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TMI Blog2015 (1) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme did not relieve the Company of effect of undertaking. The State Government was only required to consider for such relief which was not granted. Further, assessee was availing tax deferment benefit whereby it was recovering full amount of RST and CST from its customers but making deferred payment to exchequer per scheme. State Government by Notification dated 9.3.2007, gave option to the assessees to pay the present discounted value of the deferred amount in full and final settlement of the total deferred amount. Assessee informed revenue with full particulars and no objection was received, made prepayment and after informing revenue discontinued making payment of installments of deferred tax. Held that:- The matter pending before the Supreme Court was finally decided on 19.2.2014, in which it was held that M/s Binani Cements was not entitled to the RST exemption beyond 25% and on which proceedings were initiated against the petitioner-Company. The undertaking became effective as soon as the Supreme Court decided the matter on 19.2.2014 and that any benefit retained by the petitioner, if allowed to be retained, would result into reverse discrimination, whereas M/s B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner Company from its obligations under the Notification dated 22.2.2002 and the undertaking given by the petitioner-Company, which had to come into force only if the judgment of the Rajasthan High Court was modified by the Supreme Court. The BIFR could not foreseen the fact nor it could have granted any relief, which may have come into force on any unforeseeable event in future. The petitioner Company was availing the deferment of 75% in view of the Notification dated 22.2.2002, which on account of the reversal of the judgment of the Rajasthan High Court by the Hon'ble Supreme Court, was reduced to 25% and thus, the legal entitlement for deferment under the Notification dated 31.3.2006 was reduced to 25% for the years 2006-07 to 2008- 09. The petitioner had availed additional benefit of 50%, which was not permissible as an effect of the judgment of Hon'ble Supreme Court in the matter of M/s Binani Cements. This amount was even otherwise required to be paid to the State in the relevant years on monthly or quarterly basis under section 20(1) of the Act of 2003. - no pre-payment in respect of the amount which was already delayed was available. The amount already delayed co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner-Company is clearly, in view of the undertaking given by it on 19.3.2002, in terms of Clause (3) of the Notification dated 22.2.2002, is not entitled to any relief from this Court. - Decided against Petitioner. - D.B.Civil Writ Petition No.3233/2014, 3235/2014, 3236/2014, 3237/2014, 3238/2014, 3242/2014, 3250/2014 - - - Dated:- 19-12-2014 - SUNIL AMBWANI AND MR. PRAKASH GUPTA, JJ. For the Appellant : Mr.S.Ganesh, Senior Advocate with Mr.U.A.Rana Mr.Dinesh Mehta , Mr.Lalit Pareek For the Respondent : Mr.Punit Jain with Mr.V.K.Mathur, Mr.Falgun Buch JUDGMENT Per: Sunil Ambwani: 1. We have heard learned counsel appearing for the petitioners and learned counsel appearing for the respondents-State of Rajasthan. 2. The petitioner no.1 is a Public Limited Company registered under the Indian Companies Act, 1956 with its registered office at Ambujanagar, Taluka Kodinar, District Ghirsomnath, Gujarat. The petitioner no.2 is shareholder and Vice-President of the Company. 3. In all these writ petitions, the petitioners have challenged the order dated 7.4.2014 and the demand notice of the same date served on the petitioners on 23.4.2014, whereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jasthan Tax Board by its order dated 29.3.2000 remanded the case back to the State Level Screening Committee (SLSC) for reconsideration of the review petition filed by the petitioner-Company. On 9.10.2001, the SLSC rejected the review petition of the petitioner-Company. 6. M/s Binani Cements set up a new cement manufacturing unit in 1997 at Pindwara, Rajasthan. It claimed 75% RST exemption. By judgment and order dated 2.7.2001, the Rajasthan High Court directed the respondents-authorities to grant 75% RST exemption to M/s Binani Cements treating it to be a prestigious unit covered by entry-IV of Annexure-C to the Incentive Scheme of 1989. The order was challenged by the State of Rajasthan in the Supreme Court by way of filing SLP. 7. The order of the High Court directing that M/s Binani Cements may be allowed exemption to the extent of 75% created an imbalance in the market giving undue advantage to M/s Binani Cement over other seven manufacturing Companies. Since the Supreme Court in the SLP filed by the State of Rajasthan did not grant any stay order, M/s Binani Cements was entitled to and started availing incentive of 75%. The petitioner-Company and other Cement Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut demur or loss to the exchequer, the sum equal to the difference between tax benefit actually availed and tax as determined by the Hon'ble Supreme Court in respect of the period during which the said differential benefit has been availed by Ambuja Cement Rajasthan Ltd. The payment of difference of tax as availed (75% instead of 25%) as herein referred, shall however be without prejudice to the rights remedies available under the law to Ambuja Cement Rajasthan Ltd. In the event that exemption under Rajasthan Sales Tax Act to the extent of 75% is revoked by the Hon'ble Supreme Court in the above referred matter of Binani Cement Ltd., pursuant to the SLP filed by the Rajasthan State Government against the order/judgment of the Hon'ble High Court of Rajasthan, Jodhpur dated 2.7.2001 in the above matter, then the exemption as originally availed upto 25% by M/s Ambuja Cement Rajasthan Ltd. (formerly as DLF Cement Ltd.) vide eligibility Certificate dated 29.3.1997 w.e.f. 27.3.1997 shall stand restored indisputably. 9. M/s Ambuja Cement Rajasthan Limited (ACRL) was declared a sick industrial company under The Sick Industrial Companies (Special Provisions) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, notes that the merger of the company M/s ACRL with the healthy company M/s GACL has already taken place w.e.f. 1.6.2004 and thereby, the sick company M/s ACRL has lost its identity. The Bench further notes that the prescribed provisions of the SS-04 have been substantially implemented by the concerned agencies, including that of by the new/incoming promoter(s) and also by the GOR. As the sick company M/s Ambuja Cement Rajasthan Ltd. (ACRL) has lost its identity and ceases to be a 'sick industrial company', in terms of the prescribed provision(s) of the Act, the Bench, hereby, discharges the sick company M/s Ambuja Cement Rajasthan Ltd. (ACRL) from the purview of the SICA and issues the following further directions for compliance by the concerned agencies:- i) ICICI is hereby relieved of the responsibility of the MA. ii) The unimplemented provision(s) of the SS-04, for the unexpired period of the scheme, would remain in full force and would continue to be implemented by the concerned agencies and the same would be monitored by the company. The GOR would also consider granting reliefs in terms of para (s) 7.1.(ii) and 7.1(v) of the SS-04. iii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revival scheme by the BIFR. The petitioner-Company did not receive any reply to the letter, on which a letter was addressed to the Chief Minister of Rajasthan on 15.6.2005 again specifically stating that the undertaking dated 19.3.2002 had become infructuous, after the BIFR order. Onceagain, as no response was received to this letter also, on 7.1.2005, the petitioner-Company again addressed a letter to the Chief Secretary, Government of Rajasthan stating that the undertaking given by it had become infructuous, after the order of the BIFR. 15. The Rajasthan Value Added Tax Act, 2003 (for short, the Act of 2003 ) came into force on 1.4.2006 repealing the Rajasthan Sales Tax Act, 1994 (for short, the Act ). On the enactment of the Act of 2003, the State Government issued a Notification dated 31.3.2006, under which the exemption from RST and CST, which was in existence prior to 1.4.2006 was converted into deferment benefit and was continued in terms of the Notification. The petitioner-Company filed an application, pursuant to the new provisions for availing benefit of tax deferment, which was granted with effect from 1.4.2006 for a period of six years for deferment of VAT. An a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as amended with effect from 10.12.1996, M/s Binani Cements Ltd. was entitled to claim RST exemption to the extent of 25% and not 75%. The Supreme Court held that Annexure-C to the Notification, which made the Scheme for tax incentive applicable to the new industrial units, industrial units going in for expansion or diversification and sick units provided for quantum of sales tax exemption under the new incentive scheme. Item 1-E introduced by an amendment in 1996 to the Scheme is subject specific provision. The amendment removed new cement industries from non-eligible Annexure-. . B and placed it into Annexure-C amongst eligible industries. It classified the cement units for eligibility of tax exemption into three categories, namely, small, medium and large. The said categories are comprehensive whereby small and medium cement units have been prescribed to have maximum FCIs of ₹ 60 lacs and ₹ 5 crores, respectively and large to be over FCI of ₹ 5 crores. The maximum ceiling for large cement units was purposefully left open and thereby reflects that, intention clearly was to provide for an all-inclusive provision for new cement units so as to avoid any ambiguit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns raised by the petitioner in its application for rectification of the original assessment order dated 7.4.2014. Amendment applications were filed by the petitioner-Company challenging the legality and validity of the rectified assessment orders dated 13.6.2014, which were allowed on 25.6.2014. 24. In the aforesaid backdrop, the submissions have been made in two parts, namely, for exemption period from 2001-02 to 2005- 06 (RST) and for deferment period from 2006-07 to 2008-09 (VAT). Learned counsel for the petitioners has also made submissions in respect of demand of interest. 25. It is submitted that the orders passed by the BIFR on 7.1.2004 sanctioning the rehabilitation scheme (SS-04) clearly provided that the State of Rajasthan would grant the petitioner- Company sales tax exemption to the extent of 75%. The grant of this benefit was an integral part of the rehabilitation scheme, on which the rehabilitation was worked out, as also the debt service coverage ratio, for making the negative net worth of the Company positive. If the Company was required to pay back the GOR 50% of the exemption amount, the rehabilitation scheme would have become completely meaningless. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had availed the benefit of deferment on a larger amount, then the amount, which the State Government seeks to recover and for which there is no machinery or mechanism to enable the State Government to work out and determine the amount, is not payable. The additional benefit availed by the assessee is only the interest value if at all of the additional amount of deferment amount. The Notification dated 22.2.2002 or the undertaking does not provide for any specific rate of interest for raising a demand in such a situation of deferment. The rate of interest has no application to the present case. Neither the Notification nor the undertaking contain any machinery or mechanism for computing/determining and raising a demand against the petitioner in case of deferment. In absence of machinery provisions, a tax statute cannot be made applicable to a particular situation and if the machinery provisions break down then the charge of levy of tax itself fails. For this proposition, the petitioner has relied on the decisions in CIT V/s B.C. Shrinivasa Setty (1981(2) SCC 460) and PNB Finance Ltd. V/s CIT (2008 (13) SCC 94). 28. It is further submitted that the condition no.4 of the Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only 25% of the sales tax liability, under the Eligibility Certificate dated 29.3.1997 issued under the Incentive Scheme of 1989, which was even after remand by the Tax Board on 29.3.2000 maintained by the SLSC in a review on 9.10.2001. The claim exceeding 25% was never allowed to the petitioner-Company under the Incentive Scheme of 1989. The order dated 9.10.2001 of SLSC was not challenged by the petitioner. 33. It is also not in dispute that the exception of 75% was not granted to the petitioner-Company under the Incentive Scheme of 1989, but it was given under a separate special Notification dated 22.2.2002 issued in exercise of the powers vested under section 15 of the Act. It was an independent exemption, subject to the conditions laid down therein, by way of giving parity with M/s Binani Cements. The petitioner-Company voluntarily chose to abide by the Notification dated 22.2.2002 and gave an undertaking in compliance thereof, linking 75% exemption with the fate of the judgment in the Special Leave Petition filed by the State of Rajasthan against the judgment of the Rajasthan High Court. The Notification dated 22.2.2002 was issued to maintain parity. As a result of allowi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme. In the meeting dated 31.3.2003, the State Government sought time for taking a view on the reliefs/concessions sought from the State Government. By letter dated 30.4.2003 (page 33A of the additional documents), the consent to the proposal was declined by the State Government and the extent to which the Government was agreeable was reflected in the statutory Notification dated 24.10.2003 (page 34 of the additional documents) issued in exercises of the powers under section 15 of the Act, by which only the period of incentive was extended by two years from 26.3.2006 to 26.3.2008. The request to relieve the Company from M/s Binani linkage was rejected. On 12.11.2003 (page 36 of the additional documents), the State Government had agreed to consider for extension of benefit for a further period of three months upto 30.6.2008. 36. It is submitted that the Sanctioned Scheme (SS-04) did not relieve the Company of the Binani condition . It only provided in para 7.1(ii) to consider providing sales tax incentives @ 75% of RST (i.e. the company shall be only liable to pay sales tax at the rate of 25% of the normal sales tax payable) on the sales to be made by the transferred unit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year 2006-07 onwards. The petitioner never made any effort to be impleaded in the Appeal preferred in the Supreme Court by the Commercial Taxes Department against the judgment of the Rajasthan High Court in the matter of M/s Binani Cements. 40. So far as the deferment scheme is concerned, it is stated that the deferment scheme for the period 2006-07 onwards was applicable under the Act of 2003 to only those units, which were enjoying incentive or deferment in the previous years, to switch over to the deferment scheme for the remainder of the period of the incentive to the extent of the unavailed EFCI. The Notification dated 31.3.2006 to that effect was issued under section 20(3) of the Act of 2003. The extent of the deferment available to an industrial unit was availing a benefit under a special Notification issued by the State Government, which in case of the petitioner was issued on 22.2.2002. The claim was dependent upon the extent of the incentive enjoyed under the special Notification. Clause (6) of the deferment notification provided: (6). The percentage of deferment of tax in the extended period shall be equal to the extent of the percentage of defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was capable of being legally deferred. The amount of VAT, which has been retained beyond 25% was required to be paid in the respective quarters as prescribed under Section 20(1) of the Act of 2003 and thus, the tax to that extent, which has been retained, has to be returned back with interest as in respect of such retention, the benefit of pre-payment was not available. 44. It is further submitted by learned counsel appearing for the respondents that the amount, which was already delayed could not become part of pre-payment as it would have amounted to double benefit. The amount already delayed would further get postponed by a period of 7 years on which the petitioner now claims the benefit of early payment. The said claim is therefore, against the terms of the benefit and was impermissible. 45. With regard to the payment of ₹ 69.31 crores by the petitioner, it is submitted by the respondents that by virtue of the orders dated 7.4.2014 and 13.6.2014, the Department has given full credit of the entire amount to the petitioner and the demand now being raised and is challenged is after giving effect to the payment made by the petitioner-Company. The petitioner- Company wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod commencing from the day immediately succeeding the date specified for such payment and ending with the day on which such payment is made. 47. On the interest on disgorgement of the excess Rajasthan Sales Tax incentive, it is submitted that the undertaking given by the petitioner-Company clearly provided that the petitioner would pay without demur or loss to the exchequer, the sum equal to the difference between the benefit actually availed and the tax as determined by the Hon'ble Supreme Court. The words benefit actually availed and to pay without demur or loss to the revenue make the petitioner-Company liable to pay interest on the principle of restitution. Further, the undertaking is also to the effect that in case the judgment of the Rajasthan High Court in M/s Binani Cements is reversed, then .... the exemption as originally availed to be 25% by M/s Ambuja Cements Rajasthan Ltd. (formerly known as DLF Cement Ltd.) vide Eligibility Certificate dated 29.3.1997 with effect from 27.3.1997 shall stand restored indisputably.... . Thus, once the original exemption upto 25% is restored, the differential tax has to be repaid by the petitioner- Company without any loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case was the effect of the Notification dated 22.2.2002 applicable in respect of the years 2002-2006 in which the incentive was being given. The determination for the years 2006-08 (relatable to the period of deferment) was related to the effect of Notification dated 22.2.2002, which has been extensively dealt with in the impugned order. It has consequential effect on the extent of deferment under the Notification dated 31.3.2006 by virtue of Clause (6) and as such, adjudication had taken place with regard to the percentage of incentive in the order dated 7.4.2014 and once the adjudication was made, the remaining are arithmetical computation of the liability of the payable tax and interest, which has been done in the impugned orders dated 7.4.2014 and 13.6.2014. 51. We have considered the submissions made by learned counsel appearing for the petitioners and do not find any force in them both with regard to the exemption period from 2001-02 to 2005-06 (RST) as well as the deferment period from 2006-07 to 2008-09 (VAT). We also do not find force in the submission that the demand of interest is not legally justified. The reasons for arriving at such conclusion are given as belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax in the year immediately preceding such extension. The Notification dated 31.3.2006 issued in exercise of powers under section 20(3) of the Act of 2003, linked the benefits of the tax deferment to the Notification issued in favour of the Companies under section 15 of the Act, with the preceding year. 55. It is admitted by the petitioner-Company that the Notification dated 22.2.2002 was issued under section 15 of the Act in its favour, on a representation made by it on 7.1.2002 to the State Government seeking parity with M/s Binani Cements. The Notification issued was clearly with the condition and was linked to the case of M/s Binani Cements pending in the Supreme Court of India and an undertaking was given in unequivocal and specific terms without any demur that the Company will deposit the benefit availed by it exceeding 25% of its liability, in case the judgment of the Rajasthan High Court in the matter of M/s Binani Cements is modified as per any order/judgment issued by the Supreme Court. The matter pending before the Supreme Court was finally decided on 19.2.2014, in which it was held that M/s Binani Cements was not entitled to the RST exemption beyond 25% and on which p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , was not the subject matter, which was either discussed or considered by the BIFR, nor, in our opinion, the BIFR could have de-linked the petitioner Company' from the case of M/s Binani Cements and relieved it from the liability in case the matter was decided by the Supreme Court against M/s Binani Cements. 60. The rehabilitation scheme (SS-04) sanctioned by the BIFR on 7.1.2004 did not provide for sales tax incentive beyond 25% nor there was any clause in the SS-04, which may have relieved the petitioner-Company from Benani effect. Para 7.1 under the heading Reliefs and Concessions of the Sanctioned Scheme-04 only provided for a consideration of the sales tax incentive at the rate of 75% of RST on the sales to be made by the transferred unit for the period upto 30th June 2008 effective from the cut off date. This relief was already granted to the petitioner. The BIFR on the application of the petitioner made amendment to the extent of time period of the applicability of the concession. The amendment was nothing more than recording the then prevailing factual situation. 61. Any amendment in the Sanctioned Scheme-04 could be made only by giving notice to the concerned p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny that the Sanctioned Scheme-04 by itself granted to the petitioner the benefit of 75% wholly independently of the Notification dated 22.2.2002 and that the Sanctioned Scheme-04 may be considered or read in the manner in which the petitioner was not required to pay back any part of exemption amount. There is nothing in the Sanctioned Scheme-04, which may have bound the State Government to grant any such concession. We also do not agree with the submission that in case the State Government was aggrieved by relieving the petitioner from its liability in the Sanctioned Scheme-04, it should have challenged the order of the BIFR before the AIFR, which alone had the authority of law to amend or modify the scheme. In our view, the State Government was not required to challenge the order, as there was nothing in the Sanctioned Scheme-04, which could have interpreted in a manner to have allowed the exemption to the extent of 75% of sales tax payable without making the exemption subject to the liability to pay back 50% of the exemption amount in the event the judgment of the Rajasthan High Court in M/s Binani Cements was amended by the Hon'ble Supreme Court. As found by us in the preced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for deferment under the Notification dated 31.3.2006 was reduced to 25% for the years 2006-07 to 2008- 09. The petitioner had availed additional benefit of 50%, which was not permissible as an effect of the judgment of Hon'ble Supreme Court in the matter of M/s Binani Cements. This amount was even otherwise required to be paid to the State in the relevant years on monthly or quarterly basis under section 20(1) of the Act of 2003. 66. The respondent-State has sufficiently clarified and has satisfied us with the effect of the pre-payment of the deferred tax. The State Government in order to get revenue, which was needed by it, issued a Notification dated 9.3.2007 allowing the prepayment of the deferred tax. The benefit of pre-payment Notification could be made only in respect of tax, which could be legally deferred. The amount of VAT which was retained beyond 25% was required to be paid as prescribed under section 20(1) of the Act of 2003. The tax to the extent it was retained and not paid had to be returned back to the State, and in respect of the said amount, the benefit of pre-payment was not available. 67. We find justification in the contention of the State that no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 20(4) read with Section 55(1) (a) and (c) for the delay in payment within the time specified under the Act from the day immediately succeeding the date specified for such payment and ending with the day on which such payment is made. The petitioner-Company was liable to pay the interest on the excess of the incentive in terms of the undertaking given by it to return the benefit actually availed and to pay without demur the loss to the revenue. The judgment of Hon'ble Supreme Court in M/s Binani Cements, with which the petitioner's case is linked by undertaking, restored the Eligibility Certificate dated 29.3.1997 with effect from 27.3.1997 and thus, once the original exemption to the extent of 25% was restored, the differential tax has to be paid/disgorged by the petitioner without any loss to the exchequer. The entire benefit had to be restored and on which the petitioner was required to pay interest on the amount withheld by it. The petitioner must restore the amount retained by it as a benefit, after the judgment of Hon'ble Supreme Court dated 19.2.2014 in M/s Binani Cement's case and in terms of the undertaking given by it to the State Government. Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 was that of 'judgment-debtor' and the applicant became liable to pay forthwith. 147. Admittedly, the amount has not been paid. Instead, that payment they sought to postpone by raising various challenges in this Court and in the meantime 'utilised' that money, i.e., benefited. As a consequence, the non-applicants (Respondents-states herein) were 'deprived' of the use of that money for taking remedial measures. The challenge has now - nearly 14 years later - been finally decided against them. 148. The appellans must pay the amount is one thing but should they pay only that amount or something more? If the period were a few days or months it would have been different but here it is almost 14 years have been lapsed and amount has not been paid. The questions therefore are really three: 1. Can a party who does not comply with the court order be permitted to retain the benefits of his own wrong of noncompliance? 2. Whether the successful party be not compensated by way of restitution for deprivation of its legitimate dues for more than fourteen years? and 3. Whether the court should not remove all incentives for n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a wrongdoer and even though he may have received [it] honestly in the first instance. (Schock v. Nash, A.2d 217, 232-33). 154. Unjust enrichment occurs when the Defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa Spolka Akcyjna. v. Fairbairn Lawson Combe Barbour Ltd., Lord Wright stated the principle thus:(AC p.61) ...(A)ny civilized 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 recognized to fall within a third category of the common law which has been called quasi-contract or restitution. 155. Lord Denning also stated in Nelson v. Larholt as under: (KB p.343) ..It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 160. While the term 'restitution' was considered by the Supreme Court in South-Eastern Coalfields and other cases excerpted later, the term 'unjust enrichment' came to be considered in Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise and Customs. This Court said: (Sahakari Khand case, SCC p.748, para 31. 31....'Unjust enrichment' means retention of a benefit by a person that is unjust or inequitable. 'Unjust enrichment' occurs when a person retains money or benefits which in justice, equity and good con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest is well suited to compensate a Plaintiff for the interval between when damages initially arise and when they are finally paid. This view seems to be correct and in consonance with the principles of equity and justice. 166. Another way of looking at it is suppose the judgment debtor had borrowed the money from a nationalised bank as a clean loan and paid the money into this Court. What would be the bank's demand? 167. In other words, if payment of an amount equivalent of what the ledger account in the nationalised bank on a clean load would have shown as a debit balance today is not paid and something less than that is paid, that differential or shortfall is what there has been: (1) failure to restitute; (2) unfair gain by the non-complier; and (3) provided the incentive to obstruct or delay payment. Unless this differential is paid, justice has not been done to the creditor. It only encourages non-compliance and litigation. Even if no benefit had been retained or availed even then, to do justice, the debtor must pay the money. In other words, it is not only disgorging all the benefits but making the creditor whole i.e. ordering restitution in full and n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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