate Judge after hearing both the parties and perusing the relevant documents and the award made the award a rule of the Court vide his judgment dated 30.11.1992 holding that the objection filed by the respondent under section 16 and 31of the said Act was absolutely misconceived. The learned Subordinate Judge further found that the objection, if any, in the instant case could have been filed under section 33 read with section 30 of the Act but instead of that they have filed an objection under section 16 read with section 31 of the said Act which is not tenable in law in the facts and circumstances of the case. The learned Subordinate Judge further observed that even if, for argument’s sake, it is assumed that the said objection was in fact filed under section 33 read with section 30 of the Act then also the same is not acceptable on two counts, firstly it is barred by limitation as provided under Article 158 of the Limitation Act and secondly for non-compliance of the proviso to section 33 of the Act which has been added to it after the amendment of the aforesaid section by virtue of provision of law Reforms Ordinance, 1978. The learned Subordinate Judge also perused the records of the Arbitration case and the award itself and did not find anything on record to interfere with the award passed by the learned Arbitrator and in that view of the matter the award was made a rule of the Court by the impugned judgment and order dated 30.11.1992. Being aggrieved by the said judgment and order the respondents preferred an appeal being First Miscellaneous Appeal No.82 of 1993 which was allowed by the judgment and order dated 4.4.1996 by the High Court Division.
4. In the case the respondent filed an application under section 16 and 31of the Arbitration Act for setting aside the award stating, inter alia, that in view of the overall resource constraints of the Government and the dispute over the land to be used for the constraints of the flyovers, the Executive Committee of the National Economic Council gave its opinion for non-implementation of the project whereupon the Government of Bangladesh acting through the Ministry of Communication asked the Chief Engineer of the respondents to cancel the contract dated 3.9.1990 for construction of the flyover in the greater national interest and to communicate the same to the appellant. The Chief Engineer by his letter dated 28.2.1991 addressed to the appellant informing cancellation of the said contract in view of the inability of RAJUK to mobilise resources during the 4 five years plan along with other resource constraints of the Government. The Chief Engineer accordingly refunded the bank guarantee for an amount of Tk.5 lac furnished by the Contractor. Consequent upon cancellation of the contract the appellant Contractor by letter dated 11.3.299Ian amount of Tk.30 crores without any break up of the said amount, whereupon the Chief Engineer asked for a claim with details and item-wise with all related papers by its Memo dated 10th April 1991 and on getting the com-ments of the concerned officers action will be taken by the competent authority but the Contractor appellant without supplying the claim details item-wise appointed Arbitrator on their behalf and intimated that in case of failure to nominate an Arbitrator within 15 days the Arbitrator appointed themselves would act exparte. The Arbitrator on assumption issued notice dated 14.6.1991, 27.6.1991 and on 8.7.1991 and ultimately on 14.9.1991 intimated the pronouncement of the award. Meanwhile, the respondent employer on receipt of the notice fixing 25.6.1991 as the date of hearing of the proceeding the Additional Chief Engineer by letter dated 20.6.1991 intimated the Chief Engineer about the receipt of the said notice with copy to the Arbitrator stating that no action could be taken in the matter on 25.6.1991 which is a holiday due to Eidul Azha . The copy of which was forwarded to the Arbitrator with a note to that effect only that upon receipt of the reply from the Ministry steps would be taken for disposal of the matter. But the Arbitrator proceeded ex-parte inspite of the fact that he was not appointed in terms of the Contract embodied in clause B 6.31 of the Tender document (which forms part of contract) i.e., if any party to the contract is dissatisfied with the decision of the Additional Chief Engineer he is required first to give a written notice to the other party within 20 days after receipt of the decision o( the Additional Chief Engineer requiring that the matter in dispute should be settled through Arbitration in terms of clause 25 of the Bangladesh Tender Form No. 2911 as amended on 23.9.1987. The aggrieved party would, thereafter, refer the dispute to the Chief Engineer for appointment of an Arbitrator of Arbitrators for arbitrating the dispute. The Chief Engineer was, thereafter, required cither to appoint an Engineer not below the rank of superintending Engineer or a Board of Engineers with an officer above the rank of Superintending Engineer as its Chairman. Thereafter, the Arbitrator or the Board Arbitrators was to make an Award after such investigation as he or it might think proper and such Award was final and binding on the parties to the contract.
5. The respondent further stated that the contractor did not allow the Additional Chief Engineer to give his decision on the dispute concerning their claim in details item-wise filing or submitting the relevant paper or papers in support of their claim but illegally and without jurisdiction appointed Mr. Justice Sultan Hossain Khan as Arbitrator in the matter contrary to the terms of the contract and reference to the dispute contrary to the said clauses of Bangladesh Tender Form No. 2911 amended upto 23.9.1987 and obtained an exparte award which is not an award in the eye of law as being void, abinitio and as such the award dated 21.9.1991 given by the Arbitrator has no existence or validity in the eye of law being a nullity which is liable to be set aside.
6. The learned Subordinate Judge however, made the award a rule of the Court decreeing in farvor of the first party who is entitled to get a sum of Tk. 15,35,03,390/= from the second party- respondents. The defendant-respondents thereafter moved the High Court Division in Memorandum of Appeal Original Order No. 82 of 1993 which was allowed setting aside the judgment and order dated 30.11.1992 passed by the Subordinate Judge. 3 r ” Court, in Miscellaneous Case No. 71 of 1991 setting aside the award dated 21.9.1991 signed delivered by the Arbitrator Mr. Justice Sultan Hossain Khan declaring the same without jurisdiction and nullity in the eye of law.
7. The appellant thereupon obtained the leave from this Court upon the submissions that:
” Syed Ishtiaq Ahmed, learned Counsel appearing on behalf of the petitioner submits that the High Court Division committed an error of law in setting aside the award as void ab anitio on the face of admitted fact that the respondent did neither file any application for setting aside the award within 30 days of the notice nor deposited the award amount in the trail court or even before the High Court Division as provided under the Arbitration Act. It is also submitted that when the law has laid down a procedure for setting aside an award on the ground mentioned in the Arbitration Act the Court cannot suo moto set aside that award unless the procedure and conditions precedent laid down in the Act have been complied with and the application is filed within the statutory time limit under the Limitation Act, otherwise, even a void order will operate as a valid effective award the remedy to set aside the order having been cut off. Syed Ishtiaq Ahmed submits that in the present case no application was filed within 30 days from, the date of receipt of the notice of the award and the statutory award money was not deposited as provided under the law but the High Court Division overlook these legal objections and illegally set aside the award.”
8. Mr. Rafique-Ul-Huq, the learned Counsel appearing for the appellant has submitted that in view of the admitted failure of the respondent to file any written objection for setting aside the award within 30 days from the date of receipt of the notice or that failure to deposit the amount by way of security of the award amount as required under the provision of section 33(3) of the Arbitration Act, the impugned order setting aside the award is a nullity has been done illegally and the same is without jurisdiction inasmuch as the High Court Division could not under the circumstance when the defendant- respondent have surrendered to the jurisdiction of the Arbitration Court suo motu set aside the award contrary to the provision of Arbitration Act. Mr. Rafique-Ul-Huq further submits that the written objection having been filed under section 16 for remission of the award and section 31 and surrendering to the jurisdiction of the arbitration only challenging the award praying for remission of the same for an award in accordance with law, the Award is not void abinitio inasmuch as under section 39 of the Arbitration Act refusing to remit the award by the Subordinate Judge is not an appealable order, the High Court Division erred in law in not holding that the appeal is not maintainable inasmuch as not objection was filed within 30 days from the date of service of filing of the award under Article 158 of the Limitation Act. The learned Counsel as further submitted that the respondent having invoked the jurisdiction of the arbitration by filing an application under section 16 and 31 of the Arbitration Act, it is too late to raise any objection inasmuch as no objection having been filed under section 16 within 30 days , the Court could not suo motu set aside the award or set aside the same by invoking the section 151 of the Code of Civil Procedure. In view of the specific provision in Article 158 of the Limitation Act the learned Counsel submitted that the notice in the case having been served legally on 8.7.1991 on objection having been filed within 30 days, the same is barred under Article 158 of the Limitation Act inasmuch under the Provision of section 33 as amended, filing of an appeal is condition precedent to the deposit of the amount or to file the security to the satisfaction of the Court and that not having been done the appeal is also not maintainable. The learned Counsel has further submitted that the suit challenged the self same award having been filed in which the plaint was rejected upto the appellante stage considering the provision of sections 16, 31, 32 and 33 of the Arbitration Act, involved in the instant case, the issues involved therein are barred by res judicata inasmuch as the self – same Court being in seisin of the previous suit and having disposede of the same the said previous decision of the learned Judge is binding on the learned Judges of the High Court Division disposing of the appeal.
9. Mr. Fida M. Kama!, the learned Additional Attorney General appearing for the defendant-respondent submits that in view of the provision of arbitration clause 6.31, the arbitration being to a designated Arbitrator and to be appointed by the designated authority under clause in B.D. form No. 2199 as amended and in the instant case the Arbitrator was appointed in gross contravention of the said provision of the agreement and utterly divorced the agreement, the award is a nullity and as such there was no arbitration in accordance with law or in the eye of law. Referring to the aforesaid clause the learned Additional Attorney General has further submitted that there being total lack of jurisdiction of the Arbitrator as the reference or appointment of the Arbitrator not being a valid one or contemplated therein or not being in terms of the clause 25 as amended, the proceeding of the arbitrator is a nullity being void ab initio. The learned Additional Attorney General has further submitted that under section 1(6) award means a vaild award under the provision of section 8 read with section 20 of the Arbitration Act and no dispute having been raised following the procedure in the agreement but short circuited the clause by appointing an arbitrator contrary to the provision of arbitration clause the purported award has no legal validity as has been decided by the High Court Division. The learned Additional Attorney General has further submitted that in Title Suit No.99 of 1992 filed on 6.6.1992 wherein the plaint was rejected as it is barred under the provision of section 32 of the Arbitration Act providing the only remedy to be filed against the award under the provision of the Arbitration Act and not by way of filing a suit which is expressly barred
10. The learned Counsel for the appellant submits that the finding in appeal from the original decree No. 296 of 1994 consequent upon rejection of the plaint of the said suit considering the provision of sections 30, 32 and 33 of the Arbitration Act and the adverse finding to that effect operates as res judicata and has referred to a decision in the case of Sachindra Lai Das and others Vs. Hriday Ranjan Das being dead his heirs: Bimal Kanti Das and others reported in 40 DLR(AD) 56 wherein it has been held that if the adverse finding is actually on decision of the suit and it forms a fundamental parts of the decree then it operates as res judicata but if adverse finding is extraneous and when it was not necessary for the disposal of the suit and made in a interlocutory matter will not operate as res judicate.
11. Res judicata has been defined in section 11 of the Code of Civil Procedure as
11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties , or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
12. ‘Former’ mentioned show that there was a remedy in a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto and in order to constitute res judicate the matter which might ought not to have a ground of defense or attack in such former suit shall be deemed to have a matter directly and substantially in issue in such suit, a relief claimed in the suit which has not been expressly granted by the decree shall for the purpose of the section deemed to have been refused.
13. Admittedly the Title Suit No.92 of 1999 was filed during the pendency of the present proceeding between the parties challenging the award which is the subject – matter of the present proceeding but plaint was rejected as barred by law; the order though prayed for shall be deemed to have been a decree in the suit but no issue which are involved in the present case was determined even in the appeal against the said order of rejection nor the same was directly or substantially in issue or was decided but incidentally the applicability of section 30,32 and 33 was considered to determine as to whether the plaint is liable to be rejected being barred by section 32 of the Arbitration Act and as such no such issue was directly or substantially involved in the said suit or constructively in issue in the suit so as to render the present one barred by res judicata. Reference in this regard may be had in the case of AIR 1935 Bombay 131(Paragaph 133), AIR 1977 Allahabad 201, AIR 1974 SC 1069.
14. Though no leave was granted on the point of res judicata but the point has been raised by the learned Counsel for the appellant as a important question of law allegedly involved in the appeal.
15. We have allowed him to argue on the said point of law, but for the fogoing reasons we do not find that the issued in the matter against the award is barred by the principle of res judicata .
16. As to the main quiestion centering around the appeal as to whether the maintainability of the objection to the award on ground of nullity or void – ab- initio having been filed beyond the period of 30 days as contemplated under section 30 and 33 of the Arbitration Act, without depositing the decreetal amount or any security furnished for the same as required under the provision of section 33(3) of the Arbitration Act rendering the objection illegal as argued by the learned Counsel for the appellant, the learned Additional Attorney General alleged the said objection under section 16 read with section 31 of the Arbitration Act is designed to recall the Award which was a nullity being void abinitio being contrary to clause B 6.31, reference to arbitration proceeding for referring the matter for arbitration to a designated arbitrator by the deputed / designated authority by raising a dispute as per procedure laid down therein having been violated, the reference to arbitrator was illegal and consequence appointment of Arbitrator was invalid rendering the award in valid one. Reference in this regard may be had to the case of Hashmat Ali Jamadar and others Vs. Asmatali Jamadar reported in 6 DLR 478 wherein the fact was that the parties to an arbitration agreement referred their dispute to the Arbitration of 7 named Arbitrators and stipulated that they would abide by an award passed unanimously or by majority ; 5 out of the 7 Arbitrators passed an award which after being registered was filed by them in Court under section 14 of the Arbitration Act. One of the party thereafter filed an application under section 7 of the Arbitration Act for judgment in accordance with the award. While the other party objected to the award as invalid and unenforceable in law. It was held by Chowdhury J. as his Lordships then was, that.” it is apparent on the face of the award that is an award of Arbitration of 5 of the 7 Arbitrators, it is not the award of the majoirty but an arbitration of the majority of the Arbitrators it is one thing to say to abideby the award of the majority of the Arbitrators and quote a different thing to say to abide by the arbitration of the majority of the Arbitrators. Since the objection the parties informed the Courts and submitted to such arbitration the award is without jurisdiction and void and need not be avoided.”
17. The aforesaid clause B.631 is reproduced below for ready reference and proper appreciation as the point involved herein is mainly certering round the said clause and inteipretation thereof. Cluse B. 6.31:- Settlement of disputes : All dispute of any kind whatsoever arising out of, or connected with the contract shall be referred to the Addle. C.E. for settle ment. If either the Engineer / Engineer-incharge or the contractor be dissatisfied with the decision of the Addl. C/E. on any matter on dispute the employer or the contractor may within 20 days after receiving notice of such decision give a written notice to the other part requiring that the matter in dispute be arbitrated upon. In such case, the present rules of RHD for arbitration will be followed i.e. as per Clause No. 25 of B.D. Form No. 2911 with amendment dated 23.9.1987.”
18. The said clause 25 as amended on 23.9.1987 reads as under : ” Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions here in before mentioned and as to the quality of work manship or materials used on the work, or as to any other question, claim, right, matter or things whatsoever, in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, order or these conditions or other wise concerning the works or the execution or failure to execute the same, whether arising during the progress of work or after the cancellation or abandonment there of shall be referred to the Chief Engineer for appointment of Arbitrator or Arbitrators for arbitrating the dispute and the Chief Engineer shall appoint either an Engineer not below the rank of the Superintending Engineer or a Board of Engineers with its Chairman an officer above the rank of Superintending Engineer as he deem fit and the Arbitrators or the Board of Arbitrators shall, after such investigation as her or it may think proper deliver his or its award which shall be final conclusive and binding on all parties to this contract.
Note :- The Executive Engineer holding the current charge of the post of Superintending Engineer shall not be appointed as arbitrator or as Member of the Board of Engineers under the above clause.”
19. In the instant case the above – mentioned relevant arbitration clause 6.31 provides that all the disputes of any king whatsoever arising out the contract shall be referred to the Chief Engineer for settlement, if either the Engineer or Engineer-in-Chief or the Contractor be dissatisfied with the decision of the Additional Chief Engineer on any matter of dispute, the employer or the contractor may within 30 days after receipt of such notice giving a notice to the other party requiring that the matter in the dispute may be arbitrated upon and in that event the rules of department for arbitration would be followed as provided under section 25 of the Bangladesh From 2911 as amended.
20. Under said clause 25 any such dispute shall be referred to the arbitration of the Superintendent Engineer of the Circle for the time being in force but in the instant case though the appellant sought to raise a dispute by order dated 30 March 1991 was required to refer the dispute regarding the legality of the cancellation of the contract and other claim for reinvestigation and comparison as per B.6.31 of the tender document. The Additional Chief Engineer by its letter dated 10 April 1991 asked the Contractor to submit claim, if any, in details and itemwise along with all relevant papers to the concerned Executive Engineers and on getting materials over the claimed amount action will be placed for the decision of the competent authority but the Contractor without any further reference and without furnishing details of the claims item-wise and ignoring the provision of B.6.31 and clause 25 of the tender document straightway appointed an arbitrator in Mr. Justice Sultan Hossain Khan and asked the respondents to appoint their Arbitrator within 15 days, in default their Arbitrator shall proceed exparte. Nowhere in the contract agreement such procedure for appointment of Arbitrator having been provided and the same being contrary to the clause B.6.31 and 25 of the tender agreement and reference to the arbitration being the appointment of an Arbitrator by designated authority and the Arbitrator appointed not being a designated appointed Arbitrator in accordance with law, award by an unauthorised agency/arbitrator is without jurisdiction and void and need not be avoided.
21. The defendant-respondents filed an objection under sections 16 and 31 of the Arbitration Act. Section 16 is for remission of the award read with section 31 of the Act was not for surrendering to the jurisdiction of the Arbitrator or divesting the authority to the arbitrator to pass the award but with the prayer for setting aside the same as it has no validity or existence in the eye of law for the reasons stated therein. Since the award has been alleged to be void ab initio, no question of surrendering to the jurisdiction of the Arbitrator by filing the application under section 16 at all arose and the same was of no avail to the appellant but the same was the nearest provision by an unau-thorised Agent alleged to be an Arbitrator.
22. The learned Counsel for the appellant has objected to the maintainability of the said objection as the same did not comply with the provision of section 33 by depositing the amount of award or for furnishing the security for the purpose, thus rendering the same not maintainable under section 33 of the Arbitration Act.
23. Since the award was a nullity and void ab initio which need not be avoided as stated above, no such requirement required to be complied with for setting aside the award and the same has no validity or existence in the eye of law. Similarly the question of limitation of filing of the objection within 30 days as required under section 158 of the Limitation Act is unwarranted and uncalled for because the award being a nullity and void abinitio and need not be avoided, no question of limitation is applicable as the illegality is apparedt no the face of the record and the Court Should take judicial notice of it and it and it and in the facts and circumstances of the instant case, it is not necessary that a party should file objection to the award under section 30 within the period prescribed under section 158 of the Limitation Act.
24. We do not find any cogent reason to interfere with the ucheasoned impugned judgment and order.
25. For the reason aforesaid, this appeal is dismissed without any order as to costs.
Source : III ADC (2006), 23