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Issue for consideration: Impugned order passed by NCDRC directing the appellant-builder/developer to refund to the respondents-allottees/ subsequent buyers, the amount collected towards excess sale area, overruling the contentions of the appellant on the grounds of the principle of res judicata and on the rule of binding precedent by applying its decision in Pawan Gupta case (a case related to the same housing project as the present matter) wherein the claim made by the appellant for the increase of the sale area was rejected and appeal thereagainst was dismissed by Supreme Court, if justifi ed. Constitution of India – Article 141 – Decision in Pawan Gupta challenged by appellant by fi ling 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 eff ect 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 specifi c 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 certifi cates 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 suffi cient 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 defi nite 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 fi rst 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 specifi c 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 fi led 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 eff ective and binding; nevertheless, its fi nality is put in jeopardy – Once the superior court disposes the dispute before it in any manner, either by affi rming 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 fi nal 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 fl at 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 fl at buyers, waiting for their promised fl ats 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 indefi nitely 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] |
