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Judgment
[Oral Judgment : Justice Sharad Kumar Sharma, Member (Judicial)]
These are a set of five Company Appeals, as amongst the same set of parties based on same facts. Thus, for the purposes of brevity, they are being decided together.
The question which would be arising for consideration would be to whether, when the principal Company Petition has been decided on merit by Judgment of 10.01.2025, as it was rendered in CP No.6/241/HDB/2023, and the Appellant being aggrieved against the said Judgment has already filed an Appeal being, CA (AT) (CH) No.23/2025, which is pending before this Appellate Tribunal, whether at all the previous Interlocutory Orders or the orders of disposal of Interlocutory Applications passed during the pendency of the proceedings of the Company Petition, which under the principles of law of merger now stands merged with the final Judgment of 10.01.2025, which has already been challenged in Comp App (AT) (CH) No.23/2025, could at all now be subjected to challenge by filing of an independent Appeal under Section 61 of the I & B Code, contrary to the principles of merger. As a matter of fact, all Interlocutory Orders that have been passed during the pendency of the Company Petition, would stand dissolved with the final Judgment, and they lose their existence, which cannot now be subjected to challenge in an Appeal as of now after the final Judgment in Company Petition. This principle of merger has been settled by the various Judgments rendered by the Hon’ble Apex Court, and there has been the consistent view, particularly that as reported in (2002) Vol 6 SCC 1 Nalakath Saiuddin Vs Koorikadan Sulaiman, wherein para 20 of the said Judgment, which is extracted hereunder: -
“20.Merger is largely a question of intention, dependent on circumstances, and courts will presume against it when it operates to the disadvantage of a party. “Merger” generally is defined as the absorption of a thing of less importance by a greater, whereby the lesser ceases to exist but the greater is not increased, and rights are said to be merged when the same person who is bound to pay is also entitled to receive. (Pacific States Savings & Loan Co. v. Strobeck [33 P 2d 1063, 1066, 139 Cal App 427] . See Words and Phrases, Permanent Edn., Vol. 27, at p. 124.) A merger, at law, is defined to be where a greater estate and a lesser coincide and meet in one and the same person, in one and the same right, without any intermediate estate. The less estate is immediately annihilated, or, in the law phrase, is said to be merged — that is, sunk or drowned — in the greater. Thus, if there be a tenant for years, and the reversion in fee simple descends to or is purchased by him, the term of years is merged in the inheritance. The rule in equity is the same as at law, with this modification : that at law it is invariable and inflexible; in equity it is controlled by the expressed or implied intention of the party in whom the interest or estates unite. (See Words and Phrases, ibid, p. 138.) Merger is founded on the principle that two estates — one larger and one smaller cannot — and need not — coexist, if the smaller estate can in equity, and must in law, sink or merge into the larger estate”.
The principle of merger as it has been dealt with in the above Judgment could be summarized to mean that it is an absorption of a thing (which would denote to be the Interlocutory Orders) which later on become of less importance, being the order passed during the pendency of the Company Petition and which are taken over by a final order of a greater magnitude of finally deciding the rights of parties. The orders that are passed during the pendency of the proceedings, since being the orders of a lesser magnitude, have been taken over by the final Judgment having a greater magnitude. All Interlocutory Orders will cease to exist because all the Interlocutory Orders, which are passed during the proceedings on Interlocutory Applications, stand merged with the final Order. A similar view was taken in the Judgment reported in 1968 Vol 70 Punj LR 803. Though it was in the context of the proceeding under Section 14 of the Hindu Succession Act, 1956, but it has laid down the same principle that, an order which is passed during the proceeding, which are of lesser magnitude not deciding a dispute will stand merged with the final Judgment where all issues stand determined finally, which is having a vital implication as it has resulted into deciding a rights or liabilities to its finality.
The Hon’ble Apex Court in yet another Judgment as reported 2005 Vol 5 SCC Page 492 in Pramod Kumar Jaiswal & Ors. vs Bibi Husn Bano & Ors. while dealing with the issue of effect of merger in its para 5, which is extracted hereunder, has laid down almost similar principles: -
“5.On the admitted facts and based on the arguments, the only question that requires to be considered is the effect of the purchase of the rights of certain co-owner landlords by the tenants of the building, on the lease originally taken by them and on the basis of which they held the building. A lease in terms of Section 105 of the Transfer of Property Act gets determined on the happening of one of the events referred to in Section 111 of the Transfer of Property Act. The clause relevant for our purpose is admittedly clause (d). Insofar as it is relevant, the section reads:
“111. Determination of lease.—A lease of immovable property,
determines—
(a)-(c)***
(d)in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e)-(g)***”
On a plain reading of the provision, it is clear that in a case where a tenant takes an assignment of the rights of the landlord or the reversion, the lease is determined only in a case where by such assignment, the interests of the lessee and the lessor in the whole of the property, become vested in the tenant. The emphasis in the section is clearly on the coalescing of the entire rights of the lessor and the lessee in the whole of the property in the hands of the lessee. The above provision incorporates the doctrine of merger at common law. According to Blackstone (as quoted in Broom's Legal Maxims)
“when a less estate and a greater estate, limited subsequent to it, coincide and meet in one and the same person without any intermediate estate, the less is immediately annihilated; or in the law phraseology is said to be merged, that is sunk or drowned in the greater; or to express the same thing in other words, the greater estate is accelerated so as to become at once an estate in possession”.
In Cheshire and Burn's Modern Law of Real Property, 16th Edn., it is stated,
“The term ‘merger’ means that, where a lesser and a greater estate in the same land come together and vest, without any intermediate estate, in the same person and in the same right, the lesser is immediately annihilated by operation of law. It is said to be ‘merged’, that is, sunk or drowned, in the greater estate.”
It is further stated:
“The essentials are that the estates shall unite in the same person without any intervening estate, and that the person in whom they unite shall hold them both in the same right.
To illustrate the first essential, if A, who is tenant for life, with remainder to B for life, remainder to C in fee, purchases and takes a conveyance of C's fee, the intervening life interest of B, since it is vested, excludes the possibility of merger.” (see p. 993)
In Megarry's Manual of the Law of Real Property, 8th Edn., it is explained as follows:
“Merger is the counterpart of surrender. Under a surrender, the landlord acquires the lease, whereas merger is the consequence of the tenant retaining the lease and acquiring the reversion, or of a third party acquiring both lease and reversion. The principle is the same in both surrender and merger: the lease is absorbed by the reversion and destroyed.
For merger to be effective, the lease and the reversion must be vested in the same person in the same right with no vested estate intervening.
This is based on the principle that a man cannot be a lessee of himself. The House of Lords in Rye v. Rye [1962 AC 496 : (1962) 1 All ER 146 (HL)] said that a person cannot grant himself a lease of the land of which he is the owner. According to Woodfall on Landlord and Tenant:
“It may be laid down as a general rule that whenever the particular estate and that immediately in reversion are both legal or both equitable, and by any act or event subsequent to the creation of the particular estate become for the first time vested in one person in the same right, their separate existence will cease and a merger will take place.”
An extinguishment of a tenancy by merger is thus a counterpart of surrender by the tenant to the landlord. In Puran Chand v. Kirpal Singh [(2001) 2 SCC 433] this Court stated that a landlord could not become his own tenant and
“[w]hen a landlord transfers his rights in the leased property to his tenant there would be a merger of the rights of the tenant in his higher rights as owner and the tenancy would come to an end under Section 111(d) of the Transfer of Property Act”. (SCC p. 440, para 19)”.
It had been observed that the merger would mean where a lesser and greater estate in the same land had come together and stands vested without any intermediate estate, the less is merged, that is sunk or drowned, in the greater. In the instant case, applying this principle would mean that the lesser order will be said to have merged or sunk or drowned in the final order, which is of the greater magnitude deciding of the right of the Parties. It could be said that a merger would be an absorption of a thing of lesser importance during the course of the proceedings by a thing of the greater importance, that is, the final adjudication of a lis in which all the Interlocutory Orders, which were passed during the case get extinguished, and that, with the passing of the final order, the Interlocutory Orders, cease to exist but the greater order or the final order will continue to exist for the parties to challenge it. In other words, the final adjudication of dispute will in fact override the Interlocutory Orders, which lose their life with effect of law. This principle has been laid down by the Hon’ble Apex Court in a Judgment reported in 2000 Vol 6 SCC Page 359 Para 42 in the matters of Kunhayammed Vs State of Kerala. The same is extracted as under: -
“42.“To merge” means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68.)”
It could be summarised that a merger presupposes the existence of two independent things or estates which stands dissolved into a greater, which would have an implied effect of extinction of a lesser one by the process of absorption, that means that it is a derivative of the right automatically merging into the final determined right.
Chronologically, for the purposes of better elucidation, a brief facts as engaging consideration in each of these five Company Appeals are being dealt with hereunder: -
1. Comp App (AT) (CH) No.88/2025 puts a challenge to the order that was passed on IA No.58/2023 in Company Petition No.6/241/HDB/2023.
This Company Appeal is accompanied with a Delay Condonation Application being IA No.833/2025, where the Appellant has sought a condonation of 28 days of delay, that has chanced in filing of the Company Appeal under Section 421 of the Companies Act. For the reasons, which have been expressed in para 3.2 and 3.4 of the Delay Condonation Application, being satisfactory, coupled with the fact that since the appeal was e-filed on 25.03.2025, the same would be falling well within the exception carved out under Sub-Section (3) of Section 421, hence the delay of 28 days which has chanced, would hereby stand condoned. Accordingly, the Condone Delay Application being IA No.833/2025 would stand allowed.
In this Appeal, the Impugned Order of 10.01.2025, has been passed in Interlocutory Application No.58/2023, which was preferred by the Appellant praying for the grant of certain interim relief during the pendency of the Company Petition, which could be summarized in the following manner. It was seeking a restraint as against the Respondent, except for Respondent No.9 from conducting the board's meeting and shareholders meeting, and not to give effect to the resolution passed, in relation to the assets, shareholding and composition of board “till the main CP gets disposed of” and direct Respondent No.9 to mark Respondent No.1 Company under category of management disputes “till its main CP gets disposed of”. Thus, the relief prayed for takes the shape of interim relief sought to be granted and maintained during pendency of the Company Petition only.
Thus, the nature of relief that was modulated, it was intended to continue only till the Company Petition itself was decided finally, and therefore, the relief sought was Interlocutory in nature. The said Application remained pending without grant of any interim order, and it was not decided, till the Company Petition CP No.6/241/HDB/2023 itself was taken up and decided finally on 10.01.2025 on the same date, vide issue of order dated 10.01.2025, which is under challenge in Comp App (AT) (CH) No.23/2025. When the Application came up for consideration before the Tribunal, the Tribunal has closed the Interlocutory Application on the ground that, since the principal Company Petition has been dismissed, passing of an interim order on the relief sought in IA No.58/2023 becomes irrelevant as nugatory because there cannot be any such directions which could be granted as sought for particularly when according to the Appellant themselves, the nature of relief sought in IA No.58/2023 was to continue only “till the Company Petition is decided”. But because when the Company Petition itself has been finally adjudicated on 10.01.2025, there was no judicial propriety or necessity for the Tribunal to pass any orders on merit on IA No.58/2023 that, was rightly closed, owing to the fact that the relief sought in IA No.58/2023 would stand merged with the final Judgment of 10.01.2025 deciding the Company Petition, as rendered in CP No.6/241/HDB/2023.
In fact, it would be a mockery of the judicial proceedings drawn at the behest of the Appellant by filing the instant Appeal under Section 421 of the Companies Act, 2013, because it will amount to be an abuse of process by filing an appeal against an order on an IA preferred during the pendency of main Company Petition, when the Appellant is already in Appeal as against the final Order of dismissal of his Company Petition. Owing to the aforesaid fact that since the passing of an order on IA No.58/2023, was not at all relevant, the same was rightly directed to be closed by the Impugned Order of 10.01.2025, as rendered in IA No.58/2023 as preferred in CP No.6/241/HDB/2023 since the Company Petition itself stood dismissed and therefore the Company Appeal (AT) (CH) No.88/2025 would stand accordingly dismissed.
Comp App (AT) (CH) No.90/2025 puts a challenge to the order passed on IA No.256/2023 in Company Petition No.6/241/HDB/2023.
This Company Appeal is accompanied with a Delay Condonation Application, being IA No.841/2025, where the Appellant has sought a condonation of 28 days of delay that has chanced in preferring the appeal beyond the period of limitation. For the reason which has been expressed in para 3.2 and 3.4 of the Delay Condonation Application, since being satisfactory, coupled with the fact that since the appeal was e-filed on 25.03.2025, which would be falling within the exception carved out under Sub-Section (3) of Section 421, thus the delay of 28 days which has chanced would hereby stand condoned. Accordingly, the Condone Delay Application being IA No.841/2025 would stand allowed.
In this Company Appeal, the Appellant challenges the order that was passed on IA No.256/2023, as it was preferred in CP No.6/241/HDB/2023, wherein the Appellant in the Application has prayed for the following reliefs: -
“In light of the circumstances presented in accompanying affidavit the Hon’ble Tribunal may please to appoint an administrator by calling for a forensic/transaction audit report with reference to inflow and outflow of funds besides share capital and share application money vis a vis the provisions of companies Act from an independent auditor and pass such order or orders as this Hon’ble Tribunal deems fit. We humbly implore the Hon’ble NCLT to consider our plea and pass any appropriate order or orders as deemed fit under the given circumstances”.
The relief, that was sought for in IA No.256/2023, was for the purposes of appointment of an administrator during the pendency of the suit, for the purposes of calling for a forensic/transaction audit report with regards to the inflow and outflow of funds during the pendency of suit or before, besides the share capital and share application money. The nature of relief, which was sought therein, too was interlocutory in nature to be maintained during the pendency of Company Petition, and with the final decision rendered in the Company Petition resulting to its dismissal, the relief sought for in the interlocutory application becomes irrelevant and nugatory, which did not require any consideration on merits after dismissal of petition for the reason being that the allegations in the application itself, were repetition of allegations, which was subject matter of consideration in the principal Company Petition which has been decided, which emanated from certain operational decisions taken by the Board of Directors of Company involving allocation of significant amount of money. The Tribunal, while rejecting the said application, had also observed that operational decision of the Company’s management cannot be interfered with and hence the relief which was sought for cannot be granted. The order of IA No.256/2023 and that the claim raised in context of shareholding of Respondent No.8 (G. Krishna Reddy) was unconnected to the subject matter of Company Petition itself. So, the dismissal of the said application was made on the following grounds: -
It pertains to the shareholding of the Respondent No.8, which is not connected with the main matter of the Company Petition.
Since the matter relates to the operational decision of the company's internal management, it cannot be interfered with. Since the allegations are vague and unsubstantiated, it did not require to be addressed on merits.
And last, more importantly, at the stage when the said application was being considered i.e., on 10.01.2025, since the Company Petition itself was already closed resulting in dismissal, there was no necessity to pass any order for the appointment of the administrator because its interlocutory purpose already stands frustrated, and no fruitful purpose would be served to appoint an administrator in a Company Petition, which already stands decided by the Judgment of 10.01.2025, as against the Appellant, with its dismissal as against which the Appeal was already pending consideration. Hence, this Appeal too lacks merit and the same is accordingly dismissed.
Comp App (AT) (CH) No.89/2025 puts a challenge to the order passed on IA No.59/2023 in Company Petition No.6/241/HDB/2023.
This Company Appeal is accompanied with a Delay Condonation Application being IA No.840/2025, where the Appellant has sought for a condonation of 28 days of delay, that has chanced in filing of the Company Appeal. The reasons which have been expressed in para 3.2 and 3.4 of the Delay Condonation Application, being satisfactory, coupled with the fact that since the appeal was e-filed on 25.03.2025, the same would be falling within the exception carved out under Sub-Section (3) of Section 421 of the Companies Act, the delay of 28 days, which has chanced would hereby stand condoned. Accordingly, the Condone Delay Application being IA No.840/2025 would stand allowed.
Apart from the fact, the Company Appeal is also supported with the Condone Delay Application in refiling being IA No.840/2025, which for the reasons given hereunder would stand condoned and would stand allowed.
The Registry has reported that the company suffers from the following defects, which are detailed hereunder: -
“1.In appeal prayer Challenging order to be mentioned correctly in eportal 2. Blank pages to be removed (779, 847) & Clean copy for page no.203, 299, 314, 441, 19873, 1974, 2000, 468, 1533, 1534, 1549”.
Looking to the nature of the defect, they are minor in nature and will not create any impediment in deciding the Company Appeal. Hence they are being overruled.
This Comp App (AT) (CH) No.89/2025, challenges the order, which was passed on IA No.59/2023, as it was preferred in CP No.6/241/HDB/2023 during its pendency, wherein the Appellant has sought for the following reliefs: -
“7. PRAYERS:
In view of the above it is humbly prayed that
(a)Status quo ante as on 07.02.2023 (date of filing the petition) regarding the shareholding patter of the Respondent No.1 company till the disposal of the Company Petition.
(b)Status quo regarding directorship of the Respondent No.1 Company as on 07.02.2023.
(c)Direct the Respondents not to conduct Board and Shareholders meeting without the leave of this Hon’ble National Company Law Tribunal
(d)Appoint an Independent Administrator to manage the affairs of the Respondent No.1 Company till the disposal of the Petition
(e)Any other order(s) this Hon’ble Bench may deem fit”.
In fact, looking to the nature of interim relief, as extracted above, it was nothing but an interlocutory arrangement of directing the parties to maintain a status quo during the pendency of the Company Petition. Since, during the pendency of this application, the Company Petition itself has been finally decided, no orders were required to be passed on the interim relief with the final adjudication already made in the Company Petition, more particularly when it has been dismissed, which in itself will result into the closure of the application. Thus the decision taken by the Tribunal, holding the application having been rendered infructuous because of the final decision taken in the main Company Petition resulting in its dismissal does not suffer from any error.
Comp App (AT) (CH) No.91/2025 puts a challenge to the order that was passed on IA No.62/2024, as it was preferred in Company Petition No.6/241/HDB/2023.
This Company Appeal is too accompanied with a Delay Condonation Application being IA No.849/2025, where the Appellant has sought a condonation of 28 days of delay, that has chanced in preferring of this Company Appeal. For the reasons which have been set out in para 3.2 and 3.4 of the Delay Condonation Application, since being satisfactory, coupled with the fact that since the appeal was e-filed on 25.03.2025, the same would be falling well within the exception carved out under Sub-Section (3) of Section 421, the delay of 28 days, which has chanced in filing the Appeal would hereby stand condoned. Accordingly, the Condone Delay Application being IA No.849/2025 would stand allowed.
This Appeal is also reported to be defective by the Registry in its report of 23.06.2025, which are extracted hereunder: -
“1.In appeal prayer challenging order to be mentioned correctly 2. Vol – 5,6 not uploaded 3. In appeal prayer challenging order to be mentioned correctly in eportal 2. Blank pages to be removed (779,847) & Clean copy for page no.203, 299, 314, 441, 1973, 2000, 468, 1533, 1534, 1549”.
The defect, as pointed out by the Registry, is not so fatal to effect the substantial enough to have an impact in deciding the appeal on its merit and hence the same would stand overruled.
In this Company Appeal, the decision has been taken on IA No.62/2024, where the Appellant has prayed for before the Learned Tribunal to issue directives and instructions to the Respondents not to take up the agenda item relating to the financial and investment activities of the company. The relief sought for in the Interlocutory Application is extracted hereunder: -
“PRAYER:
In light of the circumstances presented in accompanying affidavit, we respectfully pray the Hon’ble Tribunal to issue directives instructing the respondents not to take up any agenda item relating to financial and investment activities of the company including change in the Company’s Capital and Financial Assets, if any, till disposal of the main CP, and to nullify meetings and resolutions deemed illegal, and direct the Respondent No.9, ROC to mark the company under management disputes and to pass any necessary orders deemed appropriate to address this matter effectively”.
The said Interlocutory Application was closed by the Impugned Order, holding there of that since the Company Petition itself has been dismissed and the Appellants' right is decided in negative against him, the application has become infructuous. The Tribunal rightly held that the said application has been rendered infructuous, owing to the final dismissal of the Company Petition itself, and subsequent to it, there was no necessity to consider the application on merits. This Company Application too, and the order passed on it under the principal of merger, will get merged in the final order and, will lose its legal significance and the Appellant cannot be separately challenged by virtue of filing of the Company Appeal as against the order passed on IA No.62/2024. Hence the order taken thereof by Learned Tribunal cannot be faulted in any manner whatsoever. For the above reasons, the Company Appeal lacks merit and the same is dismissed.
Comp App (AT) (CH) No.92/2025 puts a challenge to the order that was passed on IA No.61/2024 in Company Petition No.6/241/HDB/2023. This Company Appeal too is accompanied with a Delay Condonation Application, being IA No.855/2025, where the Appellant has sought a condonation of 28 days of delay that has chanced in preferring this Company Appeal. For the reasons which has been set out in para 3.2 and 3.4 of the Delay Condonation Application, since being satisfactory, coupled with the fact that since the appeal was e-filed on 25.03.2025, the same would be falling well within the exception carved out under Sub-Section (3) of Section 421, hence the delay of 28 days which has chanced would hereby stand condoned. Accordingly, the Condone Delay Application being IA No.855/2025 would stand allowed.
The Registry has reported that this Company Appeal suffers from the following defects, are extracted hereunder: -
“1.In appeal prayer challenging order to be mentioned correctly 2. Certified copy of the impugned order differs (Issuance seal & Sign) in online & hard copy 2. Blank pages to be removed (779,847) & Clean copy for page no.203, 299, 314, 441, 1973, 2000, 468, 1533, 1534, 1549”.
Since the defects are rather formal in nature and they do not appear to have any effect on the final decision to be taken in the Appeal, the defects would stand overruled.
In IA No.61/2024, the Appellant has prayed for the following reliefs before the Learned Adjudicating Authority during the pendency of the Company Petition, the same is extracted hereunder: -
“PRAYER:
In light of the circumstances detailed in the accompanying affidavit, and to safeguard the entire of statutory records and original documents from tampering that could compromise property adjudication, it is respectifully prayed to this Hon’ble Tribunal –
1.To direct to the Respondents not to shift the Registered Office and order to stay or prevent any activities that may lead to tampering of documents of the company until all company records are made available to this Tribunal for adjudication, and to report thereon.
2.To direct Respondent no.9, the Registrar of Companies, Hyderabad, not to allow uploading of e forms until the matter is disposed of.
3.Any other order/orders deemed necessary in the interest of justice”.
The nature of relief, which was sought for by the Appellant was by way of an interim arrangement, seeking a direction to the Respondent, not to shift the registered office and to stay or prevent the activities that were being carried out by the Respondent, which may have an effect of tampering the documents till the company records are made available to the Tribunal. The nature of relief that has been modulated therein is basically in form of an interlocutory arrangement. The said aspect was being considered by the Learned Tribunal while passing the order, observing thereof that the relief prayed for during the pendency of Company Petition, could not be granted for the reason that the registered office has already been shifted on 18.03.2023, in accordance with the decision of the board in its meeting dated 21.02.2024, that shifting was necessitated because of the maintenance problem, that prior to the shifting of the office, all the directors were duly informed of the same by convening the meeting at the office of Respondent No.1 company. We are of the opinion that this aspect will have no bearing as far as the instant Company Appeal is concerned because the same could be considered at the stage when the Comp App (AT) (CH) No.23/2025 as preferred by the Appellant being aggrieved against the final order of dismissal of Company Petition is decided on its merit. Hence, this Appeal too does not require to be ventured into under Section 61 of the I & B Code. This Appeal too lacks merit and the same is accordingly dismissed.
By way of reiteration, it is observed that all these Appeals, the details of which have been given above, were dealing with the orders, which had been passed on the Interlocutory Applications preferred during the pendency of the Company Petition seeking for an order in the nature of an interim arrangement. The legal effect would be that as soon as the Company Petition itself has finally been decided on merits, and it has been dismissed, as against which the Company Appeal (AT) (CH) No.23/2025 has already been preferred before this Appellate Tribunal and it is pending consideration, under the principle of merger, all Interlocutory Applications praying for certain interim relief or orders passed on them, would stand merged with the final decision, and the same cannot be permitted to be considered at this stage for the grant of the Interim Order, that too after the final decision has been passed on the Company Petition itself. Thus, under the principle of merger, which would be equally applicable in all these five appeals, and in the light of the ratio already discussed above, it is held that all these Company Appeals lack merit and the same are accordingly dismissed.