Constitution of India – Article 141 – Decision in Pawan Gupta challenged by appellant by filing appeals before Supreme Court which were dismissed without any reasons being recorded – Review petitions there against were also dismissed – Article 141, if attracted: Held: Dismissal of the appeal in the case of Pawan Gupta without any reasons being recorded would not attract Article 141 as no law was declared by the Supreme Court, which will have a binding effect on all courts and tribunals in India – There is a clear distinction between the binding law of precedents in terms of Article 141 and the doctrine of merger and res judicata – Order passed by this Court dismissing the appeal in the case of Pawan Gupta would operate as res judicata in the said case but does not lay down a binding precedent applicable to other cases – It would not operate as res judicata in the case of the respondents against the appellant as they were not parties to the said case, and the proceedings initiated by Pawan Gupta were fact specific and not in a representative capacity – Thus, the order of this Court in Pawan Gupta cannot be read as a precedent and applied to the cases in hand – Precedents cannot decide questions of fact – In Pawan Gupta there was no material on record placed by the appellant showing the actual increase in the sale area – However, the appellant in the instant case had produced the Architect’s certificates and reports to show that there was an actual increase in the sale area, justifying its demand for the extra payment and which documents were not contradicted by the respondents nor had they disputed the contents thereof – The decision in the case of Pawan Gupta was based on evidence adduced by the appellant-builder/developer, which was not found to be sufficient and cogent to justify and substantiate the demand raised in view of the increased sale area – National Commission was therefore required to consider and examine the contentions of the appellant and not overrule the same on the grounds of the principle of res judicata and on the rule of binding precedent, which do not apply – Impugned judgment set aside – Matter remanded back in terms of the observations and directions given – Doctrine of merger – Res judicata – Code of Civil Procedure, 1908 – Order XLI, r.27 – Consumer Protection. [Paras 31, 32, 35, 36 and 38] Consumer Protection Act, 2019 – s.69 – Limitation – ‘Cause of action’:
Held: ‘Cause of action’ being the foundation of the claim refers to the entire set or bundle of facts necessary and material to prove in order to get a judgment – It refers to a definite point of time when the requisite ingredients constituting that ‘cause of action’ are complete – The ‘cause of action’ is complete when they provide the aggrieved party with the right to invoke jurisdiction of the court/forum – The test is to determine when the aggrieved person could have first maintained action for a successful result – In the present case, communication/letter dtd. 27.04.2017 by the appellant was not the starting point of the ‘cause of action’ – It was an assertion, albeit without any specific details or particulars – The ‘cause of action’ arose when the appellant insisted and compelled the respondents/allottees to make payment, but did not furnish the details and particulars to enable the respondents/allottees to ascertain the actual allocated sale area – In the context of the present case, it is an accepted position that the sale deeds were executed with the respondents between the period from 13.04.2018 to as late as 09.01.2020 – Thus, the complaints filed by the respondents cannot be dismissed on the ground of being barred by limitation u/s.69. [Para 14] Doctrine of merger – Logic behind:
Held: The logic behind the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject matter at a given point of time – When a decree or order passed by an inferior court, tribunal or authority is subjected to a remedy available under law before a superior forum, then the decree or order under challenge continues to be effective and binding; nevertheless, its finality is put in jeopardy – Once the superior court disposes the dispute before it in any manner, either by affirming the decree or order, by setting aside or modifying the same, it is the decree of the superior court, tribunal or authority, which is the final binding and operative decree – The decree and order of the inferior court, tribunal or authority gets merged into the order passed by the superior forum – However, this doctrine is not of universal or unlimited application – The nature of jurisdiction exercised by the superior court and the content or subject matter of challenge laid or could have been laid will have to be kept in view – Constitution of India – Article 136. [Para 32] Consumer Protection – Acquiescence – Estoppel – Subsequent purchaser – Plea raised by the appellant on acquiescence and estoppel, as the respondents-allottees/subsequent buyers are seeking a refund of the amount paid without any demur or protest about four years after the payments were made – It was also argued that it is not even the case of the respondents that original allottees had made payments under some threat, coercion or duress:
Held: As held in Laureate Buildwell Private Limited v. Charanjeet Singh the nature and extent of relief, to which the subsequent purchaser can be entitled is fact and situation dependent – It cannot be argued that a subsequent purchaser, who steps into the shoes of the original allottee of a housing project in which the builder has not honoured its commitment to deliver the flat within the stipulated time, should not expect even reasonable time for the performance of builder’s obligation – Such an argument, if accepted, would lead to a situation where a large number, possibly thousands of flat buyers, waiting for their promised flats or residences would be left without any relief – Such a conclusion would be arbitrary – In these cases, it would be fair to assume that the subsequent purchaser had knowledge of the delay, but such knowledge cannot be extended to accept the submission that such delay shall continue indefinitely based upon an a priori assumption – The equities have to be properly moulded – As these aspects and questions are essentially factual, albeit have not been ascertained and addressed in the present case, an order of remand to the National Commission is passed to examine the issue in light of the dictum laid down by this Court. [Paras 16, 17]
LIST OF CITATIONS AND OTHER REFERENCES
Experion Developers Pvt Ltd v. Pawan Gupta Decision dtd.12.01.2021 in Civil Appeal Nos. 3703- 3704 of 2020 – held inapplicable. Laureate Buildwell Private Limited v. Charanjeet Singh 2021 SCC OnLine SC 479; Kunhayammed and Others v. State of Kerala and Another (2000) 6 SCC 359: [2000] 1 Suppl. SCR 538; Khoday Distilleries Limited and Others v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited (2019) 4 SCC 376: [2019] 3 SCR 411; State of Rajasthan v. Nemi Chand Mahela and Others (2019) 14 SCC 179: [2019] 18 SCR 995; Malook Singh and Others v. State of Punjab and Others (2021) SCC OnLine SC 876; Makhija Construction & Engg. (P) Ltd. v. Indore Development Authority and Others (2005) 6 SCC 304 – relied on.
Wing Commander Arifur Rahman Khan and Aleya Sultana and Others v. DLF Southern Homes Private Limited and Others (2020) 16 SCC 512: [2020] 9 SCR 136; Abbai Maligai Partnership Firm and Another v. K. Santhakumaran and Others (1998) 7 SCC 386: [1998] 1 Suppl. SCR 535; Fida Hussain and Others v. Moradabad Development Authority and Another (2011) 12 SCC 615: [2011] 9 SCR 290 – referred to.
Pawan Gupta v. Experion Developers Private Limited 2020 SCC OnLine NCDRC 788 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.