Supreme Court of India
SANJIT SINGH SALWAN & ORS.versusSARDAR INDERJIT SINGH SALWAN & ORS.
- Citation
- 2025 INSC 988
- Decided
- 14 August 2025
- Disposal
- Appeal(s) allowed
Holding
The respondents are estopped by their prior acceptance of the arbitral award and compromise decree and cannot claim the award is a nullity; the appeal is allowed and execution proceedings may be revived.
Summary
The appellants and respondents, both claiming to be trustees of a charitable trust, were involved in a dispute that led the respondents to file a suit for perpetual injunction. The trial court dismissed the suit under Section 92 of the CPC, prompting an appeal during which the parties agreed to arbitration and later accepted the arbitrator's award, filing a joint application to have the appeal disposed of on the basis of a compromise deed dated 02‑01‑2023. The award was later challenged by the respondents as a nullity on the ground that the matters were non‑arbitrable under Section 92, leading the Commercial Court and the High Court to reject the appellants' application under Section 9 of the Arbitration Act. The Supreme Court held that the respondents, having previously accepted the award and compromise deed, are estopped from now contesting its validity, as the doctrine of estoppel by conduct and election precludes a diametrically opposite stance. Consequently, the Court set aside the lower courts' orders and allowed the appellants to revive their execution proceedings. The appeal was therefore allowed.
Issues considered
- Whether a party can raise a plea of estoppel in law after having previously accepted an arbitral award and compromise decree, thereby taking a contrary position.
- Whether the arbitral award is a nullity under Section 92 of the Code of Civil Procedure and whether the doctrine of estoppel by conduct/election bars the respondents from raising that plea.
Legislation cited
Headnote
Issue for Consideration Issue arose as regards to whether a plea of estoppel in law can be permitted to be raised by a party ignoring its conduct that resulted in the other party altering its position to its detriment in view of such conduct. Headnotes† Code of Civil s.92 – Arbitration and Conciliation Act, 1996 – ss.9, 37 – Estoppel in law – Doctrine of estoppel by conduct – Doctrine of election – Appellants and the respondents claim to be trustees of a Charitable Trust – Dispute arose between them –
Subjects
Estoppel in lawDoctrine of estoppel by conductDoctrine of electionCompromise decreeConsent decreeArbitration award nullitySection 92 CPCSection 9 Arbitration ActSection 37 Arbitration ActCharitable trust dispute
Judgment
[2025] 8 S.C.R. 902 : 2025 INSC 988
Sanjit Singh Salwan & Ors.
v.
Sardar Inderjit Singh Salwan & Ors.
(Civil Appeal No. 10653 of 2025)
14 August 2025
[Augustine George Masih and Atul S. Chandurkar,* JJ.]
Issue for Consideration
Issue arose as regards to whether a plea of estoppel in law can
be permitted to be raised by a party ignoring its conduct that
resulted in the other party altering its position to its detriment in
view of such conduct.
Headnotes†
Code of Civil Procedure, 1908 – s.92 – Arbitration and
Conciliation Act, 1996 – ss.9, 37 – Estoppel in law – Doctrine of
estoppel by conduct – Doctrine of election – Appellants and the
respondents claim to be trustees of a Charitable Trust – Dispute
arose between them – Respondents filed a suit for perpetual
injunction against the appellants – Trial Court rejected the
plaint u/Or. VII r.11 holding that in view of s.92 of the Code,
the suit was barred – Respondent filed appeal – During the
pendency of the appeal, respondents moved an application
in which it was stated that the parties had appointed a sole
arbitrator to resolve their disputes – Sole Arbitrator passed
an award – Thereafter, parties moved a joint application in the
pending appeal seeking disposal of the appeal in terms of the
award dated 30.12.2022 passed in arbitration – Accordingly,
appeal was disposed of in terms of the award – Said award
formed the part of the compromise decree – This decree was
not challenged – Respondents allegedly failed to discharge
their obligation under the award – Appellants filed for execution
of compromise decree but, later withdrew to file application
u/s.9 of the Arbitration Act – The Commercial Court went into
the issue of arbitrability of the disputes between the parties
and declared award as a nullity – High Court dismissed the
appeal – Respondents contended that consent decree was
not binding on them – Correctness:
* Author
[2025] 8 S.C.R. 903
Sanjit Singh Salwan & Ors. v. Sardar Inderjit Singh Salwan & Ors.
Held: The issue is more about estoppel by conduct and election
rather than estoppel in law – It would be impermissible for the
respondents to take such opposite stand from the one that they
had taken while initiating the proceedings – Having specifically
pleaded that the suit filed by them was not hit by the provisions
of s.92 of Code, it would not be now open for them to oppose the
validity of the compromise deed dated 02.01.2023 by raising such
ground – The pleadings of the respondents clearly indicate the
conscious stand taken by them in the initial round of the present
litigation – They had stated on more than one occasion that the
proceedings initiated by them were maintainable and that the same
were required to be decided on merits – They willingly had the
matter referred for settlement and when the award was passed
on 30.12.2022 they sought disposal of their appeal in terms of the
compromise deed that was prepared on the basis of the award
dated 30.12.2022 – The respondents therefore by their conduct
are now estopped from taking an opposite stand – Therefore, on
the doctrine of estoppel by conduct and election the respondents
cannot be permitted to now raise a plea that the compromise
deed based on the award dated 30.12.2022 was a nullity in view
of the provisions of s.92 of the Code – Non-suiting the appellants
on the ground that the award dated 30.12.2022 was a nullity in
view of the objection raised by the respondents has resulted in
grave injustice to the appellants – The justice of the case therefore
requires that the appellants ought to be permitted to revive the
execution proceedings that they had filed – Thus, the appellants
are at liberty to revive the execution proceedings in the form of
Miscellaneous Case. [Paras 14, 17, 19, 20, 21]
Case Law Cited
Dhiyan Singh and Another v. Jugal Kishore and Another [1952]
1 SCR 478 : AIR 1952 SC 145; R.N. Gosain v. Yashpal Dhir
[1992] Supp. 2 SCR 257 : SLP(C) No. 4325 of 1992 (decided on
23.10.1992) – relied on.
Suzuki Parasrampuria Suitings Private Ltd. v. Official Liquidator
of Mahendra Petrochemicals Limited & Ors. [2018] 12 SCR 906 :
(2018) 10 SCC 707; Joint Action Committee of Air Line Pilots’
Association of India (ALPAI) & Ors. v. Director General of Civil
Aviation and Ors. [2011] 5 SCR 1019 : (2011) 5 SCC 435; Mumbai
904 [2025] 8 S.C.R.
Supreme Court Reports
International Airport Private Ltd. v. Golden Chariot Airport and Anr.
[2010] 12 SCR 326 : (2010) 10 SCC 422; Karam Kapahi and Ors. v.
Lal Chand Public Charitable Trust and Anr. [2010] 4 SCR 422 :
(2010) 4 SCC 753; Indore Development Authority v. Manoharlal &
Ors. [2020] 3 SCR 1 : (2020) 8 SCC 129; Kavita Trehan & Anr. v.
Balsara Hygiene Products Ltd. [1994] Supp. 1 SCR 340 : (1994)
5 SCC 380; Vimal Kishor Shah and Others v. Jayesh Dinesh Shah
and Others [2016] 7 SCR 102 : (2016) 8 SCC 788; Booz Allen &
Hamilton Inc. v. SBI Home Finance Ltd. and Others [2011] 7 SCR
310 : (2011) 5 SCC 532; Sunder Dass v. Ram Prakash [1977] 3
SCR 60 : (1977) 2 SCC 662; Prem Singh and Ors. v. Birbal & Ors.
[2006] Supp. 1 SCR 692 : (2006) 5 SCC 353; State of Rajasthan
and Another v. Surendra Mohnot and Others [2014] 6 SCR 191 :
(2014) 14 SCC 77 – referred to.
List of Acts
Code of Civil Procedure, 1908; Arbitration and Conciliation Act,
1996.
List of Keywords
Estoppel in law; Doctrine of estoppel by conduct; Doctrine of
election; Approbation and reprobation; Conduct of parties; Appellant
left without any remedy; Compromise decree; Consent decree;
Nullity of arbitral award; Issue of arbitrability of dispute; Diametrically
opposite stand taken by respondent; De hors.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10653 of 2025
From the Judgment and Order dated 30.08.2024 of the High Court
of Judicature at Allahabad in AUS37AACA No. 356 of 2024
Appearances for Parties
Advs. for the Appellants:
C. U. Singh, Sr. Adv., Punit Dutt Tyagi, Ms. Smriti Sahai, Shikhar
Tyagi, Ms. Pragati Singh.
Advs. for the Respondents:
Gagan Gupta, Sr. Adv., Sanchit Garga, Amit Wadhwa, Shashwat
Jaiswal.
[2025] 8 S.C.R. 905
Sanjit Singh Salwan & Ors. v. Sardar Inderjit Singh Salwan & Ors.
Judgment / Order of the Supreme Court
Judgment
Atul S. Chandurkar, J.
1. Leave granted.
2. The issue that arises for consideration in these proceedings is
whether a plea of estoppel in law can be permitted to be raised by
a party ignoring its conduct that resulted in the other party altering
its position to its detriment in view of such conduct.
3. Facts relevant for deciding the Civil Appeal are that the appellants and
the respondents claim to be trustees of Guru Tegh Bahadur Charitable
Trust (hereinafter referred to as ‘the Trust’). On disputes arising
between the parties, the respondents claimed that the appellants
had been removed as trustees. The respondents approached the
Civil Court by filing a suit for perpetual injunction seeking to restrain
the appellants from entering the school being conducted by the Trust
and also from interfering with the functioning of the school. The
appellants filed an application under provisions of Order VII Rule 11
of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the
Code’) seeking rejection of the plaint. The Trial Court on 13.04.2022,
accepted the contentions of the appellants and rejected the plaint
holding that in view of Section 92 of the Code, the suit was barred.
The respondents being aggrieved by the dismissal of their suit filed
an appeal before the District Court. During the pendency of the
appeal, the respondents moved an application dated 07.07.2022 in
which it was stated that the appellants as well as the respondents
had appointed a sole arbitrator to resolve their disputes after which
the process of arbitration had been undertaken. It was stated that the
appeal filed by them be decided on the basis of the award passed
by the sole arbitrator.
4. On 30.12.2022, the sole arbitrator passed his award and made an
arrangement between the parties as regards the manner of managing
the affairs of the Trust. In view of the said award, the parties moved
a joint application in the pending appeal before the District Court on
02.01.2023 stating therein that they had accepted the award and
that they would abide by it in true spirit. They sought disposal of the
appeal in terms of the award. Accordingly, on 27.01.2023, the District
906 [2025] 8 S.C.R.
Supreme Court Reports
Court disposed of the appeal in terms of the award dated 30.12.2022.
It was directed that the compromise deed recording the said award
would form part of the decree. It is common ground that this decree
passed by the District Court on 27.01.2023 was not challenged any
further and the same continues to hold field even today.
5. According to the appellants, they took various steps in terms of the
award so as to comply with their part of obligations. It was their
grievance that the respondents however failed to discharge their
obligations under the award. Ultimately, on 23.11.2023 the appellants
filed Miscellaneous Case No.122 of 2023 seeking to execute the
aforesaid compromise decree. The said proceedings however
were withdrawn by the appellants on 08.12.2023, after which the
appellants filed an application under Section 9 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as “the Act of 1996”). In
the said proceedings, the appellants sought various interim measures
in terms of the arbitral award. This application was opposed by
the respondents. The learned Judge of the Commercial Court on
24.05.2024 went into the issue of arbitrability of the disputes between
the parties and on finding that the disputes pertained to the affairs
of the Trust held that in view of the provisions of Section 92 of the
Code, the arbitrator could not have gone into the same. It was held
that the award dated 30.12.2022 was a nullity and hence there was
no question of its enforcement. Accordingly, the application filed by the
appellants under Section 9 of the Act of 1996 came to be rejected.
The appellants, being aggrieved, filed an appeal under Section 37 of
the Act of 1996. The High Court declined to interfere with the order
passed by the Commercial Court and affirmed the finding that the
dispute was non-arbitrable. The High Court accordingly dismissed
the said appeal on 30.08.2024. The appellants being aggrieved by
the aforesaid decision have approached this Court.
6. Mr. C.U. Singh, learned Senior Advocate for the appellants submitted
that the parties having accepted the award passed by the arbitrator
on 31.10.2022 which thereafter resulted in a consent decree being
passed by the District Court on 27.01.2023, it was not permissible
for the respondents to disregard the same and contend that the
consent decree was not binding upon them. In fact, the consent
decree had become final and therefore the appellants were justified
in seeking interim measures on that basis under Section 9 of the Act
of 1996. The appellants in accordance with the terms of the consent
[2025] 8 S.C.R. 907
Sanjit Singh Salwan & Ors. v. Sardar Inderjit Singh Salwan & Ors.
decree had complied with their obligations by taking necessary
steps but no reciprocal steps were taken by the respondents. The
respondents had consented to the passing of the consent decree in
the suit filed by them. Hence, by their conduct they were estopped
from questioning the validity of the consent decree and raising the
ground of non-arbitrability. In this regard reliance was placed on the
decisions of this Court in Suzuki Parasrampuria Suitings Private
Ltd. v. Official Liquidator of Mahendra Petrochemicals Limited
& Ors., (2018) 10 SCC 707, Joint Action Committee of Air Line
Pilots’ Association of India (ALPAI) & Ors. v. Director General of
Civil Aviation and Ors., (2011) 5 SCC 435, Mumbai International
Airport Private Ltd. v. Golden Chariot Airport and Anr., (2010)
10 SCC 422 and Karam Kapahi and Ors. v. Lal Chand Public
Charitable Trust and Anr., (2010) 4 SCC 753. The conduct of
the respondents disentitled them to oppose the enforcement of the
consent decree as it had become final.
Without prejudice to the aforesaid contentions, it was urged that
even if it was to be held that in view of Section 92 of the Code, the
disputes were non-arbitrable, the appellants were entitled to the fruits
of the consent decree. The appellants had in fact filed execution
proceedings but the same were withdrawn so as to invoke the
provisions of Section 9 of the Act of 1996. As a result of the impugned
orders, the appellants were left without any remedy whatsoever
despite the existence of a consent decree that had attained finality.
Reference in this regard was made to the decisions of this Court
in Indore Development Authority v. Manoharlal & Ors., (2020) 8
SCC 129 and Kavita Trehan & Anr. v. Balsara Hygiene Products
Ltd., (1994) 5 SCC 380. It was thus urged that this Court ought to
exercise jurisdiction so as to enable the appellants to enjoy the fruits
of the consent decree.
7. On the other hand, Mr. Gagan Gupta, learned Senior Advocate for the
respondents while opposing the appeal submitted that notwithstanding
the passing of the consent decree, the Commercial Court was justified
in holding the award dated 30.12.2022 to be a nullity. The issues
dealt with by the sole arbitrator related to affairs of the Trust. In
view of Section 92 of the Code, the same could not have been the
subject matter of arbitration. It was submitted that the award dated
30.12.2022 and the subsequent order passed by the District Court
could not be treated to be a consent decree. The appeal was merely
908 [2025] 8 S.C.R.
Supreme Court Reports
disposed of on the joint application of the parties. The Commercial
Court therefore rightly held the award to be a nullity which could not
be executed. Since the arbitrator had dealt with an issue over which
he had no jurisdiction, this aspect went to the root of the matter and
could be raised at any point of time. The Commercial Court therefore
in proceedings filed under Section 9 of the Act of 1996 rightly refused
to grant any interim measures under Section 9 of the Act of 1996.
Reliance was placed on the decisions of this Court in Vimal Kishor
Shah and others v. Jayesh Dinesh Shah and others, (2016) 8
SCC 788 and Booz Allen & Hamilton Inc. v. SBI Home Finance
Ltd. and others, (2011) 5 SCC 532. It was also urged that the
appellants having themselves withdrawn the execution proceedings
for invoking the jurisdiction under Section 9 of the Act of 1996, they
could not be now permitted to contend that they should be permitted
to execute the consent decree. In any event, since the award had
been held to be a nullity there was no question of it being executed.
Reliance was placed on the decisions of this Court in Sunder Dass v.
Ram Prakash, (1977) 2 SCC 662 and Prem Singh and Ors. v.
Birbal & Ors., (2006) 5 SCC 353. To urge that there could be no
estoppel against law, reliance was placed on State of Rajasthan
and another v. Surendra Mohnot and others, (2014) 14 SCC 77.
It was thus submitted that the appellants had been rightly denied
the relief and the impugned orders did not warrant any interference.
8. We have heard the learned counsel for the parties at length and
with their assistance we have also perused the documentary
material on record. At the outset, it would be necessary to refer
to certain admitted facts on record. The Trust deed in question is
dated 15.10.1979 which indicates various objects of the Trust. The
same include providing for educational facilities in various fields by
establishing and maintaining institutions of learning. Various other
ancillary objects have been stated therein. The respondents being
aggrieved by the alleged interference of the appellants in the affairs
of the Trust approached the Civil Court by filing a suit for perpetual
injunction seeking to restrain the appellants from entering the premises
of the school being run by the Trust and also from interfering with
the functioning of the said school. In paragraphs 19A to 19C of the
plaint, the respondents pleaded as under:
“19A. That the relief claimed in the present suit does not
fall within the ambit and scope of Sec. 92 CPC. Provisions
[2025] 8 S.C.R. 909
Sanjit Singh Salwan & Ors. v. Sardar Inderjit Singh Salwan & Ors.
of Section 92 CPC in the matter of dispute is not at all
attracted. The suit has not been filed, seeking relief
pertaining to any matter enumerated in Section 92 CPC.
19B. That the suit is not barred by any of the Provisions
of Arbitration & Conciliation Act 1996, because the subject
matter and relief of the suit does not tantamount to dispute
which can be referred to Arbitration. The terms of the Trust
Deed do not attract any Arbitration Clause. The present
parties to the suit were not signatories of the Trust Deed.
19C. That this Hon’ble Court u/S. 9 CPC has jurisdiction
to hear and decide the suit.”
(Emphasis supplied)
9. It was the appellants who sought to raise an objection to the jurisdiction
of the Civil Court by raising a ground that the suit was barred by law
in view of Section 92 of the Code. This application was opposed by
the respondents asserting that the suit was legally tenable. The Trial
Court by its order dated 13.04.2022 proceeded to hold that in view
of Section 92 of the Code, the Civil Court had no jurisdiction to try
the same. The plaint was accordingly rejected under provisions of
Order VII Rule 11 of the Code. The respondents being aggrieved,
challenged the said order by filing an appeal under Section 96 of the
Code. During pendency of the said appeal, the respondents moved
an application dated 07.07.2022 stating therein that the respondents
as well as the appellants had decided to have their disputes resolved
mutually. In the said application it was averred as under:
“In this appeal appellants as well as respondents have
mutually decided to get their matter resolved out of the
Court under arbitration of Shri Vipin Sodhi, Advocate,
Meerut. The appellants have appointed Shri Vipin Sodhi,
Advocate, 105, Carriappa Street, Meerut Cantt as their
sole arbitrator in all or any dispute pertaining to Guru
Tegh Bahadur Charitable Trust and its school at 227,
West End Road, Meerut Cantt etc. Partnership firm M/s
Sri Guru Tegh Bahadur Public School, Delhi Road, Meerut
or any other connected matters, on 27.5.2022. Shri Vipin
Sodhi, Advocate, has accepted to be an arbitral tribunal
to decide all disputes and to give his final award. Shri
910 [2025] 8 S.C.R.
Supreme Court Reports
Vipin Sodhi has entered upon the Reference of arbitration
and various sittings have already taken place. As per oral
submissions of appellant Arbitrator has taken into points
in dispute. Version of the appellants has been recorded.
Entire disputes raised by the appellants have been taken
into consideration and the arbitration is in process.
It Is, therefore, very humbly prayed that this appeal should
be decided from the outcome of final award passed by the
Arbitrator Shri Vipin Sodhi, Advocate, Meerut.”
(Emphasis supplied)
10. The sole arbitrator on 30.12.2022 passed his award and issued
various directions. Both the parties thereafter filed a joint application
before the Appellate Court on 02.01.2023 praying that the appeal
be disposed of in terms of the award dated 30.12.2022. In the said
joint application it was stated as under:
“Both the parties humbly submits as under:
That the Learned Arbitral Tribunal Sole Arbitrator Shri
Vipin Sodhi, Advocate Meerut has passed the Award dated
30.12.2022 in our matter. Copy of the Award is enclosed.
We both parties accept the Award and it shall be binding
on us. We shall not challenge the award and will abide
by it in true sense and spirits.
That the Appeal be decided accordingly in terms of award.
It is, therefore, prayed that in view of award enclosed this
appeal be disposed of as per law.”
(Emphasis supplied)
11. The Appellate Court noted the aforesaid and took on record the
compromise deed dated 02.01.2023. The same was marked as
Document No. 25C. On 27.01.2023, the Appellate Court disposed
of the appeal in terms of the compromise deed which was to form
part of the decree. The said order reads as under:-
1. Challenge in this civil appeal is to the judgment and
decree dated 13.04.2022 passed by learned Civil Judge
(Sr. Div.) Meerut, which was passed by him in O.S. No.
[2025] 8 S.C.R. 911
Sanjit Singh Salwan & Ors. v. Sardar Inderjit Singh Salwan & Ors.
227 of 2022 Guru Tegh Bahadur School and others versus
Sardar Sanjt Singh Salwan and others.
2. During pendency of this appeal, good sense prevailed
between the parties and their dispute has been decided
by sole Arbitrator Shri Vipin Sodhi, Advocate who has
passed an award on 30.12.2022 and all the parties have
accepted, the same. They filled compromise deed 25C on
02.01.2023, wherein they accepted passing and finalization
of the award. Compromise deed read over and explained
to the parties on 06.01.2023, and they accepted the
contents thereof.
3. In opinion of this court, the said compromise is lawful.
Hence, it would be proper to decide this appeal in terms
of compromise deed/application 25C.
Order
This civil appeal is decided in terms of compromise deed/
application 25, which shall form part of decree.
The parties shall bear their own respective costs
throughout.”
(Emphasis supplied)
12. From the aforesaid material on record, it becomes clear that it was
the respondents who invoked the jurisdiction of the Civil Court by
filing suit for perpetual injunction against the appellants. It was their
case that the suit as filed was not barred by the provisions of Section
92 of the Code. Thereafter, in the appeal preferred by them, the
respondents moved an application dated 07.07.2022 stating therein
that they along with the appellants had decided to end their disputes
by having the matter resolved out of Court. The parties again jointly
sought disposal of the respondents’ appeal in terms of the award
dated 30.12.2022. This request was accepted by the Appellate
Court and the respondents’ appeal was disposed of in terms of the
compromise deed at Document No. 25C.
These admitted facts clearly indicate that the respondents had taken a
conscious stand that the suit filed by them was not barred by Section
92 of the Code and that on the basis of the compromise deed in the
form of the award dated 30.12.2022, a decree was passed in the
912 [2025] 8 S.C.R.
Supreme Court Reports
appeal preferred by them. These facts assume importance since
they reflect on the conduct of the parties, especially the respondents.
13. After the initial round of litigation when the appellants sought to rely
upon the consent deed and filed an application under Section 9 of
the Act of 1996 for seeking interim measures, the respondents took
a completely opposite stand and raised a plea that the compromise
deed in the form of award dated 30.12.2022 was a nullity in view
of Section 92 of the Code. They persisted with this stand which
found favour with the Commercial Court and thereafter in appeal
before the High Court. The question therefore to be considered is
whether the respondents could be permitted to take a diametrically
opposite stand from the one taken by them in the earlier stage of
the proceedings initiated by them so as to leave the appellants
without any remedy.
14. In our view, it would be impermissible for the respondents to take
such opposite stand from the one that they had taken while initiating
the proceedings. Having specifically pleaded that the suit filed by
them was not hit by the provisions of Section 92 of Code, it would
not be now open for them to oppose the validity of the compromise
deed dated 02.01.2023 by raising such ground. The pleadings of the
respondents referred to hereinabove clearly indicate the conscious
stand taken by them in the initial round of the present litigation.
They had stated on more than one occasion that the proceedings
initiated by them were maintainable and that the same were required
to be decided on merits. They willingly had the matter referred for
settlement and when the award was passed on 30.12.2022 they
sought disposal of their appeal in terms of the compromise deed
that was prepared on the basis of the award dated 30.12.2022.
The respondents therefore by their conduct are now estopped from
taking an opposite stand.
15. This position is fortified by the decision of this Court in Mumbai
International Airport Private Ltd. (supra). It was held therein as
under:
“44. Is an action at law a game of chess? Can a litigant
change and choose its stand to suit its convenience and
prolong a civil litigation on such prevaricated pleas?
45. The common law doctrine prohibiting approbation
and reprobation is a facet of the law of estoppel and well
[2025] 8 S.C.R. 913
Sanjit Singh Salwan & Ors. v. Sardar Inderjit Singh Salwan & Ors.
established in our jurisprudence also. The doctrine of
election was discussed by Lord Blackburn in the decision
of the House of Lords in Scarf v. Jardine [(1882) 7 AC
345 : (1881-85) All ER Rep 651 (HL)] wherein the learned
Lord formulated: (AC p. 361)
“… a party in his own mind has thought that he would
choose one of two remedies, even though he has
written it down on a memorandum or has indicated
it in some other way, that alone will not bind him;
but so soon as he has not only determined to follow
one of his remedies but has communicated it to the
other side in such a way as to lead the opposite
party to believe that he has made that choice, he
has completed his election and can go no further;
and whether he intended it or not, if he has done an
unequivocal act … the fact of his having done that
unequivocal act to the knowledge of the persons
concerned is an election.”
46. In Tinkler v. Hilder [(1849) 4 Exch 187] Parke, B. stated
that where a party had received a benefit under an order,
it could not claim that it was valid for one purpose and
invalid for another. (See p. 190.)
47. In Clough v. London and North Western Railway Co.
[(1861-73) All ER Rep 646] the Court referred at All ER
p. 651 F to Comyn’s Digest, wherein it has been stated:
“If a man once determines his election, it shall be
determined forever.”
50. Ashutosh Mookerjee, J. speaking for the Division Bench
of the Calcutta High Court in Dwijendra Narain Roy v.
Joges Chandra De [AIR 1924 Cal 600] , held that it is an
elementary rule that a party litigant cannot be permitted
to assume inconsistent positions in court, to play fast and
loose, to blow hot and cold, to approbate and reprobate to
the detriment of his opponent. This wholesome doctrine,
the learned Judge held, applies not only to successive
stages of the same suit, but also to another suit than
the one in which the position was taken up, provided the
second suit grows out of the judgment in the first. 53. This
914 [2025] 8 S.C.R.
Supreme Court Reports
Court in C. Beepathuma case [AIR 1965 SC 241 : (1964)
5 SCR 836] at AIR p. 246, para 17 also took note of the
principle stated in White & Tudor’s Leading Case in Equity,
Vol. 18th Edn. at p. 444, wherein it is stated:
“Election is the obligation imposed upon a party by
courts of equity to choose between two inconsistent
or alternative rights or claims in cases where there is
clear intention of the person from whom he derives
one that he should not enjoy both … That he who
accepts a benefit under a deed or will must adopt
the whole contents of the instrument.”
54. In New Bihar Biri Leaves Co. v. State of Bihar [(1981)
1 SCC 537] this Court observed that it is a fundamental
principle of general application that if a person of his own
accord, accepts a contract on certain terms and works
out the contract, he cannot be allowed to adhere to and
abide by some of the terms of the contract which proved
advantageous to him and repudiate the other terms of the
same contract which might be disadvantageous to him. The
maxim, qui approbat non reprobat (one who approbates
cannot reprobate), applies in our laws too.”
16. Reference can also be made to the following observations in R.N.
Gosain vs. Yashpal Dhir, SLP(C) No. 4325 of 1992 decided on
23.10.1992:
“Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of
election which postulates that no party can accept and
reject the same instrument and that “a person cannot say
at one time that a transaction is valid and thereby obtain
some advantage, to which he could only be entitled on the
footing that it is valid, and then turn round and say it is
void for the purpose of securing some other advantage”.
[see: Verschures Creameries Ltd. V. Hull and Netherlands
Steamship Co. Ltd., (1921), 2 R.B. 608, at p.612, Scrutton,
L.J]. Accoring to Halsbury’s Laws of England, 4th Edn., Vol.
16, “after taking an advantage under an order (for example
for the payment of costs) a party may be precluded from
saying that it is invalid and asking to set it aside. (para 1508)”
[2025] 8 S.C.R. 915
Sanjit Singh Salwan & Ors. v. Sardar Inderjit Singh Salwan & Ors.
17. We would now deal with the contention of the respondents that the
award as passed by the sole arbitrator was a nullity since it dealt
with issues that fell within the purview of Section 92 of the Code. The
invalidity of the award could thus be set up at any stage to prevent
its execution and that there could be no estoppel against law. This
plea as raised by the respondents found favour with the Commercial
Court as well as the High Court.
The contention though attractive cannot enable the respondents
the surmount the equitable hurdle of estoppel. Having lulled the
appellants in having the disputes resolved through arbitration and
thereafter seeking disposal of their appeal on the strength of the
said award, the respondents are definitely estopped from now setting
up its invalidity. The issue is more about estoppel by conduct and
election rather than estoppel in law.
In Dhiyan Singh and another v. Jugal Kishore and another,
AIR 1952 SC 145, a family dispute in relation to certain ancestral
and self-acquired properties was sought to be resolved through
arbitration. Before the Courts it was urged that not only had the
arbitrator travelled beyond the terms of his reference by awarding
absolute interest in the property to one party when she had limited
interest therein, it was also urged that on factual aspects also he was
incorrect. It was however found that the other party had accepted
the award and by such conduct had induced the former party from
parting with a share in her property.
Vivian Bose, J. (as his Lordship then was) held as under:
“It was urged, among other things, that the arbitrator had
travelled beyond the terms of his reference in awarding
Mst. Mohan Dei an absolute interest. It was also urged
that even if Brijlal was bound, his son Kishan Lal, who did
not claim through him but who had an independent title
as reversioner to Shanker Lal, would not be bound, and
it was contended that if Kishan Lal was not bound, the
plaintiffs would not be either. But we need not examine
these points because we do not need to proceed on the
binding nature of the award. Even if the award be invalid
we are of the opinion that the plaintiffs’ claim is completely
answered by the plea of estoppel.
916 [2025] 8 S.C.R.
Supreme Court Reports
Now it can be conceded that before an estoppel can arise,
there must be, first, a representation of an existing fact
as distinct from a mere promise de futuro made by one
party to the other; second, that the other party, believing
it, must have been induced to act on the faith of it; and
third, that he must have so acted to his detriment.
It is true that in one sense a question of title is one of law
and it is equally true that there can be no estoppel on a
question of law. But every question of law must be grounded
on facts and when Brijlal’s conduct is analysed it will be
found to entail an assertion by him that he admitted and
recognised facts which would in law give Mst. Mohan Dei
an absolute interest in the lands awarded to her. It was
because of that assertion of fact, namely, his recognition
and admission of the existence of facts which would give
Mst. Mohan Dei an absolute interest, that she was induced
to part with about one-third of the property to which Brijlal,
on a true estimate of the facts as now known, had no right.
There can be no doubt that she acted to her detriment
and there can, we think, be equally no doubt that she was
induced to do so on the faith of Brijlal’s statements and
conduct which induced her to believe that he accepted all
the implications of the award. But in any event, we are
clear that Brijlal would have been estopped. The nature
of the dispute and the description of it given in the award
show that there was considerable doubt, and certainly much
dispute, about the true state of affairs. Even if the arbitrator
was wholly wrong and even if he had no power to decide
as he did, it was open to both sides to accept the decision
and by their acceptance recognise the existence of facts
which would in law give the other an absolute estate in
the properties they agreed to divide among themselves
and did divide. That, in our opinion, is a representation of
an existing fact or set of facts. Each would consequently
be estopped as against the other and Brijlal in particular
would have been estopped from denying the existence
of facts which would give Mst. Mohan Dei an absolute
interest in the suit property.”
(Emphasis supplied by us)
[2025] 8 S.C.R. 917
Sanjit Singh Salwan & Ors. v. Sardar Inderjit Singh Salwan & Ors.
18. In our view, the ratio of the aforesaid decision is a complete answer
to the defence raised by the respondents on the plea of estoppel
against law. It is only because the respondents consented to have
the disputes resolved through the arbitration of Mr. Vipin Sodhi that
the compromise deed was executed and the respondents’ appeal
was disposed of accordingly. The appellants thereafter acted in
accordance with the terms of the consent deed and altered their
position to their detriment. They took steps to withdraw the First
Information Report and also parted with substantial amounts as
required by the consent deed. All these facts are sufficient to hold that
after the parties accepted the consent deed, the appellants acted in
accordance with its terms and altered their position. The respondents
thus by their conduct of accepting the compromise deed based on
the award of the arbitrator are now precluded from questioning its
validity. As held in Dhiyan Singh (supra), the issue of invalidity of
the award, as a question of law, cannot be considered de hors the
conduct of parties. In these facts, the ratio of decisions relied upon
by the respondents do not further their case. Hence, this contention
of the respondents fails.
19. We therefore find that on the doctrine of estoppel by conduct and
election the respondents cannot be permitted to now raise a plea
that the compromise deed based on the award dated 30.12.2022
was a nullity in view of the provisions of Section 92 of the Code.
On this count, we do not deem it necessary to go into the legality
of the award dated 30.12.2022 as was done by the Courts in the
impugned orders.
20. It can be seen from the order passed by the Commercial Court on
24.05.2024 and thereafter by the High Court on 30.08.2024 that
the effect of the compromise deed resulting into a decree has not
been given its due importance. The conduct of the respondents
of approbation by first accepting the award and having the appeal
disposed of on that basis and thereafter of reprobation by setting up
its invalidity has been lost sight of. The compromise deed was not
challenged at any point of time by the respondents. The appellants
sought to execute the decree as passed initially by filing execution
proceedings on 23.11.2023. The same were however withdrawn
on 08.12.2023. Thereafter jurisdiction under Section 9 of the Act of
1996 was invoked by the appellants. In our view, non-suiting the
appellants on the ground that the award dated 30.12.2022 was a
918 [2025] 8 S.C.R.
Supreme Court Reports
nullity in view of the objection raised by the respondents has resulted
in grave injustice to the appellants. If the impugned adjudication
is accepted, the respondents would reap benefit from their act of
approbation and reprobation. The respondents having succeeded in
having a decree being passed on the strength of the arbitral award
dated 30.12.2022 now cannot be permitted to contend that the
award itself was a nullity. The justice of the case therefore requires
that the appellants ought to be permitted to revive the execution
proceedings that they had filed being Miscellaneous Case No. 122
of 2023. These proceedings were withdrawn shortly after being filed
to enable the appellants to file the application under Section 9 of the
Act of 1996 and there was no adjudication of the same on merits.
In our view, the appellants cannot be left remediless especially in
the backdrop of the fact that the compromise decree was passed
in the respondents’ appeal which remained unchallenged by them.
21. For aforesaid reasons, the order passed by the Commercial Court
in Arbitration Suit No.25 of 2023 dated 24.05.2024 as well as the
judgment of the Division Bench in Appeal No.356 of 2024 dated
30.08.2024 are set aside. The appellants are at liberty to revive the
execution proceedings in the form of Miscellaneous Case No.122
of 2023. The execution proceedings shall be decided on their own
merits and in accordance with law. The civil appeal is allowed in
aforesaid terms leaving the parties to bear their own costs.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Ankit Gyan
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