Sunday, 7 February 2021

Whether the trial court can grant restitution of property if the case did not fall within the ambit of S 144 of CPC?

 In the case of Mrs. Kavita Trehan and another v. Balsara

Hygiene Products Ltd., reported in AIR 1995 SC 441, in paragraph

nos. 13 and 15, the Supreme Court has made the following

observations:

“13. The Law of Restitution encompasses all claims

founded upon the principle of unjust enrichment.

'Restitutionary claims are to be found in equity as well as

at law'. Restitutionary law has many branches. The law of

quasi-contract is "that part of restitution which stems

from the common Indebitatus counts for money had and

received and for money paid, and from quantum meruit

and quantum vale bat claims." [See 'The Law of

Restitution" - Goff & Jones, 4th Edn. Page 3]. Halsburys

Law of England, 4th Edn. Page 434 states :

“Common Law. Any civilised system of law is

bound to provide remedies for cases of what has

been called unjust enrichment or unjust benefit,

that is, to prevent a man from retaining the

money of, or some benefit derived from, another

which it is against conscience that he should

keep. Such remedies in English law are

generically different from remedies in contract

or in tort, and are now recognised to fall within

a third category of the common law which has

been called quasi contract or restitution.”

For historical reasons, quasi contract has traditionally

been treated as part of, or together with, the law of

contract. Yet independently, equity has also developed

principles which are aimed at providing a remedy for

unjustifiable enrichment. It may be that today these two

strands are in the process of being woven into a single

topic in the law, which may be termed "restitution”.

Recently the House of Lords had occasion to examine some

of these principles in Woolwich Equitable Building Society

v. Inland Revenue Commissioners, [1993] A.C. 70.


14. ......

15. Section 144 CPC incorporates only a part of the

general law of restitution. It is not exhaustive. (See

Gangadhar v. Raghubar Dayal, AIR 1975 All 102 (FB)

and State Govt. of Andhra Pradesh v. M/s. Manickchand

Jeevraj & Co., Bombay , AIR 1973 Andhra Pra. 27).

The jurisdiction to make restitution is inherent in every

court and will be exercised whenever the justice of the

case demands. It will be exercised under inherent powers

where the case did not strictly fall within the ambit of

Section 144. Section 144 opens with the words, "Where

and in so far as a decree or an order is varied or reversed

in any appeal, revision or other proceeding or is set aside

or modified in any suit instituted for the purpose,...." The

instant case may not strictly fall within the terms of

Section 144; but the aggrieved party in such a case can

appeal to the larger and general powers of restitution

inherent in every court..............”

In view of the above observations, even if the cases not

falling within the ambit of Section 144 of CPC, restitution can be

made under inherent powers.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

901 WRIT PETITION NO. 269 OF 2018

CHANDRAKALABAI  BAPURAO SHIRSAT  Vs HABIB KHAN 


CORAM : V. K. JADHAV, J.

DATED : 04th December, 2019.

Citation: 2020 (6) MHLJ 356.

Read full judgment here: Click here

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