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Tavasya Ssf (C/O Tavasya Capital … vs Ministry Of External Affairs & Anr on 20 April, 2026

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Delhi High Court

Tavasya Ssf (C/O Tavasya Capital … vs Ministry Of External Affairs & Anr on 20 April, 2026

                  $~1
                  *       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                         Date of Decision : 20.04.2026
                  +       ARB.P. 1589/2025
                          TAVASYA SSF (C/O TAVASYA CAPITAL MANAGERS
                          LLP)                                   .....Petitioner
                                       Through: Mr. Anirban Bhattacharya, Mr.
                                                Apoorv Agarwal, Mr. Manthan
                                                Dixit and Ms. Tanushvi Singh,
                                                Advocates.
                                             versus
                          MINISTRY OF EXTERNAL AFFAIRS & ANR.
                                                                .....Respondents
                                        Through: Mr. S.D. Sanjay, Additional
                                                 Solicitor General along with
                                                 Mr. Sharang Dhulia, CGSC,
                                                 Ms. Nikita Sethi, Mr. Chetan
                                                 Jadon, Advocate and Ms.
                                                 Archana     Chhibber,     Legal
                                                 Consultant for Respondent No.
                                                 1.
                                                 Mr. Uttam Dutt, Senior
                                                 Advocate along with Mr.
                                                 Debarshi Bhadra, Ms. Sonakshi
                                                 Singh, Mr. Kumar Bhaskar, Mr.
                                                 Naman Kumar and Mr. Rahul
                                                 Singh,      Advocates       for
                                                 Respondent No. 2.
                          CORAM:
                          HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
                          SHANKAR

                  %                          JUDGEMENT (ORAL)

                  HARISH VAIDYANATHAN SHANKAR, J.

1. The present Petition has been filed under Section 11 of the
Arbitration and Conciliation Act, 1996 [“Act”], seeking the

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constitution of a three-member Arbitral Tribunal for adjudication of
disputes inter se the parties arising out of the EPC Agreement dated
31.03.2017 [“Agreement”].

SPONSORED

2. The material on record reflects that the Agreement stipulates a
dispute resolution mechanism, which contemplates reference of
disputes to Arbitration by a three-member Arbitral Tribunal. The
relevant stipulation is contained in Clause 26.3.1 of the Agreement,
which reads as under:-

“26.3.1 Any Dispute which is not resolved amicably by
conciliation, as provided in Clause 26.2, shall be finally
decided by reference to arbitration by a Board of
Arbitrators appointed in accordance with Clause 26.3.2.
Such arbitration shall be held in accordance with the
Rules of Arbitration of the International Centre for
Alternative Dispute Resolution, New Delhi (the
“Rules”), or such other rules as may be mutually
agreed by the Parties, and shall be subject to the
provisions of the Arbitration Act. The venue of such
arbitration shall be [Delhi], and the language of
arbitration proceedings shall be English.”

3. Mr. S.D. Sanjay, learned Additional Solicitor General
[“Learned ASG”] appearing on behalf of Respondent No. 1, opposes
the constitution of the Arbitral Tribunal primarily on three grounds.
First, that there exists no privity of contract between the Petitioner and
the Respondents. Second, that the Petitioner seeks to enforce rights
allegedly acquired under the Sale Certificate dated 06.08.2024 [“Sale
Certificate”], though no such enforceable rights stand transferred
thereunder. Third, that Respondent No. 2 has raised serious objections
to the invocation of the Arbitration clause and, therefore, the element
of consent, central to the said clause, is absent.

4. Elaborating the first objection, learned ASG, places reliance
upon the definition of “parties” as contained in the Agreement to

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submit that the contracting parties were C&C Constructions Limited
[“C&C”] and M/s. Engineering Projects (India) Limited [“EPIA”].
Therefore, since the Petitioner is not named in the Agreement, learned
ASG contends that the Petitioner cannot qualify as a party within the
meaning of the Agreement.

5. In support of the second objection, learned ASG submits that
the Sale Certificate does not operate to vest in the Petitioner the
contractual rights of C&C so as to enable it to claim status as
successor to the erstwhile Joint Venture [“JV”] partner with whom
the Respondent No. 1 had entered into the Agreement.

6. He also submits that, in fact, the net consequence of the said
Sale Certificate is that C&C ceases to retain any subsisting interest
and, therefore no occasion arises for the Petitioner to exercise rights
which were personal and exercisable only by C&C.

7. Learned ASG further submits that the Sale Certificate pertains
only to transfer of identified assets and cannot be construed as
effecting continuation or novation of the legal relationship that existed
between the original JV partners.

8. Learned ASG submits that, even assuming arguendo that
certain rights stood acquired by the Petitioner, such rights, at best,
would remain confined to claims inter se the JV partners and could
not be enforced against Respondent No. 1 under the Agreement.

9. Turning to his third objection, learned ASG relies upon the
Arbitration clause to contend that the contractual mechanism
envisages nomination of one Arbitrator by each JV partner, whereafter
the two nominated Arbitrators are to appoint the Presiding Arbitrator.

10. Learned ASG further submits that, in the present case,

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Respondent No. 2 has raised serious objections to the invocation of
the Arbitration clause and, therefore, the element of consent, which
lies at the heart of arbitral reference, is absent. If the Courts were to
constitute the Tribunal notwithstanding such objection, the same
would run contrary to the consensual spirit underlying the Act.

11. Learned ASG, therefore, submits that the arbitration clause has
become unworkable in the present factual matrix in the absence of
consent and therefore the disputes are not amenable to reference to
arbitration.

12. Mr. Uttam Dutt, learned Senior Counsel appearing on behalf of
Respondent No. 2, supplements the submissions advanced by the
learned ASG.

13. At the outset, learned senior counsel for the Respondent No. 2
raises a preliminary objection as to the locus of the Petitioner,
contending that recourse to Arbitration or initiation of proceedings can
be undertaken only by a party to the Agreement. He submits that the
Petitioner is neither a partner of the JV nor privy to the original
transaction, and thus a complete alien to the transaction.

14. He further submits that the expression “interest in the JVs”, as
occurring in the Sale Certificate, cannot be interpreted so broadly as to
include legal and contractual rights of a JV partner under the
Agreement, and must remain confined to receivables or other claims
inter se the JV partners.

15. Learned senior counsel, while concluding, contends that no
question arises of the Petitioner stepping into the shoes of the
erstwhile JV partner, particularly when the original arrangement
between the JV partners has itself come to an end. Learned senior

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counsel further submits that, in any event, the original Agreement did
not permit assignment of the contractual rights now sought to be
asserted.

16. Per Contra, Mr. Anirban Bhattacharya, learned counsel
appearing on behalf of the Petitioner, submits that the jurisdiction of
this Court under Section 11 of the Act is extremely limited and
circumscribed. Learned counsel contends that the Hon‟ble Supreme
Court, in a catena of Judgments, has succinctly delineated the narrow
scope of judicial scrutiny permissible at the stage of exercise of
powers under Section 11 of the Act.

17. He further submits that this Court, while exercising jurisdiction
under Section 11 of the Act, functions essentially as a Referral Court,
and it is therefore impermissible to undertake an elaborate
adjudicatory exercise akin to conducting a mini-trial on disputed
questions of law or fact.

18. Learned senior counsel further submits that, in the present case,
the Agreement itself contemplates that the successors or permitted
assigns of the original JV or its constituents would be entitled to
pursue such claims as may arise under the Agreement against the
parties thereto. In this regard, he places reliance upon the recital
describing the parties to the Agreement, which reads as under:

“ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

THIS AGREEMENT is entered into on this the 31st Day of March,
2017

BETWEEN

The PRESIDENT OF INDIA through MINISTRY OF
EXTERNAL AFFAIRS INDIA, represented by its Joint
Secretary (DPA-III) and having its principal office at Jawaharlal
Nehru Bhawan, Janpath, New Delhi, India (hereinafter referred

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to as the “Authority” which expression shall, unless repugnant
to the context or meaning thereof, include its administrators,
successors and assigns) of One Part;

AND

M/s. EPI-C&C JV [M/s. C & C Constructions Ltd. in JV with
M/s. Engineering Projects (India) Ltd.] means the selected
bidder having its registered office at Plot No. 70, Institutional
Sector-32, Gurugram – 122001, Haryana, India, (hereinafter
referred to as the “Constructor” which expression shall, unless
repugnant to the context or meaning thereof, include its
successors and permitted assigns) of the Other Part.”

19. Learned counsel further refers to and places reliance upon
Clause 27.12 of the Agreement to contend that a plain reading thereof
makes it apparent that the Agreement was intended to bind, and enure
to the benefit of, the respective successors and permitted assigns of the
parties. Clause 27.12 reads as follows:-

“27. 12 Successors and assigns
This Agreement shall be binding upon, and inure to the benefit of
the Parties and their respective successors and permitted assigns.”

20. Learned counsel submits that, in view of the Sale Certificate,
the Petitioner is, in fact, the „successor in interest‟ insofar as the JV is
concerned and consequently the present Petition is maintainable as
against the Respondents. The relevant portion of the Sale Certificate
reads as follows:-

“DESCRIPTION OF ASSETS

All investments held by C&C Constructions Limited as recorded in
its audited financial statements for the Financial Year 22-23
including to its investments/shareholding in subsidiaries associate
companies, special purpose vehicles and interest in the joint
ventures.”

21. Learned counsel further draws the attention of this Court to the
Judgment of the Hon‟ble Supreme Court in Andhra Pradesh Power

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Generation Corporation Limited (APGENCO) versus Tecpro
Systems Limited [(2026) 3 SCC 491] and in particular, Paragraph
Nos. 13 to 19 thereof. The said paragraph reads as under:-

“13. In our considered view, these objections must be answered in
the broader perspective of the nature and scope of the jurisdiction
exercised by a referral court under Section 11 of the Act. With the
introduction of the statutory restraint under Section 11(6-A), the
legislature has consciously confined the domain of judicial scrutiny
to the mere “existence of an arbitration agreement”. This legislative
design is further reinforced by the express empowerment of the AT
under Section 16 to rule on; (i) its own jurisdiction, (ii) objections
with respect to the very existence of the arbitration agreement, and
also (iii) objections relating to the validity of such an agreement.
The statutory scheme thus envisages a clear demarcation between
the limited threshold scrutiny at the referral stage on the one hand
and the substantive jurisdictional adjudication to be undertaken by
the AT on the other.

14. The legislative policy under the 1996 Act strongly favours
minimal judicial intervention at the pre-arbitral stage. A long line
of precedents, such as Duro Felguera, S.A. v. Gangavaram Port
Ltd [Duro Felguera
, S.A. v. Gangavaram Port Ltd, (2017) 9 SCC
729 : (2017) 4 SCC (Civ) 764] , the Constitution Bench decision
in Interplay Between Arbitration Agreements under Arbitration
Act, 1996
& Stamp Act, 1899, In re [Interplay Between Arbitration
Agreements under Arbitration Act, 1996 & Stamp Act, 1899, In re,
(2024) 6 SCC 1] , and SBI General Insurance Co. Ltd. v. Krish
Spg. [SBI General Insurance Co. Ltd. v. Krish Spg., (2024) 12 SCC
1 : (2025) 3 SCC (Civ) 567] have authoritatively settled that the
enquiry under Section 11 is confined to a prima facie determination
of the existence of an arbitration agreement and no further.
The
referral court is required to undertake only a prima
facie determination of the existence of an arbitration agreement
[Goqii Technologies (P) Ltd. v. Sokrati Technologies (P) Ltd.,
(2025) 2 SCC 192 : (2025) 1 SCC (Civ) 47] , and refrain from
entering into contentious factual or legal issues related to authority,
capacity, arbitrability, maintainability, or merits of claims.

15. It is certainly a matter of institutional discipline for the referral
courts to enable “parties” to identify and exercise alternative
remedies, particularly that of arbitration, with clarity and
consistency. The question whether a member of a consortium can
itself invoke Section 11 of the 1996 Act is not one that admits of a
monolithic or a uniform answer. Answer to that question will
necessarily depend on enquiry into the terms of the principal

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contract, as well as the Consortium agreement. The specific terms
of the Consortium agreement, parties to that agreement, and the
nature of the rights and mutual obligations that the agreement
creates will have to be examined in detail. The Reference Court
will, however, confine its enquiry only to a prima facie satisfaction
as to whether a member of a consortium qualifies as a “party” to
the arbitration agreement. This prima facie satisfaction is sufficient
for the referral court to constitute and refer the dispute to the AT.

16. Thereafter, it is for the AT to undertake the detailed enquiry as
to whether a member of the consortium is in fact a veritable party
to the arbitration agreement or not. This is exactly the limited
enquiry permitted and prescribed in Cox & Kings [Cox & Kings
Ltd. v. SAP India (P) Ltd.
, (2024) 4 SCC 1 : (2024) 2 SCC (Civ) 1 :

(2024) 251 Comp Cas 680] , the relevant portion of which is as
under : (SCC pp. 76 & 90-91, paras 126, 169 & 170.12)
“126. Evaluating the involvement of the non-signatory party in
the negotiation, performance, or termination of a contract is an
important factor for a number of reasons. First, by being
actively involved in the performance of a contract, a non-

signatory may create an appearance that it is a veritable party
to the contract containing the arbitration agreement; second,
the conduct of the non-signatory may be in harmony with the
conduct of the other members of the group, leading the other
party to legitimately believe that the non-signatory was a
veritable party to the contract; and third, the other party has
legitimate reasons to rely on the appearance created by the
non-signatory party so as to bind it to the arbitration
agreement.

***

169. In case of joinder of non-signatory parties to an
arbitration agreement, the following two scenarios will
prominently emerge : first, where a signatory party to an
arbitration agreement seeks joinder of a non-signatory party to
the arbitration agreement; and second, where a non-signatory
party itself seeks invocation of an arbitration agreement. In
both the scenarios, the referral court will be required to prima
facie rule on the existence of the arbitration agreement and
whether the non-signatory is a veritable party to the arbitration
agreement. In view of the complexity of such a determination,
the referral court should leave it for the Arbitral Tribunal to
decide whether the non-signatory party is indeed a party to the
arbitration agreement on the basis of the factual evidence and
application of legal doctrine. The Tribunal can delve into the
factual, circumstantial, and legal aspects of the matter to
decide whether its jurisdiction extends to the non-signatory
party. In the process, the Tribunal should comply with the

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requirements of principles of natural justice such as giving
opportunity to the non-signatory to raise objections with regard
to the jurisdiction of the Arbitral Tribunal. This interpretation
also gives true effect to the doctrine of competence-
competence by leaving the issue of determination of true
parties to an arbitration agreement to be decided by the
Arbitral Tribunal under Section 16.

***
170.12. At the referral stage, the referral court should leave it
for the Arbitral Tribunal to decide whether the non-signatory
is bound by the arbitration agreement.”

(emphasis supplied)

17. Beyond the prima facie enquiry, it should be the discipline of
the referral court to refrain from undertaking a detailed enquiry on
basis of evidence to arrive at a finding of fact in the nature of a
“proof”. The scope of such an enquiry, by virtue of Section 11(6-
A) is very well articulated in the decision of this Court in Interplay
Between Arbitration Agreements under Arbitration Act, 1996 &
Stamp Act, 1899, In re [Interplay Between Arbitration Agreements
under Arbitration Act, 1996 & Stamp Act, 1899, In re, (2024) 6
SCC 1] wherein this Court observed : (SCC pp. 87-88, paras 165-

67)
“165. The legislature confined the scope of reference under Section
11
(6-A) to the examination of the existence of an arbitration
agreement. The use of the term “examination” in itself connotes
that the scope of the power is limited to a prima facie
determination. Since the Arbitration Act is a self-contained code,
the requirement of “existence” of an arbitration agreement draws
effect from Section 7 of the Arbitration Act. In Duro
Felguera [Duro Felguera, S.A. v. Gangavaram Port Ltd
, (2017) 9
SCC 729 : (2017) 4 SCC (Civ) 764] , this Court held that the
Referral Courts only need to consider one aspect to determine the
existence of an arbitration agreement — whether the underlying
contract contains an arbitration agreement which provides for
arbitration pertaining to the disputes which have arisen between the
parties to the agreement. Therefore, the scope of examination under
Section 11(6-A) should be confined to the existence of an
arbitration agreement on the basis of Section 7. Similarly, the
validity of an arbitration agreement, in view of Section 7, should be
restricted to the requirement of formal validity such as the
requirement that the agreement be in writing. This interpretation
also gives true effect to the doctrine of competence-competence by
leaving the issue of substantive existence and validity of an
arbitration agreement to be decided by Arbitral Tribunal under
Section 16.
We accordingly clarify the position of law laid down
in
Vidya Drolia [Vidya Drolia v. Durga Trading Corpn., (2021) 2

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SCC 1 : (2021) 1 SCC (Civ) 549] in the context of Section 8 and
Section 11 of the Arbitration Act.

“166. The burden of proving the existence of arbitration
agreement generally lies on the party seeking to rely on such
agreement. In jurisdictions such as India, which accept the
doctrine of competence-competence, only prima facie proof of
the existence of an arbitration agreement must be adduced
before the Referral Court. The Referral Court is not the
appropriate forum to conduct a mini-trial by allowing the
parties to adduce the evidence in regard to the existence or
validity of an arbitration agreement. The determination of the
existence and validity of an arbitration agreement on the basis
of evidence ought to be left to the Arbitral Tribunal. This
position of law can also be gauged from the plain language of
the statute.

167. Section 11(6-A) uses the expression “examination of the
existence of an arbitration agreement”. The purport of using
the word “examination” connotes that the legislature intends
that the Referral Court has to inspect or scrutinise the dealings
between the parties for the existence of an arbitration
agreement. Moreover, the expression “examination” does not
connote or imply a laborious or contested inquiry. [ P.
Ramanatha Aiyar, The Law Lexicon (2nd Edn., 1997) 666.] On
the other hand, Section 16 provides that the Arbitral Tribunal
can “rule” on its jurisdiction, including the existence and
validity of an arbitration agreement. A “ruling” connotes
adjudication of disputes after admitting evidence from the
parties. Therefore, it is evident that the Referral Court is only
required to examine the existence of arbitration agreements,
whereas the Arbitral Tribunal ought to rule on its jurisdiction,
including the issues pertaining to the existence and validity of
an arbitration agreement. A similar view was adopted by this
Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre
Ltd. [Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd.,
(2005) 7 SCC 234 : (2005) 127 Comp Cas 97] ”

18. Following this Court’s mandate in the above decision, this
Court in Bihar State Food and Civil Supply Corpn. Ltd. v. Sanjay
Kumar[Bihar State Food
and Civil Supply Corpn. Ltd. v. Sanjay
Kumar, (2026) 4 SCC 649 : 2025 SCC OnLine SC 1604]
explaining the contemporary legal position of the referral court
emphasised that : (SCC p. 671, para 28)
“28. The curtains have fallen. Courts exercising jurisdictions under
Section 11(6) and Section 8 must follow the mandate of sub-
section (6-A), as interpreted and mandated by the decisions of this
Court and their scrutiny must be „confine(d) to the examination of
the existence of the arbitration agreement‟.”

(emphasis in original)
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19. Once the High Court was satisfied that an arbitration
agreement prima facie existed, an aspect neither seriously disputed
nor refutable at this stage, its decision to constitute the AT cannot
be faulted. In the earlier part of our judgment, we have reproduced
the detailed arguments of the appellants and respondents on the
issue of maintainability only to draw a distinction between a prima
facie consideration of such contentions for the purpose of Section
11
on the one hand and for a detailed examination by the AT.
While we hold that there is certainly a prima facie case for
referring the dispute to arbitration under Section 11, a detailed
scrutiny on the basis of evidence must be left to AT.”

22. A reading of the aforesaid Judgment thus indicates that this
Court, while acting as a referral Court, is required to confine its
enquiry only to a prima facie satisfaction as to whether the Petitioner
can assert a credible claim of being a party, successor, or person
claiming through a party to the arbitration agreement.

23. In the present case, this Court is prima facie of the opinion
that the Sale Certificate expressly records transfer, inter alia, of the
“interest in the joint ventures” held by C&C. Consequently, at this
threshold stage, a prima facie basis exists for the Petitioner to assert
rights flowing from the position earlier held by C&C as a constituent
of the JV. The expression “interest in the joint ventures”, when read
conjointly with Clause 27.12 as well as the recital and description of
parties in the Agreement, lends support to the aforesaid prima facie
view.

24. Furthermore, this Court also takes note of Paragraph No. 20 of
the afore-cited judgment, which is reproduced hereunder:

“20. Whether the first respondent has validly invoked arbitration
individually, whether the Consortium continues to exist, whether
consent of other Consortium partners was necessary, and whether
claims are maintainable after commencement of liquidation, are all
matters which may legitimately be raised, contested and
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determined before the AT under Section 16. Entertaining these
questions here would amount to conducting a mini trial at the
Section 11 stage, contrary to the settled principles of minimal
judicial intervention and kompetenz-kompetenz.”

25. A plain reading of the aforesaid observations makes it
apparent that the objections canvassed by the Respondents herein are
of the very nature which the Hon‟ble Supreme Court has held ought to
be relegated to the learned Arbitral Tribunal for adjudication under
Section 16 of the Act, rather than being conclusively examined at the
Section 11 stage.

26. In view of the foregoing discussion, this Court deems it
appropriate that the matter may be referred to arbitration by a three-
member Arbitral Tribunal, in consonance with the Arbitration Clause
as set out in the Agreement, for the purpose of the resolution of
disputes between the parties.

27. The material on record indicates that the valuation of the subject
matter of the disputes is stated to be approximately Rs. 500 crores.

28. Accordingly, the Respondent No. 1 has nominated Hon’ble
Mr. Justice (Retd.) Ajit Sinha, Former Judge of Hon’ble
Jharkhand High Court to enter upon the reference and adjudicate
the disputes inter se the parties.

29. Further, since the original party to the JV, who was vested with
the right to nominate the learned Arbitrator, has now been replaced by
the Petitioner, this Court deems it appropriate to nominate an
Arbitrator on their behalf.

30. Accordingly, this Court hereby requests Hon’ble Mr. Justice
(Retd.) K.R. Shriram, Former Chief Justice of Rajasthan High
Court, ( ) to enter upon the reference and

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adjudicate the disputes inter se the parties.

31. The learned Arbitrators, so appointed hereinabove, are
requested to appoint the Presiding Arbitrator within a period of two
(02) weeks from today, whereafter the Arbitral proceedings may
commence.

32. The learned Arbitral tribunal, so constituted, may proceed with
the arbitration proceedings, subject to furnishing to the parties the
requisite disclosures as required under Section 12(2) of the Act.

33. The parties shall share the learned Arbitrators‟ fee and arbitral
costs equally.

34. All rights and contentions of the parties in relation to the
claims/counter claims are kept open, to be decided by the learned
Arbitrator on their merits, in accordance with law.

35. Needless to state, nothing in this order shall be construed as an
expression of opinion of this Court on the merits of the controversy.

36. Let a copy of the said Order be sent to the learned Arbitrators
through all permissible modes, including electronic mode as well.

37. Accordingly, the present Petition, along with pending
Application(s), if any, stands disposed of in the above-stated terms.

HARISH VAIDYANATHAN SHANKAR, J.

APRIL 20, 2026/nd/jk/DJ

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