Holding

An assessment is ‘completed’ under Section 297(2)(i) if the assessment order was passed before the 1961 Act commenced, so interest on the income‑tax refund is not payable, but interest on the excess‑profit‑tax refund is payable under the surviving provisions of Section 66(7) as incorporated in Section 21.

Issues considered

Whether a civil court has jurisdiction to entertain a suit for interest on tax refunds when the statute provides a specific remedial mechanism.
Whether the claim for interest on the refunds is governed by the Income Tax Act, 1922 or the Income Tax Act, 1961.
Whether the assessment for FY 1947‑48 is deemed ‘completed’ before the commencement of the 1961 Act for purposes of Section 297(2).
Whether Section 297(2)(i) or Section 297(2)(a) of the 1961 Act applies to the interest claim.
Whether the interest provision in Section 66(7) of the 1922 Act survives for refunds of excess profit tax under Section 21 of the Excess Profit Tax Act, 1940.

Legislation cited

Excess Profit Tax Act, 1940s. 21
Income Tax Act, 1922s. 66(5), s. 66(7)
Income Tax Act, 1961s. 297(2)(a), s. 297(2)(i)
Removal of Difficulties Order, 1962

Subjects

interest on tax refundassessment completedSection 297civil suit jurisdictionIncome Tax Act 1922Income Tax Act 1961Excess Profit Tax ActRemoval of Difficulties OrderHindu Undivided Familytax assessmentstatutory interpretation

Judgment

,1.-
A RAJA RAM KUMAR BHARGAVA (DEAD) BY LRS.
v.
UNION OF INDIA > A

DECEMBER 11, 1987

B [S. NATARAJAN AND M.N. VENKATACHALIAH, JJ.]

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.
c Removal of Difficulties Order, 1962.

Assessee-Assessment made and recovery effected under the 1922 ·
Act-Tax reduced on reference to High Court subsequent to commence- ,_ j
ment of 1961 Act-Claim to interest on refund of income and excess
profit taxes-'Completed assessment'-Meaning of-Section 297(2)(i)
D
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.

1
Civil Procedure Code, 1908: Section 9-Civil Court-Exclusion
of jurisdiction-When implied.
E
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 Appel-
late Assistant Commissioner and the Income-Tax Appellate Tribunal
dated May 15, I952 and March 3, 1957 respectively, a snm of
F
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 ·<>f 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 ' '
G
sum of Rs.2,01,146. 62 as income tax, and Rs.19,126.16 as Excess Pro·
fit 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
H Department in view of Section 297(2)(i) of the I.T. Act, 1961.
352
RAJA RAM KUMAR v. U.0.1. 353
~
The assessee filed a suit in the High Court for recovery of interest A
on the refunds of Income Tax and Excess Profit Tax claiming that the
• assessment for the year 1947-48 was completed the moment the assess-
ment 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 196 l Act.
c B

~-
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
f- civil suit was misconceived, for the Civil Court has no jurisdiction to
c
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. D

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 E
Leave to this Court.

t It was contended on behalf of the appellant-plaintiff that: (i) for
purposes of Section 297(2)(i) the assessment most be held to have been
completed not when the IfO made the initial order of assessment but
only when the assessment assumes finality in appeal; (ii) the scheme of F
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 nuder the 1922 Act, and (iii) the claim for interest based on G
~· Section 21 of the Excess Profit Tax Act, 1940 pre-eminently survives, as
Section 21 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 re-
/ peal of the 1922 Act. H
354 SUPREME COURT REPORTS [1988) 2 S.C.R.

A Allowing the Appeal in part,

HELD: l(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 I

B l(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. [360C I

0. RM. M. SP. SV. P. Panchanatham Chettiar v. Commissioner
of Income-Tax, Madras, 99 ITR 579 and CIT Bombay, Presidency &
C Aden v. Khemchand Ramdas, 6 ITR414referred 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
D with the assessment made in the case provided that if the 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." [360G-H; 361A)

2(b) This provision mandates the grant of interest, the discretion
E of the Commissioner being limited to the rate of interest only. [36tA-B I

Liquidators of Pursa Ltd. v. Commissioner of Income-Tax, Bihar
& Ors., 32 ITR 603 and Khushalchand Daga v. N.M. Joshi, 3rd
Income-Tax Office A-I Ward, Bombay & Ors., 130 ITR 180 approved.

F 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
G 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 '
H inherence. [3610-FI
l RAJA RAM KUMAR v. U.O.I. [VENKATACHALIAH, J.I

Secretary of State v, Mask & Co., AIR 1940 P.C. 105; K.S. Ven-
355

A
kataraman & 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.
B
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
l. 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] c
4. The judgment and decree in so far as they pertain to the dis-
missal of the suit concerning the claim of Rs.17 ,358 .87 is left undis-
turbed. 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 D
the appellant-plaintiff the said sum together with pendente-lite
interest and further interest at 6% per annum from the date of institu-
tion of the suit till realisation. [362F-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4034
of 1983. E
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.
F
S.C. Manchanda, K.C. Dua, S. Rajjappa and Ms. A. Subha-
shini for the Respondent.

The Judgment of the Court was delivered by

VENKATACHALIAH, J. This appeal, by special leave, by the G
legal representatives of Raja Ram Kumar Bhargava, the unsuccessful
l plaintiff, is directed against the Judgment and decre~, dated, 14.2.1980
,- of the ~igh 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 no. 372 of 1969 entered by the learned Single Judge of the High
Court. H
356 SUPREME COURT REPORTS [1988] 2 S.C.R.

A 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-
inafter referred to as the '1922 Act') on the refunds of the taxes. The
suit claim comprised of a sum of Rs. l, 17 ,358.87 sought by way of
interest on the refund of income-tax; and Rs.12,282.11 claimed as
B representing interest on the refund of Excess Profit Tax. The assess-
ments 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
c 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 Com-
D missioner 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-asscssee's case
that he met this obligation by raising funds from t!le Central
Bank of India Ltd. on the mortgage of his properties incurring
heavy liability towards interest on the mortgage loans.
E
3. However, the q1.1antum of both the taxes came to be substan-
tially 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 21 of Excess Profit Tax Act 1940 respectively giving
effect to the orders of the High Court in certain references under
F 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
<5 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
H Act 1940, appellant was entitled to claim interest on the refund of
RAJA RAM KUMAR v. U.0.1. [VENKATACHALIAH, J.) 357

taxes under circumstances contemplated by Section 66(7) of the '1922
Act'. But Section 297(2)(i) provided that: A
f

"(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 commence-
ment in the payment of any sum due under such completed B
assessment, the provisions of this Act relating to interest
payable by the Central Government on refunds and in-
terest 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 claim for interest was held to c
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 D
must be held to have been "completed" before the commencement of
the 1961 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. E

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 Section297(2)(i) of the 1961 Act was correct.
F
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
be noticed:

4. Whether this Court has jurisdiction to try this suit?
G
6. Whether the claim of the plaintiffs in the suit is governed by
the provisions oflncome-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 SUPREME COURT REPORTS [ 1988] 2 S.C.R.
J
A. " .... 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
B old Act and it cannot be said that the assessment had been
completed. As observed by the Supreme Court in Kalawati
)
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
c 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
D apply .... "

" .... I, therefore, hold that the claim of the plaintiffs is
governed by the provisions of the Income Tax Act 1922
"
E On issue no. 4, however, learned Judge held:

" .... The remedy of a civil suit, it seems to me, is miscon-
ceived, 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 pro-
F vides 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
G 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 Provi-
sions of the 1922 Act did not govern the' claim. As this appellate-
H finding was sufficient to support and sustain the decree of dismissal,
I

RAJA RAM KUMAR v. U.0.1. [VENKATACHALIAH, J.) 359

the appellate-Bench did not record any finding of its own on issue. 4. A
The Legal representatives of the deceased-plaintiff have come-up
• I with this appeal. ·

7. Shri Nariman, learned Senior Counsel, appearing in support
of the appeal, urged that the correct view which should commend itself B
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 c
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 CIT 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 D
and to the provisions of the Removal of Difficulties Order 1962 to
suggest that the expression "assessment completed before the comm-
encement of this Act" in the Section 297(2)(i) should not be so con-
strued 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 E
if the expression "assessment completed" in section 297{2)(i) is con-
• strued 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
~t

,
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 F
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 0. RM. M. SP. SV. P. Panchanatham Chettiar v. Com- G
missioner of Income-Tax, Madras, (99 ITR 579) but he urged, how-
ever, 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, H
360 SUPREME COURT REPORTS [1988] 2 S.C.R.

A 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 havmg ari-
B sen, this court held that an assessment would be a 'completed assess-
ment' within Section 279(2)(i) if the ITO had passed the order of
assessment prior to the coming into 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
1961 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
c becomes wholly-insupportable. The view taken by the Division Bench
of the Hi.gh 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
D Rs. l, 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 pot admit of such an easy exit.
Shri N ariman urged that this claim rested on an altogether different
E 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 opera-
tive notwithstanding the repeal of the 1922 Act and that, therefore, the
F 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.

G 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
H accordance with the assessment made in the case provided that if the
RAJA RAM KUMAR v. U.O.l. [VENKATACHALIAH, J.} 361

amount of assessment is reduced as a result of such reference, the A
amount over-paid shall be refunded "with such interest as the commis-
sioner may allow". Several High-Courts have taken the view that the
provision mandates the grant of interest, the discretion of the Commis-
sioner 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-1 Ward, B
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. C
The effect of clauses excluding the civil courts' jurisdiction are con-
sidered 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 D
& 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 ·uno-flatu and a finality is intended to the result of the
statutory proceedings, then, even in the absence of an exclusionary E
provision the civil courts' jurisdiction is impliedly barred. If, howev!!r,
a right pre-existing in common-law is recognised by the statute and a
new statutor; 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 F
extent, and on what areas and under what circumstances and condi-
tions, the civil courts' jurisdiction is preserved even where there is an
express clause excl•1ding their jurisdiction, are considered in
Dhulabhai's case.

) 10. It was suggested for the revenue that a civil-suit is clearly barred G
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 re-
course 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, H
362 SUPREME COURT REPORTS [1988] 2 S.C.R.

A 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 qualitati11e distinc-
tion 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
B with that of the first.

J
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
c 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
annuli". In the particular and special circumstances of this case, we
thought-and put it to the learned counsel-whether the interests of
D 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 th.e 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
E 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 sc. far as they pertain to the dismissal of the suit concerning the claim
ot Rs,1,17,358.87 is left undisturbed, this appeal is, however, allowed
F 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
th<1t part of the judgment and decree of the High Court pertaining to
this claim of Rs.12,282.11, the suit is decreed directin~ the res-
pondent-defendant to pay to the appellant-plaintiffs the aforesaid
sum of Rs.12,282.11 together with pendente-lite and further interest at
G 6% p.a. 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 al.lowed partly.