Principal of Restitution - Supreme Court remedies error

Posted on 1 April, 2023 by Adv Amogh

To err is human. And courts are no different. Error can, may and does occur. Though there is a thin line between honest mistake and willfull default. In a society where corruption is said to be the mainstay of our society, its a slippery slope between error and corruption. While some may argue that corruption must involve exchange of goods or services or anything with value, well, the dogs chasing its tail never ends. I , as member of the Bar, though feel duty found,.. but equally feel terrified to touch on the subject of Judicial Accountability, Prosecution of Judges for blatant disregard to law of land on the name of discretionary power and pushing the aggrieved to higher court. And then we talk about huge pendencies in court.  Lets park that for some other opportune times in our nation when sweet talkers give way to those who walk the talk.

Anyway, the summary of fact is Bench of CJI DY Chandrachud and Justice MR Shah stated in its order stated that "As per the settled law, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralized, as the institution of litigation cannot be permitted to confer any advantage on a suitor by the act of the Court" .

Background : In a case involving sale of 26 acre of land, Unitech received ₹87.35 crore, and the balance amount was ordered to be paid to Naresh Kempanna and Col. Mohinder Khaira. Unitech had claimed the entire amount of consideration a sum of ₹172.08 crore.

Upon revisiting the order along side Justice Dhingra Committee report, court conceded that the two individuals had no right, title or ownership. The Court accepted its error and noted that "there was an obvious error and/or mistake on the part of this Court in directing to pay Rs. 56.11 crores to Shri Naresh Kempanna and Rs. 41.96 crores to Col. Mohinder Khaira, which as such was without any adjudication of the claims of the aforesaid two persons."

The Court applied the principal of restitution and directed the duo to return the amount and deposit the same with the Court with 9% interest from the date on which the payment was received by them.