# CASE DETAILS EXPERION DEVELOPERS PRIVATE LIMITED v. HIMANSHU DEWAN AND SONALI DEWAN AND OTHERS

- **Citation:** 2023 INSC 748
- **Court:** Supreme Court of India
- **Decided:** 2023-08-18
- **Case number:** Civil Appeal No. 1434 of 2023
- **Bench:** Sanjiv Khanna, Bela M. Trivedi, Ujjal Bhuyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-experion-developers-private-limited-v-himanshu-dewan-and-sonali-36410
- **Pages:** 27

## Headnote

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
1119
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 all

## Text

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[2023] 12 S.C.R. 1118 : 2023 INSC 748
1118
CASE DETAILS
EXPERION DEVELOPERS PRIVATE LIMITED
v.
HIMANSHU DEWAN AND SONALI DEWAN AND OTHERS
(Civil Appeal No. 1434 of 2023)
AUGUST 18, 2023
[SANJIV KHANNA, BELA M. TRIVEDI AND
UJJAL BHUYAN, JJ.]
HEADNOTES
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
1119
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]
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU
DEWAN AND SONALI DEWAN
1120
SUPREME COURT REPORTS
[2023] 12 S.C.R.
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
1121
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]
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
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1434 of 2023.
From the Judgment and Order dated 16.01.2023 of the National
Consumer Disputes Redressal Commission, New Delhi in Consumer Case
No. 34 of 2022.
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU
DEWAN AND SONALI DEWAN
1122
SUPREME COURT REPORTS
[2023] 12 S.C.R.
Appearances:
Dr. Abhishek Manu Singhvi, Amit Sibal, Sr. Advs., Debmalya
Banerjee, Ms. Manmeet Kaur, Rohan Sharma, Kartik Bhatnagar, Anmol,
Nicholas Choudhury, Gurtejpal Singh, Ms. Suditi Batra, Shreesh Chadha,
Amit Bhandari, Abhishek Grover, Abhishek Rana, Ms. Ashna Arora, M/s.
Karanjawala & Co., Advs. for the Appellant.
Bishwajit Bhattacharyya, Sr. Adv., Chandrachur Bhattacharyya, Sahil
Tagotra, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SANJIV KHANNA, J.
The instant appeal fi led by M/s. Experion Developers Private Limited1
under Section 67 of the Consumer Protection Act, 20192, is directed against
the order and judgment dated 16.01.2023 passed by the National Consumer
Disputes Redressal Commission3, in the Consumer Case No. 34/2022,
whereby the appellant has been directed to refund to Himanshu Dewan &
Sonali Dewan & Others4, 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"5.
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: -
1
For short, "the appellant".
2
For short, "the Act".
3
For short, "National Commission".
4
For short, "the respondents".
5
For short, "the agreement".
1123
"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 agreed
to be acceptable to the Buyer and the Buyer undertakes to be bound
by such increase/decrease in the Sale Area and the commensurate
increase/decrease in the Total Sale Consideration. For any increase/
decrease in the Sale Area, the payment for the same shall be required
to be adjusted at the time of Notice of Possession or immediately in
case of any transfer of the apartment before the Notice of Possession
or as otherwise advised by the Company.
8.7 If any of the Changes leads to any change in sale area of the
apartment in excess of Ten Percent (10%) of the Sale Area mentioned
herein at any time prior to the execution of the Conveyance Deed for
the Apartment and such variation is unacceptable to Buyer, all attempts
shall be made by the Company to off er an alternate apartment of a
sale area similar to the Sale Area of the Apartment within a maximum
of 10% variation in the Sale area within the Group Housing Colony
subject to availability. If such alternate apartment is available, the
applicable Total Sale Consideration for such alternate apartment shall
be payable/refundable, as the case may be, for the sale area of the
alternate apartment at the BSP mentioned herein and there shall be
no claim against the Company in respect of the Apartment nor shall
otherwise be raised by the Buyer in this regard at any time."
4. The expression "Sale Area" as defi ned in Clause 1(xlviii), reads: -
"1. (xlviii) - 'Sale Area' shall include the covered area, inclusive of
areas enclosed by the periphery walls, balconies/ decks, area under
the columns and wails, half of the area of walls common with other
premises, cupboads, 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/
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU
DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]
1124
SUPREME COURT REPORTS
[2023] 12 S.C.R.
toilets, mails rooms, all electrical plumbing and fi re 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 and revision in the sale area of their apartments.
Accordingly, the diff erential 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 diff erential 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 fi led 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 increase in the carpet area nor in the builtup area, and that the demand towards increase in the sale area made by
the appellant was illegal. The respondents relied upon the decision dated
26.08.2020 rendered by the National Commission in the case of Pawan
Gupta v. Experion Developers Private Limited.6
6
2020 SCC OnLine NCDRC 788.
1125
7. The case was resisted by the appellant by fi ling a reply challenging
the very maintainability of the consumer case and contending, inter alia,
that no 'cause of action' had arisen. According to the appellant, respondent
nos. 1, 2 and 5 were the subsequent allottees, who came into picture much
after the increase in the sale area and raising of demand therefor. Even the
payments for the same were made by their concerned predecessor allottees
without any protest. In case of respondent no. 6, the predecessor allottee was
already intimated about the increase in the sale area and had not objected
to the increase. Respondent no. 6 was, thus, well aware of the increase in
the sale area and had made payments towards the same without any protest.
Other respondents also had made payments towards the increase in the
sale area without any protest. It was further contended that as per Section
69 of the Act, a consumer complaint could be fi led within two years from
the date when the 'cause of action' arises. In the instant case, the 'cause of
action' had arisen on 27.04.2017, when the demand for the increased area
was raised by the appellant. The complaint was fi led before the National
Commission on 25.02.2022, that is, about fi ve years after the 'cause of action'
had arisen and three years after the lapse of limitation period. Relying upon
the certifi cates, reports and affi davits 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 certifi cates 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
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU
DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]
1126
SUPREME COURT REPORTS
[2023] 12 S.C.R.
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 fi nding
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 697 of the Act, which prescribes a two years limitation
to fi le a complaint from the date on which the 'cause of action' has arisen.
The 'cause of action' means every fact, which, if traversed, is necessary to
prove in order to support the claimant's right to judgment, is not dependant
on a decision in another case by an allottee raising a similar issue.
12. As per the respondents, the 'cause of action' arose when the
payments towards the increase in the sale area were made, and thereupon,
the conveyance deeds were executed between April 2018 to September
2019. They also submit, on account of the Covid pandemic, the period
from 15.03.2020 to 28.02.2022 has to be excluded in terms of the directions
issued by this Court in Suo Moto Writ Petition (Civil) No. 3 of 2020. Since
the complaints were made on 25.02.2022, and on exclusion of the period
between 15.03.2020 to 28.02.2022, 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.
7
69. Limitation period.-(1) The District Commission, the State Commission or the
National Commission shall not admit a complaint unless it is fi led within two years
from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be
entertained after the period specifi ed in sub-section (1), if the complainant satisfi es the
District Commission, the State Commission or the National Commission, as the case
may be, that he had suffi cient cause for not fi ling the complaint within such period:
Provided that no such complaint shall be entertained unless the District Commission
or the State Commission or the National Commission, as the case may be, records its
reasons for condoning such delay.
1127
13. The appellant, relying upon Section 98 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 respondents would not be entitled to the benefi t
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 fi nd 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 certifi cate 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 communication/letter as the starting point of the 'cause of
action'. '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 our opinion, the communication/letter dated 27.04.2017 was an
assertion, albeit without any specifi c details or particulars. The appellant,
as per the contractual terms, is well within their right to ask for enhanced
8
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.
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU
DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]
1128
SUPREME COURT REPORTS
[2023] 12 S.C.R.
sale consideration on increase in the sale area as defi ned. The respondents
have not questioned and challenged this right of the appellant. They have
challenged the computation and calculations. The respondents have the
right to ask for calculations and details, when the appellant had stated
that the sale area had increased. On being satisfi ed 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. One
would not expect the allottee or the consumer to challenge the demand,
which 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 fi led 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 suffi cient cause is shown, even after two years of the 'cause of
action' having arisen. While no application for condonation of delay was
fi led, 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 defi ciency 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,
1129
rather, they were estopped from saying four years after the execution of
the conveyance deeds in their favour that there was no actual increase in
the sale area and the demand raised by the appellant in that regard was not
justifi ed or was illegal.
16. Similar issues had arisen before this Court in Wing Commander
Arifur Rahman Khan and Aleya Sultana and Others v. DLF Southern
Homes Private Limited and Others9. This Court accepted the argument by
the consumers that execution of a deed of conveyance by a fl at 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 possession would not be given and the conveyance deed would
not be executed without the acceptance of the off er of possession terms. In
the said case, the builder/developer had stated that it would not handover
the possession and execute the conveyance deed without acceptance of
the off er of possession terms. Any request to take over possession and
execute the documents under protest was untenable. The consumers were,
in fact, asked to fi le an unconditional affi davit/undertaking to that eff ect,
as execution of documents under protest or claim of coercion was not to
be entertained. In this background, this Court in Arifur Rahman Khan
(supra) held that the fl at buyers/consumers were essentially presented with
an unfair choice of either retaining their right to pursue their claims, in
which event they would not get possession or title in the meantime, or to
forsake the claims in order to perfect their title to the fl ats for which they
had paid valuable consideration. Accordingly, the question needed to be
addressed was whether a fl at buyer who seeks to espouse a claim against
the developer 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 indefi nitely 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
9
(2020) 16 SCC 512.
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU
DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]
1130
SUPREME COURT REPORTS
[2023] 12 S.C.R.
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 specifi c 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 infl uence was also not accepted since no specifi c material had been
produced on record to demonstrate the same. This Court also held that
subsequent purchasers cannot benefi t 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 Singh10. 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 benefi t of the order passed in case of the original allottee. On the
other hand, it has been held that 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.
10 2021 SCC OnLine SC 479.
1131
17. As these aspects and questions are essentially factual, albeit have
not been ascertained and addressed in the present case, we would pass an
order of remand to the National Commission to examine the issue in light
of the dictum laid down by this Court. Upon the facts being fi rst ascertained,
the legal principles have to be applied.
18. There is yet another and a stronger reason why we are inclined to
pass an order of remand. For this purpose and for the sake of convenience,
we would reproduce the observations by the National Commission in
Pawan Gupta (supra) on the merits for rejecting the claim made by the
builder/developer (the appellant) for the increase of the sale area. These
are as under:
"The complaints have been fi led mainly for two reasons. The fi rst 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
certifi cate of the architect was sent to the complainant, which is of
a later date. The justifi cation 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 fi led 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 specifi ed and super area cannot change until
there is change in either the area of the fl at 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 fl ats with fi nally approved common spaces/
buildings and the fl ats. 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
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU
DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]
1132
SUPREME COURT REPORTS
[2023] 12 S.C.R.
is about to take possession. There is no prevailing system when the
competent authority which approves the plan issues some kind of
certifi cate in respect of the extra super area at the fi nal stage. There
is no harm in communicating and charging for the extra area at the
fi nal stage but for the sake of transparency the opposite party must
share the actual reason for increase in the super area based on the
comparison of the originally approved buildings and fi nally approved
buildings. Basically the idea is that the allottee must know the change
in the fi nally approved lay-out and areas of common spaces and the
originally approved lay-out and areas. In my view, until this is done,
the opposite party is not entitled to payment of any excess area.
Though the Real Estate Regulation Act (RERA) 2016 has made it
compulsory for the builders/developers to indicate the carpet area
of the fl at, however the problem of super area is not yet fully solved
and further reforms are required."
19. The appellant had challenged the said decision of the National
Commission by fi ling the appeals being Civil Appeal Nos. 3703-3704 of
2020 before this Court. However, they were dismissed vide the order dated
12.01.2021. The order reads as under:
"1. We are not inclined to interfere with the order of the National
Consumer Disputes Redressal Commission dated 26 August 2020 in
Consumer Complaint Nos. 285 and 286 of 2018.
2. The appeals are accordingly dismissed.
3. Pending application, if any, stands disposed of."
20. The review petitions, being R.P. (C) Nos. 1357-1358 of 2021, in
the said civil appeals fi led by the appellant, were also dismissed by this
Court on 11.01.2022 by passing the following order:
"1. Application for oral hearing is dismissed.
2. We have carefully gone through the review petitions and the
connected papers. We fi nd no merit in the review petitions and the
same are accordingly dismissed.
3. Pending applications, if any, stand disposed of."
1133
21. The order dated 12.01.2021 of this Court dismissing the civil
appeals and the order dated 11.01.2022 dismissing the subsequent review
petitions fi led 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
fi nality 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 fi ndings 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 fi led 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 specifi c 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 fi led by
the appellant in case of Pawan Gupta (supra), the judgment of the National
Commission would merge into the order of this Court through a non-speaking
order. The result would be that the litigation inter se the parties in case of
Pawan Gupta (supra) had attained fi nality in the said case. Nonetheless,
it could not be construed by any stretch of imagination that the National
Commission was barred from examining or deciding the issues involved in
the instant case as the appellant had placed on record details and evidence
in the form of the architect's certifi cate dated 23.09.2020 and a report of
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU
DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]
1134
SUPREME COURT REPORTS
[2023] 12 S.C.R.
the same date with calculations to show and justify the increase in the sale
area. The architect's certifi cate and the report dated 23.09.2020 were not
placed before the National Commission in the case of Pawan Gupta (supra).
No doubt, the same were fi led before this Court as additional documents,
but the appeal itself was dismissed in limine without taking the additional
documents on record, and that too by a non-reasoned order. In the present
case, the architect's certifi cate and the report dated 23.09.2020 were placed
before the National Commission, but they were not examined and considered
in the reasons set out by the National Commission. Decision in Pawan
Gupta (supra) was simply applied.
24. Specifi cally on the question of additional documents, it is submitted
by Learned Senior Advocate, Mr. Bhattacharyya, appearing on behalf of the
respondents, that once an application for additional documents was fi led in
this Court, the doctrine of merger would apply and, therefore, the present
appeal merits dismissal on this short ground.
25. This Court has examined doctrine of merger in several decisions,
but we would, for the purpose of this case, refer to only two decisions in
Kunhayammed and Others v. State of Kerala and Another11 and Khoday
Distilleries Limited and Others v. Sri Mahadeshwara Sahakara Sakkare
Karkhane Limited.12, 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 modifi es, reverses or affi rms 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.
11 (2000) 6 SCC 359.
12 (2019) 4 SCC 376.
1135
(ii) The jurisdiction conferred by Article 136 of the Constitution is
divisible into two stages. The fi rst stage is upto the disposal of prayer
for special leave to fi le an appeal.