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PETITIONER: THE SPECIAL OFFICER (REVENUE)KERALA STATE ELECTIRCITY BOARD

       Vs.

RESPONDENT: M.R.F. LIMITED

DATE OF JUDGMENT14/12/1995

BENCH:

ACT:

HEADNOTE:

JUDGMENT:                             With                CIVIL APPEAL NO. 11833 OF 1995           [Arising out of S.L.P. (C) No. 20785/94] Kerala State Electricity Board v. United Film Exhibitors                             With                CIVIL APPEAL NO, 11834 OF 1995           [Arising out of S.L.P. (C) No. 20726/94] Kerala State Electricity Board v. Hotel Luciya and Anr.                             With                CIVIL APPEAL NO. 11835 OF 1995           [Arising out of S.L.P. (C) No. 21020/94] Kerala State Electricity Board v. M/s Kokers                             With                CIVIL APPEAL NO. 11738 OF 1995           [Arising out of S.L.P. (C) No. 5053/95] Kerala State Electricity Board v. E.M. Jose                           JUDGMENT G.N. Ray, J.      Leave  granted   in  all   these  five   special  leave petitions. Heard  learned counsel  for the  parties and  the appeals are  disposed of by a common judgment in view of the fact that  in all  these matters  common question of law and fact arise.      M.R.F. Limited  is the respondent in appeal arising out of  S.L.P.   No.  16265/1991.   The  said   M.R.F.   Limited (hereinafter referred  to as  the  Company)  is  engaged  in manufacturing automobile  tubes, tread  rubber etc.  and the said Company entered into an agreement with the Kerala State Electricity Board (hereinafter referred to as the Board) for supply of  electricity to  the factory  of the said Company. The agreement contained a provision for payment of power and energy supplied  to the  Company by the Board within 15 days

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from the date of the receipt of the invoice by the consumer, namely, the  Company. It  was further  provided for  in  the agreement that  in default  of payment within the stipulated time, the  payment was  to be  made with  interest @ 18% per annum or  at such  other percentage as would be fixed by the Board from time to time.      The Board  revised  the  tariffs  for  the  electricity supplied by  it in  1980, 1982  and  1984.  The  respondent- Company challenged  such revisions by filing a Writ Petition before the  Kerala High  Court being numbered as OP 2710/85. Similar  Writ   petitions  were  filed  by  other  consumers challenging the upward revisions by the Board. All such Writ Petition were  heard along  with the  Writ Petition filed by the respondent-Company.  The Kerala  High  Court  by  common judgment dated  December 19, 1985, struck down the revisions of tariff  by the  Board. The  respondent-Company and  other consumers were,  therefore, entitled to the refund of excess amount on  account of  the payment  of revised  tariffs. The High Court  of Kerala  directed that  such  amount  paid  in excess would  be adjusted  towards future bills to be issued by the Board.      The Board.  thereafter,  moved  this  Court  by  filing Special  leave   petitions  inter   alia   challenging   the correctness of  the judgment  of the Kerala High Court dated December 19,  1985, striking  down the revisions of tariffs. Such special  leave petition  was entertained  by this Court and an  interim order  was passed  inter alia directing that pending disposal  of the  appeals before  this Court,  there would be stay of the refund of charges already collected. It was further directed by this Court that future charges would be collected to the extent of 50% only and the balance would be adjusted towards the past charges. The respondent Company paid 50% of the demands for the months of March to June 1986 and adjusted  50% of  the balance  towards the refund due to them. Similar  appeals were  also  preferred  by  the  State Electricity  Board   against  other   consumers  whose  Writ Petitions were  disposed of  by the  said common judgment by the Kerala High Court. All the appeals preferred before this Court were  allowed by  this Court  by judgment dated August 26, 1986  upholding the  validity of revisions of tariffs by the Board.      In view of the said decision of this Court dated August 26, 1986  upholding the  tariff revisions  by the Board, the respondent-Company and  other consumers became liable to pay the  amounts  due  on  the  basis  of  revisions  of  tariff including the  amounts since  adjusted by them in the manner indicated hereinbefore.      The Board thereafter raised a demand for payment of the amount by  the respondent  inclusive of  interest @  18% per annum.  The   respondent-Company  did   not  challenge   the liability to  pay the excess amount in view of the revisions of tariffs but it refused to pay interest as demanded by the Board and such claim of interest by the Board was challenged before the  Kerala High  Court by  filing  a  Writ  Petition numbered as OP 7686/86. The learned Single Bench disposed of Writ Petition  by  holding  that  the  demand  for  interest comprised in  the demand notice (Ext. P.2) was not justified and the  demand for  interest of  a sum  of Rs.6,60,615/- as contained in  Ext. P.2  was quashed.  The  Board  thereafter preferred an  appeal.  Such  appeal  was  numbered  as  W.A. No.49/91. It  was inter  alia held  by the Division Bench in disposing of  the said appeal by its judgment dated February 27, 1991,  that after  the Kerala High Court had struck down the revisions  of tariffs  and directed  adjustment  of  the excess amount  paid towards  future demands,  the respondent

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was justified  in not making payment of amounts which became due after  December 19, 1985. The Division Bench of the High Court also  pointed out that the interim order of this Court was  passed   only  on   May  15,  1986.  In  the  aforesaid circumstances, it  could not  be contended by the appellant- Board that  the respondent-Company had not complied with the directions of  this Court.  It could  not also be contended. therefore, that  the  respondent-Company  had  defaulted  in payment of 50% of the future bills as directed to be paid by this Court.  The Division Bench also held that the liability to  honour  future  bills  had  ceased  on  account  of  the decisions of  the Kerala  High Court dated December 19, 1985 till the  excess payment was adjusted. it was also indicated by the  Division Bench that even before such adjustments had been fully  made, this  Court passed  interim order  and the respondent-Company had complied with such interim order. The Division  Bench,   therefore,  held   that  there   was   no enforceable demand  after the  decision of  the Kerala  High Court and  the interim  order  passed  by  this  Court.  The Division Bench  agreed with  the view  of the learned Single Bench that  the respondent-Company could not be held to have defaulted  for   non-payment  of  liability  which  did  not factually exist  at the  relevant time.  The finding  of the learned Single  Judge that  there was no default on the part of the respondent-Company, as there was nothing to hold that the respondent-Company  defaulted on  account of its failure to pay  was accepted.  Hence, the  order quashing the demand for the  interest as  contained in  Ext. P. 2 of the learned Single  Bench  was  held  justified.  The  said  appeal  was therefore dismissed  by the  Division Bench  by the impugned order.      The demand  of the Board for interest on account of the liability arising  out of  revision of  tariffs  from  other consumers were also challenged before the Kerala High Court. Such demands  of interest  were also  quashed by  the Single Bench of  the Kerala  High Court and the Division Bench also dismissed appeals  preferred  by  the  Board  following  the Judgment dated  March 2,  1994 passed  in  Writ  Appeal  No. 48/91. Being  aggrieved by  the aforesaid  decisions of  the Kerala High Court quashing the demand of payment of interest on account  of the  liability arising  due to  revisions  of tariffs, the  Board moved this Court by filing Special leave petitions out  of which the instant appeals arise. As in all these appeals, the same question requires to be decided they have been  heard analogously  and are  being disposed  of by this common judgment.      Mr. Poti,  learned Senior  counsel  appearing  for  the appellants  has  contended  that  the  upward  revisions  of tariffs by  the Board  were challenged  by  the  respondent- Company  and  other  consumers.  Initially,  they  succeeded before the  Kerala High Court where such upward revisions of tariffs had  been struck down but ultimately the validity of such upward  revisions of  tariffs has  been upheld  by this Court.  Hence,   liability  of  a  consumer  of  electricity supplied by  the Board  to pay  dues on  the  basis  of  the revised tariffs  cannot be denied and the respondent-Company has also conceded to such demand. But the respondent-Company is only  objecting to  its liability  to pay interest on the unpaid portion  of the  bill which  is attributable  to  the upward revision of tariffs. He has submitted that the Kerala High Court,  unfortunately, on  a total misconception of the fact and  the legal  position, has held that at the relevant time, when  the order of the Kerala High Court striking down the  upward  revisions  of  tariffs  and  subsequently  when interim order  passed by  this Court  during the pendency of

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the special  leave petitions  inter alia regulating a scheme of adjustment  between the  Board and the respondent-Company on the  basis of  the decision  of the Kerala High Court was subsisting, no  liability had  accured for  the  respondent- Company to make payment on the basis of the revised tariffs. Accordingly, question  of payment of interest on such unpaid amount also does not arise.      Mr. Poti  has submitted  that the Kerala High Court has failed to  appreciate that  the validity of upward revisions of tariffs was finally decided by this Court by disposing of special leave  petitions after getting aside the decision of the Kerala  High Court that such upward revisions of tariffs were illegal.  The interim  order by  this Court  while  the special leave petitions were pending for final disposal, was made to  safeguard the  interest of  the parties because the respondent-Company was  keen to  get back  the alleged  over payment on  account of  bills calculated  on  the  basis  of revised tariffs  since struck down by the Kerala High Court. This Court,  therefore, subject to the final decision of the question as  to the  validity of  the  upward  revisions  of tariff in  the special  leave petition  pending  before  it. passed the  said interim  order infavour  of the respondent- Company so  that the alleged over-payment by the respondent- Company would  be adjusted without causing undue hardship to the Board.      Mr. Poti has submitted that it must be held that in law such liability  was always  there because  the revisions  of tariff were  held valid by this Court. He has submitted that because of  the erroneous  judgment of the Kerala High Court striking down  the upward revisions of tariff such liability remained suspended  till the  correct position  in  law  was finally determined  by this  Court with  which the liability revived with full vigour.      Mr. Poti  has submitted  that as  the liability  of the respondent-Company to  pay  on  the  basis  of  the  revised tariffs was  always there  and as  such payment had not been made by  the respondent-Company  by taking  advantage of the erroneous decision of the High Court, the respondent-Company should not  be  permitted  to  claim  any  immunity  on  its liability to  pay interest  on  the  unpaid  amount  of  the enhanced bill  after the  correct legal position was finally determined by this Court. Mr. Poti has submitted that when a party to  a legal  proceeding has  suffered on account of an erroneous adjudication  by a  Court of law, the court has an imperative duty  to restore  the party which has suffered on account of  such erroneous  order, to  the position,  as far practicable, as would have prevailed, had there been no such erroneous decision of the Court.      In support of this contention, Mr. Poti has referred to a decision of the Privy Council in Alexander Rodger, Charles Carnie  and   Richard  James   Gilman  versus  The  Comptoir D’Escompte  De  Parid  and  the  Chartered  Bank  of  India, Australia  and   China  (1871  Law  Reports  (Privy  Council Appeals) 465).  In that  case, the  respondents  before  the Privy Council  brought an  action  against  the  defendants- appellants for  recovery of  a certain  sum.  An  order  was passed by the Court at Hongkong for payment of $56,390.92 as principal and  $6,336.47 as  interest with  further  sum  as costs. The  defendants thereafter applied for a new trial or for non  suit. Such  application  was  refused  with  costs. Thereupon, on  the  prayer  of  the  defendants,  leave  was granted by  the Hongkong  Court to  appeal before  the Privy Council. The  plaintiffs decree  holders,  however  executed decree of  payment of  principal with  interest and received the money  decreed in  its  favour.  Ultimately,  the  Privy

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Council allowed  the appeal and in terms of such decision of the Privy  Council, it  was ordered that the judgment of the Courts below  should be  reversed and  an order  of non suit should be  entered. In  the order  passed on  the  basis  of ultimate decision  of the Privy Council there was however no specific direction  for refund  of the  entire amount  which also included  the interest  on the principal since realized by the  plaintiffs by  executing the  decree. The  defendant thereafter applied  for restitution and the Supreme Court of Hongkong held that it had power to direct for payment of all sums and  costs that had been paid under the judgment to the plaintiffs but  it had  no power to order for payment of any interest  upon  any  part  of  the  sum  paid  over  by  the defendants to  the plaintiffs.  In the  aforesaid facts, the question which  came up  for consideration  before the Privy Council was whether the Court of Hongkong had or had not the power to  order for  payment of interest and, if so, whether in this case it was proper to exercise this power? The Privy Council has  held in the said decision in Rodger’s case that one of  the first  and highest duty of this Court is to take care that  an act  of the Court does not cause any injury to any of  the suitors  and when the expression "the act of the Court" is  used, it  does not  mean that the only act of the primary court or of any intermediary court of the appeal but act as  a whole  of the  Court from  the lowest  Court which entertains jurisdiction  over the  matter upto  the  highest Court which  finally dispenses  with the  case. It  has been held by  the Privy  Council that it is the duty of all these Tribunals to  take care that no act of the Court in whole of the proceedings does any injury to the suitors in the Court. The Privy  Council has  also negatived the contention of the plaintiff-respondents that  the principal  sum and  not  the interest on it, since recovered by execution, is enforceable by way of restitution.      Mr. Poti  has also  referred to another decision of the Privy Council  in Jai  Berham and  others versus  Kedar Nath Marwari and others (AIR 1922 Privy Council 269). In the said decision, the  earlier decision  of  the  Privy  Council  in Rodger’s case  was referred  to and  relied upon  and it has been held  by the  Privy Council  that one  of the first and highest duties of all the Courts is to take care that act of the Court  does not  cause injury  to any of the suitors. It would be  inequitable  and  contrary  to  justice  that  the judgment debtor  should be  restored  the  property  without making good  to the  auction purchaser  the money  which has been applied for his benefit.      Mr. Poti  has also  referred to another decision of the Privy Council  in L.  Guran Ditta  versus T.R. Ditta (A.I.R. 1935 Privy  Council 12).  In that case also, the decision in Rodger’s case  was referred  to and  it has been held by the Privy Council  that the  duty of  the  Court  when  awarding restitution under Section 144 of the Code of Civil Procedure is imperative.  The Court  shall place  the applicant in the position in  which he  would have  been if the order had not been made  and for  this purpose  the Court  is  armed  with powers. The  Privy  Council  has  also  indicated  that  the expression "may"  should not  be understood as discretionary but it  only points out that the Court is empowered to grant mense profits,  interest and so forth. The Privy Council has also held  that the restitution ordinarily involves interest also and the Court can grant the same.      Mr. Poti has also referred to a Full Bench decision of the Madras  High Court  in Pappu  Reddiar versus  P.S.V.  Rm Ramanatha Iyer  (AIR 1963  Madras 45). The Madras High Court has held  that the  restitution conceived  in the  light  of

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diong justice  between the  parties will necessarily have to depend on  the circumstances  of each  case  and  cannot  be reduced to  the form  of inflexible  rule  that  the  Courts should have  regard only  to the  detriments suffered by one party and  not to the position of the other. The granting of restitution under  Section 144  of the  Civil Procedure Code should be consistent with justice to both the parties. Where a sum  of money is deposited in Court to answer a decree but a restriction  is placed  to the unconditional withdrawal of the same  in terms  of the  decree by reason of which decree holder is  either unable  or unwilling  to obtain the use of the money,  it cannot  be taken as invariable rule in such a case that  the decree  holder should  pay  interest  on  the amount lying  in Court  on the reversal of the trial court’s decree in appeal.      Mr. Poti  has submitted  that in  the instant case, the Company had  enjoyed the fruits of erroneous decision in its favour inasmuch  as the  Company not only did not pay on the basis of  the revised  tariffs but  whatever amount had been paid on  the basis  of the  revised tariffs  for the earlier period was allowed to be adjusted by the Company against its future liability only on the basis of unrevised tariffs.      Mr. Poti  has submitted that such advantage was enjoyed by the Company because the Company had obtained an erroneous decision from  the Kerala  High Court  but when  the correct position in  law was  settled by  this Court by holding that the upward revisions of tariffs were fully justified, it was the bounden  duty of  the respondent-Company to not only pay the unpaid amount of the bill due on account of revisions of tariff but  also the  agreed rate  of interest @ 18% on such unpaid amount.  Mr. Poti  has submitted  that it  was highly improper on the part of the Company to deny its liability to pay interest  on the unpaid amount of the bill. Mr. Poti has submitted   that    the   respondent-Company    being    the manufacturing Company  and an on going business concern, has gainfully utilised  the amount  which it did not pay because of the  subsistence of  erroneous  decision  passed  by  the Kerala High  Court. But  when the  question of liability was clearly  determined   by  this   Court,  the   Company   had obligation, both  moral  and  legal,  to  repay  the  unpaid portion of  the bill  with interest.  Mr. Poti has submitted that  the  Board  is  entitled  to  demand  for  payment  of electricity charges  consumed by the Company on the basis of revised tariffs  and the  Board is  also legally entitled to claim  payment   of  interest  on  such  amount  by  way  of restitution.  Mr.   Poti  has   submitted  that   when   the respondent-Company moved  the Kerala High Court by making an application under Article 226 of the Constitution contending inter alia it had no liability to pay interest on the unpaid portion of  the bill  due on  account of  the  revisions  of tariffs, the  High Court failed in its duty in not rejecting the said petition by clearly indicating that such contention was untenable  both in  law and  also in  equity and  in any event,  such   claim  of   the  Company   being  unfair  and inequitable, the  exercise of  writ jurisdiction of the High Court which  is not  only discretionary  but also equitable, was not at all warranted. Mr. Poti has, therefore, submitted that the impugned judgment of the High Court in quashing the bill realised by the Board against the Company to the extent of the  interest  claimed  @  18%,  must  be  set  aside  by indicating that  the Board is justified in making such claim and the  respondent-Company has  liability to pay interest @ 18% on  the unpaid portion of the bill for the entire period when the amount became due till such date when the principal amount on account of revised tariff has been paid.

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    Mr.  Dholakia,   learned   senior   counsel   for   the respondent, has,  however, disputed  the contentions  of Mr. Poti. He  has contended  that the Company had challenged the validity of upward revisions of tariff before the High Court by filing  writ petition  and on contest, such writ petition was allowed by striking down the upward revisions of tariff. The Board’s  appeal against such decision was also dismissed by  the   Division  Bench  of  the  High  Court.  The  Board thereafter filed  special leave  petition before this Court. Although such special leave petition was entertained by this Court,  this  Court  was  also  not  inclined  to  stay  the operation of the impugned judgment of the High Court. On the contrary, proceeding  on the  footing that  in view  of  the impugned judgment of the High Court, the appellant Board was under obligation  to refund  the entire  excess amount since paid by  the Company,  this Court passed an interim order in favour of the Board, and to the detriment of the interest of the Company,  that claim  of refund  of excess amount of the Company would  be slowly adjusted against future bills drawn against the  Company. The  Company had not taken any illegal and undue advantage and only on the basis of the decision of the High  Court in  its favour and in terms of interim order passed by  this Court,  it paid  then  recoverable  dues  on account of  the electricity bill and got the claim of refund of the  Company slowly  adjusted against future bills. If on such facts and circumstances, the High Court has struck down the claim  of interest  by the  Board on the ground that the amount on  which  interest  was  claimed  was  not  due  and recoverable at the relevant period and the Company cannot be held to  have defaulted  in payment  of any sum on which the interest may  be claimed,  no exception can be taken to such decision. Mr.  Dholakia has  submitted that  it  is  not  an inflexible rule  that in  all cases, in order to give effect to restitution, mense profits and damages including interest are to be given.      In this  connection, Mr.  Dholakia has  referred  to  a decision of  Calcutta High  Court in Surendra Nath Choudhury Vs. Sultan Ahmed (AIR 1935 Cal. 1206). In the said decision, the High  Court has held that where the wrong doers have not been shown  to have  cultivated the  lands but  settled  the lands with  tenants, mense profits can only be calculated on the basis  of rental  value of the land. In assessing what a party has  lost on  account of  dispossession, the law takes into account  not what  he could  have  made  but  what  his opponent did in fact make or could with reasonable diligence have made.      Mr. Dholakia  has also  referred to  a decision of this Court in  Income Tax  Officer, Kolar  and another  Vs. Seghu Buchiah Setty  (1964 (7)  SCR 148).  It has been held as per majority decision  in this  case  that  on  the  income  tax officer’s order  being revised  in appeal, the default based on it  and other  consequential proceedings must be taken to have been  superseded  and  fresh  proceedings  have  to  be started to  realise the  dues as formed by revised order. As demand notice  was issued on the basis of assessment made by the Income  Tax Officer  and no  fresh notice  of demand was issued on  the basis  of revised  assessment made in appeal, the assessee  could not  have been  treated as defaulter and the proceedings  of the  collector based  on the certificate issued by  the I.T.O. would be held as illegal. Mr. Dholakia has submitted  that even  if the  Company has a liability to pay on  the basis  of revised  tariffs, since upheld by this Court, it will not be correct to contend that such liability was enforceable from the dates of revisions of tariff and on such premises,  the Company may be held defaulter in payment

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of excess  amount  flowing  from  revisions  of  tariff  and consequently incurring  a liability  to pay interest on such excess amount.  After the  High Court struck down the upward revisions of  tariff, no  claim on  such revisions  could be made and  a consumer  had also  no liability  to pay  on the basis of  revised tariffs.  It was  only when this Court had finally decided  the question  of validity  of revisions  of tariff in  favour of the Board, the liability to pay revived only prospectively  from the  date of  the decision  of this Court and  not from  any earlier  period. Mr.  Dholakia  has submitted that as already indicated, this Court did not pass any interim  order of  stay of  operation  of  the  impugned judgment of  High Court  so that  there was  any occasion to proceed on  the footing that liability to pay at the revised rates had  remained in  force. The  liability to  pay on the basis of  revised rates  ceased to  be operative  after  the pronouncement by  the High  Court but became operative after the final decision by this Court. The Company accepting such liability after  the decision  of this  Court has  paid  the demand on  account of enhancement due to revisions of tariff but as  the liability  for  payment  of  excess  amount  was enforceable from  the date of decision of this Court, it has rightly refused  to  pay  interest  on  such  excess  amount claimed on  the footing  that demand  for excess  amount was also enforceable from the dates of revision of tariffs.      He has  submitted that  the High  Court is,  therefore, fully justified  in quashing  the memo  claiming interest on the  excess   dues  by  indication  cogent  reasons  and  no interference by  this Court  is  called  for.  The  appeals, therefore, should  be dismissed.  In other  appeals, no  new contention has been raised by the parties.      After giving our careful consideration to the facts and circumstances of  the case  and the  submissions made by the learned counsel  for the  parties, it  appears  to  us  that revisions of  tariff for  the electricity charges payable by the Company  and other consumers had been struck down by the Kerala High  Court. So  long such  decision was not revised, the same,  even though  erroneous, remained fully operative. The result  was that  no bill could be drawn by the Board on the basis of revised rates and even if such bill had in fact been drawn,  such  bill  remained  inoperative,  during  the entire period when the judgment of the Kerala High Court had governed the  field. Pendency  of appeal  before this  Court only ensured  that the  proceedings  had  not  been  finally concluded. But  in the  absence of any interim order of this Court granting  stay of  operation of the impugned judgment, the judgment  of the  High Court  was  binding  between  the parties to  the lis  despite pendency  of the appeal. Viewed from this  aspect, it  is quite  evident that the Company or for  that   matter,  similarly   placed  consumers   had  no obligation to take notice of the revised tariffs and to make any  payment   on  the   basis  of   such  revised  tariffs. Consequently, the  Company cannot  be held to be a defaulter for non payment at the enchanced rate during the period when revisions, though made, remained unenforceable on account of the decision of the High Court.      But after  the decision  of this Court upholding upward revisions of  tariffs, the Board’s entitlement to drew bills on  the   basis  of   upward  revisions   and  consequential enforceability of  payment of  such bills  by the  consumers revived with  full force.  Hence, it would not be correct to contend that  although the  Company or for that matter other consumers were required to pay  on the basis of revisions of tariffs from the dates when such revisions became effective, liability for  such payment  would accrue only from the date

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of pronouncement  of the  judgment by  this Court  upholding upward revisions and not from any date prior to that. If the upward revisions  are held  as valid, enforceability of such upward revisions  being  consequential  to  such  revisions, though it  had remained  unenforceable  for  one  period  on account of  the decision  of the  High Court,  can  not  but revive from the dates of upward revisions.      There is no manner of doubt it is an imperative duty of the court  to ensure  that the  party to  the lis  does  not suffer any  unmerited hardship on account of an order passed by the  Court. The principle of restitution as enunciated by the Privy Council in Rodger’s case (Supra) has been followed by the  Privy Council  in later decisions and such principle being in conformity to justice and fair play be followed. It should, however,  be noted  that in  an  action  by  way  of restitution, no inflexible rule can be laid down. It will be the endeavour  of the  Court to  ensure that a party who had suffered on  account of decision of the Court, since finally reversed, should  be put  back to  the position,  as far  as practicable, in  which he would have been if the decision of the court  adversely affecting  him had  not been passed. In giving  full   and  complete   relief  in   an  action   for restitution, the court has not only power but also a duty to order for  mense profits,  damages, costs,  interest etc. as may deem expedient and fair conforming to justice to be done in the  facts of  the case.  But in  giving such relief, the Court should  not be  oblivious of any unmerited hardship to be suffered  by the  party against  whom action  by  way  of restitution is  taken. In deciding appropriate action by way of restitution,  the court  should take a pragmatic view and frame relief in such a manner as may be reasonable, fair and practicable and  does not  bring about unmerited hardship to either of the party.      In the  instant case,  the company  and other consumers though have  liability  to  pay  on  the  basis  of  revised tariffs,  they  had  not  paid  on  such  basis  because  of erroneous decision  of the High Court. Not only they did not pay on the basis of revised tariffs, but they got adjustment of payments  already made  prior to the decision of the High Court, against future bills to be drawn only on the basis of unrevised tariffs  in a  phased manner. The Company is an on going business  concern and  must have  utilised the  money, saved  on  account  of  the  decision  of  the  High  Court, gainfully in  its commercial  activities.  Similarly,  other consumers have gainfully utilised the amount saved for being not required  to pay  on the  basis of  revised tariffs. The Board had  to suffer  financial loss  because  of  the  said erroneous decision  of the  High  Court.  In  the  aforesaid circumstances, it  will be  lawful, conforming to equity and well established  principle of  restitution for the Board to claim interest  at 18%  on the  unpaid portion  of the  Bill drawn on  the basis  of revised  tariffs.  The  Company  had agreed to  pay interest  at 18% on the unpaid portion of the Bill drawn  on the basis of revised tariffs. The Company had agreed to  pay interest at 18% on the bills if not paid when it became  due and  payable. Even  otherwise, claim  of  18% interest per  annum also  appears to be just and proper. We, therefore, set  aside the  impugned decisions  of  the  High Court by  allowing these appeals. There will be, however, no order as to cost.