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2023 Supreme(SC) 261
SUPREME COURT OF INDIA
D.Y. Chandrachud, CJI., M.R. SHAH, J.
Bhupinder Singh – Appellant
Versus
Unitech Limited – Respondent
I.A. Nos. 88960 of 2020 & 47525 Of 2021 In Civil Appeal No. 10856 of 2016
Decided on : 23-03-2023
For the Appellant(s) :Deepak Goel, Siddhartha Dave, Sr. Vishal Gosain, Anuroop Chakravarti, Ms. Ranjeeta Rohatgi, Mrs. Samten Doma, Ms. Aarushi Singh, Abhishek S More, Nitin V Nagar, Ms. Anubha Agrawal, Joshua Samuel, Sahil Tagotra, Abhishek Pandey, Dr. J.P. Dhanda, Ms. Raj Rani Dhanda, Asokh Vasishtha, Advocates
For the Respondent(s):Pawanshree Agrawal, Ravindra Kumar, Sr. Binay Kumar Das, Ms. Priyanka Das, Ms. Neha Das, Respondent-in-person K.M. Nataraj, ASG Shreekant Neelappa Terdal, Suhashini Sen, T.a.khan, Anish Kr.gupta, Chinmayee Chandra, Siddhant Kohli, Dr. N. Visakamurthy, Lokesh Sinhal, Sr. AAG B.k.satija, AAG Himanshu Satija, Sanjay Kumar Visen, Ms. Anubha Agrawal, Nikhil Nayyar, Sr. Naveen Hegde, 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, Kamal Mohan Gupta, K. Parameshwar, Ms. Arti Gupta, Ms. Kanti, Dr. Ashutosh Garg, Ms. Rakhi Ray, Sureshan P., Vishnu Sharam, Rajesh Singh, Syed Jafar Alam, Abhinav Mukerji, Mrs. B. Sunita Rao, Sumit Kumar, Sriram P., B Ragunath, M. P. Vinod, Rajiv Mehta, Rajesh Kumar Gautam, Anant Gautam, Sumit Sharma, Vipin Kumar, Ritesh Chopra, Sarad Kumar Singhania, Ansar Ahmad Chaudhary, Ms. Madhusmita Bora, S. Rajappa, Roopansh Purohit, T. Mahipal, Somanatha Padhan, Tarun Gupta, Anurag Dubey, 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, Arjun Harkauli, M. R. Shamshad, Anirudh Sharma, Akshat Kumar, D.K. Rustagi, Dipesh Sinha, Kumar Dushyant Singh, Shakti Singh Dhakrey, Ms. 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, Ravindra Kumar, Sr. Binay Kumar Das, Ms. Priyanka Das, Ms. Neha Das, Ms. Charu Mathur, Amit Sharma, R.C. Kaushik, Ujjwal A. Rana, Himanshu Mehta, M/s. Gagrat & Co. S. Udaya Kumar Sagar, Mayank Goel, Roshan Santhalia, Ms. Harsh Lata, Shobhit Jain, Mrs. Rachna Gupta, Kirti Vardhan Singh, Siddharth Narang, Sanjay Kumar Tyagi, Rajesh Kumar Chaurasia, Rajiv Dutta, Sr. H.S. Bhullar, Ms. Jasmine Damkewala, Ms. Vaishali Sharma, Utkarsh Sharma, C.K. Sasi, Sushil Kumar Singh, Mithu Jain, Ms. Shobha Gupta, Rameshwar Prasad Goyal, Ravindra Bana, Aakarsh Kamra, Siddhartha Jha, Somesh Chandra Jha, Ashwani Kumar Dubey, Sumit R. Sharma, P.V. Yogeswaran, Atul Kumar, Ms. Madhvi Diwan, ASG Mukesh Kumar Maroria, Ms. Chimayee Chandra, Ms. Shradha Deshmukh, Siddhant Kohli, Vishesh Kalra, Ms. Nidhi Khanna, Syed Jafar Alam, Akshat Shrivastava, Ms. Pallavi Langar, M/s. KMNP Law K.K. Mohan, Omprakash Ajitsingh Parihar, Mrs. Garima Prashad, Sr. Nishit Agrawal, Rajiv Ranjan Dwivedi, Sachin Jain, Ved Parkash, Vishal, Kapil Chaturvedi, Ashish Singh, Manoj Kumar Jha, Ajay Kumar Agarwal, Ms. Garima Gupta, Mrs. Gargi Khanna, C.K. Sasi, 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, Abhay Anand Jena, Ms. Riddhi Sancheti, D. Abhinav Rao, Yadav Narender Singh, Ms. Kamakshi S. Mehlwal, Ms. Pinky Behera, Abhik Kumar, Ms. Suvira Lal, Ms. Shradha Agrawal, Ms. Geetanjali Mehlwal, Dr. Harish Uppal, Tileshwar Prasad, Ms. Rashi Ram Pal, Vikas Mehta, Sanjay Jain, Ashwani Garg, Vijay Kumar, Udayaditya Banerjee, Ms. Rashi Bansal, M. M. Kashyap, Kumar Mihir, Dr. Vinod Kumar Tewari, Mohit Paul, Mrs. Madhvi Divan, A.S.G. Ayush Puri, Mrs. Praveena Gautam, Ms. Ruchi Kohli, Siddhant Kohli, Ms. Nidhi Khanna, Raj Bahadur Yadav, Petitioner-in-person Arvind Kumar Tewari, Sudhir Mahajan, Ajit Kumar Ekka, S. K. Kulkarni, 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 Kumar Jain, Pankaj Jain, Bijoy Kumar Jain, Chandra Bhushan Prasad, Atul Sharma, Akshay Kapoor, Abhishek Agarwal, M/s. Devasa & Co. Arvind Gupta, Ms. Priyanjali Singh, Nikilesh Ramachandran, Gaurav Goel, Amit Shrivastava, Rohit Amit Sthalekar, Sudhir Kulshreshtha, Umang Shankar, Abhinav Shrivastava, Vineet Bhagat, Ms. Manju Bhagat, Ms. Archna Midha, Aksveer Singh Saggu, Ms. Jaikriti S. Jadeja, Jatin Zaveri, Ms. Rashi Bansal, Mohit D. Ram, Pavan Narang, Lokesh Bhola, Archit Upadhayay, Ms. Aishwarya Chhabra, Ms. Charu Sharma, Ms. Shwetal Shepal, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Neeraj Shekhar, Dr. Sumit Kumar, Keshav Baheti, Harsh Narwal, Sudhansu Palo, Ms. Ipsita Behura, Prasant Varma, Budha Dev Palo, V.K. Monga, Dhruv Tamta, Senthil Jagadeesan, Atishi Dipankar, 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, Lakshya Kampani, Ms. Naveli Reshamwalla, Deepak Nargolkar, Sr. Devendra Singh, Sukesh Kumar Mishra, Anant Kumar Vatsya, Karan Thakur, Vijay Kumar Singh, Ashish Sheoran, Ajay Nain, Anmol Harna, G Suresh, Vipin Kumar Jai, Milind Kumar, Abhinay, Mrs. Pragya Baghel, Bharat Bhushan, Aditya Pratap Singh, Prashant Bhardwaj, Tapesh Kumar Singh, Rahul Kaushik, Nikhil Swami, Avinash Sharma, Mrs. Anil Katiyar, Vikram Hegde, Ms. Hima Lawrence, 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 Abraham Roy, Abhishek Anand, Ms. Unnimaya S., M/s. K J John & Co Ms. Tulika Mukherjee, Tathagat Sharma, Nring Chamwibo Zeliang, Ms. Anu Priya Nisha Minz, Siddhartha Sinha, Rajesh Kumar, Abhay Kumar, Applicant-in-person, 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, Vikram Hegde, Ms. Hima Lawrence, Abhinav Hansaraman, Ms. Astha Tyagi, Ms. Mrinal Gopal Elker, Ms. Awantika Manohar, P.K. Jain, T.N. Singh, Vikas Kumar Singh, Ms. Rajshree Singh, Dr. Sham Chand, Vikram Singh, Kaushik Poddar, Ms. Manjula Gupta, Ms. Divya Roy, M/s. Av Global Chambers Aditya Singh, Mrs. Swarupama Chaturvedi, Ms. Madhvi Diwan, A.S.G. Mukesh Kumar Maroria, Ms. Chimayee Chandra, Ms. Shradha Deshmukh, Siddhant Kohli, Vishesh Kalra, Ms. Nidhi Khanna, Divyesh Pratap Singh, E.C. Agrawala, Ms. Anshula Vijay Kumar Grover, Ravi Panwar, Amit Agrawal, Arup Banerjee, Sanjeev Sharma, Vishal Arun, Rajeev Singh, Praveen Agrawal, Pukhrambam Ramesh Kumar, Prithvi Pal, Ms. Charu Mathur, 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 Singh Bundela, Gopal Jha, Ms. Sujata Kurdukar, Akshat Shrivastava, Ranjit Kumar Sharma, Shashibhushan P. Adgaonkar, Ms. Preeti Singh, Mrs. Manorma Masi, Sunklan Porwal, Mrs. Saumya Dwivedi, Mrs. Rachna Nain, Mrs. Kumkum Mandhanya, Rishabh Munjal, Mrs. Simranjeet Kaur, Atul Sharma, Raj Pandey, A. Radhakrishnan, Rajesh Kumar Chaurasia, Ms. Shruti Agarwal, M/s. Karanjawala & Co. Sandeep Devashish Das, Madhavi Divan, A.S.G. Chinmayee Chandra, Ms. Shraddha Deshmukh, Rajan Kumar Chourasia, Ms. Nidhi Khanna, Siddhant Kohli, Arvind Kumar Sharma, Mrs. Aarthi Rajan, Adeel Ahmed, Raja Chatterjee, Piyush Sachdev, Idrish, Mrs. Kirti Renu Mishra, Mrs. Apurva Upmanyu, M/s. Cyril Amarchand Mangaldas Ms. Nidhi Mohan Parashar, Gagan Gupta, Chandan Kumar, Soumya Dutta, Vikrant Pachnanda, Ms. Meera Mathur, Braj Kishore Mishra, Abhishek Yadav, Sushil Kumar Sharma, Sr. A.A.G. Manish Kumar Mishra, Virendra Kumar, Pahlad Singh Sharma, Balaji Srinivasan, M L Lahoty, Paban Kumar Sharma, Anchit Sripat, Pranab Kumar Nayak, Arvind Kumar, Himanshu Shekhar, Dr. Sumant Bharadwaj, Vedant Bharadwaj, Ms. Mridula Ray Bharadwaj, Awanish Kumar, Aldanish Rein, Kaustubh Anshuraj, Ms. Aakannsha Sharma, Krishna Kumar Singh, Ashwarya Sinha, Dharmendra Kumar Sinha, Partha Sil, Ms. Upasana Nath, Ms. Rashmi Nandakumar, Shantanu Krishna, Animesh Tripathi, Kaushik Choudhury, M/s. Dua Associates, Chitranshul A. Sinha, Jaskaran Singh Bhatia, Ayush Sharma, Vaibhav Kumar, Aneesh Mittal, Ms. Jyoti Mendiratta, Advocates
IMPORTANT POINT
Any undeserved or unfair advantage gained by a party invoking jurisdiction of court must be neutralized, as institution of litigation cannot be permitted to confer any advantage on a suitor by act of Court.
Headnote:
Civil Procedure Code, 1908 – Section 144 – Principle of Restitution – Act of Court shall prejudice no one and in such a fact situation, Court is under obligation to undo wrong done to a party by act of the Court – Maxim actus curiae neminem gravabit shall be applicable – As per settled law, any undeserved or unfair advantage gained by a party invoking jurisdiction of court must be neutralized, as institution of litigation cannot be permitted to confer any advantage on a suitor by act of Court – Amount to be refunded alongwith 9% interest. (Paras 5.2, 6 and 7)
Facts of the case:
Dispute with respect to the sale consideration in respect of 26 acres and 19 Guntas of land owned by Unitech Limited in favour of M/s. Devas Global Services LLP located at Kadiganahalli Village, Bangalore, came to be confirmed in favour of M/s. Devas Global Services LLP pursuant to the earlier orders passed by this Court.
Findings of Court:
This is a fit case to apply the principle of actus curiae neminem gravabit and the principle of restitution and to direct Shri Naresh Kempanna and Col. Mohinder Khaira to return the amount and deposit the same with this Court with 9% interest from the date on which payment is received by them. However, with the liberty in their favour to move appropriate application(s) or appropriate proceedings before this Court for adjudication of their rights to receive any amount from the sale proceeds of the land sold to M/s Devas Global LLP.
Result : Application disposed of with observations.
ORDER :
M.R. SHAH, J.
1. Present I.A. No. 88960 of 2020 has been preferred by the present management of Unitech Limited seeking following prayers/directions: -
(i) Direct M/s. Devas Global LLP to deposit the entire sale consideration of Rs. 206.50 crores for 26.475 acres of land sought to be purchased by it in a time bound manner;
(ii) Direct M/s. Devas Global LLP to either purchase the entire land, as committed, at the same rate or in the alternative provide suitable access to the balance land by taking only proportionate frontage of the land so that any other subsequent purchaser is also able to get adequate access to the land without any interference and Unitech is able to maximise its revenues from realization of assets;
(iii) Direct that M/s. Devas Global LLP shall not create any third party rights on the entire land and if any rights have been created surreptitiously, then the same shall be kept in abeyance and no further action be taken in furtherance of the same;
(iv) Direct M/s. Markwell Properties Pvt. Ltd. to pay an amount of Rs 29,24,87,837/-, which was given as advance for the purchase of 36 acres of land out of which only 26 acres 19 guntas land was transferred, alongwith interest from March 2007 till its payment;
(v) Direct Col. Mohinder Singh Khaira and Naresh to immediately return a sum of Rs. 83.40 crores and deposit the said amount in the Registry of this
Hon'ble Court, which they have received in respect of sale of 12 acres 21 guntas (1st sale transaction) and 10 acres 3.5 guntas (2nd sale transaction) to Devas alongwith interest;
(vi) Direct Col. Mohinder Singh Khaira and Naresh to provide all the requisite documents, including the details of financial transactions in respect of 26 acres 19 guntas of land as mentioned above;
(vii) Direct legal action be taken against Col. Mohinder Singh Khaira for forgery, cheating, fraud and criminal conspiracy for submission of Board Resolutions of the Company after its dissolution regarding his own authorization; and
(viii) Pass any such further order/s that this Hon’ble Court deems fit in the facts and circumstances of the present case.”
2. The dispute with respect to the sale consideration in respect of 26 acres and 19 guntas of land (hereinafter referred to as “land in question”) owned by Unitech Limited in favour of M/s. Devas Global Services LLP located at Kadiganahalli Village, Bangalore, came to be confirmed in favour of M/s. Devas Global Services LLP pursuant to the earlier orders passed by this Court.
3. As per the case on behalf of Unitech Limited, Unitech Limited was the absolute owner of the land in question and therefore entitled to the entire sale consideration of Rs. 172.08 crores. It is the case on behalf of the Unitech Limited that despite the above and the fact that Unitech Limited was entitled to the entire sale consideration of Rs. 172.08 crores, the amount received to the account of Unitech, in Supreme Court Registry, out of the sale transaction is only Rs. 87.35 crores and the balance amount is ordered to be appropriated/paid to the respondents – Shri Naresh Kempanna (Rs. 56.11 crores) and Col. Mohinder Khaira (Rs. 41.96 crores), which, according to the Unitech, they were not entitled to. It is the case on behalf of the Unitech that true facts were not brought to the notice of Justice Dhingra committee and even before this Court and the aforesaid amount of Rs. 56.11 crores and Rs. 41.96 crores were ordered 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 none of the rights of the aforesaid two persons, who received any amount out of the total sale consideration of Rs. 172.08 crores were adjudicated upon by this Court and/or even by Justice Dhingra Committee. It is submitted that the aforesaid amount has been paid to Shri Naresh Kempanna and Col. Mohinder Khaira, pursuant to one MOU dated 02.01.2018. Therefore, it is the case on behalf of Unitech Limited tha
