9911796707
TMI Blog2023 (8) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... area had increased. On being satisfied with the calculation, the Respondents could have accepted the increase in the sale area, if the same was in accordance with the agreement. 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. In view of the aforesaid, the complaints filed by the Respondents cannot be dismissed on the ground of being barred by limitation Under Section 69 of the Act. Similar issues had arisen before this Court in ARIFUR RAHMAN KHAN AND ORS. VERSUS DLF SOUTHERN HOMES PVT. LTD. AND ORS. [ 2020 (8) TMI 852 - SUPREME COURT] . This Court accepted the argument by the consumers that execution of a deed of conveyance by a flat buyer would not preclude a consumer claim for compensation for delayed possession in a case where the allottees were not given an option, but were rather told that the possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohan Sharma, Kartik Bhatnagar, Anmol, Nicholas Choudhury, Gurtejpal Singh, Suditi Batra, Shreesh Chadha, Abhishek Rana, Amit Bhandari, Abhishek Grover, Ashna Arora, Advs. and Karanjawala Co., AOR For the Respondents : Bishwajit Bhattacharyya, Sr. Adv., Chandrachur Bhattacharyya, Adv., Sahil Tagotra, AOR, Abhishek Pandey and Abhivyakti Banerjee, Advs. JUDGMENT SANJIV KHANNA, J. 1. The instant appeal filed by M/s. Experion Developers Private Limited [For short, the Appellant .] Under Section 67 of the Consumer Protection Act, 2019 [For short, the Act] , is directed against the order and judgment dated 16.01.2023 passed by the National Consumer Disputes Redressal Commission [For short, National Commission .] , in the Consumer Case No. 34/2022, whereby the Appellant has been directed to refund to Himanshu Dewan Sonali Dewan and Ors .[For short, the Respondents] , the amount collected towards excess sale area, and to execute supplementary correction deeds within six weeks from the date of the order. 2. The Appellant in the instant case had developed and constructed the apartments in a housing project, namely Windchants , situated in Gurgaon, Haryana. The Respondents are the allottees or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cupboards, projections/ledges, area utilized for the common services and facilities provided viz. areas in/under staircases, circulation areas, walls atriums, stilts, lift shafts and lobbies, lift machine rooms, service shafts, passages/ corridors, refuge areas, common washrooms/toilets, mails rooms, all electrical plumbing and fire shafts, community facilities, common service rooms, security rooms, sewage treatment plants, underground and overhead water storage tanks, DG/panel room, terrace gardens, air handling units, pantries and any other areas which have been paid for or are constructed by the Company for common use, but shall exclude the areas under the following: a) Sites for retail shops and other commercial areas in the Project. b) Amenities such as schools, medical centre/dispensary, creche, other health centers and the like. c) Dwelling units for the economically weaker Sections as prescribed under Applicable Laws. d) Car Parking Spaces 5. According to the Appellant, there was an increase in the sale area, earlier provisionally allotted to the Respondents, and therefore vide communication/letter dated 27.04.2017, the respective allottees were informed about the increase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lapse of limitation period. Relying upon the certificates, reports and affidavits of the architects, it was contended that there was an actual increase in the sale area of the apartments as mentioned therein and therefore, the charges demanded were valid and legal, in terms of Clause 8 of the agreement. 8. The Respondents in the rejoinder had contended that due to the Covid pandemic, the period of limitation was suspended during the period from 15.03.2020 to 28.02.2022 by this Court in terms of the directions issued in Suo Moto Writ Petition (Civil) No. 3 of 2020, and hence, the claim of the Respondents was within the period of limitation. In the communication/letter dated 27.04.2017, intimating the purported increase in the sale area, the Appellant had not placed any material or evidence to justify the increase in the area. They allege that the reports and certificates of the architects are all post-dated records, which cannot be taken as the basis for justifying the increase in the sale area. 9. The National Commission, as stated herein above, by the impugned judgment has directed the Appellant to refund the amount and execute supplementary/correction deeds. The Appellant being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaints would be well within the limitation of two years from the date on which the 'cause of action' had arisen as prescribed in Section 69 of the Act. 13. The Appellant, relying upon Section 9 [Continuous running of time.-Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stop it: Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues] of the Limitation Act, 1963, which provides that once limitation starts running no subsequent disability or inability to institute a suit or make an application would stop it, have argued that the 'cause of action' arose and commenced on 27.04.2017, which is when the Appellant had intimated the increase in the sale area and, consequently, the enhancement of price. Accordingly, in terms of Section 69 of the Act, which prescribes the limitation of two years from the date on which the 'cause of action' has arisen, the limitation had come to an end on 26.04.2019. Therefore, the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in terms of the contract between the parties, and is therefore not questionable. In such cases, no 'cause of action' arises. Further, the onus to justify and substantiate the claim and calculations of increased sale area was, and is on the Appellant. 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. In view of the aforesaid, the complaints filed by the Respondents cannot be dismissed on the ground of being barred by limitation Under Section 69 of the Act. We also observe that the consumer forums have the power to condone the delay when sufficient cause is shown, even after two years of the 'cause of action' having arisen. While no application for condonation of delay was filed, the National Commission could have always granted an opportunity to the Respondents. 15. At the same time, we should notice the argument raised by the Appellant on acquiescence and estoppel, as the Respondents are seeking a refund of the amount paid without any demur or protest about four years after the payments were made. Therefore, it is submitted that the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper for delayed possession can, as a consequence of doing so, be compelled to defer the right to obtain a conveyance to perfect their title. This Court held that it would be manifestly unreasonable to expect that in order to pursue a claim for compensation for delayed handing over of possession, the purchaser must indefinitely defer obtaining a conveyance of the premises purchased or, if they seek to obtain a deed of conveyance to forsake the right to claim compensation. The contrary position which the National Commission had espoused, this Court was of the view cannot be countenanced and accepted. This Court thus rejected the argument that on the execution of the conveyance deed, the transaction ceases to be a transaction in the nature of supply of services covered under the Consumer Protection Act, 1986 and becomes a mere sale of immovable property and, therefore, it is not amenable to the jurisdiction of the consumer fora. At the same time, this Court had refused to interfere and grant relief in cases of purchasers who had entered into specific settlement deeds with the developers observing that it would only be appropriate and proper if the parties were held down by the terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea. These are as under: The complaints have been filed mainly for two reasons. The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missing the civil appeals and the order dated 11.01.2022 dismissing the subsequent review petitions filed in the case of Pawan Gupta (supra) are non-reasoned orders that do not state what has weighed with the court while dismissing the appeals and the review petitions. However, the result is that the order passed by the National Commission in the case of Pawan Gupta (supra) has attained finality and binds the parties to the decision. 22. Learned Counsel for the parties have made elaborate submissions on the issue of whether the orders passed by this Court in the case of Pawan Gupta (supra) by applying the doctrine of merger, principle of res judicata and in view of the Rule of precedential value, would foreclose the submissions raised by the Appellant in the present case. Learned Senior Advocate, Mr. Bhattacharyya, appearing on behalf of the Respondents, has submitted that the findings recorded in the judgment by the National Commission in Pawan Gupta's (supra), which is a case related to the same housing project, has merged with the order passed by this Court in the appeals preferred by the Appellant and it will be binding on the Appellant on subsequent cases, including the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efer to only two decisions in Kunhayammed and Ors. v. State of Kerala and Anr. (2000) 6 SCC 359 and Khoday Distilleries Limited and Ors. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited (2019) 4 SCC 376, which approves of the ratio in Kunhayammed (supra). 26. Kunhayammed (supra) refers to several other decisions of this Court and has crystallised the legal position as under: 44. To sum up, our conclusions are: (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule 1 of Order 47 Code of Civil Procedure. 27. The aforesaid decision no doubt draws the distinction between a simple non-speaking order passed by this Court rejecting the special leave to appeal filed Under Article 136 of the Constitution of India, in which case the doctrine of merger has no application, and cases where this Court exercises its appellate power in terms of the statute or the Constitution. In the former set of cases, the grant of special leave to appeal is discretionary. The effect of a non-speaking order of dismissal of the special leave petition without anything more indicating the grounds or reasons for dismissal by a necessary implication cannot be taken as acceptance of the reasons or the ratio of the judgment under challenge. It is not correct to assume that the Court has implicitly decided all the questions. There could be multiple reasons why in a particular case a special leave to appeal can be refused. It would be incorrect to attempt to embark on such reasons when they have not been so stated. Such reasons can be varied and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 4) 4. Following the decision in Kunhayammed we are of the view that the dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the Appellant filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Order 47 Rule 1 Code of Civil Procedure. 26.3. Once we hold that the law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case. 31. No doubt, in Pawan Gupta's case (supra), this Court had not exercised the power or jurisdiction conferred by Article 136 of the Constitution of India, but had exercised its appellate power, which would, in terms of the ratio in Kunhayammed (supra), becomes the final order which is executable. Thus, the dismissal of the appeal by this Court in the case of Pawan Gupta (supra), had put a finality and an end to the litigation in the said case. To this extent, therefore, the application of the general principle of res judicata would bar the party from raising the plea once again. The order passed by this Court, on the application of the principle of judicial discipline, bars and prevents any tribunal or parties from canvassing or taking a view w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision in Manmohan Sharma case, (2014) 5 SCC 782 which refers to the case of one Danveer Singh whose writ petition had been allowed and the order had attained finality as it was not challenged before the Division Bench or before the Supreme Court. Termination of services in the case of Danveer Singh, it was accordingly held, was not justified and in accordance with law. The reasoning given in paras 22 and 23 in Manmohan Sharma case relating to the case of Danveer Singh would reflect the difference between the doctrine of res judicata and law of precedent. Res judicata operates in personam i.e. the matter in issue between the same parties in the former litigation, while law of precedent operates in rem i.e. the law once settled is binding on all under the jurisdiction of the High Court and the Supreme Court. Res judicata binds the parties to the proceedings for the reason that there should be an end to the litigation and therefore, subsequent proceeding inter se parties to the litigation is barred. Therefore, law of res judicata concerns the same matter, while law of precedent concerns application of law in a similar issue. In res judicata, the correctness of the decision is normall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta (supra) showing the actual increase in the sale area. Nonetheless, the Appellant in the instant case, along with its detailed reply, had produced the documents, i.e. the certificate dated 23.09.2020 given by the Architects D-idea, the Report dated 23.09.2020 given by Knight Frank (India) Private Limited, the affidavit dated 31.08.2021 by Mr. Muninder Pal Singh, and the affidavit dated 26.04.2022 by Mr. Anurag Mahajan, to show that there was an actual increase in the sale area, justifying its demand for the extra payment. The Respondents, in rejoinder, had neither placed any material to contradict the said Architect's certificates and reports nor had they disputed the contents thereof. The only contention raised by them was that the said documents were produced as an afterthought and, therefore, could not be taken into consideration. At this juncture, it is also pertinent to note that Clause 8.6 of the agreement, provided for an increase/decrease in the sale area as defined and also the corresponding sale price increase of upto 10%. The Appellant, by producing the said documents, had sought to justify that the variance, i.e. increase in the built up area of the project, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
