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Lloyd's Maritime and Commercial Law Quarterly

The law of restitution for unjust enrichment in India MP Ram Mohan * and Mridul Godha † The law of restitution for unjust enrichment is among the most debated private law topics today. It has been invoked to justify the right to restitution in cases which fall outside the scope of contract law. Despite being well developed in many common law countries, and a part of this area of law being codified in the Indian Contract Act 1872, ss 68–72, courts in India have applied the principle of restitution for unjust enrichment inconsistently and in conflict with codified law. This paper gives clarity on this position and proposes to fill the academic vacuum in this regard. INTRODUCTION The law of restitution is an area concerned with whether a claimant can claim a benefit obtained at the expense of the claimant from the defendant. 1 It is not the same as compensation, 2 as it is not concerned with whether the claimant can be compensated for loss suffered. 3 Restitutionary remedies also differ from contractual claims such as the claim for indemnity, 4 because restitutionary liability is imposed by the law irrespective of the agreement of the parties. In fact, the law of restitution is subordinate to the law of contract since, where a contractual relationship exists, the contractual regime prevails. 5 Further, restitutionary claims differ from tort claims, as they need not be founded on the commission of any wrongdoing, although restitutionary remedies are sometimes available in the case of a wrong. 6 Where the defendant has profited from the commission * Associate Professor, Business Policy Area, Indian Institute of Management, Ahmedabad. † Advocate, New Delhi; Researcher, Indian Institute of Management, Ahmedabad. 1. Chitty on Contracts, 33rd edn (Sweet & Maxwell, London, 2018), [29.01]; Great Eastern Shipping Co Ltd v Union of India AIR 1971 Cal 150, 155. 2. See Indian Contract Act 1872, ch.VI. 3. Ibid . 4. See Indian Contract Act 1872, ch.VIII. 5. Guinness Plc v Saunders [1990] 2 AC 663, 697–698. 6. Foskett v McKeown [2001] 1 AC 102. Restitution for unjust enrichment in India 105

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