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2025 SCC OnLine SC 419

In the Supreme Court of India

(BEFORE J.B. PARDIWALA AND R. MAHADEVAN, JJ.)

Dr. Poornima Advani and Another … Appellant(s);

Versus
Government of NCT and Another … Respondent(s).
Civil Appeal No. 2643 of 2025 (arising out of S.L.P. (Civil) No. 594
of 2020)
Decided on February 18, 2025
Advocates who appeared in this case :
Mr. Abhishek Puri, Adv., Mr. Sahil Grewal, Adv., Ms. Surbhi Gupta,
Adv., Mrs. Reeta Dewan Puri, Adv., Mr. P.N. Puri, AOR, For Appellant(s)
Ms. Jyoti Mendiratta, AOR, For Respondent(s)
ORDER
1. IA No. 4291/2024 for substitution is allowed. Cause title be
amended accordingly.
2. Leave granted.
3. This appeal arises from the judgment and order passed by the
th
High Court of Delhi dated 27 September, 2019 in Letters Patent
Appeal No. 288 of 2019 by which the appeal filed by the appellants
herein against the judgment and order passed by the learned Single
Judge of the High Court partly allowing the Writ Petition No. 9014 of
2017 filed by the appellants herein came to be dismissed.
4. The facts giving rise to this appeal may be summarized as under:
—
The appellants herein were desirous of purchasing an immovable
property in New Delhi. For that purpose, they purchased the e-stamp
paper dated 06.07.2016 valued at Rs. 28,10,000/- (Rupees Twenty
Eight Lakh Ten Thousand Only). The money for that purpose was
paid from the joint bank account of the appellants being husband
and wife respectively. The e-stamp paper which came to be
purchased was dated 06.07.2016.
5. We borrow the other relevant facts from the judgment and order
passed by the learned Single Judge dated 20th August, 2018 more
particularly, from paragraph 4.3 therein:—
“4.3 Pertinently, the e-stamp paper dated 06.07.2016 purchased
by the petitioners, sets down the following details:
(i) Particulars of the property, which was proposed to be
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purchased;(ii) the names of the parties, who intended to execute

the sale deed;(iii) the consideration to be paid for consummating
the sale transaction; and (iv) the value of e-stamp paper.
4.4 According to the petitioners, though initially, the intention
was to execute the sale deed concerning subject property in
July,2016, since, there was some delay in closing the loan
transaction via which the transaction was to be funded, the
execution of the sale deed was delayed.
4.5 This delay proved to be fatal, inasmuch as, on 4.8.2016, the
petitioners were told by the broker, who had the custody of the e-
stamp paper, that the e-stamp paper dated 6.7.2016 had been
misplaced.
4.6 The petitioners realizing the enormity of the loss, filed a
complaint with the Crime Branch, Delhi Police, on that very day i.e.
4.8.2016. As a follow up action, on 06.08.2016, the petitioners got
public notices issued in two newspapers, namely, Asian Age (English
edition) and Rashtriya Sahara (Hindi edition).
4.7 Since, the petitioners were desirous of taking the sale
transaction in respect of subject property forward, they were left
with no choice but to purchase a fresh e-stamp paper, which they
did, on 6.8.2016.
4.8 This stamp paper bore the No. INDL80452882772240. The
money for this was also paid out from the joint account of the
petitioners, maintained with the State Bank of India.
4.9 Consequent thereto, on 8.8.2016, the petitioners and the
vendor i.e., M/s. Scud Finlease Limited executed a sale deed.
5. On 11.8.2016, the petitioners filed an application with the Sub-
Divisional Magistrate, Collector of Stamps, for refund of stamp duty
amounting to Rs. 28,10,000/- on account of loss of the e-stamp
paper dated 6.7.2016.
5.1 The prayer made in the application was that the amount be
refunded to the petitioners after deducting the usual cancellation
charges, if any. The application was accompanied by an affidavit of
petitioner No. 2 that the e-stamp paper dated 6.7.2016 has been
lost and was not traceable despite best efforts.
5.2 Furthermore, an indemnity bond was also executed by
petitioner No. 2, whereby he undertook to indemnify the
respondents, if the stand taken by him that the e-stamp paper dated
6.7.2016 had been lost, proved to be incorrect and, as a result
thereof, any loss/damage, etc. was suffered by them.
5.3 Since no action was taken on the petitioners' application
dated 11.8.2016, the petitioners addressed a letter dated 8.9.2016
to respondent No. 2. In this letter, apart from anything else what
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was sought to be highlighted by the petitioners were two aspects :

first, given the fact that every transaction is made in electronic form,
it could be verified almost instantaneously; and second, the
misplaced or lost e-stamp paper dated 6.7.2016 could not be used
for any other purpose except that, which stood specified in the e-
stamp paper. It was emphasized that given that fact that via a fresh
e-stamp paper dated 6.8.2016, transaction qua the stamp paper
dated 6.7.2016 had been consummated, the lost e-stamp paper had
lost its legal efficacy and thus, could not be misused by anyone else.
5.4 As is evidence that both these assertions were made by the
petitioners to allay the apprehensions of respondent No. 2.
5.5 However, the petitioners' plea for refund of stamp duty did
not cut much ice with the respondents and, consequently, vide order
dated 21.10.2018, the Collector of Stamps (HQ) rejected the
petitioners' application dated 11.8.2016 maintained for refund of
stamp duty.
6. Aggrieved by the impugned order dated 21.10.2016, the
petitioners have preferred by the instant writ petition.”
6. The learned Single Judge adjudicated the writ petition and
ultimately thought fit to partly allow the same. The learned Single
Judge issued a writ of mandamus to the respondents herein to refund a
sum of Rs. 28,10,000/- within a period of two weeks from the date of
pronouncement of the judgment.
7. It appears that the petition was partly allowed as only the
principal amount was ordered to be refunded whereas the interest on
the same was declined. We take notice of few relevant observations
made by the learned Single Judge while ordering refund of the principal
amount referred to above:—
“19. Therefore, the question before me is : should the Court, in
such circumstances, fold its hands and deny a person, who has lost
the stamp paper, relief only because the draftsman has omitted the
use of such expression explicitly in the Statute. As noticed above, it
is not unknown to law that when Courts have encountered such
creases in the Statute they have proceeded to iron them out without
destroying the fabric which forms the core of the Statute. The
expression obliterate appearing in Section 49(a) of the Act should, in
my opinion, include cases where the Stamp paper is lost by an
applicant seeking refund of stamp duty. This would be a reasonable
‘and practical’ interpretation of Section 49(a) of the Act, as any other
interpretation could lead to a situation where it may fall foul of
Article 14 of the Constitution.
20. There is another way of looking at the matter, which is, the
scheme of Chapter V of the Act. If the scheme, as discussed above,
is kept in mind, respondents ought to refund stamp duty even in
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cases where an applicant claims refund of stamp duty on account of

loss of e-stamp paper; subject to an enquiry establishing factum of
loss and adequate safeguards being put in. To my mind, if the
contrary view was sustained, it would result in the State retaining
money without the authority of law, as admittedly, the taxing event
had not occurred in the facts and circumstances of this case.
21. In the instant case, the petitioners have provided a photocopy
of e-stamp paper dated 6.7.2016, which at the moment, is the best
secondary evidence available with it, which, shows that the e-stamp
paper was not engrossed.
21.1 Given the foregoing discussion, clearly, the amount retained
by the respondents cannot be in the nature of tax as the taxing
event has not occurred in the instant case. It cannot be also in the
nature of fee as there was no quid pro quo.
21.2 In any event, the stand of the respondents is that the stamp
duty is in the nature of tax. If that be the position, could the
respondents retain money in anticipation of the taxing event
occurring? Article 265 of the Constitution provides that no tax shall
be levied or collected except by authority of law. Therefore, emphasis
is not only on no tax being levied without the authority of law, but is
also on collection of tax without authority of law.
22. Therefore, in my view, the continued retention of amount paid
towards anticipated stamp duty in the hands of the respondents is
illegal. The apprehension expressed by the respondents that there
was a possibility of the lost e-stamp paper being mis-utilized seems
to be tenuous for the following reasons:
(i) First, the particulars of the transaction, parties and the
consideration have already been incorporated in the lost e-
stamp paper.
(ii) Second, with the technological innovation in place, the said
information would be available and anyone trying to use the
lost e-stamp paper can easily be found out. In any event, the
fact the lost e-stamp paper dated 06.07.2016 adverts to the
same property qua which sale transaction stands effected via
the new stamp paper dated 06.08.2016, the possibility of
misuse of the old e-stamp paper dated 06.07.2016, to my
mind, does not arise.
(iii) The lost e-stamp paper dated 06.07.2016 having been locked
and cancelled, there is, to my mind, given the technology in
place, no possibility of the lost e-stamp paper being mis-
utilized. The Collector of Stamps invariably checks the website
of Stock Holding Corporation Ltd. to ascertain whether or not
the stamp paper is genuine. The order dated 11.03.2015,
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passed by the Divisional Commissioner, clearly casts such an

obligation on the Collector of Stamps.
(iv) Lastly, in any case, the petitioners have furnished an
indemnity bond, and therefore, loss or damages, if any,
suffered by the respondents can always be recovered.
23. Before I proceed further, I need to touch upon the argument
raised by Mr. Ramesh Singh that the view held by a Single Judge of
this Court in Piyush Aggarwal's case requires reconsideration. This
was a case where the petitioners had sought refund of stamp duty
on account of the fact that before the instrument on which the stamp
duty was leviable, was executed, by virtue of a notification issued by
the State, the stamp duty and transfer duty on conveyance had been
substantially reduced. Since, the petitioners had paid excess stamp
duty and transfer duty, they sought refund of the same.
23.1 The facts, as gleaned from the judgment, would show that
the conveyance i.e. the instrument, in that case, was executed on
30.06.2003, whereas the notification, reducing the stamp duty and
transfer duty, was issued on 19.05.2003.
23.2 The Court was, thus, called upon to adjudicate two aspects :
First, as to when, did the chargeable event occur? Second, whether
in the given circumstances, the petitioners claim for refund of excess
stamp duty and transfer duty was sustainable?
23.3 Insofar as the first aspect was concerned, the Court ruled
that the chargeable event, for levy of stamp duty, would occur on
the date of execution of the instrument and not on the date of
adjudication or the date of presentation, which, in that case were
events which occurred prior to the date of the notification, whereby
the stamp duty and transfer duty charges were reduced by the
State.
23.4 Insofar as the second issue was concerned, the Court held
that Section 52 which allows, inter alia, for refund of stamp duty in
cases where a person, inadvertently, uses on an instrument
chargeable with duty, a stamp of a description other than that
prescribed for such an instrument — was available to the petitioners
for refund of stamp duty. According to the Court, if the date of
execution of the instrument is taken as the date which would
determine as to what would be the admissible stamp duty that had
to be levied on the instrument (i.e. the conveyance) then, the
petitioner's case would fall within the ambit of the provisions of
Section 52 of the Act, as excess duty had been, inadvertently, paid
by the petitioners since the notification reducing the rate of stamp
duty and transfer duly stood published prior to the execution of the
instrument in that case.
23.5 This apart, the Court observed that even if it is assumed that
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Section 52 of the Act was not applicable, the petitioners would be

entitled to refund of stamp duty as the State could not retain the
stamp duty in view of the provision of Article 265 of the Constitution.
The relevant observations made by the Court are as follow:
“….11. Even as regards applicability of Section 52 of the Act,
the matter can be looked at in another perspective. The
“chargeable event” being the date of execution of the document
and if on that date higher than the admissible stamp duty is
levied or collected, it would fall within the ambit of excess
payment being “inadvertently” collected on the said date from the
petitioner. Thus, it could even be urged that Section 52 of the Act
was applicable. Further as noticed earlier dehors the applicability
of Section 52 of the Act, stamp duty collected without authority of
law cannot be retained in terms of Article 265 of the Constitution
of India in the absence of any statutory provision requiring refund
application to be submitted within a specified period or
prohibiting the refund unless made within the specified period. In
the instant case, it may be noted, that application for refund had
been made within the stipulated period of six months under
Section 52 of the Act…..”
(Emphasis is mine)
23.6 Having regard to the facts which obtained in Piyush
Aggarwal's case and enunciation of law by the Court, I am not
persuaded to hold that the judgment requires reconsideration, as
was contended by Mr. Ramesh Singh. To my mind, the ambit and
scope of Article 265 of the Constitution is not restricted only to cases
where the Court finds that the levy imposed by the State is illegal or
unconstitutional. As adverted to above, Article 265 of the
Constitution, not only imposes a bar on imposition of tax without the
authority of law, it also imposes a prohibition on collection of tax
without the authority of law.
23.7 In my opinion, the other contention of Mr. Ramesh Singh
that the Court in Piyush Aggarwal's case failed to notice the legal
regime of the Act, is also not correct in view of the fact that the
Court did notice the relevant provisions, which were necessary for
adjudication of the matter at hand.
23.8 The other submission of Mr. Ramesh Singh, that the Act is a
complete code by itself and that refund could only be ordered in
respect of instances provided in the Act, has been answered by me
hereinabove. The rationale employed by me is that the scheme of
Chapter V of Act which adverts to allowances and refunds is required
to be interpreted in a manner that the Statute does not fall foul of
the Constitution.
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23.9 Therefore, in that sense, the other argument of Mr. Ramesh

Singh that the Collector of Stamps is a creature of the Statute and
can, therefore, only operate within its periphery, has to be answered,
in my opinion, in the same vein. While one cannot quibble with the
proposition that the statutory authority has to necessarily act within
the ambit of the statute which forms the basis of its nativity, the
extent and amplitude of its power will, however, be governed by the
provision of the Constitution. There being no prohibition in the Act
for grant of refund for lost stamp paper, surely the Collector of
Stamps cannot collect or retain what lawfully does not belong to the
State.
24. Interestingly, our neighbouring country i.e. Pakistan, which
has a somewhat similar Statute, dealing with the levy collection and
refund of stamp duty, is beset with difficulties which are akin those
faced by applicant(s), in our country, seeking refund of stamp duty
on account of loss of stamp paper. This aspect, I came across upon a
judgment dated 23.02.2016, delivered by the Lahore High Court, in
Writ Petition No. 27935 of 2012, titled: Aziz Ullah Khan v.
Government of the Punjab etc., being brought to my notice.
24.1 The Court in that case was faced with a question as to
whether refund of stamp duty ought to be ordered in a case where
the petitioners had misplaced i.e. lost the stamp papers.
24.2 The Additional Advocate General resisted the writ petition,
broadly, on the ground that there was no provision for grant of
refund of stamp paper, in cases where it was lost and that if such a
relief was granted, it would result in loss to the national exchequer.
24.3 I must confess that, though, in that case, the Court noticed
the existence of Rule 5 of the Punjab Non Judicial Stamp Refund,
Renewal and Disposal Rules, 1954 which provided for refund of
stamp duty in case of its loss, albeit, in specified circumstances i.e.,
where stamp paper was stolen or lost in transit by Government
officials. The Court, after noting that there was a discrimination,
inasmuch as, Rule 5 permitted write off where stamp papers were
lost by public functionaries, whereas, a similar facility was not given
to private person, went on to deal with the other arguments, that is,
whether it could order refund in exercise of its constitutional powers
in the absence of specific provision for refund, the possibility of loss
to the national exchequer, as also misuse of stamp paper, in the
following manner:
“…..It is very strange to note that the public functionaries, in
the event of loss of Stamp Papers in transit, have been bestowed
with a remedy to seek write off whereas the private persons have
not been provided with such facility. This fact alone renders it
crystal clear that a discriminatory treatment is being given by the
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public functionaries to their own brethren in the event of loss of

stamp papers whereas the request of a member of society is not
being entertained merely for the reason that the original are not
available. Such approach, being in conflict with the clear cut
mandate given under Article 25 of the Constitution of Islamic
Republic of Pakistan, 1973, cannot be encouraged rather deserves
to be discouraged.
10. Learned Additional Advocate General has adopted the plea
that when the statute has not allowed any refund in case of loss of
Stamp Papers the same cannot be permitted by this Court in
exercise of Constitutional jurisdiction vested under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973. In this
respect I am of the view that according to the golden principle of
interpretation of a statute, a beneficial approach should be
followed. As far as the case in hand is concerned, when a via
media has been provided in the event of loss of Stamp Papers
during transit by the public functionaries, how the petitioner can
be deprived of such facility. It is not the case of the respondents
that the case of the petitioner is not covered under Rule 32 of the
Rules, 1954. The apex Court of the country, in H.R.C. No. 40927-
S of 2012 Application by Abdul Rehman Farooq Pirzada (PLD 2013
SC 829) while highlighting the principles of interpretation of
statutes by the superior Courts has inter-alia held as under:—
“The interpretation cannot be narrow and pedantic but the
Courts' efforts should be to construe the same broadly, so that it
may be able to meet the requirements of an ever changing
society. The general words cannot be construed in isolation but
the same are to be construed in the context in which they are
employed. In other words, their colour and contents are derived
from the context.”
Further, a Full Bench of this Court in the case of Rub Nawaz
Dhadwana Advocate v. Rana Muhammad Akram Advocate (W.P. No.
16793 of 2014) while dealing with the powers of the superior Courts
to abridge the distance between the legislator and the public-at-
large has inter-alia observed as under:
“The judge must reflect these fundamental values in the
interpretation of legislation. The judge should not narrow
interpretation to the exclusive search for subjective legislative
intent. He must also consider the “intention” of the legal system,
for the statute is always wiser than the legislature. By doing so
the judge gives the statute a dynamic meaning and thus bridges
the gap between law and society.”
If refusal on the part of the respondents to issue refund in favour
of the petitioner is adjudged on the touchstone of aforequoted cases,
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I am of the humble opinion that the same is not tenable for the
reason that when the legislator has framed rules for refund of
spoiled/unused/lost Stamp Papers, how the respondents can
interpret said rules according to their own whims just to damage the
case of the claimants.
xxx xxx xxx
In this scenario, the objection raised by the learned Additional
Advocate General that the refund is not permissible without
production of original Stamp Papers is of no worth at all. The
bonafide of the petitioner is apparent from the fact that after loss of
original Misplaced Stamp Papers he not only reported matter to the
Police with promptitude but also got published proclamation in daily
“Smaj” and having done so he, with a view to avoid further delay
towards execution of sale deed, got issued fresh Stamp Papers to
complete the sale transaction. A copy of the sale deed provided by
the above named deed writer shows that the Misplaced Stamp
Papers were used for the said purpose but due to their loss during
journey sale deed could not be registered. The logic behind issuance
of refund against the spoiled, destroyed or unused Stamp Papers is
to accommodate a person who has not used those Stamp Papers for
the purpose for which the same were issued. In the case in hand
after admission by the respondents that neither the Misplaced Stamp
Papers were used for any other purpose nor anybody else has
claimed refund in that regard, the request of the petitioner cannot be
turned down merely on the ground that he could not produce the
original Misplaced Stamp Papers before the competent authority. If
the original Stamp Papers were available with the petitioner there
was no necessity for him to incur another sum of more than one
million rupees for the same purpose.
12. Learned Additional Advocate General has forcefully argued
that worth of the Stamp Papers is equal to those of currency notes
and no refund against the currency notes is permissible in case
where the original are not produced. To the extent of worth of Stamp
Papers equal to currency notes, I agree with the learned law officer,
however, to the extent of criteria explained by him regarding refund
of currency notes I have contrary view for the reason that in case of
currency notes its custodian is always considered its lawful owner
and it cannot be proved as to which specific currency note was in
possession of a particular person whereas in the case of Stamp
Papers entitlement of a person can be certified firstly from the
National Exchequer where price of the Stamp Papers has been
deposited, secondly from the register of Stamp Vendor and thirdly
from the authorities before whom the same was presented. Insofar
as the case in hand is concerned, all the authorities have admitted
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that the Misplaced Stamp Papers were issued to the petitioner after
payment of consideration and those were never utilized for any other
purpose. In this view of the matter, the objection posed by the
learned Law Officer is hereby spurned.
13. Now taking up plea of learned Additional Advocate General
that in case refund is allowed in absence of original Stamp Papers
not only scrupulous persons would be able to use them for any other
purpose but they would also succeed to get refund while causing
colossal loss to the National Exchequer. In this regard, I am of the
view that strict criteria can be laid to avoid such apprehension but in
no way same can be made a ground to deprive a person from refund
of the amount whose claim has been admitted by the relevant
forums. In case the respondents have the apprehension that the
Misplaced Stamp Papers were or would be used for any other
purpose they can proceed against the culprit under the relevant law
in addition to getting registered a criminal case against the
petitioner.
14. Admittedly, the Misplaced Stamp Papers were used for
preparation of sale deed as is evident from the recitals of copy of
sale deed (Annexure-C of this petition), thus, the possibility of using
the Misplaced Stamp Papers for any other purpose is totally ruled
out. Moreover, execution of sale deed by the petitioner on
subsequently purchased Stamp Papers also eliminates said
apprehension as the land once sold cannot be resold on the strength
of Stamp Papers got issued in that regard.
xxx xxx xxx
16. The learned Additional Advocate General has mainly opposed
prayer of the petitioner on the premise that there is no provision
either in the Act, 1899 or in the Rules, 1954, regarding a private
person, in case of loss of original Stamp Papers. In this regard, I am
of the view that in view of principle ubi jus ibi remedium (where
there is a right there is a remedy) nobody can be left remediless.
The said principle has also been elucidated by the apex Court of the
country in the case of Sarfraz Saleem v. Federation of Pakistan (2014
PLC C.S. 884) in the following words:—
“In these circumstances, lack of exercise of jurisdiction by the
High Court in the present case seems to be contrary to the well
accepted principle “ubi jus ibi remedium” (where there is a right
there is a remedy) and the spirit of Articles 4 and 10-A of the
Constitution, meant to safeguard the rights of every
individual/person to be dealt with in accordance with law”
The afore-quoted portion of the judgment of apex Court of the
country renders it more than clear that nobody can be left
remediless. Moreover, while dealing with the matters of masses they
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cannot be penalized due to stagnant attitude of the legislator about

new Issues. Insofar as case in hand is concerned, request of the
petitioner deserves sympathetic consideration for the reason that
after completion of codal formalities his request has been turned
down mainly on the ground that original Stamp Papers have not
been produced. At the cost of repetition it is observed that when the
legislator itself has held that Collector can refer matter of refund
against unused stamp papers even without producing the original
one the stubbornness on the part of competent authority in this
regard is not understandable. Public functionaries are supposed to
eliminate difficulties of public-at-large but when they themselves try
to impede their way to have their legitimate right the entire
threadbare of our society would be devastated.
17. Now taking up plea of learned Additional Advocate General
that if refund is allowed even in cases where the original Stamp
Papers are not produced the National Exchequer would suffer badly, I
am of the view that the respondents are not going to pay anything
either from their own pockets or from the National Exchequer either
they have to repay the amount twice deposited by the petitioner.
Had the petitioner claimed anything in addition to that he deposited
at the time of issuance of Stamp Papers then the said contention
would have some substance. Considering from another angle in the
cases where spoiled or unused Stamp Papers are returned by the
persons concerned they are issued refund without taking into
consideration that the said amount is being repaid from the National
Exchequer. This fact alone amounts to discrimination on the part of
competent authority……”
(Emphasis is mine)
xxx xxx xxx
25. As would be noticed, the Aziz Ullah Khan's case, on facts, was
pari materia with the facts obtaining in the instant case. In that
case, the stamp paper was lost, which was required for
consummation of the sale transaction concerning the subject
immovable property. The petitioner, as in the instant case, had
bought a new stamp paper and had gone on to consummate the sale
transaction qua the very same property.
26. I may also indicate that insofar as other cases cited by Mr.
Ramesh Singh are concerned, they are, in fact, not applicable to the
facts and circumstances arising in the instant case. One cannot but
state that the proposition of law as enunciated in Mafatlal Industries
Ltd. v. Union of India; State of Maharashtra v. Swanstone Multiplex
Cinema Pvt. Ltd. and Cooch-Behar Contractors' Association v. State
of West Bengal still hold the field.
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26.1 However, dealing with the last case first i.e. Cooch-Behar
Contractors' Association case, that was a case where the appellants
before the Supreme Court sought exclusion of certain components,
which had been included in the expression “contractual transfer
price”, which in turn, determined the tax that an assessee had to
pay under works contract. In this context, the Court was called upon
to interpret, inter alia, the provisions of Section 6D of the Bengal
Finance (Sales Tax) Act, 1941 as amended by West Bengal Act 4 of
1984. The Court ruled that nothing could be excluded from
contractual transfer price over and above that was indicated in
Clauses (a) to (e) of sub-section 2 of Section 6D of the
aforementioned Act. It is in this context that the Court observed that
Section 6D was a self contained provision. In my view, there is
nothing in the judgment, which would help the cause of the
respondents.
26.2 Likewise, the judgment of the Supreme Court rendered in
State of Maharashtra case, does not support the respondent's case.
This was a case where the respondent company, which was the
owner of multiplex cinema theatre had collected entertainment tax
at rate of 45% during the period when it was either not liable to pay
such tax or was required to pay tax at a concessional rate i.e., 25%.
The State attempted to reclaim the benefit, which had accrued to the
respondent company as they had recovered excess entertainment
tax from the cinema goers. Consequently, demand notices were
issued by the State in that behalf. The demand notices issued were
challenged. The High Court allowed the writ petition. The Supreme
Court reversed the decision of the High Court.
26.3 While doing so, the Supreme Court made an interesting
distinction between the doctrine of unjust enrichment as opposed to
doctrine of retention. While drawing a distinction between the two
concepts, the Supreme Court noticed several judgments, including
the judgment rendered by the Court in Mafatlal Industries Ltd. case.
Pertinently, the Court, while allowing the appeal of the State,
directed the State to remit undue benefit obtained by the
respondent company to a voluntary or charitable organization, since,
the State during that period, could not have levied or collected the
tax from the respondent company. This aspect of the matter is
reflected in Paragraphs 32, 33, 36 & 37. For the sake of convenience,
the same are extracted hereafter:
“…32. In a given case, this Court in exercise of its jurisdiction
under Article 142 of the Constitution of India may also issue other
directions, as has been done in Indian Banks' Assn. v. Devkala
Consultancy Service [(2004) 11 SCC 1] in a similar situation
where it was difficult for the Court to direct refund of a huge
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amount to a large number of depositors from whom the bank had

illegally collected, this Court directed that the amount be spent
for the benefit of the disabled in terms of the provisions of the
Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995. This Court may take recourse to
such a procedure as the State also having granted exemption was
not entitled to collect the duty. In other words, it having granted
an exemption, was not legally entitled thereto. We think that it
would be a better course, as stricto sensu, Article 296 of the
Constitution is not applicable.
33. We are passing this order keeping in view the peculiar
situation as in either event it was cinema-goers who had lost a
huge amount. It would be travesty of justice if the owners of the
cinema theatre become eligible to appropriate such a huge
amount for their own benefit. To the aforementioned extent,
doctrine of unjust enrichment may be held to be applicable. A
person who unjustly enriches himself cannot be permitted to
retain the same for its benefit except enrichment. Where it
becomes entitled thereto the doctrine of unjust enrichment can be
invoked irrespective of any statutory provisions.
xxx xxx xxx
36. It may be true that hereat we are not concerned with
refund of tax but then for enforcement of legal principles, this
Court may direct a party to divest itself of the money or benefits,
which in justice, equity and good conscience belongs to someone
else. It must be directed to restitute that part of the benefit to
which it was not entitled to.
37. We, therefore, direct that the State shall realise the amount
to the extent the respondent had unjustly enriched itself and pay
the same to a voluntary or a charitable organisation, which
according to it is a reputed civil society organisation and had been
rendering good services to any section of the disadvantaged
people and in particular women and children. We would request
the Hon'ble the Chief Minister of the State to take up the
responsibility in this behalf so that full, proper and effective
utilisation of the amount in question is ensured…”
(Emphasis is mine)
26.4 Insofar as Mafatlal Industries Ltd. case is concerned, the
Supreme Court was considering the scope, ambit and extent to
which doctrine of unjust enrichment would apply, the Court laid
down various propositions of law, which I need not advert to as none
of them, in my opinion, would help the cause of the respondent.
26.5 I may, however, indicate that the Court, inter alia, ruled that
where the provisions of a statute provided for refund, the refund, if
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any, would be granted in accordance with the statute. The Court

was, amongst others, considering the provisions of Section 11B of
Central Excises Act and Section 27 of the Customs Act.
26.6 Likewise, Sri Maganti Suryanarayana case cited for the
proposition, that there is no inherent jurisdiction vested in the
Collector of Stamps to grant refund as he is a creature of the statute
or the judgment rendered in Govt. of A.P. v. P. Laxmi Devi (Smt.)
case, cited for the proposition that there is no equity in tax are
propositions, which have held the field for so long that they appear
to be cast in stone. Having said so, the foregoing discussion would
show that these propositions would not impede the cause of the
petitioners, given the situation obtaining in the instant case.”
8. Thus, in paragraph 19, the learned Single Judge posed a question
for his consideration whether the circumstances in which the refund
was prayed for by the appellants herein, would be a relevant
consideration for ordering refund of the said amount. In other words,
the learned Single Judge asked a question to himself whether the court,
in such circumstances, should fold its hands and deny relief to a
person, who has lost the e-stamp paper, only because the draftsman
has omitted the use of such expression explicitly in the Statute.
9. After an exhaustive discussion on various aspects of the matter,
the learned Single Judge thereafter proceeded to draw a fine distinction
between the ‘doctrine of unjust enrichment’ as opposed to ‘doctrine of
retention’. Ultimately, the learned Single Judge allowed the writ
petition in part.
10. The appellants herein being dissatisfied with non-grant of
interest on the sum of Rs. 28,10,000/- preferred Letters Patent Appeal.
The appeal Court dismissed the Letters Patent Appeal holding as under:
—
“7. As no arguments were canvassed by the appellant (original
petitioner) before the learned Single Judge for payment of interest,
the said issue has not been decided. For the first time, this issue of
payment of interest upon Rs. 28,10,000/- has been raised. Hence,
we see no reason to entertain this Letters Patent Appeal. The
principal amount has already been ordered to be refunded. Petitioner
can file a review application if he has argued and the point is not
decided about interest upon the principal amount before the learned
Single Judge.
8. Counsel for the respondent has pointed out that the issue of
interest was never raised by the appellant(original petitioner) when
the writ petition was argued by the original petitioner.”
11. The appeal Court seems to have taken the view that the issue as
regards payment of interest was sought to be raised for the first time in
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appeal and had not been seriously raised before the learned Single
Judge.
12. In such circumstances, referred to above, the appellants are
here before this Court with the present appeal.
13. We heard Mr. Abhishek Puri, the learned counsel appearing for
the appellants and Ms. Jyoti Mehandiratta, the learned counsel
appearing for the respondents.
14. The short point that falls for our consideration is whether in the
facts and circumstances of the case, the appellants herein are entitled
to claim interest on the refunded amount of Rs. 28,10,000/- referred to
above.
15. The submission of the learned counsel appearing for the
respondents that there is no provision in the statute for the payment of
interest on refund of the amount of the e-stamp paper that was lost by
the appellants herein, is without any merit. The subject General
Mandamus is a salutary advancement of the law, calculated to insulate
and protect a citizen from unfair treatment by the State.
16. The concept of awarding interest on delayed payment has been
explained by this Court in the case of Authorised Officer Karnataka
Bank v. R.M.S. Granites Pvt. Ltd. in Civil Appeal No. 12294 of 2024, we
quote the following observations:—
“It may be mentioned that there is misconception about interest.
Interest is not a penalty or punishment at all, but it is the normal
accretion on capital. For example if A had to pay B a certain amount,
say ten years ago, but he offers that amount to him today, then he
has pocketed the interest on the principal amount. Had A paid that
amount to B ten years ago, B would have invested that amount
somewhere and earned interest thereon, but instead of that A has
kept that amount with himself and earned interest on it for this
period. Hence equity demands that A should not only pay back the
principal amount but also the interest thereon to B. [See: Alok
Shanker Pandey v. Union of India, (2007) 3 SCC 545 : AIR 2007 SC
1198.]”
17. Thus, when a person is deprived of the use of his money to
which he is legitimately entitled, he has a right to be compensated for
the deprivation which may be called interest or compensation. Interest
is paid for the deprivation of the use of money in general terms which
has returned or compensation for the use or retention by a person of a
sum of money belonging to other.
18. As per Black's Law Dictionary (7th Edn.):“interest” is the
compensation fixed by agreement or allowed by law for use or
detention of money or for the loss of money of one who is entitled to its
use, especially, the amount owned to a lender in return for the use of
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the borrowed money.

th
19. As per Stroud's Judicial Dictionary of Words and Phrases (5
edn.) : interest means, inter alia, compensation paid by the borrower to
the lender for deprivation of the use of his money.
20. In the case of Secretary, Irrigation Department, Government of
Orissa v. G.C. Roy, (1992) 1 SCC 508, a Constitution Bench of this
Court opined that a person deprived of use of money to which he is
legitimately entitled has a right to be compensated for the deprivation,
call it by any name. It may be called interest, compensation or
damages. This is also the principle of Section 34 of the Civil Procedure
Code.
21. The essence of interest as held in the case of Lord Wright in
Riches v. Westminister Bank Ltd., [1947] 1 All ER 469, at page 472, is
that it is a payment, which becomes due because the creditor has not
had his money at the due date. It may be recorded either as
representing the profit he might have made if he had had the use of
the money, or, conversely, the loss he suffered because he had not that
use.
22. In the case of Commissioner of Income Tax v. Dr. Sham Lal
Narula, AIR 1963 Punj 411, a Division Bench of the High Court of
Punjab articulated the concept of interest as under:—
“The words ‘interest’ and ‘compensation’ are sometimes used
interchangeably and on other occasions they have distinct
connotation. “Interest” in general terms is the return or
compensation for the use or retention by one person of a sum of
money belonging to or owed to another. In its narrow sense,
‘interest’ is understood to mean the amount which one has
contracted to pay for use of borrowed money. ……… In whatever
category “interest” in a particular case may be put, it is a
consideration paid either for the use of money or for forbearance in
demanding it, after it has fallen due, and thus, it is a charge for the
use or forbearance of money. In this sense, it is a compensation
allowed by law or fixed by parties, or permitted by custom or usage,
for use of money belonging to another, or for the delay in paying
money after it has become payable.”
(Emphasis supplied)
23. The appeal filed against aforesaid decision was dismissed by this
Court in Sham Lal Narula Dr. v. CIT, AIR 1964 SC 1878.
24. In the case of Hello Minerals Water (P) Ltd. v. Union of India,
(2004) 174 ELT 422, (paras 15 and 16), a Division Bench of the
Allahabad High Court explained the concept of interest as under:—
“15. We may mention that we are passing the direction for
interest since interest is the normal accretion on capital. Often there
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is misconception about interest. Interest is not a penalty or

punishment at all.
16. For instance, if A had to pay a certain sum of money to B at a
particular time, but he pays it after a delay of several years, the
result will be that the money remained with A and he would have
earned interest thereon by investing it somewhere. Had he paid that
amount at the time when it was payable then B would have invested
it somewhere, and earned interest thereon. Hence, if a person has
illegally retained some amount of money then he should ordinarily
be directed to pay not only the principal amount but also the interest
earned thereon.
Money doubles every six years (because of compound interest).
Rs. hundred in the year 1990 would become Rs. two hundred in the
year 1996 and it will become Rs. 400 in the year 2002. Hence, if A
had to pay B a sum of rupees 100 in the year 1990 and he pays that
amount only in the year 2002, the result will be that A has pocketed
Rs. 300 with himself. This clearly cannot be justified because had he
paid that amount to B in the year 1990, B would be having Rs. 400
in the year 2002 instead of having only Rs. 100/-. Hence, ordinarily
interest should always be awarded whenever any amount is detained
or realized by someone, otherwise the person receiving the amount
after considerable delay would be losing the entire interest thereon
which will be pocketed by the person who managed the delay, it is
for this reason that we have ordered for payment of interest
alongwith the amount realized as export pass fee.”
INTEREST IS NORMAL ACCRETION ON CAPITAL
25. If on facts of a case, the doctrine of restitution is attracted,
interest should follow. Restitution in its etymological sense means
restoring to a party on the modification, variation or reversal of a decree
or order what has been lost to him in execution of decree or order of the
Court or in direct consequence of a decree or order. The term
“restitution” is used in three senses, firstly, return or restoration of
some specific thing to its rightful owner or status, secondly, the
compensation for benefits derived from wrong done to another and,
thirdly, compensation or reparation for the loss caused to another.
26. In Hari Chand v. State of U.P., (2012) 1 AWC 316, the Allahabad
High Court dealing with similar controversy in a stamp matter held that
the payment of interest is a necessary corollary to the retention of the
money to be returned under order of the appellate or revisional
authority. The High Court directed the State to pay interest @ 8% for
the period, the money was so retained i.e. from the date of deposit till
the date of actual repayment/refund.
27. In the case of O.N.G.C. Ltd. v. Commissioner of Customs
Mumbai, JT (2007) 10 SC 76, (para 6), the facts were that the
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assessment orders passed in the Customs Act creating huge demands

were ultimately set aside by this Court. However, during pendency of
appeals, a sum of Rs. 54,72,87,536/- was realized by way of custom
duties and interest thereon. In such circumstances, an application was
filed before this Court to direct the respondent to pay interest on the
aforesaid amount w.e.f. the date of recovery till the date of payment.
The appellants relied upon the judgment in the case of South Eastern
Coal Field Ltd. v. State of M.P., (2003) 8 SCC 648. This Court explained
the principles of restitution in the case of O.N.G.C. Ltd. (supra) as
under:—
“Appellant is a public sector undertaking. Respondent is the
Central Government. We agree that in principle as also in equity the
appellant is entitled to interest on the amount deposited on
application of principle of restitution. In the facts and circumstances
of this case and particularly having regard to the fact that the
amount paid by the appellant has already been refunded, we direct
that the amount deposited by the appellant shall carry interest at
the rate of 6% per annum. Reference in this connection may be
made to Pure Helium Indian (P) Ltd. v. Oil & Natural Gas
Commission, JT 2003 Supp (2) SC 596 and Mcdermott International
Inc. v. Burn Standard Co. Ltd. JT (2006) 11 SC 376.”
(Emphasis supplied)
COMPENSATION:
28. The word ‘Compensation’ has been defined in P. Ramanatha
Aiyar's Advanced Law Lexicon, 3rd Edition 2005, page 918 as follows:—
“An act which a Court orders to be done, or money which a Court
orders to be paid, by a person whose acts or omissions have caused
loss or injury to another in order that thereby the person damnified
may receive equal value for his loss, or be made whole in respect of
his injury; the consideration or price of a privilege purchased some
thing given or obtained as an equivalent the rendering of an
equivalent in value or amount; an equivalent given for property
taken or for an injury done to another; the giving back an equivalent
in either money which is but the measure of value, or in actual value
otherwise conferred; a recompense in value a recompense given for
a thing received recompense for the whole injury suffered
remuneration or satisfaction for injury or damage of every
description remuneration for loss of time, necessary expenditures,
and for permanent disability if such be the result; remuneration for
the injury directly, and proximately caused by at breach of contract
or duty; remuneration or wages given to an employee or officer.”
29. In the case of Union of India through Director of Income Tax v.
Tata Chemicals Ltd., (2014) 6 SCC 335, this Court held that when the
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collection is illegal, the Revenue is obliged to refund such amount with

interest as money so deposited was retained and enjoyed by it. No
discrimination can be shown between the assessee and Revenue in
paying interest on the refund of tax. Money received and retained
without right, carries with it the right to interest. There being no
express statutory provision for payment of interest on the refund of
excess amount/tax collected by the Revenue, the Government cannot
shrug off its apparent obligation to reimburse the deductors lawful
monies with accrued interest for the period of undue retention of such
monies. Obligation to refund money received and retained without right
implies and carries with in the right to interest. The relevant
observations are as under:—
“Providing for payment of interest in case of refund of amounts
paid as tax or deemed tax or advance tax is a method now
statutorily adopted by fiscal legislation to ensure that the aforesaid
amount of tax which has been duly paid in prescribed time and
provisions in that behalf form part of the recovery machinery
provided in a taxing Statute. Refund due and payable to the
assessee is debt-owed and payable by the Revenue. The
Government, there being no express statutory provision for payment
of interest on the refund of excess amount/tax collected by the
Revenue, cannot shrug off its apparent obligation to reimburse the
deductors lawful monies with the accrued interest for the period of
undue retention of such monies. The State having received the
money without right and having retained and used it, is bound to
make the party good, just as an individual would be under like
circumstances. The obligation to refund money received and retained
without right implies and carries with it the right to interest.
Whenever money has been received by a party which ex ae quo et
bono ought to be refunded, the right to interest follows, as a matter
of course.”
(Emphasis supplied)
30. Considering the reasons assigned by the learned Single Judge
while taking the view that the respondents could not have declined to
refund the amount and the fact that the retention of the said amount
was for a long time and further the appellants were left with no other
option but to approach the High Court, we are of the view that the
appellants are entitled to have interest on Rs. 28,10,000/- as under:—
Breakup of the Amount received and accrued interest
Principal Amount : Rs. 28,10,000/- (Rupees Twenty Eight Lakh Ten
Thousand Only)
Period No. of Amounts Rate of Interest
days due Interest amount
20.08.2018 558 Rs. 8% p.a. Rs.
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(date of days 28,10,000/ 3,43,666.85

Judgment -
passed by
Ld. Single
Judge of the
Delhi High
Court) till
29.02.2020
(Receipt of
part
payment of
Rs.
25,29,000/-
)
30.02.2020 1470 Rs. 8% p.a. Rs.
till days 2,81,000/- 90,535.89
08.03.2024
(Date of
Fixed
Deposit @
6.5% p.a.
created by
the Delhi
High Court
Registry
upon
deposit of
DD by
Respondent)
09.03.2024 153 Rs. 1.5% p.a. Rs. 1,766.84
till days 2,81,000/- (after
09.08.2024 subtracting
(Date of interest
dismissal of rate of the
Application FD created
for by Delhi
modification High Court
and Registry)
direction for
release of
balance
amount
deposited
Total interest amount Rs.
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4,35,968.58/
-(Rs. Four
Lakh Thirty
Five
Thousand
Nine
Hundred
Sixty Eight
and Paise
Fifty Eight
Only)
31. The respondents are directed to pay an amount of Rs. 4,35,968/
- (Rs. Four Lakh Thirty Five Thousand Nine Hundred Sixty Eight Only)
towards interest within a period of two months from today without fail.
32. The appeal stands disposed of in the aforesaid terms. Pending
application(s), if any, shall also stand disposed of.
———
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