The main legal point established in the judgment is the principle of restitution and the interpretation of the law of restitution as applied to the overpaid amount and calculation of interest.

EA (OS) No.937/2012 (u/S 151 CPC)

1. This application filed by the judgment debtor/Delhi Jal Board is for restitution of an amount of Rs.31,47,198.40 on the ground that this amount is overpaid to the decree holder. Judgment debtor also claims interest on this amount which is to be refunded by the decree holder.

2. The law with regard to restitution is stated by the Supreme Court in the case of Kavita Trehan (Mrs) and Anr. vs. Balsara Hygiene Products Ltd., (1994) 5 SCC 380, and which is that the principle of restitution is much wider than comprised in the language of Section 144 CPC. This is so stated in paras 21 and 22 of the judgment in the case of Kavita Trehan (supra) and which paras read as under:-

“21. 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 (F.B.): 1974 All LJ 751 and State Govt. of Andhra Pradesh v. Manickchnd Jeevraj & Co. Bombay: AIR 1973 AP 27: (1972) 2 Andh LT 23.

22. 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.”

3. If therefore the decree holder has been paid an excess amount than the amount to which the decree holder was entitled to under the subject Award dated 16.06.2007, the decree holder will be liable to refund that amount i.e restitution of the extra amount received by the decree holder to the judgment debtor along with interest.

4. Before I proceed further, it is necessary to refer the order of a learned Single Judge of this Court dated 15.12.2008 in these very execution proceedings by which it was held that interest payable under the Award is simple interest and not compound interest. This order dated 15.12.2008 reads as under:-

“Counsel for the parties have drawn my attention to page 46 of the paper book and the relevant part of the award. Interest @ 12% per annum has been awarded on claim Nos. 1 and 8 with effect from 01.7.1997.

With regard to claim Nos. 2, 3 4 and 5 interest is to be paid with effect from the date when amounts became due and payable on different dates during the period 01.4.1994 to 31.1.1997. For example if Rs.1000/- became due and payable on 01.05.1994 interest will be payable @ 12% per annum from the said date and not for the prior period. However, with effect from 1.2.1997, interest @ 12 % per annum will be payable on the entire amount due and payable on claim Nos.2,3,4 and 5. Learned arbitrator has not awarded compound interest. Simple interest has been awarded @ 12% per annum. Parties will file revise statement of accounts on the above basis with affidavits within two weeks from today.

List again on 9th February, 2009.”

5. A reading of the order leaves no manner of doubt that there is a final and binding observation that the impugned Award only gives simple interest to the plaintiff at 12% per annum with respect to claim nos.2, 3, 4 and 5.

6. The aforesaid order dated 15.12.2008 holding that only simple interest is payable was carried in an appeal but this appeal was disposed of as not pressed, as this is so recorded in the order of the Division Bench dated 22.03.3012 in EFA(OS) No.10/2009, and which order reads as under:-

“Learned senior counsel on instructions states that he does not wish to press the appeal and that in case the executing court passes an order directing refund of any amount already paid to the appellant, the appellant would be within his rights to take