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PETITIONER: RAJA RAM KUMAR BHARGAVA (DEAD) BY LRS.

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT11/12/1987

BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) NATRAJAN, S. (J)

CITATION:  1988 AIR  752            1988 SCR  (2) 352  1988 SCC  (1) 681        JT 1988 (1)   297  1988 SCALE  (1)235

ACT:      Income Tax Act, 1922, Sections 66(5), 66(7)      Income Tax Act, 1961, Sections 297(2)(a), 297(2)(i)      Excess Profit Tax Act, 1940, Section 21.      Removal of Difficulties Order, 1962.      Assessee- Assessment  made and  recovery effected under the  1922   Act-Tax  reduced  on  reference  to  High  Court subsequent to  commencement of 1961 Act-Claim to interest on refund  of   income  and  excess  profit  taxes-  ’Completed assessment’-Meaning of-Section  297(2)(i) and  not 297(2)(a) held applicable-Claim  to interest  on refund  of income tax wholly insupportable-Claim  to interest on excess profit tax upheld-Suit for-Whether maintainable.      Civil Procedure  Code,  1908:  Section  9-Civil  Court- Exclusion of jurisdiction-When implied.

HEADNOTE: %      Raja Ram  Kumar Bhargava-Appellant  was assessed in the capacity of  Kartha of  a Hindu  Undivided Family for Income and Excess  Profit Taxes  for the  assessment year  1947-48. Pursuant to  assessment order  dated September  23, 1951  as modified  by   the  orders   of  the   Appellate   Assistant Commissioner and the Income-Tax Appellate Tribunal dated May 15,  1952   and  March   3,  1957  respectively,  a  sum  of Rs.2,57,383.87 was  recovered from the assessee on March 27, 1957 under  threat of  coercive process. Payment was made by the assessee  by  borrowing  money  from  a  Bank  on  heavy interest by  mortgage  of  his  properties.  The  assessee’s Reference under Section 66 of the 1922 Act and Section 21 of Excess Profit  Tax Act  1940 was  decided in his favour, and the quantum  of both  the taxes  came  to  be  substantially reduced.  A   sum  of  Rs.2,01,146.62  as  income  tax,  and Rs.19,126.16 as Excess Profit Tax became refundable.      In the  meanwhile, the 1922 Act was repealed by Section 297(1) of the 1961 Act, and the assessee’s claim of interest from the  date of  payment of  tax in  1957 till the date of reference, was rejected by the Department in view of Section 297(2(i) of the I.T. Act, 1961. 353      The assessee  filed  a  suit  in  the  High  Court  for

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recovery of interest on the refunds of Income Tax and Excess Profit Tax claiming that the assessment for the year 1947-48 was completed  the moment  the assessment  order dated March 28, 1951,  was passed,  and  that  the  claim  for  interest squarely fell  within Section  66(7) of  the 1922  Act, read with, and saved by Section 297(2)(a) of the 1961 Act.      The Revenue  resisted the suit contending that the suit was not  maintainable; that it was statute barred, and being governed by  Section 297(2)(i)  and not Section 297(2)(a) of the 1961 Act no interest was payable.      A Single  Judge dismissed  the suit,  holding that  the remedy of a civil suit was misconceived, for the Civil Court has no  jurisdiction to  grant  interest  in  place  of  the discretion vested in the Commissioner under Section 66(7) of the 1922  Act, and  that on  a reading  of the provisions of section 297  with the  Removal of Difficulties order 1962 it had to be held that the claim of the plaintiffs was governed by the provisions of the 1922 Act.      In Appeal,  the Division Bench reversed the findings of the Single  Judge and  held that  the provisions of the 1922 Act did  not govern  the claim,  but sustained the decree of dismissal.      The legal  representatives of  the Assessee appealed by Special Leave to this Court.      It was  contended on  behalf of the appellant-plaintiff that: (i)  for purposes  of Section 297(2)(i) the assessment must be  held to  have been  completed not when the ITO made the initial order of assessment but only when the assessment assumes finality  in appeal; (ii) the scheme of the 1961 Act and the  provisions of  the Removal  of Difficulties  order, 1962  suggest  that  the  expression  "assessment  completed before the  commencement of  this Act"  in Section 297(2)(i) should not  be construed  as to render the provisions of the 1922 Act  relating to  the payment  of interest  on  refunds nugatory and  deprive an  assessee of a right vesting in him under the  1922 Act,  and (iii) the claim for interest based on  Section   21  of   the  Excess   Profit  Tax  Act,  1940 pre-eminently  survives,   as  Section  2  incorporates  and assimilates into  itself as  a part  of its own legislative- scheme, Section  66 of  the 1922  Act and  the provisions so built into  Section  21  by  the  legislative  expedient  of incorporation and  not merely  of reference,  continue to be operative notwithstanding the repeal of the 1922 Act. 354      Allowing the Appeal in part, ^      HELD:  1(a)   An  assessment   would  be  a  ’completed assessment’ within  Section 297(2)(i)  if the ITO had passed the order  of assessment  prior to  the coming into force of the 1961 Act. [360B]       1(b)  The view taken by the Division Bench of the High Court on  the point  must, therefore,  be held to be correct and does not call for interference. [360Cl        O.  RM.  M.  SP.  SV.  P.  Panchanatham  Chettiar  v. Commissioner of  Income-Tax, Madras,  99  ITR  579  and  CIT Bombay, Presidency  & Aden  v. Khemchand  Ramdas, 6  ITR 414 referred to.       2(a)  Section 66(7) of the 1922 Act which by virtue of Section 21  of the  Excess Profit Tax Act, 1940 is attracted to cases  of refunds  of Excess Profit Taxes stipulates that notwithstanding that  a reference  has been made to the High Court, the  tax shall  be payable  in  accordance  with  the assessment made  in the  case provided that if the amount of assessment is  reduced as  a result  of such  reference, the amount overpaid shall be refunded "with such interest as the

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Commissioner may allow." [360G-H; 361A]      2(b) This provision mandates the grant of interest, the discretion of  the Commissioner being limited to the rate of interest only. [361A-B]      Liquidators of  Pursa Ltd.  v. Commissioner  of lncome- Tax, Bihar  & Ors., 32 lTR 603 and Khushalchand Daga v. N.M. Joshi, 3rd  Income- Tax  office A-I Ward, Bombay & Ors., 130 ITR 180 approved.      3. Generally  speaking the broad guiding considerations with regard  to institution  of suits  are that  wherever  a right, not  pre-existing in  common law,  is  created  by  a statute and that statute itself provides a machinery for the enforcement of  the right,  both the  right and  the  remedy having been  created uno-flatu and a finality is intended to the result  of the  statutory proceedings, then, even in the absence of  an  exclusionary  provision  the  civil  courts’ jurisdiction is  impliedly  barred.  If,  however,  a  right pre-existing in  common law is recognised by the statute and a new  statutory remedy  for its  enforcement provided, with out expressly excluding the Civil Courts’ jurisdiction, then both the  common law  and the  statutory remedy might become concurrent remedies  leaving open an element. Of election to the persons of inherence. [36ID-F] 355      Secretary of  State v.  Mask &  Co., AIR 1940 P.C. 105; K.S. Venkataraman  & CO. v. State of Madras, 1966 2 SCR 229; Dhulabhai &  Ors. v.  the State  of Madhya  Pradesh &  Anr., [1968] 3  SCR  662  and  The  Premier  Automobiles  Ltd.  v. Kamlakar Shantaram  Wadke & Ors.  AIR 1975 SC 2238, referred to.      The instant  case, is an old litigation which has vexed the parties for over two decades. It appears somewhat unjust to expose  the parties  to  a  fresh  round  of  litigation. Counsel left the matter to this Court. In the particular and special circumstances of this case, and with a view to doing full and  complete justice  between the  parties, a  sum  of Rs.12,282.11 representing  the interest on the refund of the Excess Profit  Taxes should  be ordered  to be  paid to  the appellants. [362B; E]      4. The judgment and decree in so far as they pertain to the  dismissal   of  the   suit  concerning   the  claim  of Rs.17,358.87 is  left undisturbed. That part of the judgment and decree  pertaining  to  the  claim  of  Rs.12,282.11  is decreed directing  the respondent-defendant  to pay  to  the appellant-plaintiff the said sum together with pendente-lite interest and  further interest at 6% per annum from the date of institution of the suit till realisation. [362F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTlON: Civil Appeal No. 4034 of 1983.      From the  Judgment and  Decree dated  14.2.1980 of  the Delhi High Court in First Appeal (O.S.) No. 17 of 1972.      F.S. Nariman and Ranjit Kumar for the Appellant.      S.C. Manchanda,  K.C.  Dua,  S.  Rajjappa  and  Ms.  A. Subhashini for the Respondent.      The Judgment of the Court was delivered by      VENKATACHALIAH, J.  This appeal,  by special  leave, by the legal  representatives of  Raja Ram  Kumar Bhargava, the unsuccessful plaintiff, is directed against the Judgment and decree, dated, 14.2.1980 of the High Court of Delhi in First Appeal (o.S.)  No. 17  of 1972  on its  file. affirming  the judgment and  decree of  dismissal dated,  28.7.1972 in Suit

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no. 372  of 1969  entered by the learned Single Judge of the High Court. 356      Plaintiff sued  for recovery  of  interest  on  certain refunds of  Income-tax and  Excess Profit  Tax claimed to be statutorily due  and payable  to him  under Section 66(7) of the Income  tax Act 1922 (here in after referred to as the ’ 1922 Act’)  on the  refunds of  the taxes.  The  suit  claim comprised of  a sum  of  Rs.1,17,358.87  sought  by  way  of interest on  the  refund  of  income-tax;  and  Rs.12,282.11 claimed as  representing interest  on the  refund of  Excess Profit Tax.  The assessments  were made under the Income Tax Act  (1922   Act)  and   the  Excess  Profit  Tax  Act  1940 respectively.      2. The  necessary and  material facts  may  briefly  be stated:           Raja  Ram  Kumar  Bhargava  was  assessed  in  the      capacity of  Kartha of  a Hindu  Undivided  Family  for      Income and  Excess Profit Taxes for the assessment year      1947-48. It  would appear,  pursuant to  the  order  of      assessment dated,  23.9.1951 made  by  the  Income  Tax      officer, as  modified by  the  appellate  orders  dated      15.5.1952 and  27.3.1957  of  the  Appellate  Assistant      Commissioner and  the  Income-Tax  Appellate  Tribunal,      respectively, a  sum of  Rs.2,57,383.87  was  recovered      from him on 27.3.1957 under threat of coercive process.      It was  plaintiff-assessee’s  case  that  he  met  this      obligation by  raising funds  from the  Central Bank of      India Ltd.  On the mortgage of his properties incurring      heavy liability towards interest on the mortgage loans.      3. However,  the quantum  of both  the taxes came to be substantially reduced  pursuant to the consequential orders, dated, 16.9.1966  made under  Section 66(5)  of the 1922 Act and under  Section 66(5)  read with  Section 2  1 of  Excess Profit Tax Act 1940 respectively giving effect to the orders of the  High Court  in certain  references under  P  Section 66(1) of  the Act.  A sum  of Rs.2,01,146.62  and a  sum  of Rs.19,126.16 became  refundable by  way  of  income-tax  and Excess Profit  Tax, respectively,  on such  recomputation of the income.  The said  sum of Rs.2,01,146.62 was refunded on 17.12.1966; and  the  sum  of  Rs.19,126.16  towards  Excess Profit Tax  refunded on  9.12.1967. The  question  that  yet remained was  whether plaintiff-assessee was entitled to the payment of  interest on the said refunds under Section 66(7) of the 1922 Act.      4. In  the meanwhile,  on 1.4.1962,  the Income-Tax Act (1961 Act)  had come into force. Under Section 297(1) of the ’1961 Act’  repealed the ’ 1922 Act’. Under the 1922 Act and the Excess  Profit Tax  Act 1940,  appellant was entitled to claim interest on the refund of 357 taxes under  circumstances contemplated  by Section 66(7) of the ’ 1922 Act’. But Section 297(2)(i) provided that: A           "(i) where, in respect of any assessment completed           before the  commencement of  this  Act,  a  refund           falls due  after such  commencement or  default is           made after such commencement in the payment of any           sum  due  under  such  completed  assessment,  the           provisions  of   this  Act  relating  to  interest           payable by  the Central  Government on refunds and           interest payable by the assessee for default shall           apply. "      Accordingly, the  claim of  the plaintiff-assessee  for payment of  interest on the refunds came to be considered by the authorities  under the  provisions of  1961 Act  and  no

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claim for interest was held to survive.      5.  Plaintiff-assessee   thereafter,   instituted   the present suit  against the Union of India for recovery of the interest under  Section 66(7)  of the 1922 Act alleging that the assessment in the present case must be held to have been "completed" before  the  commencement  of  the  196  1  Act- according to  the assessee  the assessment was completed the moment  the   income-tax  officer   made  the  order  dated, 28.3.1951-and  that,   therefore,  the  claim  for  interest squarely fell  within Section  66(7) of  the 1922  Act  read with, and saved by, Section 297(2)(a) of the 1961 Act.      The defendant  resisted the suit contending first, that the  suit  was  not  maintainable;  secondly,  that  it  was statute-barred and  that, thirdly,  at all  events, the view taken by the authorities that the matter was governed by the Section 297(2)(i) of the 1961 Act was correct.      6. The  High Court  framed the  necessary and  relevant issues stemming  from the  pleadings. Having  regard to  the questions agitated in this appeal, the following two issues- issues nos. 4 & 6-require to he noticed:      4. Whether this Court has jurisdiction to try this         suit?      6. Whether  the claim  of the plaintiffs in the suit is         governed by the provisions of Income-Tax Act, 1922?      The Learned  Single Judge  of the  High Court who tried the suit  recorded findings  against  plaintiff-assessee  on issue 4  and in  his favour  on issue no: 6. On issue no, 6, the learned Judge held: H 358           " ..  In my judgment, the present case is governed           by the provisions of the old Act . . ."           "........ In  the present  case, the reference was           pending when  the present Act came into force. The           rights of the parties will, therefore, be governed           by the  provisions of the old Act and it cannot be           said that  the assessment  had been  completed. As           observed by  the Supreme  Court  in  Kalawah  Devi           Harlalka v.  Commissioner of  Income Tax, West Ben           gal  and   others,  (66   ITR   680),   the   word           "assessment"  can   bear  a   very   comprehensive           meaning; it can comprehend the whole procedure for           ascertaining and imposing liability     upon   the           tax-payer . . ."           ".... On  a reading  of the  provisions of Section           297 with  the Removal  of Difficulties  order,  it           seems to  me that the intention of the Legislature           was that  in a  case of  assessment  such  as  the           present one  the provisions  of the old Act should           apply           ".... 1,  therefore, hold  that the  claim of  the           plaintiffs is  governed by  the provisions  of the           Income Tax Act 1922      on issue no. 4, however, learned Judge held:           " .... The remedy of a civil suit, it seems to me,           is  misconceived,  for  the  Civil  Court  has  no           jurisdiction to substitute its discretion to grant           interest in  place of the discretion vested in the           Commissioner. Section  66(7) of  the Act  provides           that the amount over-paid shall be refunded to the           assessee "with  such interest  as the Commissioner           may allow."  Now. rate of interest may be anything           between one  percent and  six percent.  In view of           this statutory provision, the discretion is vested           in the  public functionary  created by the Statute           and the  Civil Court  in this suit has no power to

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         over-ride him, and grant interest .. "      Accordingly, the  suit came  to be  dismissed.  In  the appeal before  the Division  Bench of  the  High-Court,  the finding of  the learned  Single Judge  on issue  no.  6  was reversed. It  was held  that the  Provisions of the 1922 Act did not govern the claim. As this appellate  finding     was sufficient to support and sustain the decree of dismissal, 359 the appellate-Bench did not record any finding of its own on issue.  4.   The  Legal  representatives  of  the  deceased- plaintiff have come-up with this appeal.      7. Shri  Nariman, learned  Senior Counsel, appearing in support of  the appeal,  urged that  the correct  view which should commend itself for acceptance is that for purposes of 297(2)(i) the  assessment must be held to be "completed" not when the  ITO made the initial order of assessment, but only when the  assessment assumes finality in appeal. Implicit in the idea of a completed assessment, says learned Counsel, is the  element  of  its  finality  and  the  requirements  and concomitants of  the idea of a "completed assessment" would, accordingly be satisfied only when all proceedings including those in  appeal come  to an  end and  the  assessment  thus assumes finality  under the  Act. Shri  Nariman relied  upon some authorities including the one in ClT Bombay, Presidency & Aden  v. Khemchand Ramdas, (6 ITR 414) to explain what the concept of  a completed  assessment or  a  final  assessment connotes in  law. Learned  Counsel referred to the scheme of the 1961  Act in  this behalf  and to  the provisions of the Removal of  Difficulties order  1962  to  suggest  that  the expression "assessment  completed before the commencement of this  Act"  in  the  Section  297(2)(i)  should  not  be  so construed as  to render  the  provisions  in  the  1922  Act relating to  the payment of interest on refunds nugatory and deprive an  assessee of  a right  vesting in him under the ’ 1922 Act’.  Learned Counsel  urged that  if  the  expression "assessment completed"  in section 297(2)(;) is construed in a manner  so as  to advance  justice, then, it should not be limited to  cases where  only the original assessment by ITO had come  to be  made. A  proper construction  would require that a  case of  the  present  kind  was  kept  outside  the mischief of  297(2)(i) and  brought within  the benignity of Section 297(2)(a)-a  construction which  would  promote  and preserve the vested rights under Section 66(7) of the ’ 1922 Act’. It  was urged  that no  provision under  the 1961  Act envisaged payment  of interest in a case of the present kind and any  construction which  brings the case under 297(2)(i) and not 297(2)(a) would not promote justice. Shri Nariman in fairness brought  to our  notice the  pronouncement of  this court in  o. RM.  M. SP.  SV. P.  Panchanathanm Chettiar  v. Commissioner of  lncome-Tax, Madras,  (99 ITR  579)  but  he urged, however,  that we should prefer a broader view of the matter consistent with justice and fairness.      8. Shri  Manchanda,  learned  Senior  Counsel  for  the respondent, maintained  that the  point raised in the appeal is no longer res-integra, 360 having  been   the  subject   of  an   earlier,   definitive pronouncement of  this court  on the very question and that, therefore,  the   contention  urged  for  the  appellant  is untenable.  We   think  Shri  Manchanda  is  right  in  this submission.      In Panchanatham  Chettiar’s case,  a  similar  question having arisen, this court held that an assessment would be a ’completed assessment’  within Section  279(2)(i) if the ITO had passed  the order of assessment prior to the coming into

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force of  the 1961 Act. In view of this pronouncement, it is not possible  to accept  the contention that the matter fell within Section  297(2)(a) and  not Section  297(2)(i) of the 196 l  Act. It is not disputed that, in the present case, if the matter  fell under  297(2)(i) the  claim for interest on the refund  of income-tax  becomes wholly insupportable. The view taken  by the  Division Bench  of the High Court on the point must,  therefore, be  held to  be correct and does not call for interference in appeal.      Accordingly, the  first part  of the claim in so far as it pertains  to Rs.1,17,358.87  must be  held to  have  been rightly rejected by the High Court.      9. But  the claim  of Rs.12,282.11  said  to  represent interest on  the refund  of Excess Profit Tax does not admit of such  an easy  exit. Shri  Nariman urged  that this claim rested on  an altogether  different and surer legal footing. Learned Counsel  said that  Section 21  of the Excess Profit Tax 1940  incorporated and assimilated into itself as a part of its own legislative-scheme, inter-alia, Section 66 of the 1922 Act  and the provisions so built into Section 21 by the legislative expedient  of incorporation-and  not  merely  of reference-continue  to   be  operative  notwithstanding  the repeal of  the 1922  Act and  that, therefore, the claim for interest based  on Section  21 of the Excess Profit Act 1940 pre-eminently survives.  Learned Counsel  submitted that the claim for  interest has  been negatived  by the  High  Court without examining  the scheme  of Excess Profit Act 1940 and merely as  a corollary  of the  untenability of the claim of interest on the refund of the income-tax.      The distinctive  nature of  this part of the suit claim pertaining to the interest on Excess Profit Tax has not been specifically dealt  with by the High Court. Section 66(7) of the 1922  Act which,  by virtue  of Section 21 of the Excess Profit Tax  Act 1940,  is attracted  to cases  of refunds of Excess Profit  Taxes stipulates  that notwithstanding that a reference has  been made  to the  High Court,  tax shall  be payable in  accordance with  the assessment made in the case provided that if the 361 amount  of  assessment  is  reduced  as  a  result  of  such reference, the amount over-paid shall be refunded "with such interest as the commissioner may allow". Several High-Courts have taken the view that the provision mandates the grant of interest, the  discretion of  the Commissioner  being in the area of  the rate of such interest (See Liquidators of Pursa Ltd. v.  Commissioner of  Income-Tax, Bihar  & Ors.,  32 ITR 603; Khushalchand  Daga  v.  N.  M.  Joshi,  3rd  Income-tax officer A-I Ward, Bombay & Ors, 130 ITR 180).      But then,  even if  the right  to claim interest on the refunds of  Excess Profit  Tax could  be said  to have  been preserved, the  question yet  remains whether a suit for its recovery is  at all  maintainable. The question turns on the scope of  the exclusionary clause in the statute. The effect of clauses  excluding the  civil  courts’  jurisdiction  are considered  in   several  pronouncements   of  the  judicial committee and  of this Court (See Secretary of State v. Mask & Co.,  AIR 1940  P.C. 105; K.S. Venkataraman & Co. v. State of Madras,  [1966] 2  SCR 299: Dhulabhai & Ors. v. The State of Madhya  Pradesh &  Anr, [1968] 3 . SCR 662.  The  Premier Automobilies Ltd.  v. Kamlakar  Shantaram Wadke  & Ors., AIR 1975  SC   2238).  Generally  speaking.  the  broad  guiding considerations are  that wherever  a right, not pre-existing in common  law, is  created by  a statute  and that  statute itself provided  a machinery  for  the  enforcement  of  the right, both  the right  and the  remedy having  been created

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uno-flatu and  a finality  is intended  to the result of the statutory proceedings,  then, even  in  the  absence  of  an exclusionary provision  the civil  courts’  jurisdiction  is impliedly barred.  If,  however,  a  right  pre-existing  in common-law is  recognised by the statute and a new statutory remedy  for  its  enforcement  provided,  without  expressly excluding the  civil courts’  jurisdiction,  then  both  the common-law  and   the  statutory   remedies   might   become concurrent remedies  leaving open  on element of election to the persons  of inherence. To what extent, and on what areas and under  what  circumstances  and  conditions,  the  civil courts’ jurisdiction  is preserved  even where  there is  an express clause  excluding their jurisdiction, are considered in Dhulabhai’s case.      10. It  was suggested for the revenue that a civil-suit is clearly barred and that the remedy of an assessee who has been denied interest by the Commissioner under Section 66(7) of the  1922 Act  would be  a recourse  to proceedings under Article 226  of the  Constitution,  where  if  the  assessee succeeds the  remedy is  limited to the issue of a direction to the  repository of  the statutory  power to  consider and dispose of  the matter  afresh in  accordance with  law  and that, even then, the court, 362 could not  itself, grant  the relief  in terms  of  its  own quantification  of   the  interest.  These  contentions.  Of course, are  eminently arguable.  The Division-Bench  of the High Court  did not keep the qualitative distinction between the two  refunds distinguished; but treated the second claim stemming from  the Excess Profit Taxes not with reference to the particularities  characterising it  but  purely  on  its assumed similarity with that of the first.      11. This  is an  old litigation  which  has  vexed  the parties for  over two  decades. It  appears to  us  somewhat unjust to expose the parties to a fresh round of litigation. Even if  the contention  of the  respondent as  to the  non- maintainability of  a civil-suit is upheld, appellants could yet have  recourse to  proceedings under Article 226 if they can satisfy the High Court as to the delay in approaching it and seek  an appropriate  Mandamus to  the Commissioner  who would then  have to  reconsider the claim for interest under this head.  Interest claimed  is at  6%  per  annum  In  the particular  and  special  circumstances  of  this  case,  we thought-and  put  it  to  the  learned  counsel-whether  the interests of  justice would not be served by granting relief in  these   proceedings  itself   without  going   into  the technicalities of  procedure and  without a pronouncement on the question  of the  maintainability of  the suit.  Learned counsel, in  all fairness,  left the matter to the court. We think that  with a  view to  doing full and complete justice between the  parties, a  sum of  Rs. 12,282.11  representing interest on  the refund of the Excess Profit Taxes should be ordered to be paid to the appellants. This direction we give without pronouncing on issue no. 4.      12. In  the result, while the judgment and decree under appeal, in  so far  as they  pertain to the dismissal of the suit  concerning  the  claim  of  Rs,  1,17,358.87  is  left undisturbed, this appeal is, however, allowed in part to the extent it  pertains to the claim of Rs. 12,282.11 claimed by way of  interest on  the refund of excess profit tax; and in reversal of that part of the judgment and decree of the High Court pertaining to this claim of Rs.12,282. 11, the suit is decreed directing  the respondent-defendant  to pay  to  the appellant-plaintiffs the  aforesaid  sum  of  Rs.  12,282.11 together with  pendente-lite and further interest at 6% p.a.

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from the date of institution of the suit till realisation.      The appellants shall be entitled to costs in proportion to their success in the suit. Respondent, however is left to bear and  pay  its  own  costs  throughout.  The  appeal  is disposed of accordingly. N.V.K.                                Appeal allowed partly. 363