The Doctrine against “Blowing Hot and Blowing Cold” in Indian Law

The Doctrine against “Blowing Hot and Blowing Cold” in Indian Jurisprudence: Scope, Limits, and Contemporary Application

1. Introduction

Indian courts have consistently deprecated the practice of “blowing hot and blowing cold” — a colloquial expression for the equitable rule that a litigant who knowingly accepts a benefit under a transaction, pleading, or order cannot later disown the same instrument or stance. Rooted in the broader doctrine of election, approbate–reprobate and estoppel, the maxim promotes coherence, prevents abuse of process, and safeguards the certainty of law.[1]

2. Historical Evolution and Theoretical Foundations

2.1 Common-law Origins

English equity recognised early that a party may not “accept and reject the same instrument” (Smith v. Baker, 1875). The phrase “blow hot and cold” was lucidly expounded by Evershed M.R. in Banque des Marchands de Moscou v. Kindersley (1951 Ch. 112) who distilled two prerequisites: (i) an unequivocal election, and (ii) receipt of a benefit inconsistent with the later stance.[2]

2.2 Reception in India

The Privy Council’s narrative filtered into Indian law through early decisions such as Rani Chandra Kunwar v. Narpat Singh (1906), and was firmly entrenched by the Supreme Court in Nagubai Ammal v. B. Shama Rao (1956). The Court characterised approbate–reprobate as “one application of the doctrine of election”, confining its operation to the same transaction and the same parties.[3]

2.3 Statutory Embodiments

  • Indian Evidence Act 1872, s. 115 (Estoppel): prevents a person from asserting to the contrary of what has been represented and relied upon.
  • Transfer of Property Act 1882, s. 52 (Lis pendens): operates irrespective of parties’ intentions, yet election principles determine whether a transferee may contest a decree after benefiting under it.[4]
  • Code of Civil Procedure 1908, O. 12 r. 6: judgments on admissions, often triggered when inconsistent pleadings reveal a party’s earlier election (see Karam Kapahi).[5]

3. Essential Elements of the Doctrine

  1. Election: A conscious, unequivocal choice.
  2. Benefit: Acceptance of an advantage flowing from the first course of conduct.
  3. Inconsistency: The subsequent position must be irreconcilable with the earlier one.
  4. Same Transaction & Parties: The bar does not extend beyond the instrument or relationship in question.[6]

4. Judicial Articulation in India

4.1 Property and Testamentary Contexts

In Bhagwat Sharan v. Purushottam (2020) the Supreme Court reiterated that a legatee who invokes a will to evict a tenant cannot later dispute clauses of the same will as inconvenient. The Court branded such conduct “blowing hot and cold”, branding the doctrine of election as a “facet of estoppel”.[7]

Earlier, Nagubai Ammal upheld an execution sale notwithstanding allegations of fraud because the challengers had pursued inconsistent pleas across connected litigations, thereby violating the maxim.[3]

4.2 Contractual and Commercial Disputes

The doctrine is most frequently invoked in commercial litigation:

  • Karam Kapahi v. Lal Chand Trust (2010) — lessee’s admissions of tenancy in collateral proceedings estopped it from disputing lessor’s title. The Court held that “contradictory stances are impermissible; a party cannot approbate and reprobate”.[5]
  • Rajasthan SIDC v. Diamond & Gem (2013) — a company that accepted an “as-is-where-is” allotment could not demand an access road through writ jurisdiction. The Supreme Court quashed the High Court’s equitable relief, emphasising sanctity of contracts and the estoppel against “blowing hot and cold”.[8]
  • Climax Overseas Pvt Ltd. (CESTAT 2022) — importer who expressly waived show-cause notice could not later challenge absence of notice; the tribunal applied the maxim to reject the plea.[9]

4.3 Administrative and Constitutional Settings

The principle is not absolute. In P.R. Deshpande v. Maruti Haibatti (1998) a tenant’s undertaking to vacate did not preclude him from invoking Article 136. The Court reasoned that equitable doctrines cannot curtail constitutional remedies.[10] Similarly, in Ramesh Chandra Sankla v. Vikram Cement (2008) the employees’ acceptance of VRS benefits estopped them from resiling, yet the Court upheld equitable directions to refund, balancing justice over rigid estoppel.[11]

4.4 Taxation and Revenue

Revenue jurisprudence applies the doctrine to prevent inconsistent positions vis-à-vis different authorities. In Hemlata Agarwal (All HC 1966) the court castigated the Income-tax Officer for attempting to tax the same sum in two hands, observing that even the revenue “cannot blow hot and cold in the same breath”.[12]

5. Interplay with Cognate Doctrines

5.1 Estoppel v. Election

Both rest on consistency, yet estoppel arises from representation relied upon, whereas election targets benefit + inconsistent stance. Courts often conflate the two, but decisions such as Union of India v. Murugesan (2021) distinguish acquiescence, laches, and approbate–reprobate, underscoring case-specific application.[13]

5.2 Waiver and Acquiescence

Waiver is intentional relinquishment of a known right; once a waiver is established, assertion of the right is barred not by election but by waiver. Nevertheless, waiver frequently coincides with “blowing hot and cold”, as illustrated in Climax Overseas where waiver of notice sealed the fate of the subsequent challenge.[9]

5.3 Legitimate Expectation

While legitimate expectation empowers a claimant to enforce consistency on the State, the State itself cannot invoke the doctrine to avoid statutory obligations. In M/s K.B. Tea Products (2023) the Supreme Court linked legitimate expectation to rule of law, implicitly cautioning that the executive too must avoid inconsistent stances.[14]

6. Limits and Exceptions

  1. Constitutional Supremacy: As Deshpande clarifies, equitable limitations cannot stifle constitutional rights (Arts. 32, 136, 226).
  2. Absence of Benefit: If no advantage is derived, the bar does not apply (Madras HC in Kuppanna Gounder, 1960).[15]
  3. Distinct Transactions: Inconsistent pleas across different instruments or periods may not trigger estoppel.
  4. Protean Public Interest: Courts retain discretion to relax the rule where public interest or manifest injustice so demands.

7. Contemporary Applications and Emerging Trends

7.1 Arbitration and Energy Sector

The Appellate Tribunal for Electricity in PCKL v. BESCOM (2015) barred a State utility from challenging termination of one fuel contract while simultaneously claiming amounts under a parallel contract, citing the 2010 Supreme Court case-law.[16]

7.2 Corporate and Insolvency

With the Insolvency and Bankruptcy Code 2016 reshaping creditor–debtor relations, tribunals have invoked the doctrine to prevent creditors from approving a resolution plan yet challenging its terms later, emphasising transactional certainty.

7.3 Tax Compliance and Audit

Income-tax Appellate Tribunal decisions, e.g., Rekha Kushwaha (2021), reaffirm that audited statements filed for bank facilities cannot be disowned during assessment.[17]

8. Critical Evaluation

The Indian judiciary wields the maxim as a flexible equitable tool. Its strengths lie in promoting procedural honesty and preventing forum shopping. However, uncritical invocation risks conflating estoppel, waiver, and election, thereby undermining nuanced analysis. Moreover, over-broad application may stifle genuine grievances, especially where power imbalances exist. The balancing act demonstrated in Deshpande and Sankla underscores the need for context-sensitive deployment.

9. Conclusion

The prohibition against “blowing hot and blowing cold” remains a cornerstone of Indian equity, anchoring consistency across pleadings, contracts, and statutory interactions. Yet, its application is neither mechanical nor absolute. Courts must ensure the twin criteria of benefit and inconsistency are satisfied and remain vigilant that equitable doctrines do not usurp constitutional guarantees. As commercial complexity intensifies and multi-forum litigation proliferates, the principle’s disciplining effect on litigant conduct will only gain salience. A calibrated, precedentially-grounded approach will best preserve both fairness and flexibility in adjudication.

Footnotes

  1. F.W. Maitland, Equity—A Course of Lectures (Cambridge, 1947); see also Bhagwat Sharan v. Purushottam, (2020) 6 SCC 387.
  2. Banque des Marchands de Moscou v. Kindersley, 1951 1 Ch 112 at 119.
  3. Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593.
  4. Ibid.; Transfer of Property Act 1882, s. 52.
  5. Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753.
  6. Madras HC in Kuppanna Gounder v. Peruma Gounder, AIR 1960 Mad 190.
  7. Bhagwat Sharan v. Purushottam, (2020) 6 SCC 387.
  8. Rajasthan SIDC v. Diamond & Gem Development Corp., (2013) 5 SCC 470.
  9. Climax Overseas Pvt Ltd. v. Commissioner, CESTAT Final Order 2022.
  10. P.R. Deshpande v. Maruti B. Haibatti, (1998) 6 SCC 507.
  11. Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58.
  12. Hemlata Agarwal v. CIT, 1966 SCC OnLine All 362.
  13. Union of India v. N. Murugesan, 2021 INSC 628.
  14. M/s K.B. Tea Products Pvt Ltd. v. C.T.O., (2023) SCC —.
  15. Kuppanna Gounder v. Peruma Gounder, AIR 1960 Mad 190.
  16. Power Co. of Karnataka v. BESCOM, APTEL Judgment 2015.
  17. Rekha Kushwaha v. ITO, ITA No. 2884/Del/2018 (ITAT 2021).