9911796707
TMI Blog2023 (8) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... ected 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 the subsequent purchasers/buyers of their apartments. The contractual terms inter-se are governed by the "Apartment Buyer Agreement"[For short, "the agreement"]. 3. Clause 8 of the agreement pertains to the "CHANGES AND VARIATIONS IN THE SALE AREA". The relevant part of Clause 8.6(ii) and Clause 8.7 read: 8.6 While every attempt shall be made to adhere to the Sale Area, in case any changes result in any revision in the Sale Area, the Company shall advise the Buyer in writing along with the commensurate increase/decrease in Total Sale Consideration based, however, upon the BSP as agreed herein. Subject otherwise to the terms and conditions of this Agreement, a maximum of 10% variation in the Sale Area and the commensurate variation in the Total Sale Consideration is ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 and revision in the sale area of their apartments. Accordingly, the differential demand letters on account of such increase were issued by the Appellant to the allottees of the apartments, including the Respondents. The Respondents/their respective previous allottees made payments towards the differential demand without any demur or protest between the period December 2017 to August 2018, and the Appellant executed the conveyance deeds in their favour between the period April 2018 to September 2019. 6. Subsequently, the Respondents on 25.02.2022 filed a complaint being Consumer Case No. 34/2022 before the National Commission seeking a refund of the amounts paid by them towards the increased sale area alleging, inter alia, that there was neither inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 aggrieved by the same, has preferred the present appeal. 10. Heard the learned Senior Advocates Dr. Abhishek Manu Singhvi and Mr. Amit Sibal appearing for the Appellant, and the learned Senior Advocate Mr. Bishwajit Bhattacharyya appearing for the Respondents. 11. At the outset, we must record our disagreement with the finding recorded by the National Commission as to the 'continuing cause of action' till 26.08.2020, which is the date when the question of the excess sale area was decided by the National Commission in CC Nos. 285/2018 and 286/2018 titled Pawan Gupta v. Experion Developers Private Limited. The issue of limitation has to be decided as per the provisions in the enactment, in the instant case Section 69 [ Limitation period.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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 Respondents would not be entitled to the benefit of exclusion of the period from 15.03.2020 to 28.02.2022. 14. Having gone through the wording of the communication/letter dated 27.04.2017, we do not find any merit in the submission of the Appellant. The communication/letter dated 27.04.2017 by the Appellant states that the construction work was in progress and that the Appellant would soon be starting the occupation certificate process. Further, with the project reaching the handover stage, the Appellant had got clarity on the overall areas and subsequent impact on the respective units. As per the calculation, the sale area of the apartment had increased by the square feet as indicated in the communication dated 27.04.2017. We do not read the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plea of deficiency of service is hit by the legal bar of acceptance and ones' previous action and conduct. It is highlighted that the conveyance deeds were executed by the Appellant on the Respondents/allottees upon making full payment, including the payments with regard to the increased area, and such payment, it is submitted, was voluntary and without reservation. It is also argued by the Appellant that it is not even the case of the Respondents that they/original allottees had made payments under some threat, coercion or duress. Therefore, it does not lie in the mouth of the Respondents to say, rather, they were estopped from saying four years after the execution of the conveyance deeds in their favour that there was no actual increase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f "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 of the bargain. The contention that the settlement deeds were executed under coercion or under undue influence was also not accepted since no specific material had been produced on record to demonstrate the same. This Court also held that subsequent purchasers cannot benefit from the order of this Court therein. However, this view in re. the subsequent purchasers stands overruled by a bench of three judges' in Laureate Buildwell Private Limited v. Charanjeet Singh. In Laureate Buildwell Private Limited (supra) the larger bench over-ruled the ratio laid down in Arifur Rahman Khan (supra) to the extent that a subsequent purchaser would not be entitled to the benefit of the order passed in case of the original allottee. On the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 flats with finally approved common spaces/buildings and the flats. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions 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 cases filed by the Respondents. 23. On the other hand, it is submitted by learned Senior Advocates, Dr. Abhishek Manu Singhvi and Mr. Amit Sibal, that the complaint preferred by Pawan Gupta was in his individual capacity and not in a representative capacity. Pawan Gupta had made specific prayer for handing over possession of his unit, for awarding interest on the amount paid by him for the delay that occurred in handing over possession and also for a refund of the amount charged by the Appellant towards service tax, car parking and increase in the common area. Hence, upon the dismissal of the statutory appeals filed by the Appellant in case of Pawan Gupta (supra), the judgment of the National Commission would merge int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 different, and may not completely and directly relate to the merits of the case as to be construed as an imprimatur of this Court on the correctness of the decision appealed against. A case may not raise a question of general principle but turn on its own facts. Facts of the particular case may not be suitable as a foundation for determining some question of a general principle. Due to heavy backlog of work, this Court has to restrict the intake of fresh cases. Thus, there can be a variety of reasons why the court dismisses a special leave petition, and that too by a non-speaking order. 28. Approving this aforesaid ratio, in Khoday Distilleries Ltd. (supra) it is observed: 20. The Court thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the Respondent and hold that this appeal arising out of the special leave petition is maintainable. 30. Reiterating the conclusions in Kunhayammed (supra), Khoday Distilleries Ltd. (supra), states: 26. From a cumulative reading of the various judgments, we sum up the legal position as under: 26.1. The conclusions rendered by the three-Judge Bench of this Court in Kunhayammed and summed up in para 44 are affirmed and reiterated. 26.2. We reiterate the conclusions relevant for these cases as under: (Kunhayammed case, SCC p. 384) (iv) An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 which would have the effect of re- examination of the issues and points determined in the case of Pawan Gupta (supra) inter-se the parties to the decision. However, dismissal of the appeal 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. 32. The dismissal of the appeal in the case of Pawan Gupta (supra) without any reasons being recorded would not attract Article 141 of the Constitution of India as no law was declared by the Supreme Court, which will have a binding effect on all courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 normally immaterial and it does not matter whether the previous decision was right or wrong, unless the erroneous determination relates to the jurisdictional matter of that body. This ratio was followed and approved by a three judges' Bench in Malook Singh and Ors. v. State of Punjab and Ors. 34. In Makhija Construction & Engg. (P) Ltd. v. Indore Development Authority and Ors. (2005) 6 SCC 304, after referring to several earlier decisions, this Court has observed that a precedent operates to bind in similar situations in a distinct case, whereas res judicata operates to bind parties to proceedings for no other reason, but that there should be end to litigation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, which was less than 5% and such variance was within the permissible limits. 36. Thus, we are clearly of the view that the order of this Court dismissing the appeal in the case of Pawan Gupta (supra) cannot be read as a precedent and applied to the cases in hand. In fact, precedents cannot decide questions of fact. The decision in the case of Pawan Gupta (supra) was based on evidence adduced by the Appellant/builder/developer, which in the said case was not found to be sufficient and cogent to justify and substantiate the demand raised in view of the increased sale area. No doubt, the architect's certificate and report dated 23.09.2020 was filed before thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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