K.P. Balanarayana Marar, J.
1. Canara Bank, Ernakulam, is the petitioner in this original petition. The bank has been giving financial accommodation to the first respondent from October, 1972, onwards in order to enable them to execute various contract works undertaken by them. The first respondent had taken up contract work for FACT Engineering and Design Organisation and the Southern Railway. The total amount due to the bank from the first respondent under various accounts would come to more than Rs. 17 lakhs. On March 8, 1975, the first respondent executed an irrevocable power of attorney in favour of the bank by which the bank was authorised to receive payment of all amounts due and which may become due from the second respondent under various contract works and to appropriate such amounts in reduction of the advances given by the bank. The original power of attorney was forwarded to the second respondent and the same was registered in their office. Similarly, an irrevocable power of attorney was executed by the first respondent authorising the bank to receive payment of all amounts which may become due in respect of the contracts entered into between the first respondent and Southern Railway. The original power of attorney was forwarded to the third respondent and it was since then returned. It is averred in the petition that the powers of attorney constitute an equitable assignment of the amounts due or which may become due to the first respondent from respondents Nos. 2 and 3 and the bank was constituted the owners of those amounts. The bank was, therefore, entitled to receive payment of all amounts due to the first respondent from respondents Nos. 2 and 3: The bank has got a charge and a lien over those amounts.
2. The fourth respondent, the Income-tax Officer, B-Ward, Ernakulam, issued orders under Section 226(3) of the Income-tax Act calling upon respondents Nos. 2 and 3 to deposit the amounts due from them to the first respondent to the credit of the Central Government. These orders were issued on the basis that a sum of Rs. 1,03,148 was due from the first respondent towards arrears of income-tax. It is averred that the arrears of tax sought to be recovered is for a period subsequent to the execution of the powers of attorney. The ownership of the amounts having vested in the bank, the fourth respondent was not entitled to proceed against those amounts. The fourth respondent had no jurisdiction to issue the impugned order.
3. Two applications were filed before the fourth respondent requesting the Income-tax Department to revoke the notice issued by them pointing out the equitable assignment of the amounts in favour of the bank. Since no orders were passed on those petitions within a reasonable time, the bank moved this court by O. P. No. 4831 of 1976. By judgment dated July 13, 1977, this court directed the fourth respondent to dispose of the applications within two months. Thereafter, an order was passed on September 9, 1977, rejecting the petitions. Aggrieved by that order, the bank again moved this court by O. P. No. 4414 of 1977, pointing out that the order was vitiated by errors of law apparent on the face of the record. This court by judgment dated March 10, 1982, directed the Income-tax Officer to decide the question whether the petitioner has obtained an indefeasible right to the money by reason of the arrangement entered into between the bank and the first respondent. The matter was again considered by the Income-tax Officer who by order dated March 19, 1983, rejected the petitions. Aggrieved by that order, the bank has filed this original petition seeking a writ of certiorari or other appropriate writ, order or direction to quash the orders of the Income-tax Officer and for issue of a writ of mandamus directing respondents Nos. 4 and 5, the Income-tax Officer and the Commissioner of Income-tax, Ernakulam, to refrain from collecting amounts due from respondents Nos. 2 and 3 to the first respondent pursuant to the notices, exhibits P-5 and P-6, and also to direct them to pay over to the petitioner such sums as may have been collected by them on the basis of those orders.
4. In the counter-affidavit filed by the fourth respondent it is contended that the equitable assignments referred to in the petition are subject to the amounts due to the Central Government, that the bank does not have any priority or charge or lien over those amounts, that the arrears of tax sought to be recovered do not relate to periods subsequent to the execution of the powers of attorney and that the amounts did not cease to be payable to the first respondent and that the fourth respondent has jurisdiction and power to issue the impugned orders. In the additional counter-affidavit filed by the fourth respondent it is stated that the fourth respondent has so far collected Rs. 6,091 and Rs. 56,267 from respondents Nos. 2 and 3, respectively, in pursuance of the notices issued. No counter-affidavit is seen filed by respondents Nos. 1 to 3 and 5 in the original petition. An affidavit was filed by the first respondent in pursuance of the direction in C.M.P. No. 6470 of 1988, wherein mention is made about the value of the work order and stating that the second respondent is not in a position to give the exact dates on which the bills of the first respondent were passed. The affidavit further states that an amount of Rs. 6,091.86 outstanding to the credit of the contractor was remitted to the Income-tax Department on July 6, 1983. The second respondent expressed inability to trace the bills since they related to the year 1975. The third respondent has filed a statement with an annexure showing the details of the bills presented by the first respondent.
5. The learned single judge before whom the original petition came up for hearing felt that an important question of law has been raised in the original petition and adjourned the case to be heard by a Bench of two judges. That is how the matter is now before us.
6. Heard counsel.
7. The main question in this original petition is whether the powers of attorney, exhibits P-1 and P-3, dated March 8, 1975, and October 15, 1973, respectively, amount to an equitable assignment of the monies due to the first respondent who executed the powers of attorney in favour of the petitioner-bank authorising the bank to receive the monies and to adjust the same towards the amount borrowed by the first respondent from the bank. Before adverting to the arguments advanced on both sides, it is only appropriate to refer to the relevant recitals contained in exhibits P-1 and P-3.
8. The preamble of exhibit P-1 mentions about the agreements entered into between the first respondent and FACT Engineering and Design Organisation and the promise of the bank to extend financial assistance for the works undertaken by the first respondent. Thereafter, the document reads :
'We execute an irrevocable power of attorney in favour of all the said bank authorising them to receive payment of all moneys due to us as per bills signed by us and drafts (including earnest money deposit and retention amounts) and credit into our account in reduction of the money advanced. We, Tecon Engineers, Thiruvankulam, hereby agree and confer on the said bank irrevocable authority to receive proceeds of all bills, deposits and other money including earnest money and retention deposits as and when due to us by cheques direct from the FACT Engineering and Design Organisation or any other officer or officers of the name of the company making payments that may be executed by us in future and their receipts shall be complete discharge of the amounts due to us under the agreements and credit it to our account in reduction of the money advanced.'
9. Exhibit P-3, power of attorney, mentions about the agreement between the first respondent and the Southern Railway. That document also refers to the promise by the bank to extend financial assistance. The power of attorney thereafter recites thus :
'... We Tecon Engineers do hereby nominate and appoint the Canara Bank as our attorney in our name and on our behalf to do or execute that all or any of the acts or things thereinafter mentioned that is to negotiate and receive payment of all moneys due to us as per bills signed by us and drafts (including earnest money deposit and retention amounts) and credit it to our account in reduction of the money advanced, (2) to compromise, negotiate and receive proceeds of all bills, deposits as and when due to us by cheques direct from the Divisional Accounts Officer, Southern Railway/Construction/Trivandrum or any other officer or officers, (3) making payments that may be payable by us in future, (4) to issue receipts or discharge for payments as received and their receipts shall be complete discharge of the amounts due to us under the agreements.'
10. Intimation of both the powers of attorney was given to the respondents Nos. 2 and 3, respectively. Exhibit P-2 is the acknowledgment received from the second respondent and exhibit P-4, the acknowledgment received from the third respondent. It was thereafter that the fourth respondent by exhibit P-5, dated November 22, 1975, requested the second respondent to pay all monies which have become due and which the second respondent may hold for or on account of the first respondent to be paid to the fourth respondent towards arrears of income-tax payable by the first respondent. A similar notice was sent to the third respondent on November 12, 1975, as per exhibit P-6. The attempts of the petitioner to get these notices revoked by making representations to the Income-tax Department proved futile. That necessitated the filing of this original petition.
11. Sri T.R. Govinda Warrier, the learned senior advocate for the petitioner, contended that exhibits P-1 and P-3 amount to an equitable assignment of the amounts due to the first respondent from respondents Nos. 2 and 3. The bank has therefore an interest in the fund and exhibits P-1 and P-3 are irrevocable powers of attorney. On the other hand, it is urged by Sri P.K.R. Menon, the learned senior advocate appearing for respondents Nos. 4 and 5, that exhibits P-1 and P-3 are only pay orders and do not create an interest in the payee. It is his contention that the bank has no control over the money covered by the bills to be presented by the first respondent and he was not therefore competent to make an assignment in favour of the bank. Before proceeding further we have to understand the distinction between an 'actionable claim' or a 'chose-in-action' and a 'pay order'.
12. As per the definition contained in the Transfer of Property Act, an 'actionable claim' is a claim to any debt other than a secured debt or any beneficial interest in movable property not in the possession of the claimant. Section 130 enables the transferee of an actionable claim to sue or institute proceedings for the same in his own name without obtaining the transferor's consent and without making him a party thereto. The validity pf transferring a specific fund towards the payment of a debt incurred by the debtor cannot therefore be questioned. The specification of a particular fund points to an assignment whereas there is no such specification in the case of a pay order, which is only a mere direction to pay. The term 'actionable claim' means 'a claim to a debt'. A 'debt' ordinarily is a sum of money due from one person to another. That sum of money must be a liquidated or a certain sum which generally is due on some contract alleged to have taken place between the parties. The claim can, therefore, be over a specified fund which may either be liquidated or unliquidated or which may become liquidated on a future date. On the other hand, an order for payment of money presupposes that the party to whom the order is entrusted has in his hand the money of the drawer. Such money has to be applied according to the directions of the order of the party who is entitled to it. There is no such obligation in the case of an actionable claim. Keeping in mind the distinguishing features of an 'actionable claim' and a 'pay order', there is no difficulty in finding that exhibits P-1 and P-3 are not in the nature of pay orders whereas they are assignments of an actionable claim or a chose-in-action.
13. A 'chose' means a thing and a 'chose-in-action' means a thing in action. According to Halsbury, the expression 'chose-in-action' in the literal sense means a thing recoverable by action as contrasted with a 'chose-in-possession', namely, a thing of which a person has not only ownership but also actual physical possession. A chose-in-action is assignable and is treated as property under Chapter 8 of the Transfer of Property Act which calls it 'an actionable claim'. 'Actionable claim' means a claim to any debt other than a secured debt or a beneficial interest in movable property not in the possession of the claimant. Actionable claims include claims recognised by the court as affording grounds for relief either as to unsecured debts or as to beneficial interests in movable property. It is not necessary that the property is in the possession of the person concerned. Such possession may be actual or constructive, whether present or future, conditional or contingent. From very early times equity has recognised the assignment of chooses-in-action on the principle that equity considers that as done which ought to be done.
14. A chose-in-action can be in respect of a future claim also. At page 493 of Halsbury's Laws of England, Third edition, Fourth volume, it is stated that an assignment in terms present and immediate is sufficient, and will bind the subject-matter when it comes into existence, if it is of such a nature and so described as to be capable of being ascertained and there is consideration for the assignment. Such assignment is known as equitable assignment for which no form of words is required ; but it is necessary to specify the debt or fund which constitutes the equitable assignment. In order to make the equitable assignment binding as between the assignor and the assignee, it has to be communicated to the assignee, and on such assignment the right to sue passes to the assignee. He can thereafter sue in his own name without making the assignor a party to the action. It is not necessary that notice should be given to the debtor or fund holder. In short, the essentials of an equitable assignment is the intention to assign and the transfer of a debt with a direction to pay out of a specified debt or fund.
15. An actionable claim also is a claim to any debt, but that claim is to a debt other than a secured debt. A beneficial interest in movable property not in the possession of the claimant is also included within the definition of 'actionable claim'. A claim to a future debt also comes within the scope of the definition of 'actionable claim' contained in the Transfer of Property Act. But in order to validate a transfer of an actionable claim the only restriction imposed by Section 130 of the Transfer of Property Act is that it has to be done by an instrument in writing which necessarily includes a power of attorney also. In case a power of attorney is executed by the contractor in favour of a bank embodying an arrangement between the contractor and the bank according to which the bank agreed to advance monies to the contractor on the security of the bills and the contractor has given the necessary authority to the bank to collect the amount covered by those bills, the requirements of Section 130 of the Transfer of Property Act are complied with and the transferee gets a right over the amount covered by the bills on the principle of equitable assignment.
16. In support of his contention that exhibits P-1 and P-3 amount to an equitable assignment, Sri Warrier has drawn attention to the decision of the Supreme Court in Bharat Nidhi Ltd. v. Tdkhatmal [1969] 39 Comp Cas 114 ; AIR 1969 SC 313. The Supreme Court was interpreting a power of attorney which contained more or less identical recitals. In that case the power of attorney in favour of the appellant authorised him to sue for, recover and receive the monies due in connection with the contracts entered into by one Malhotra with military and other authorities. He needed funds for the execution of his contracts. The money was advanced by the appellant in whose favour the power of attorney was executed. It was declared (at page 116 of 39 Comp Cas ) :
'all powers hereby granted are and shall be irrevocable as long as any claims of the attorneys against us whether for principal, interest, costs, charges or otherwise, remain outstanding and unpaid.'
17. While construing the power of attorney the Supreme Court observed that it is necessary to bear in mind that the relationship of the two parties, Malhotra and the bank, was that of a borrower and lender and that the document was brought into existence in connection with a proposed transaction of financing of Malhotra's contracts. The loans were to be advanced by the bank against Malhotra's bills for supplies under the contract. The intention of the parties was to provide protection to the lender and to secure payment of the loans. It was with this object in view that the lender was authorised to receive payment of the bills and to appropriate the receipts towards repayment of the loans. The power of attorney authorised the appellant to receive all monies due or to become due to Malhotra in respect of pending or future contracts with the Government authorities. On the basis of these recitals the Supreme Court held that there was a valid equitable assignment of future debts and that the debt passes on to the assignee as and when it comes into existence. The Supreme Court repelled the contention that there was no engagement to pay out of a specific fund and, therefore, there was no assignment.
18. Before the Supreme Court a contention was raised that the document was only a pay order. This contention was also rejected by observing that an interest in a specific fund was created by the power of attorney and that it was irrevocable. It is observed that there is an essential distinction between a pay order and an assignment. A pay order is a revocable mandate. It gives the payee no interest in the fund whereas an assignment creates an interest in the fund and is not revocable. It was for these reasons that the Supreme Court held that there was a sufficient equitable assignment of a specific fund in favour of the appellant therein.
19. In this connection, Sri P.K.R. Menon has raised a contention that the Supreme Court was considering a case where there was an endorsement on the bill whereas it has not been shown that there is such an endorsement in the present case. But that does not make any difference. In the case considered by the Supreme Court the bill was endorsed in favour of the appellant. The Supreme Court has only read the endorsement in the light of the power of attorney. The recitals in the power of attorney were construed by the Supreme Court and it was held that there can be a valid equitable assignment of the future debts. The Supreme Court has also referred to Section 130 of the Transfer of Property Act under which an actionable claim can be transferred. In is further observed that where a document does not amount to a transfer within Section 130, it may, apart from and independently of the section, operate as an equitable assignment of the actionable claim. In the light of the principles laid down by the Supreme Court, the absence of an endorsement on the bill, even if there is any, does not make any difference.
20. On the question as to what constitutes an equitable assignment the Supreme Court has referred to Palmer v. Carey [1926] AC 703 (PC) at page 706, where it was held (at page 117 of 39 Comp Cas ) :
'The law as to equitable assignment, as stated in Rodick v. Gandell [1852] 1 De G M & G 763, is this: The extent of the principle to be deduced is that an agreement between a debtor and a creditor that the debt owing shall be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid equitable charge upon such fund, in other words, will operate as an equitable assignment of the debts, or fund to which the order refers.'
21. While observing that the question whether a document amounts to an equitable assignment or not is primarily one of construction, the Supreme Court followed the decision in Jagabhai Lallubhai v. Rustamji Nasarwanji [1885] ILR 9 Bom 311, where it was held that an agreement to finance the borrower and the power of attorney of even date to receive the monies due to the borrower under certain contracts had the effect of an equitable assignment of the funds. The Supreme Court has also followed an unreported decision of that court rendered on April 25, 1968, in C. A. No. 644 of 1965, Seth Loon Karan Sethiya v. State Bank of Jaipur (Ivan E. John)-since reported in [1968] 38 Comp Cas 760, where it was held that a power of attroney authorising a lender to execute a decree then passed in favour of the borrower or which might be passed in his favour in a pending appeal and to credit to the borrower's account the monies realised in execution of the decree amounted to an equitable assignment of the funds.
22. The Madras High Court in the decision in Navajee v. Administrator General of Madras [1913] ILR 38 Mad 500, held that when an instrument refers to specific funds out of which the claims of a creditor are to be satisfied, the creditor has a charge on such fund.
23. The question had come up for consideration before the Calcutta High Court in Lagdir Navji v. Surendera Mohun Nag, AIR 1938 Cal 606. It was held that no attachment could be made when there is no existing debt due by the garnishee to the judgment-debtor, and if the judgment-debtor has already parted with his interest in the debt by assignment or created an equitable charge in respect of the same in favour of another person, the attaching creditor acquires no larger rights than his debtor. It is further observed that in case the judgment-debtor still remains the owner of the money due by the garnishee, the mere fact that he has entered into a contract with another person that the fund shall be applied in any particular way does not prevent the creditor from attaching the fund. The Calcutta High Court referred to the law as to equitable assignment as stated by Lord Truro in [1852] 1 Dag M and G 763, Rodick v. Gandell in the following manner (at page 608 of 1938 AIR Cal) :
'... an agreement between a debtor and a creditor, that the debt owing shall be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order directing such person to pay such funds to the creditor, will create a valid equitable charge upon the fund, in other words, will operate as an equitable assignment of the debts or fund to which the order refers.'
24. It is then observed that this enunciation of law has never been dissented from. The test to be applied as per this decision is whether there was an intention to assign or create a charge which will give the assignee an equitable interest in the fund itself.
25. In Ninkileri Lakshmikutty Kettilamma v. Thokka Madathil Vishnu Nambisan, AIR 1939 Mad 411, the Madras High Court was considering an insurance policy assigned by the assured in favour of his wife by endorsement. The question arose whether the policy amount would form part of the assets of the assured and could be attached by the holder of a decree against the assured. A Division Bench of the Madras High Court held that the endorsement did not amount merely to a power of attorney or a transfer in future, but operated as a present transfer in favour of the assignee giving her an absolute interest in the same. There was thus no scope for the operation of the reverter clause. It was held that the policy amount did not form part of the assets of the assured and could not therefore be attached by the decreeholder.
26. Learned counsel for the petitioner cited the decision in Seth Loon Karan Sethiya v. State Bank of Jaipur (Ivan E, John) [1968] 38 Comp Cas 760, 763 ; AIR 1969 SC 73, wherein also the Supreme Court has considered the recitals in a power of attorney by which an equitable assignment was created. The Supreme Court formulated five questions for consideration of which the question relevant for our purpose is (at page 75 of AIR 1969 SC) :
'Whether in view of the said power the bank can be held to be an assignee of the interest in the decree ; if so, whether that assignment is a legal assignment or an equitable assignment ?'
27. The amount under the decree was specifically earmarked for discharge of the debts due to the bank and it was constituted as a special fund for the said purpose. The power to realise that fund was made over to the bank for further security to set off the amount realised towards the debt due to it. The Supreme Court observed that the power of attorney is an engagement to pay out of the particular fund the debt due to the bank and hence the same constitutes an equitable assignment of the amount due under the decree or so much of that amount as is necessary for discharging the debts due to it.
28. The only other decision cited by learned counsel for the petitioner is the decision of the House of Lords in Edward Tailby v. Official Receiver [1888] 13 AC 523 ; [1886-90] All ER Rep. 486). The point to be determined in that case was whether an assignment by way of security of certain book debts not existing at the time of the assignment was valid so as to give the assignee a good title to them when they came into existence. On this question Lord Herschell held (at page 530) :
'I confess I am unable to see any sound distinction between an instrument assigning future book debts which may become due to the assignor in any business carried on by him and one assigning future bequests and devises to which he may under any will become entitled. The subjects of both assignments are equally wide, equally incapable of ascertainment at the time of the assignment, but equally capable of identification when the subject has come into existence and it is sought to enforce the security.'
29. Lord Macnaghten in his judgment held (at page 543) :
'The mode or form of assignment is absolutely immaterial, provided the intention of the parties is clear. To effectuate the intention an assignment for value, in terms present and immediate, has always been regarded in equity as a contract binding on the conscience of the assignor and so binding the subject-matter of the contract when it comes into existence, if it is of such a nature and so described as to be capable of being ascertained and identified.'
30. Following the principles stated by the Supreme Court and agreeing with the views of the Madras, Bombay and Calcutta High Courts in the aforementioned decisions, we hold that exhibits P-1 and P-3 are irrevocable powers of attorney by which an equitable assignment was created in favour of the petitioner bank. An interest was created in favour of the bank over the monies due to the first respondent. Such interest relates to the amount then due and amounts accruing in future.
31. Drawing attention to page 1478 of Vol. II, 14th Edition of Mulla's Civil Procedure Code, learned counsel for the petitioner would point out that a debt may be a sum of money payable under an existing obligation or it may be payable at a future date. Even then it is a debt though accruing in future. The position may be different in the case of a contingent debt which has no present existence since it is payable only when the contingency happened. The amounts due from respondents Nos. 2 and 3 are not in the nature of a contingent debt whereas it is a debt accruing in future. That also is a debt which can be proceeded against under Rule 46 of Order 21. We are, therefore, of the view that a transfer of the amounts due to the first respondent from respondents Nos. 2 and 3 had been made in favour of the petitioner-bank which can be enforced against respondents Nos. 2 and 3. Over the amounts due to the bank no other person can have any claim since an interest has already been created in favour of the bank and the bank had become the owner thereof.
32. In view of our finding that the interest has already been created in favour of the bank, the fourth respondent cannot have any claim over those amounts. The income-tax liability of the first respondent cannot therefore be enforced over the amounts which had already been transferred in favour of the bank. Notices, exhibits P-5 and P-6, are, therefore, liable to be quashed and we do so. We hereby issue a writ of mandamus directing respondents Nos. 4 and 5 to refrain from collecting amounts due from respondents Nos. 2 and 3 to the first respondent pursuant to exhibits P-5 and P-6.
33. Learned counsel for respondents Nos. 4 and 5 has raised a contention that exhibits P-1 and P-3 can be enforced only from the date of acceptance. Exhibit P-1 was accepted on April 10, 1975, and exhibit P-3 on May 20, 1974 (sic). The contention is that the Revenue has got a priority over the money due between the dates of exhibits P-1 and P-3 and the date of acceptance. This amount, according to learned counsel, comes to Rs. 24,000 approximately. The acceptance of the power of attorney has taken place months after it was executed. After executing the power of attorney the first respondent had forwarded the document to respondents Nos. 2 and 3, respectively. That they accepted it at a later date is no reason to hold that the fourth respondent gets a claim over the money which became due between the date of the power of attorney and the date of its acceptance. By exhibits P-1 and P-3 executed on March 8, 1975, and October 15, 1973, respectively, the first respondent had authorised the bank to receive all monies due to the first respondent. A transfer of interest has, therefore, taken place by execution of the power of attorney. The intention to create security has been manifested by producing the powers of attorney before the petitioner-bank. Communication is sent to the debtors, namely, respondents Nos. 2 and 3 in order to inform them about the execution of the power of attorney so as to enable the debtors to make payment to the bank on behalf of the contractor-first respondent. The acceptance of the power of attorney by respondents Nos. 2 and 3 is, therefore, of not much consequence and no claim can therefore be made by the fourth respondent over amounts which became due between the date of the power of attorney and its acceptance. This contention is therefore without substance.
34. The claim is made in the original petition for payment of the amount received by the fourth respondent from respondents Nos. 2 and 3. It is admitted that an amount of Rs. 6,091 was received from the second respondent and an amount of Rs. 56,267 from the third respondent making up a total of Rs. 62,358. These amounts were received by the fourth respondent at a time when those amounts were due to the bank on the strength of exhibits P-1 and P-3. The fourth respondent was, therefore, not entitled to get those amounts. They are liable to pay over the same to the petitioner. Since the fourth respondent had retained with him the amount to which he is not legally entitled, interest on the amount is payable. We deem it proper to direct the fourth respondent to pay interest on the amount at the rate of 15 per cent. per annum from the date of the filing of the original petition.
35. For the aforesaid reasons, the original petition is allowed and exhibits, P-5 and P-6 notices issued by the fourth respondent on November 22, 1975 and November 12, 1975, are quashed. We direct respondents Nos. 4 and 5 to refrain from collecting amounts due from respondents Nos. 2 and 3 to the first respondent. The fourth respondent is directed to pay the petitioner an amount of Rs. 62,358 with interest at 15 per cent. from June 29, 1983, the date of presentation of this petition till the date of payment. We direct the parties to suffer their costs.