BHUPINDER SINGH versus UNITECH LIMITED

[2023] 4 S.C.R.

BHUPINDER SINGH

UNITECH LIMITED

(I.A. Nos. 88960 of 2020 & 47525 of 2021)

(Civil Appeal No. 10856 of 2016)

MARCH 23, 2023

[DR. D. Y. CHANDRACHUD, CJI AND M. R. SHAH, J.]C

Doctrines/Principles – Principle of Restitution – Pursuant tothe earlier orders passed by Supreme Court, dispute w.r.t the saleconsideration in respect of the land in question owned by ‘UL’ infavour of M/s. ‘DGS’, an LLP came to be confirmed in favour of‘DGS’ – As per ‘UL’, since it was the absolute owner of the land inDquestion therefore entitled to the entire sale consideration however,it received only part of it and the balance amount was ordered tobe paid to the respondents who were not entitled – Held: Pursuantto the earlier order(s), it appears that solely on the basis of thereport submitted by Justice Dhingra Committee on the basis of anEMOU and without adjudicating the rights of the respective parties,Supreme Court passed order directing to pay the balance amountto the respondents out of sale proceeds of the land sold to ‘DGS’ –There was no adjudication on the entitlement of the amount paid tothe respondents which is seriously disputed – Thus, there was anobvious error and/or mistake on the part of Supreme Court – TheFact of the Court shall prejudice no one and in such fact situation,the Court is under an obligation to undo the wrong done to partyby the act of the Court – Any undeserved or unfair advantage gainedby party invoking the jurisdiction of the Court must be neutralized,as the institution of litigation cannot be permitted to confer anyGadvantage on suitor by the act of the Court – Respondents toreturn the amount and deposit the same with interest in the Registryof Supreme Court – actus curiae neminem gravabit.

Indore Development Authority Vs. Manoharlal andOthers (2020) 8 SCC 129 : [2020] 3 SCR 1 – followed.

BHUPINDER SINGH v. UNITECH LIMITED

Case Law Reference

[2020] 3 SCR 1followedPara 5.1

CIVIL APPELLATE JURISDICTION: I.A. Nos. 88960 of 2020& 47525 of 2021 in Civil Appeal No. 10856 of 2016.

From the Judgment and Order dated 30.09.2016 of the NationalConsumer Disputes Redressal Commission Bench No.3, New Delhi inExecution Petition No.131 of 2016 in Consumer Complaint No. 1279 of2015 (Execution).

Pawanshree Agrawal, (A.C.), Varun K. Chopra, Advs.

Siddhartha Dave, Sr. Adv., Deepak Goel, Vishal Gosain, AnuroopChakravarti, Ms. Ranjeeta Rohatgi, Mrs. Samten Doma, Ms. AarushiSingh, Abhishek S More, Nitin V Nagar, Ms. Anubha Agrawal, JoshuaSamuel, Sahil Tagotra, Abhishek Pandey, Dr. J. P. Dhanda, Ms. RajRani Dhanda, Asokh Vasishtha, Advs. for the Appellant.

K.M. Nataraj, Ms. Madhavi Divan, ASGs, Lokesh Sinhal, SushilKumar Sharma, Sr. AAGs, B. K. Satija, AAG, Ravindra Kumar, NikhilNayyar, Rajiv Dutta, Mrs. Garima Prashad, Deepak Nargolkar, Sr. Advs.,Pawanshree Agrawal, Binay Kumar Das, Ms. Priyanka Das, Ms. NehaDas, Shreekant Neelappa Terdal, Suhashini Sen, T. A. Khan, Anish Kr.Gupta, Chinmayee Chandra, Siddhant Kohli, Dr. N. Visakamurthy,Himanshu Satija, Sanjay Kumar Visen, Ms. Anubha Agrawal, NaveenHegde, Ms. Mansi Binjrajka, Ms. Pritha Srikumar, Brijesh Kumar Tamber,Nitin Saluja, Sanuj Das, P. R. Ramasesh, Nihant Panicker, N. M.Theerthegowda, Rajendra Koushik A.C., Ankolekar Gurudatta, KamalMohan Gupta, K. Parameshwar, Ms. Arti Gupta, Ms. Kanti, Dr. AshutoshGarg, Ms. Rakhi Ray, Sureshan P., Vishnu Sharam, Rajesh Singh, SyedJafar Alam, Abhinav Mukerji, Mrs. B. Sunita Rao, Sumit Kumar, SriramP., Ragunath, M. P. Vinod, Rajiv Mehta, Rajesh Kumar Gautam, AnantGautam, Sumit Sharma, Vipin Kumar, Ritesh Chopra, Sarad KumarSinghania, Ansar Ahmad Chaudhary, Ms. Madhusmita Bora, S. Rajappa,Roopansh Purohit, T. Mahipal, Somanatha Padhan, Tarun Gupta, AnuragDubey, Ms. Anjali Tiwari, Bhupender Kumar Bharadwaj, S. R. Setia,Vikram Singh, Vivek Singh, A. Karthik, Raj Kamal, Ms. Misha Rohatgi,Manish Kumar Gupta, Neeraj Kumar Gupta, Hrishikesh Baruah, Ms.Sunieta Ojha, Ms. Aswathi M. K., Gaurav Goel, Jay Kishor Singh, ArjunHarkauli, M. R. Shamshad, Anirudh Sharma, Akshat Kumar, D.K.Rustagi, Dipesh Sinha, Kumar Dushyant Singh, Shakti Singh Dhakrey,

AMs. Subasri Jaganathan, Ms. Meera Mathur, Shariq Ahmed, Tariq Ahmed,Kamran Khan, Sunil Kumar Verma, Sandeep Malik, Abishake Sharma,Inderjeet Singh, Sushil Kumar Singh, Ms. Richa Yadav, Pranav Kumar,Romy Chacko, Ms. Charu Mathur, Amit Sharma, R.C. Kaushik, UjjwalA. Rana, Himanshu Mehta, M/s. Gagrat & Co., S. Udaya Kumar Sagar,Mayank Goel, Roshan Santhalia, Ms. Harsh Lata, Shobhit Jain, Mrs.BRachna Gupta, Kirti Vardhan Singh, Siddharth Narang, Sanjay KumarTyagi, Rajesh Kumar Chaurasia, H.S. Bhullar, Ms. Jasmine Damkewala,Ms. Vaishali Sharma, Utkarsh Sharma, C.K. Sasi, Mithu Jain, Ms. ShobhaGupta, Rameshwar Prasad Goyal, Ravindra Bana, Aakarsh Kamra,Siddhartha Jha, Somesh Chandra Jha, Ashwani Kumar Dubey, Sumit R.CSharma, P.V. Yogeswaran, Atul Kumar, Mukesh Kumar Maroria, Ms.Chimayee Chandra, Ms. Shradha Deshmukh, Vishesh Kalra, Ms. NidhiKhanna, Akshat Shrivastava, Ms. Pallavi Langar, M/s. KMNP Law,K.K. Mohan, Omprakash Ajitsingh Parihar, Nishit Agrawal, Rajiv RanjanDwivedi, Sachin Jain, Ved Parkash, Vishal, Kapil Chaturvedi, AshishSingh, Manoj Kumar Jha, Ajay Kumar Agarwal, Ms. Garima Gupta,DMrs. Gargi Khanna, Abhishek Kumar Singh, Preshit Vilas Surshe, Mrs.Geetha Kovilan, Ashwani Kumar, Anshay Dhatwalia, M/s. Udit Kishan& Associates, D.S. Chauhan, Ms. Ruchi Singh, Prashant Kumar, AbhayAnand Jena, Ms. Riddhi Sancheti, D. Abhinav Rao, Yadav NarenderSingh, Ms. Kamakshi S. Mehlwal, Ms. Pinky Behera, Abhik Kumar,EMs. Suvira Lal, Ms. Shradha Agrawal, Ms. Geetanjali Mehlwal, Dr.Harish Uppal, Tileshwar Prasad, Ms. Rashi Ram Pal, Vikas Mehta, SanjayJain, Ashwani Garg, Vijay Kumar, Udayaditya Banerjee, Ms. RashiBansal, M. M. Kashyap, Kumar Mihir, Dr. Vinod Kumar Tewari, MohitPaul, Ayush Puri, Mrs. Praveena Gautam, Ms. Ruchi Kohli, Raj BahadurYadav, Arvind Kumar Tewari, Sudhir Mahajan, Ajit Kumar Ekka, S. K.FKulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, Uditha Chakravarthy,Ms. Liz Mathew, Shantanu Sagar, Sidharth Sarthi, Mrs. Divya Mishra,Anil Kumar, Gunjesh Ranjan, Sonal Jain, Ms. Filza Moonis, Ashok KumarJain, Pankaj Jain, Bijoy Kumar Jain, Chandra Bhushan Prasad, AtulSharma, Akshay Kapoor, Abhishek Agarwal, M/s. Devasa & Co., ArvindGGupta, Ms. Priyanjali Singh, Nikilesh Ramachandran, Gaurav Goel, AmitShrivastava, Rohit Amit Sthalekar, Sudhir Kulshreshtha, Umang Shankar,Abhinav Shrivastava, Vineet Bhagat, Ms. Manju Bhagat, Ms. ArchnaMidha, Aksveer Singh Saggu, Ms. Jaikriti S. Jadeja, Jatin Zaveri, Ms.Rashi Bansal, Mohit D. Ram, Pavan Narang, Lokesh Bhola, ArchitUpadhayay, Ms. Aishwarya Chhabra, Ms. Charu Sharma, Ms. ShwetalHShepal, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, BharatBagla, Sourav Singh, Neeraj Shekhar, Dr. Sumit Kumar, Keshav Baheti,Harsh Narwal, Sudhansu Palo, Ms. Ipsita Behura, Prasant Varma, BudhaDev Palo, V.K. Monga, Dhruv Tamta, Senthil Jagadeesan, AtishiDipankar, Ms. Amrita Sarkar, Jinendra Jain, Gyan Prakash Srivastava,Divyesh Pratap Singh, M. Yogesh Kanna, Ms. Bharti Tyagi, Rajat Sehgal,Karan Bharihoke, Arjun Singh Bhati, Ms. Mumtaz Bhalla, LakshyaKampani, Ms. Naveli Reshamwalla, Devendra Singh, Sukesh KumarMishra, Anant Kumar Vatsya, Karan Thakur, Vijay Kumar Singh, AshishSheoran, Ajay Nain, Anmol Harna, Suresh, Vipin Kumar Jai, MilindKumar, Abhinay, Mrs. Pragya Baghel, Bharat Bhushan, Aditya PratapSingh, Prashant Bhardwaj, Tapesh Kumar Singh, Rahul Kaushik, NikhilSwami, Avinash Sharma, Mrs. Anil Katiyar, Vikram Hegde, Ms. HimaLawrence, Abhinav Hansaraman, Vivek Gupta, Pushparaj Singh Parhira,Gp. Capt. Karan Singh Bhati, Ms. Shagun Matta, Prashant Vaxish, Ms.Manisha Ambwani, Rabin Majumder, Ashish Virmani, B. Krishna Prasad,Kaustubh Shukla, Pratap Venugopal, Ms. Surekha Raman, Akhil AbrahamRoy, Abhishek Anand, Ms. Unnimaya S., M/s. K J John & Co., Ms.Tulika Mukherjee, Tathagat Sharma, Nring Chamwibo Zeliang, Ms. AnuPriya Nisha Minz, Siddhartha Sinha, Rajesh Kumar, Abhay Kumar, M.P.Devanath, S.K. Verma, Ms. Madhurima Tatia, Siddharth Batra, Ms.Rohini Prasad, A. Venayagam Balan, Shashank Manish, Ms. Nidhi Sahay,Ms. Manju Jetley, Tushar Singh, Ms. Astha Tyagi, Ms. Mrinal GopalElker, Ms. Awantika Manohar, P.K. Jain, T.N. Singh, Vikas Kumar Singh,Ms. Rajshree Singh, Dr. Sham Chand, Kaushik Poddar, Ms. ManjulaGupta, Ms. Divya Roy, M/s. Av Global Chambers, Aditya Singh, Mrs.Swarupama Chaturvedi, E.C. Agrawala, Ms. Anshula Vijay KumarGrover, Ravi Panwar, Amit Agrawal, Arup Banerjee, Sanjeev Sharma,Vishal Arun, Rajeev Singh, Praveen Agrawal, Pukhrambam RameshKumar, Prithvi Pal, Ms. Charu Ambwani, Siddharth, Saurabh Ajay Gupta,Ms. Sunieta Ojha, Abhisth Kumar, M/s. D.S.K. Legal, Sunil Fernandes,Aman Raj Gandhi, Rajan Chawla, Ms. Neha Sharma, Yashraj SinghBundela, Gopal Jha, Ms. Sujata Kurdukar, Akshat Shrivastava, RanjitKumar Sharma, Shashibhushan P. Adgaonkar, Ms. Preeti Singh, Mrs.Manorma Masi, Sunklan Porwal, Mrs. Saumya Dwivedi, Mrs. RachnaNain, Mrs. Kumkum Mandhanya, Rishabh Munjal, Mrs. Simranjeet Kaur,Atul Sharma, Raj Pandey, A. Radhakrishnan, Ms. Shruti Agarwal, M/s.Karanjawala & Co., Sandeep Devashish Das, Chinmayee Chandra, Ms.Shraddha Deshmukh, Rajan Kumar Chourasia, Arvind Kumar Sharma,

AMrs. Aarthi Rajan, Adeel Ahmed, Raja Chatterjee, Piyush Sachdev, Idrish,Mrs. Kirti Renu Mishra, Mrs. Apurva Upmanyu, M/s. Cyril AmarchandMangaldas, Ms. Nidhi Mohan Parashar, Gagan Gupta, Chandan Kumar,Soumya Dutta, Vikrant Pachnanda, Braj Kishore Mishra, Abhishek Yadav,Manish Kumar Mishra, Virendra Kumar, Pahlad Singh Sharma, BalajiSrinivasan, M L Lahoty, Paban Kumar Sharma, Anchit Sripat, PranabBKumar Nayak, Arvind Kumar, Himanshu Shekhar, Dr. SumantBharadwaj, Vedant Bharadwaj, Ms. Mridula Ray Bharadwaj, AwanishKumar, Aldanish Rein, Kaustubh Anshuraj, Ms. Aakannsha Sharma,Krishna Kumar Singh, Ashwarya Sinha, Dharmendra Kumar Sinha,Partha Sil, Ms. Upasana Nath, Ms. Rashmi Nandakumar, ShantanuCKrishna, Animesh Tripathi, Kaushik Choudhury, M/s. Dua Associates,Chitranshul A. Sinha, Jaskaran Singh Bhatia, Ayush Sharma, VaibhavKumar, Aneesh Mittal, Ms. Jyoti Mendiratta, Advs. for the appearingparties.

Respondent-in-personDPetitioner-in-person

Applicant-in-person

The Order of the Court was passed by

M. R. SHAH, J.E1. Present I.A. No. 88960 of 2020 has been preferred by thepresent management of Unitech Limited seeking following prayers/directions: -

(i)Direct M/s. Devas Global LLP to deposit the entire saleconsideration of Rs. 206.50 crores for 26.475 acres of landFsought to be purchased by it in time bound manner;

(ii)Direct M/s. Devas Global LLP to either purchase the entireland, as committed, at the same rate or in the alternativeprovide suitable access to the balance land by taking onlyGproportionate frontage of the land so that any othersubsequent purchaser is also able to get adequate accessto the land without any interference and Unitech is able tomaximise its revenues from realization of assets;

(iii)Direct that M/s. Devas Global LLP shall not create anythird party rights on the entire land and if any rights haveH

been created surreptitiously, then the same shall be kept inabeyance and no further action be taken in furtherance ofthe same;

(iv)Direct M/s. Markwell Properties Pvt. Ltd. to pay an amountof Rs 29,24,87,837/-, which was given as advance for thepurchase of 36 acres of land out of which only 26 acres 19Bguntas land was transferred, alongwith interest from March2007 till its payment;

(v)Direct Col. Mohinder Singh Khaira and Naresh toimmediately return sum of Rs. 83.40 crores and depositthe said amount in the Registry of this Hon’ble Court, whichthey have received in respect of sale of 12 acres 21 guntas(1[st] sale transaction) and 10 acres 3.5 guntas (2[nd] saletransaction) to Devas alongwith interest;

(vi)Direct Col. Mohinder Singh Khaira and Naresh to provideall the requisite documents, including the details of financialtransactions in respect of 26 acres 19 guntas of land asmentioned above;

(vii)Direct legal action be taken against Col. Mohinder SinghKhaira for forgery, cheating, fraud and criminal conspiracyfor submission of Board Resolutions of the Company afterits dissolution regarding his own authorization; and

(viii) Pass any such further order/s that this Hon’ble Court deemsfit in the facts and circumstances of the present case.”

2. The dispute with respect to the sale consideration in respect of26 acres and 19 guntas of land (hereinafter referred to as “land inquestion”) owned by Unitech Limited in favour of M/s. Devas GlobalServices LLP located at Kadiganahalli Village, Bangalore, came to beconfirmed in favour of M/s. Devas Global Services LLP pursuant to theearlier orders passed by this Court.

3. As per the case on behalf of Unitech Limited, Unitech Limitedwas the absolute owner of the land in question and therefore entitled tothe entire sale consideration of Rs. 172.08 crores. It is the case on behalfof the Unitech Limited that despite the above and the fact that UnitechLimited was entitled to the entire sale consideration of Rs. 172.08 crores,the amount received to the account of Unitech, in Supreme Court Registry,

Aout of the sale transaction is only Rs. 87.35 crores and the balanceamount is ordered to be appropriated/paid to the respondents – ShriNaresh Kempanna (Rs. 56.11 crores) and Col. Mohinder Khaira (Rs.41.96 crores), which, according to the Unitech, they were not entitledto. It is the case on behalf of the Unitech that true facts were not broughtto the notice of Justice Dhingra committee and even before this CourtBand the aforesaid amount of Rs. 56.11 crores and Rs. 41.96 crores wereordered to be appropriated in favour of Shri Naresh Kempanna and Col.Mohinder Khaira respectively.3.1 It is the case on behalf of Unitech Limited that as such noneof the rights of the aforesaid two persons, who received any amount outCof the total sale consideration of Rs. 172.08 crores were adjudicatedupon by this Court and/or even by Justice Dhingra Committee. It issubmitted that the aforesaid amount has been paid to Shri NareshKempanna and Col. Mohinder Khaira, pursuant to one MOU dated02.01.2018. Therefore, it is the case on behalf of Unitech Limited thatDUnitech Limited being the absolute owner of the land in question andneither Col. Mohinder Khaira nor Shri Naresh Kempanna were havingany title and/or ownership rights in the land in question. They were notentitled to any amount out of the total sale consideration/sale transactionwith respect to the land in question. It is the case on behalf of the UnitechLimited that fraud has been committed on behalf of the respectiveEparties namely M/s. Devas Global Services LLP; Col. Mohinder Khairaand Shri Naresh Kempanna and the erstwhile Directors/Managementof the Unitech Limited. It is the case on behalf of Unitech Limited thatthe actual sale consideration being paid to Unitech Limited is just about50% of the total amount of sale consideration, which is to the detrimentFof the home buyers, fixed deposit holders, employees and other importantstakeholders of the company. It is the case on behalf of the UnitechLimited that on what basis the amount is ordered to be appropriated infavour of Shri Naresh Kempanna and Col. Mohinder Khaira is neitherknown nor there are any reasons, which could justify the divergence ofGfunds to Shri Naresh Kempanna and Col. Mohinder Khaira.

3.2 It is the case on behalf of Unitech Limited that if the true andcorrect facts would have been pointed out to this Hon’ble Court and/orthe dispute with respect to the appropriation of the sale considerationwould have been adjudicated upon by this Hon’ble Court and/or even byJustice Dhingra Committee, this Hon’ble Court might not have passedH

any order to pay any amount to the aforesaid two persons namely ShriNaresh Kempanna and Col. Mohinder Khaira out of the total saleconsideration of Rs. 172.08 crores. Therefore, it is prayed to allow theprayers and issue the directions as prayed in the present applicationeven by invoking the principle of restitution.

4. Shri N. Venkataraman, learned ASG appearing on behalf ofthe Management of the Unitech Limited has pointed out the number offacts and various transactions with respect to the land in question rightfrom 2005 onwards to demonstrate and satisfy this Hon’ble Court thatUnitech Limited was the absolute owner of the land in question and thatneither Shri Naresh Kempanna nor Col. Mohinder Khaira were havingany title and/or ownership rights in the land in question and therefore,were not entitled to any amount out of the sale consideration/saletransaction of the land in question.5. Present application has been vehemently opposed by learnedcounsel appearing on behalf of the respective respondents - Shri NareshKempanna and Col. Mohinder Khaira. Number of submissions havebeen made on merits on behalf of the contesting respondents – in whosefavour amount is already disbursed/paid pursuant to the earlier order(s)passed by this Court. Pursuant to the earlier order(s) passed by thisCourt, it appears that solely on the basis of the report submitted by JusticeDhingra Committee on the basis of one MOU dated 02.01.2018 andwithout adjudicating the rights of the respective parties, more particularly,the claims of Shri Naresh Kempanna and Col. Mohinder Khaira to receivethe amount, amount of Rs. 98.07 crores has been paid to Shri NareshKempanna and Col. Mohinder Khaira (Rs. 56.11 crores paid to ShriNaresh Kempanna and Rs. 41.96 crores paid to Col. Mohinder Khaira).However, it is required to be noted that even the Justice DhingraCommittee submitted the report to pay the said amount to the aforesaidtwo persons without any adjudication of the claims of the Unitech, M/sDevas and aforesaid two persons, namely, Shri Naresh Kempanna andCol. Mohinder Khaira and just on the basis of MOU dated 02.01.2018,Justice Dhingra Committee submitted the report on the basis of which,this Court passed the order directing to pay amount of Rs. 56.11 croresto Shri Naresh Kempanna and Rs. 41.96 crores to Col. Mohinder Khairaout of sale proceeds of the land sold to M/s Devas Global LLP. Eventhere was no adjudication by this Court on the entitlement of the amountpaid to Shri Naresh Kempanna and Col. Mohinder Khaira. There are

Aserious disputes on the entitlement of the aforesaid amount already paidto Shri Naresh Kempanna and Col. Mohinder Khaira. Thus, there wasan obvious error and/or mistake on the part of this Court in directing topay Rs. 56.11 crores to Shri Naresh Kempanna and Rs. 41.96 crores toCol. Mohinder Khaira, which as such was without any adjudication ofthe claims of the aforesaid two persons. In that view of the matter, weBare of the opinion that the mistake/error committed by this Court is to becorrected on the basis of the principle of restitution.

5.1 On the principle of restitution, the decision of ConstitutionBench of this Court in the case of Indore Development AuthorityVs. Manoharlal and Others (2020) 8 SCC 129 is required to beCreferred to. In paragraphs 335 to 339, it is observed and held as under: -

“335. The principle of restitution is founded on the ideal of doingcomplete justice at the end of litigation, and parties have to beplaced in the same position but for the litigation and interim order,if any, passed in the matter. In South Eastern Coalfields Ltd. v.DState of M.P. [South Eastern Coalfields Ltd. v. State of M.P.,(2003) 8 SCC 648] , it was held that no party could take advantageof litigation. It has to disgorge the advantage gained due to delayin case lis is lost. The interim order passed by the court mergesinto final decision. The validity of an interim order, passed inEfavour of party, stands reversed in the event of final ordergoing against the party successful at the interim stage. Section144 of the Code of Civil Procedure is not the fountain source ofrestitution. It is rather statutory recognition of the rule of justice,equity and fair play. The court has inherent jurisdiction to orderrestitution so as to do complete justice. This is also on the principleFthat wrong order should not be perpetuated by keeping it aliveand respecting it. In exercise of such power, the courts have appliedthe principle of restitution to myriad situations not falling withinthe terms of Section 144 CPC. What attracts applicability ofrestitution is not the act of the court being wrongful or mistake orGan error committed by the court; the test is whether, on accountof an act of the party persuading the court to pass an order held atthe end as not sustainable, resulting in one party gaining anadvantage which it would not have otherwise earned, or the otherparty having suffered an impoverishment, restitution has to bemade. Litigation cannot be permitted to be productive industry.

Litigation cannot be reduced to gaming where there is an elementof chance in every case. If the concept of restitution is excludedfrom application to interim orders, then the litigant would stand togain by swallowing the benefits yielding out of the interim order.This Court observed in South Eastern Coalfields [South EasternCoalfields Ltd. v. State of M.P., (2003) 8 SCC 648] thus : (SCCpp. 662-64, paras 26-28)

“26. In our opinion, the principle of restitution takes care ofthis submission. The word “restitution” in its etymological sensemeans restoring to party on the modification, variation orreversal of decree or order, what has been lost to him inexecution of decree or order of the court or in directconsequence of decree or order (see Zafar Khan v. Boardof Revenue, U.P. [Zafar Khan v. Board of Revenue, U.P.,1984 Supp SCC 505] ). In law, the term “restitution” is used inthree senses : (i) return or restoration of some specific thing toits rightful owner or status; (ii) compensation for benefitsderived from wrong done to another; and (iii) compensationor reparation for the loss caused to another. (See Black’s LawDictionary, 7th Edn., p. 1315). The Law of Contracts by JohnD. Calamari & Joseph M. Perillo has been quoted by Black tosay that “restitution” is an ambiguous term, sometimes referringto the disgorging of something which has been taken and attimes referring to compensation for the injury done:

‘Often, the result under either meaning of the term wouldbe the same. … Unjust impoverishment, as well as unjustenrichment, is ground for restitution. If the defendant isguilty of non-tortious misrepresentation, the measure ofrecovery is not rigid but, as in other cases of restitution,such factors as relative fault, the agreed-upon risks, andthe fairness of alternative risk allocations not agreed uponand not attributable to the fault of either party need to beweighed.’

The principle of restitution has been statutorily recognised inSection 144 of the Code of Civil Procedure, 1908. Section 144CPC speaks not only of decree being varied, reversed, setaside or modified but also includes an order on par with adecree. The scope of the provision is wide enough so as to

include therein almost all the kinds of variation, reversal, settingaside or modification of decree or order. The interim orderpassed by the court merges into final decision. The validityof an interim order, passed in favour of party, stands reversedin the event of final decision going against the party successfulat the interim stage. …

27. … This is also on the principle that wrong order shouldnot be perpetuated by keeping it alive and respecting it (A.Arunagiri Nadar v. S.P. Rathinasami [A. Arunagiri Nadarv. S.P. Rathinasami, 1970 SCC OnLine Mad 63] ). In theexercise of such inherent power, the courts have applied theprinciples of restitution to myriad situations not strictly fallingwithin the terms of Section 144.

28. That no one shall suffer by an act of the court is not arule confined to an erroneous act of the court; the “act of thecourt” embraces within its sweep all such acts as to which thecourt may form an opinion in any legal proceedings that thecourt would not have so acted had it been correctly apprisedof the facts and the law. … the concept of restitution isexcluded from application to interim orders, then the litigantwould stand to gain by swallowing the benefits yieldingout of the interim order even though the battle has been lostat the end. This cannot be countenanced. We are, therefore,of the opinion that the successful party finally held entitled to arelief assessable in terms of money at the end of the litigation,is entitled to be compensated by award of interest at suitablereasonable rate for the period for which the interim order ofthe court withholding the release of money had remained inoperation.”

(emphasis supplied)

336. In State of Gujarat v. Essar Oil Ltd. [State of Gujarat v.Essar Oil Ltd., (2012) 3 SCC 522], it was observed that theprinciple of restitution is remedy against unjust enrichment orunjust benefit. The Court observed : (SCC p. 542, paras 61-62)

“61. The concept of restitution is virtually common lawprinciple, and it is remedy against unjust enrichment or unjustbenefit. The core of the concept lies in the conscience of the

court, which prevents party from retaining money or somebenefit derived from another, which it has received by way ofan erroneous decree of the court. Such remedy in English Lawis generally different from remedy in contract or in tort andfalls within the third category of common law remedy, whichis called quasi-contract or restitution.

62. If we analyse the concept of restitution, one thingemerges clearly that the obligation to restitute lies on the personor the authority that has received unjust enrichment or unjustbenefit (see Halsbury’s Laws of England, 4th Edn., Vol. 9, p.434).”

337. In A. Shanmugam v. Ariya Kshatriya Rajakula VamsathuMadalaya Nandhavana Paripalanai Sangam [A. Shanmugam v.Ariya Kshatriya Rajakula Vamsathu Madalaya NandhavanaParipalanai Sangam, (2012) 6 SCC 430], it was stated thatrestitutionary jurisdiction is inherent in every court, to neutralisethe advantage of litigation. person on the right side of the lawshould not be deprived, on account of the effects of litigation; thewrongful gain of frivolous litigation has to be eliminated if thefaith of people in the judiciary has to be sustained. The Courtobserved : (SCC pp. 451-55, para 37)

“37. This Court, in another important case in Indian Councilfor Enviro-Legal Action v. Union of India [Indian Council forEnviro-Legal Action v. Union of India, (2011) 8 SCC 161] (ofwhich one of us, Dr Bhandari, J. was the author of thejudgment) had an occasion to deal with the concept of restitution.The relevant paragraphs of that judgment dealing with relevantjudgments are reproduced hereunder : (SCC pp. 238-41 & 243,paras 171-76 & 183-84)

171. In Ram Krishna Verma v. State of U.P. [RamKrishna Verma v. State of U.P., (1992) 2 SCC 620] thisCourt observed as under : (SCC p. 630, para 16)

“16. The 50 operators, including the appellants/privateoperators, have been running their stage carriages byblatant abuse of the process of the court by delaying thehearing as directed in Jeewan Nath Wahal case [Jeewan

Nath Wahal v. State of U.P., (2011) 12 SCC 769] andthe High Court earlier thereto. As fact, on the expiryof the initial period of the grant after 29-9-1959, theylost the right to obtain renewal or to ply their vehicles,as this Court declared the scheme to be operative.However, by sheer abuse of the process of law, theyare continuing to ply their vehicles pending the hearingof the objections. This Court in Grindlays Bank Ltd. v.CIT [Grindlays Bank Ltd. v. CIT, (1980) 2 SCC 191 :1980 SCC (Tax) 230] held that the High Court, whileexercising its power under Article 226, the interest ofjustice requires that any undeserved or unfair advantagegained by party invoking the jurisdiction of the courtmust be neutralised. It was further held that the institutionof the litigation by it should not be permitted to conferan unfair advantage on the party responsible for it. Inthe light of that law and in view of the power underArticle 142(1) of the Constitution this Court, whileexercising its jurisdiction would do complete justice andneutralise the unfair advantage gained by the 50 operatorsincluding the appellants in dragging the litigation to runthe stage carriages on the approved route or area orportion thereof and forfeited their right to hearing of theobjections filed by them to the draft scheme dated 26-2-1959.”

172. This Court in Kavita Trehan v. Balsara HygieneProducts Ltd. [Kavita Trehan v. Balsara Hygiene ProductsLtd., (1994) 5 SCC 380] observed as under : (SCC p. 391,para 22)

“22. The jurisdiction to make restitution is inherent inevery court and will be exercised whenever the justiceof the case demands. It will be exercised under inherentpowers, where the case did not strictly fall within theambit of Section 144. Section 144 opens with the words:

‘144. Application for restitution.—(1) Where andinsofar as decree or an order is varied or reversedin any appeal, revision or other proceeding or is setaside or modified in any suit instituted for thepurpose,….’

The instant case may not strictly fall within the terms ofSection 144, but the aggrieved party in such case canappeal to the larger and general powers of restitutioninherent in every court.”

173. This Court in Marshall Sons & Co. (India) Ltd. v.Sahi Oretrans (P) Ltd. [Marshall Sons & Co. (India) Ltd.v. Sahi Oretrans (P) Ltd., (1999) 2 SCC 325] observed asunder : (SCC pp. 326-27, para 4)

“4. From the narration of the facts, though it appearsto us, prima facie, that decree in favour of theappellant is not being executed for some reason or theother, we do not think it proper at this stage to directthe respondent to deliver the possession to the appellantsince the suit filed by the respondent is still pending. Itis true that proceedings are dragged on for long timeon one count or the other and, on occasion, becomehighly technical accompanied by unending prolixity atevery stage, providing legal trap to the unwary.Because of the delay, unscrupulous parties to theproceedings take undue advantage, and the person whois in wrongful possession draws delight in delay indisposal of the cases by taking undue advantage ofprocedural complications. It is also known fact thatafter obtaining decree for possession of theimmovable property, its execution takes long time. Insuch situation, for protecting the interest of thejudgment-creditor, it is necessary to pass appropriateorders so that reasonable mesne profit which may beequivalent to the market rent is paid by person whois holding over the property. In appropriate cases, thecourt may appoint Receiver and direct the personwho is holding over the property to act as an agent ofthe [Receiver with direction to deposit the royaltyamount fixed by the] Receiver or pass such other orderwhich may meet the interest of justice. This mayprevent further injury to the plaintiff in whose favourthe decree is passed and to protect the property,including further alienation.”

174. In Padmawati v. Harijan Sewak Sangh [Padmawativ. Harijan Sewak Sangh, 2008 SCC OnLine Del 1202 : (2008)154 DLT 411] decided by the Delhi High Court on 6-11-2008, the Court held as under : (SCC Online Del para 6)

“6. The case at hand shows that frivolous defencesand frivolous litigation is calculated venture involvingno risks situation. You have only to engage professionalsto prolong the litigation so as to deprive the rights of aperson and enjoy the fruits of illegalities. I consider thatin such cases where the court finds that using the courtsas tool, litigant has perpetuated illegalities or hasperpetuated an illegal possession, the court must imposecosts on such litigants which should be equal to thebenefits derived by the litigant and harm and deprivationsuffered by the rightful person so as to check thefrivolous litigation and prevent the people from reapinga rich harvest of illegal acts through the courts. One ofthe aims of every judicial system has to be to discourageunjust enrichment using courts as tool. The costsimposed by the courts must in all cases should be thereal costs equal to deprivation suffered by the rightfulperson.”

We approve the findings of the High Court of Delhi inthe case mentioned above.

175. The High Court also stated : (Padmawati case[Padmawati v. Harijan Sewak Sangh, 2008 SCC OnLineDel 1202 : (2008) 154 DLT 411] , SCC OnLine Del para 9)

“9. Before parting with this case, we consider itnecessary to observe that one of the [main] reasons foroverflowing of court dockets is the frivolous litigation inwhich the courts are engaged by the litigants and whichis dragged on for as long as possible. Even if theselitigants ultimately lose the lis, they become the realvictors and have the last laugh. This class of people whoperpetuate illegal acts by obtaining stays and injunctionsfrom the courts must be made to pay the sufferer notonly the entire illegal gains made by them as costs to the

person deprived of his right but also must be burdenedwith exemplary costs. The faith of people in judiciarycan only be sustained if the persons on the right side ofthe law do not feel that even if they keep fighting forjustice in the court and ultimately win, they would turnout to be fool since winning case after 20 or 30years would make the wrongdoer as real gainer, whohad reaped the benefits for all those years. Thus, itbecomes the duty of the courts to see that suchwrongdoers are discouraged at every step, and even ifthey succeed in prolonging the litigation due to theirmoney power, ultimately, they must suffer the costs ofall these years’ long litigation. Despite the settled legalpositions, the obvious wrongdoers, use one after anothertier of judicial review mechanism as gamble, knowingfully well that dice is always loaded in their favour sinceeven if they lose, the time gained is the real gain. Thissituation must be redeemed by the courts.”

176. Against this judgment of the Delhi High Court,Special Leave to Appeal (Civil) No. 29197 of 2008 waspreferred to this Court. The Court passed the following order[Padmawati v. Harijan Sewak Sangh, (2012) 6 SCC 460 :(2012) 3 SCC (Civ) 765] : (SCC p. 460, para 1)

“1. We have heard the learned counsel appearingfor the parties. We find no ground to interfere with thewell-considered judgment passed by the High Court. Thespecial leave petition is, accordingly, dismissed.”

183. In Marshall Sons & Co. (India) Ltd. v. Sahi Oretrans(P) Ltd. [Marshall Sons & Co. (India) Ltd. v. Sahi Oretrans(P) Ltd., (1999) 2 SCC 325] this Court in para 4 of thejudgment observed as under : (SCC pp. 326-27)

“4. … It is true that proceedings are dragged on fora long time on one count or the other and, on occasion,become highly technical accompanied by unendingprolixity at every stage, providing legal trap to theunwary. Because of the delay, unscrupulous parties to

the proceedings take undue advantage, and personwho is in wrongful possession draws delight in delay indisposal of the cases by taking undue advantage ofprocedural complications. It is also known fact thatafter obtaining decree for possession of immovableproperty, its execution takes long time. In such asituation, for protecting the interest of the judgment-creditor, it is necessary to pass appropriate orders sothat reasonable mesne profit which may be equivalentto the market rent is paid by person who is holdingover the property. In appropriate cases, the court mayappoint Receiver and direct the person who is holdingover the property to act as an agent of the Receiverwith direction to deposit the royalty amount fixed bythe Receiver or pass such other order which may meetthe interest of justice. This may prevent further injury tothe plaintiff in whose favour the decree is passed and toprotect the property, including further alienation.”

184. In Ouseph Mathai v. M. Abdul Khadir [OusephMathai v. M. Abdul Khadir, (2002) 1 SCC 319] this Courtreiterated the legal position that : (SCC p. 328, para 13)

“13. … [the] stay granted by the court does not confera right upon party and it is granted always subject tothe final result of the matter in the court and at the risksand costs of the party obtaining the stay. After thedismissal, of the lis, the party concerned is relegated tothe position which existed prior to the filing of the petitionin the court which had granted the stay. Grant of staydoes not automatically amount to extension of statutoryprotection.” ’ ”

There are other decisions as well, which iterate and apply thesame principle. [Indian Council for Enviro-Legal Action v. Unionof India, (2011) 8 SCC 161; Grindlays Bank Ltd. v. CIT, (1980) 2SCC 191 : 1980 SCC (Tax) 230; Ram Krishna Verma v. State ofU.P., (1992) 2 SCC 620. Also Marshall Sons & Co. (India) Ltd. v.Sahi Oretrans (P) Ltd., (1999) 2 SCC 325.]

338. wrongdoer or in the present context, litigant whotakes his chances, cannot be permitted to gain by delaying tactics.It is the duty of the judicial system to discourage undue enrichmentor drawing of undue advantage, by using the court as tool. InKalabharati Advertising v. Hemant Vimalnath Narichania[Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010)9 SCC 437 : (2010) 3 SCC (Civ) 808] , it was observed thatcourts should be careful in neutralizing the effect of consequentialorders passed pursuant to interim orders. Such directions arenecessary to check the rising trend among the litigants to securereliefs as an interim measure and avoid adjudication of the caseon merits. Thus, the restitutionary principle recognizes and givesshape to the idea that advantages secured by litigant, on accountof orders of court, at his behest, should not be perpetuated; thiswould encourage the prolific or serial litigant, to approach courtstime and again and defeat rights of others — including underminingof public purposes underlying acquisition proceedings. differentapproach would mean that, for instance, where two landowners(sought to be displaced from their lands by the same notification)are awarded compensation, of whom one allows the issue to attainfinality — and moves on, the other obdurately seeks to stall thepublic purpose underlying the acquisition, by filing one or series oflitigation, during the pendency of which interim orders might inureand bind the parties, the latter would profit and be rewarded, withthe deemed lapse condition under Section 24(2). Such aconsequence, in the opinion of this Court, was never intended byParliament; furthermore, the restitutionary principle requires thatthe advantage gained by the litigant should be suitably offset, infavour of the other party.

339. In Krishnaswamy S. Pd. v. Union of India [KrishnaswamyS. Pd. v. Union of India, (2006) 3 SCC 286], it was observed thatan unintentional mistake of the Court, which may prejudice thecause of any party, must and alone could be rectified. Thus, in ouropinion, the period for which the interim order has operated underSection 24 has to be excluded for counting the period of 5 yearsunder Section 24(2) for the various reasons mentioned above.”

5.2 As per the settled position of law, the act of the Court shallprejudice no one and in such fact situation, the Court is under an

Aobligation to undo the wrong done to party by the act of the Court. Themaxim actus curiae neminem gravabit shall be applicable. As per thesettled law, any undeserved or unfair advantage gained by partyinvoking the jurisdiction of the court must be neutralized, as the institutionof litigation cannot be permitted to confer any advantage on suitor bythe act of the Court.B

6. Applying the principle of restitution and the law-laid down bythis Court in the case of Indore Development Authority (supra) onthe principle of restitution to the facts of the case on hand, we are of theopinion that this is fit case to apply the principle of actus curiaeneminem gravabit and the principle of restitution and to direct ShriCNaresh Kempanna and Col. Mohinder Khaira to return the amount anddeposit the same with this Court with 9% interest from the date onwhich the payment is received by them. However, with the liberty intheir favour to move appropriate application(s) or appropriate proceedingsbefore this Court for adjudication of their rights to receive any amountDfrom the sale proceeds of the land sold to M/s Devas Global LLP.

7. In view of the above and for the reasons stated above, ShriNaresh Kempanna and Col. Mohinder Khaira are hereby directed toreturn and deposit the amount paid to them (i.e., Rs. 56.11 crores paid toShri Naresh Kempanna and Rs. 41.96 crores paid to Col. MohinderEKhaira), paid pursuant to the earlier order(s) passed by this Court, with9% interest from the date on which the amount is received, to be depositedwith the Registry of this Court within four weeks from today. However,it will be open for either of them to move appropriate application(s) orappropriate proceedings for adjudication of their rights to receive anyamount from the sale proceeds of the land sold to M/s Devas GlobalFLLP and as and when such application(s) is/are made, the same beconsidered in accordance with law and on its own merits.

Present application is disposed of in terms of the above.

I.A. No. 47525 of 2021 filed for impleadment is also disposed of.

Divya Pandey(Assisted by : Shevali Monga, LCRA)

Applications disposed of.