Punjab-Haryana High Court
Sukhwinder Singh vs Ashok Kumar on 20 May, 1997
Equivalent citations: (1997)117PLR114
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. Being aggrieved by the Appellate Authority's Order dated 29.3.1996, the tenant-petitioner filed Civil Revision No. 1609 of 1996 in the High Court.
2. Brief resume of the case is that the landlord-respondent filed an ejectment petition Under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (in short, 'the Act') against the tenant petitioner averring that the tenant is occupying the demised shop at a monthly rent of Rs. 650/- under the rent note executed by him on 16.2.1987. The tenant has not paid rent and house-tax since 1.5.1994. Thus, his ejectment was sought on account of rental arrears.
3. Tenant-petitioner admitted that the rate of rent is Rs. 650/- per month, but he denied other allegations.
4. On December 12, 1994, the tenant-petitioner tendered rent at the rate of Rs. 650/- per month and house tax at the rate of Rs. 90/- per month for the period from 1.5.1994 to 31.12.1994, interest at the rate of 6 per cent per annum amounting to Rs. 15/- and Rs. 100/- as costs of litigation, totalling Rs. 6035/- to the paid to the landlord-respondent. The Rent Controller held that the tenant has tendered excess rent, though the amount of interest is short, but it can be adjusted from the excess amount and hence, tender made by the tenant was not held to be short and invalid. Thus, the ejectment petition was dismissed.
5. Landlord-respondent filed appeal before the Appellate Authority. The Appellate Authority relying on Smt. Daropati Devi v. Sohan Lal and Anr., 1984(1), RLR 414, held that the tender made by the tenant on the first date of hearing from May 1, 1994 to December 31, 1994 cannot be appropriated for any other purpose, much less for its appropriation towards interest which is concededly short. He also distinguished the judgment of this Court in Siri Ram v. Dharam Singh and Ors., 1982(1) RLR 254 holding that judgment was given in 1968 and further Sections 59 to 61 of the Contract Act were not adverted to therein.
6. During arguments of the aforementioned civil revision, the tenant-petitioner's learned counsel relying on Pritam Singh v. Smt. Sibo, (1980)82 P.L.R. 577; Moti Lal v. Smt. Santosh Human, (1989-2)96 P.L.R. 21; Joginder Singh v. Harbhajan Singh, (1989-2)96 P.L.R.237; Lal Chand v. Madan Lal, 1987(2) R.L.R. 485, Prem Chand v. Amar Nath, 1977(2) R.L.R. 72, Sada Nand v. Saroj Devi, (1978)80 P.L.R. 445 and Siri Ram's case (supra), contended that admittedly in this case the tenant-petitioner has deposited Rs. 6035/- to be paid to the landlord. Rent petition was filed on 9.8.1994. The landlord claimed rental arrears from 1.5.1994. Under the provisions of the Act the landlord could have demanded rental arrears only upto June 1994, as rent of July 1994 was payable by the end of August 1994, but he tendered rent along with house-tax from May 1, 1994, to December 31, 1994. Even if there was short deposit in so far as interest was concerned, the landlord should have adjusted the excess amount deposited towards rental arrears to make good the short deposit of interest.
7. Landlord-respondent's learned counsel relying on Smt. Daropati Devi's case (supra), contended that so far as tender of arrears of rent is concerned, the tenant pointedly specified that the arrears tendered are for the months upto the date of first hearing; therefore, the Court had no right to appropriate the excess amount which is deposited under the head of rental arrears to clear up the short deposit under the head of interest.
8. The Single Judge, while hearing the said revision, considered various authorities cited by the petitioner's counsel and observed that in two Single Bench judgments (Daropati Devi and Bansi Lal's cases), referred to above, the provisions of Sections 59 to 61 of the Contract Act are considered and made applicable in rent petitions. Other High Courts have also considered these provisions of the Contract Act along with the provisions of Rent Act. Thus the legal question was posed;-
If the tenant while tendering amount of rent, house-tax, interest and costs makes a direction for appropriation and if the amount deposited under any particular head falls short, whether the amount which is found in excess under any other head, can be adjusted towards the said short deposit either by the Court or by the landlord.
9. Thus, it has come before the Division Bench.
Before us also both the learned counsel cited catena of authorities. Tenant-petitioner's learned counsel contended that there is consistent view of this High Court that if the tenant tenders any amount on the first date of hearing specifying various heads under which it is being tendered and if the excess amount is deposited under one head and deposit under another head falls short, the excess amount ran be adjusted towards short deposit. He also contended that Section 59 of the Contract Act can be invoked only when there are several debts and not for one debt. If the rental arrears can be said to be a debt, interest accruing thereon cannot be said to be an independent debt; house-tax is a part of rent only; therefore, interest and rental arrears are not two distinct debts.
10. Landlord-respondents' learned counsel argued with all vehemence at his command that the rental arrear is a debt, interest is made payable Under Section 13(2)(i) of the Act. Section 13 unlike Section 9 of the Act, does not start with non-obstante clause; therefore, provisions of the Contract Act are applicable while deciding the rent petitions under the Rent Act.
11. He also made it clear that concededly in this case there was short deposit under the head of interest though there was excess deposit under the head of rent, but in view of the provisions of Sections 9 to 61 of the Contract Act since the tenant-petitioner has given directions as to how an amount of Rs. 6035/- is to be appropriated towards rental arrears, interest and costs, neither the landlord nor the Court is entitled to adjust the excess amount deposited under the head of the rental arrears against short deposit of interest.
12. Having given anxcious considerations to the rival contentions, we find that on the express language of Section 13 of the Rent Act along with other provisions of this Act, the views taken by the learned Single Judge of this High Court in Daropati Devi's case (supra) cannot be sustained for the reasons herein after given.
13. Before embarking on deciding whether in such rent petitions, when a tenant deposits rental arrears, interest and costs of the petition to be paid to the landlord with certain directions and he claims adjustment of amount deposited under one head, if it is in excess in another account, where it is short, we are required to consider what is legal connotation of rent, interest as well as of debt. Section 105 of the Transfer of Property Act, 1882 defines lease as well as rent.
14. A lease of immovable property is a transfer of right to enjoy such property, made for certain time, express or implied, or in perpetuity, in consideration of a price, paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
15. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or thing to be so rendered is called the rent. The Rent Act 1949 has not defined the rent though it has defined the tenant.
16. The classical definition of 'debt' is to be found in Webb v. Stenton, (1883) 11 Q.B.D, 518, where Lindley, L.J., said, " .... a debt is a sum of money which is now payable or will become payable in the future by reason of a present obligation". There must be debitum in praesenti; solvendum may be in praesenti or in futuro-that is immaterial. There must be an existing obligation to pay a sum of money now or in future. The following passage from the judgment of the Supreme Court of California in People v. Arguello, (1869) 37 Calif. 524, which was approved by the Supreme Court in Kesoram Industries v. Commissioner of Wealth-tax, (1996)2 S.C.R. 688: AIR 1966 S,C. 1370, clearly brings out the essential characteristics of a debt:
"Standing alone, the word 'debt' is as applicable to a sum of money which has been promised at a future day as to a sum now due and payable, if we wish to distinguish between the two, we say of the former that it is a debt owing, and of the latter that it is a debit due"- Union of India v. Raman Iron Foundery, A.I.R. 1974 S.C. 1265 at P. 1271.
17. In the Interest Act, "debt" is defined, which means any liability for an ascertained sum of money and includes a debt payable in kind, but does not include a judgment debt.
18. Now it has to be considered whether the rental arrears can be called debt in stricto sense of the term. In Paras Nath v. Krishan Lal, AIR 1965 Allahabad 189 a Single Bench has held that when rent has accrued and has not been paid, a debit arises between the landlord and the tenant. In Ranjit Singh v. K.K. Sikand and Anr., (1995-3)111 P.L.R. 641 also a Single Bench of this High Court has held that right to recover the rent was in the nature of a debit. There is no dispute with this proposition, but it is a debt in the common parlance and not under Contractual law in stricto senso.
19. No doubt, unlike Section 9, Section 13 of the Act does not start with non-obstante clause; therefore it can be argued that provisions of Sections 59 to 61 of the Contract Act cannot be held to be inapplicable so far as rent petitions are concerned. But before invoking these provisions of the Contract Act in the rent petitions it is also essential to consider when provisions of Section 59 of the Contract Act can be made applicable in a particular case. Section 59 provides as under :-
"Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly."
20. In Ha Ram v. Sulakhan Mal, (1941)43 P.L.R. 521, a Full Bench of Lahore High Court has held that "Sections 59 to 61 embody the general rules as to appropriation of payments in cases where a debtor owes several distinct debts to one person and voluntarily makes payment to him. They do not deal with cases in which principal and interest are due on a single debt, carrying interest on the sum adjudged to be due on the decree."
21. In Wasudeo Ramchandra and Anr. v. Namdeo Ganpatrao, A.I.R. 1951 Nagpur 155 also it is held that "the debtor gets Under Section 59 the right of appropriation only when there are several distinct debts owned by him. The arrears of land revenue and the costs incurred in its recovery are not two distinct debts. As they form a single debt, the debtor has no right of appropriation under this section."
22. Admittedly, the tenant-petitioner executed a rent note in favour of the landlord-respondent on 16.2.1987, but it has not the case of either party that under the rent note also the tenant is liable to pay interest if the rent is in arrears. Hence, it is not a case where under a contract the tenant is liable to pay interest on the accumulated amount of rental arrears.
23. Under Section 13(2)(i) of the Act if the tenant on the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. Under this proviso if the tenant tenders or pays rental arrears along with interest and costs, he is not liable to be ejected. Thus, the liability to pay interest on the rental arrears is imposed on the tenant under this statute. It is not a contractual liability. Thus, it is apparent that the liability to pay interest is a consequence of tenant's inability to pay rental arrears. If the tenant is not in rental arrears, he is not liable to pay interest at all. Accordingly, in our considered view, payment of interest directly flows from the tenant's liability to pay the rental arrears and in this context, it cannot be held that the payment of interest is an independent debt, though, no doubt, payment of rental arrears is a debt in common parlance. Hence, in our considered view, payment of interest along with the payment of rental arrears constitute only one debt. Resultantly, we hold that due to non-payment of rental arrears, the tenant incurs liability of payment of interest which is part and parcel of a single debt.
24. Even provisions of Interest Act cannot be made applicable in such petitions. Interest is not defined in the Rent Act. Interest is not even defined in the Interest Act, 1978. As per Black's law Dictionary interest stands for :- Legal interest. That rate of interest prescribed by the laws of the particular state or country as the highest which may be lawfully contracted for or exacted, and which must be paid in all cases where the law allows interest-without the assent of the debtor.
25. If under the Contract Act, tenant is not made liable to pay interest on the accumulated rental arrears, landlord has no legal right to claim interest apart from whatever he can claim under the provisions of the Rent Act. Under Section 13(2)(i) statutory liability is carved out for the tenant to pay interest at the rate of 6 per cent per annum on the rental arrears which are due/payable under this provision.
26. Further in this connection, it is also pertinent to mention that the liability to pay interest on the amount of rental arrears flows from the provisions of the said statute and not from the contract of tenancy; therefore also, in our considered view, provisions of Section 59 of the Contract Act cannot be made applicable while deciding the rent petitions under the Act. While deciding such a question of law, the object and purpose of the enactment of the Rent Act should also be kept in mind. The object and purpose of this Act is to restrict the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants there from. Hence, every provision of this Act is to be interpreted keeping the said object in mind. It is a beneficial legislation in favour of the tenant. When any default is committed by the tenant in tendering/paying rental arrears in Court alongwith interest and cost, but unless the Court finds him guilty of wilful default his eviction can not be ordered. Keeping the object of the Act in view, a pragmatic view is to be taken of such facts.
27. Consistent view of this High Court has been : if the excess amount is deposited/tendered by the tenant under one head and if there is short deposit under another head, the excess amount can be adjusted towards the short deposit. Reference can be made to Prem Chand v. Amar Nath, 1977(2) R.L.R. 72; Punjab State Electricity Board v. Tek Chand, (1982)84 P.L.R. 219; Joginder Singh v. Harbhajan Singh, (1989-2)96 P.L.R. 237; Daya Wanti v. Parshotam Dass, (1981)83 P.L.R. 717-Pritam Singh v. Smt. Sibo, (1980)82 P.L.R. 577 and Amlok Singh v. Dalip Singh, 1996(2) R.L.R. 46.
28. Whether the provisions of Section 59 of the Contract Act can be invoked while deciding rent petitions under the Act? The question was posed in Laxman Dass v. Satya Pal, 1988 Current Law Journal 530 because in that case also excess tender was made under the head of 'arrears of rent' and there was short tender on account of interest. The tenant pleaded that when the amount was tendered, the rent for the month of September, 1962 was not due. The learned Judge held "I am not for a moment prepared to agree that any statement made with regard to the payment of amounts in the terms and under that proviso wilt attract the provisions of Section 59 of the Contract Act and debar a tenant from subsequently showing that he has made a mistake and on actual calculation the truth is that he has fully complied with the proviso. But it is not necessary to go into the question in the present case." The question was left open in that case because the real dispute in that case when the rent became due and when it was payable under the provisions of the Act? The learned Judge held that the rent for the month of September became due at the end of month of September, 1962 but it was payable by October 31, 1962 and the whole of the day of October 31, 1962 would be available to the tenant to make the payment in view of the provisions of Section 13(2)(i) of the Rent Act.
29. In Mahboob Bee v. P.D. Andrews, 1988(2) R.L.R. 791 the provisions of Section 59 to 61 of the Contract Act were considered by a Single Bench of Madras High Court while deciding a case under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It is held that it is well established principle that if a series of separate debts exists between a creditor and a debtor, the debtor may make payment towards any one of them as he may deem fit and if he specifically appropriates the payment to particular debt, the creditor is not entitled to accept the payment otherwise than in respect of the debt to which it is so appropriated by the debtor. In that case tenant was owing rent for different periods. He made payment specifically appropriating the same for particular period. Landlord accepted the same. Hence, it was held that the Landlord accepted the payment, he is bound to appropriate the same according to the directions of the debtor.
30. A Single Bench of this High Court in Smt. Daropati Devi's case (supra), held that "arrears of rent falls within the term 'debt'. Provisions of Sections 59 to 61 of the Contract Act are attracted. Tender of arrears of rent made by tenant pointing out specifically that the arrears tendered for specified months upto the date of first hearing, though in law tender has to be upto the date of filing of the application but this excess amount cannot be adjusted towards arrears of rent as the amount has to be appropriated according to the directions of the debtor-tenant. In that case on first date of hearing before the Rent Controller, i.e., 30th September, 1977, tenant tendered Rs. 5,220/- as rent for the period October 1, 1976 to September 30, 1977, at the rate of Rs. 435/- per month, Rs. 170/- on account of interest and Rs. 30/- as costs; the total being Rs. 5,420/-. Admittedly rent for the month of September, 1976 was not tendered/paid. The tenant prayed that on the date ejectment petition was filed rent of September, 1977 was not due, but the learned Single Judge held that according to the provisions of Sections 59 to 61 of the Contract Act, the appropriation of the payment made by the debtor had to be made by the creditor in accordance with the statement of the debtor and not according to the choice of the creditor. The counsel for the respondents has specifically tendered the arrears of rent for the period October 1, 1976 to September 30, 1977 and neither the petitioner nor the Court have utilised the portion of this tender to cover the rent for the month of September, 1976, which was due. Thus, due to this default ejectment order passed by the Rent Controller was affirmed.
31. Earlier to this judgment in Bansi Lal v. Sant Ram, (1975)77 P.L.R, 192, a Single Judge of this High Court also considered these provisions vis-a-vis the provisions of Section 13(2)(i) of the Rent Act and he held that. Section 59 of the Contract Act deals with those cases where there are several distinct debts. So far as the interest is concerned, it is always linked up with the principal amount and cannot be regarded as a debt distinct and separate from the principal. When an amount as arrears of rent and interest thereon is paid on the first hearing as required by Section 13(2)(i) proviso of the East Punjab Rent Restriction Act, but it is found that the sum paid as rent was more than due, but the sum paid as interest was less that the due, the excess amount paid as rent can be adjusted towards the payment of rent. This authority was not considered by Surinder Singh, J. in Smt. Daropati Devi's case (supra).
32. In Amolak Singh v. Dalip Singh, 1966(2) R.L.R. 46, it was observed that "this Court in Jaswant Rai v. Devi Dass, 1975 R.C.J. 698 held that if the tenant had already paid more amount that was due to him on the date of eviction application, excess amount with the landlord could be adjusted towards payment of interest and costs and he would not be liable to be ejected on that ground. This view was accepted by Division Bench of this Court in Pritam Singh's case (supra). The facts of that case were that the interest was not tendered. If the rent for the month of August, 1990 was to be adjusted towards the payment of interest, the tenant would not be in arrears of rent and consequently the landlord would not be entitled to eject him on the ground of non-payment of rent. The learned Single Judge held that "the judgment rendered in Daropati Devi's case (supra) is of no help to the respondent in view of the Division Bench judgment of this Court in Pritam Singh's case (supra).
33. In none of the judgments provisions of Section 8 of the Rent Act, 1949 are considered. Section 8 runs as under :-
"Where any sum has, whether before or after the commencement of this Act, been paid which sum is by reason of the provision of this Act irrecoverable, such sums all at any time within a period of six months after date of the payment made before the commencement of this Act, within six months after the commencement thereof, be recoverable by the tenant by whom it was paid or his legal representative from the landlord who received that payment of his legal representative, and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within such six months by him to such landlord.
(2)In this section the expression "Legal representative" has the same meaning as in the Code of Civil Procedure, 1908 and includes also in the case of joint family property, the joint family of which the deceased person was a member."
34. A bare perusal of this Section makes it clear that where any sum has been paid, which is not recoverable under the provisions of this Act, such sum shall within a period of six months after the date of payment be recoverable by the tenant by whom it was paid from the landlord who received the payment and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within such six months by him to such landlord. This provision clearly enacts the course to be adopted in case of any excess amount paid by the tenant to the landlord. If the tenant under some mistake pays any amount in excess which the landlord is not entitled to recover, provision of Section 8 of the Act imposes a legal obligation on the landlord to refund the excess amount to the tenant and the right is given to the tenant that he may direct that the said excess amount be adjusted from any rent payable by him within six months to such landlord.
35. Section 7 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 also provides such a procedure. This Section 7 of the Tamil Nadu Act is interpreted by the Apex Court in Narasimha Rao v. T.M. Nasimuddin Ahmed, J.T. 1996(3) S.C. 181 :
"The proviso to Clause (a) permits the landlord to receive by way of advance an amount not exceeding one month's rent only i.e. Rs. 150/- in the present case. Clause (b) provides for the situation where any sum is paid by the tenant to the landlord in excess of the agreed rent save as provided in Clause (a), i.e. any sum paid in excess of the agreed rent and an amount not exceeding one month's rent by way of advance. Clause (b) enacts that the amount in excess of the sum which the landlord is permitted to take Under Clause (a) shall be refunded by the landlord to the person by whom it was paid, i.e., the tenant, or at the option of the tenant, shall be otherwise adjusted by the landlord. In other words, Clause (b) requires that the excess amount paid to the landlord has to be refunded by the landlord to the tenant unless the tenant exercises the option of requiring the landlord to otherwise adjust the excess amount. It is clear that this excess amount available with the landlord is only for the benefit of the tenant, the liability to refund the amount to the tenant being immediate unless the tenant exercises the option to get it adjusted otherwise. The character of the excess amount undoubtedly is that it is the tenant's money in the hands of the landlord for return to the tenant or for adjustment towards the dues of the tenant, at the tenant's option. Any other stipulation in contravention to it has no legal effect being null and void."
"The provision clearly enacts the course to be adopted in the case of any excess amount being paid by the tenant to the landlord, taking into account the factor that the tenant in certain circumstances may be compelled to make payment as advance of an amount in excess of that required to be paid to the landlord according to law. For that situation the provision imposes the legal obligation on the landlord to immediately refund the excess amount to the tenant unless the tenant exercises the option of requiring the landlord to adjust that amount towards any dues of the tenant or in any other manner indicated by the tenant. This provision has the effect of creating a corresponding enforceable right in the tenant to recover the excess amount from the landlord or to have it adjusted for his benefit in case the landlord fails to discharge his obligation of refunding that amount. The provision of adjustment of the excess amount at the option of the tenant clearly visualises its adjustment towards the rent due from the tenant since the jural relationship envisages payment only of rent by the tenant to the landlord towards which it can be adjusted."
"There is no illegality attaching to the payment of the excess amount by the tenant to the landlord and a legally enforceable right clearly flows from the provision to the tenant. The pari delicto principle is, therefore, clearly excluded for the purpose of envisaging the consequences of an excess amount being taken by the landlord from the tenant because the provision requires the landlord to refund that excess amount."
36. In this case the tenant on the first date of hearing deposited Rs. 6,035/-specifying arrears of rent from 1.5.1994 to 31.12.1994 at the rate of Rs. 650/- per month, house tax at the rate of Rs. 90/- per month; interest at the rate of 6 per cent per annum, amounting to Rs. 15/- and Rs. 100/- as costs of litigation. The rent petition was filed on 9.8.1994; therefore till the filing of the rent petition, the landlord could have claimed rent from the tenant for the months of May and June only amounting to Rs. 1320/- and Rs. 45/- as interest thereon, though in fact, the tenant deposited Rs. 5,920/- under the head of rental arrears.
37. Section 6 of the Rent Act mandates that save as provided in Section 5, when the Controller has fixed the rent of the building or rented land Under Section 4 :-
(a) "the landlord shall not claim or receive any premium or other lump sum in addition to fair rent or any rent in excess of such fair rent, but the landlord may stipulate for and receive in advance an amount not exceeding one month's rent;
its Clause (b) provides that :-
(b) "any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void."
38. Thus, it is obvious that the landlord is not entitled to recover anything beyond the rent which became due and also which became payable by the tenant under the provisions of this Act and Under Section 6 he can at the most recover one month's rent as rent in advance, but if the landlord receives more rent then what is due/payable under the Act and also which is more than one month's rent in advance, then Under Section 8 of the Act the landlord is under legal obligation to return that amount to the tenant by whom it was paid to him and the tenant is also given a right to claim its adjustment against any rent due payable by him within six months to the landlord.
39. In Pritam Singh v. Smt. Sibo, (1980)82 P.L.R. 577 the tenant on the first date of hearing did not tender rent for December, 1975, which was due from him, but tendered rent for January, 1976, which was not due. On these facts, it was held that tenant is not liable to ejectment and landlord is under obligation to adjust such rent for December, 1975. Thus, approving the view expressed in Bansi Lal's case (supra) and the law laid down in Pritam Singh's case (supra) the judgment delivered in Daropati Devi's case (supra) is hereby over-ruled, reference is answered thus:-
40. The arrears of rent is a debt in common parlance, but payment of interest on rental arrears flows from tenant's liability to pay rental arrears thus, they constitute only one debt and not two distinct debts. Therefore, provisions of Section 59 of the Contract Act are not attracted in such cases and further on the count that the payment of interest on rental arrears Under Section 13(2)(i) proviso is not based on contractual liability, as it flows from the provisions of this statute. If the tenant tenders rental arrears, interest and costs with a direction for appropriation and if the amount deposited under a particular head falls short, while the amount deposited under another head is in excess, the tenant is entitled to claim adjustment of such excess amount towards such short deposit and on this count, he is not liable to ejectment.
41. Lastly, both the learned counsel conceded before us that if reference is answered in favour of the petitioner-tenant, the revision may be allowed. Resultantly, Civil Revision No. 1609 of 1996 is hereby allowed. No order as to costs.