2023 Supreme(SC) 777

SUPREME COURT OF INDIA
Sanjiv Khanna, Bela M. Trivedi, Ujjal Bhuyan, JJ.
Experion Developers Private Limited – Appellant
Versus
Himanshu Dewan And Sonali Dewan And Others – Respondents
Civil Appeal No. 1434 of 2023
Decided on : 18-08-2023

IMPORTANT POINTS
(1) Consumer Fora have power to condone delay when sufficient cause is shown, even after two years of ‘cause of action’ having arisen.
(2) Precedents cannot decide questions of fact – There is a clear distinction between binding law of precedents in terms of Article 141 of Constitution of India and doctrine of merger and res judicata – Doctrine of merger is not of universal or unlimited application.
(3) Res Judicata – Principle of res judicata will have no application in cases where judgment or order has been passed by Court having no jurisdiction thereof or involving a pure question of law.
(4) Cause of action is complete when they provide aggrieved party with right to invoke jurisdiction of court/forum – Test is to determine when aggrieved person could have first maintained action for a successful result.

Headnote:

(A) Consumer Protection Act, 2019 – Section 69 – Limitation Act, 1963 – Section 9 – Consumer complaint – Limitation – Continuing cause of action – Section 69 prescribes two years limitation to file complaint from the date on which cause of action has arisen – Cause of action means every fact, which, if traversed, is necessary to prove in order to support claimant’s right to judgment, is not dependant on a decision in another case by an allottee raising a similar issue – ‘Cause of action’ being foundation of claim refers to 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 requisite ingredients constituting that ‘cause of action’ are complete – Cause of action is complete when they provide aggrieved party with right to invoke jurisdiction of court/forum – Test is to determine when aggrieved person could have first maintained action for a successful result. (Paras 11 and 14)

(B) Consumer Protection Act, 2019 – Section 67 – Real estate – Apartment Buyer Agreement – Differential demand towards increase in sale area – Appellant, as per contractual terms, is well within their right to ask for enhanced sale consideration on increase in sale area as defined – Respondents have right to ask for calculations and details when appellant had stated that sale area had increased – ‘Cause of action’ arose when appellant insisted and compelled respondents/allottees to make payment, but did not furnish details and particulars to enable respondents/allottees to ascertain actual allocated sale area – One would not expect allottee or consumer to challenge demand, which is in terms of contract between parties and is not questionable – In such cases, no ‘cause of action’ arises – Onus to justify and substantiate claim and calculations of increased sale area was and is on appellant – Consumer Fora have power to condone delay when sufficient cause is shown, even after two years of ‘cause of action’ having arisen – While no application for condonation of delay was filed, National Commission could have always granted opportunity to respondents. (Para 14)

(C) Consumer Protection Act, 2019 – Section 67 – Real estate – Apartment Buyer Agreement – Differential demand towards increase in sale area – Appellant, by producing documents, had sought to justify that increase in built up area of project, which was less than 5% and such variance was within permissible limits – Any additional evidence sought to be produced at appellate stage can only be introduced when appropriate application under Rule 27 to Order XLI of CPC is moved and an order is passed taking them on record – National Commission was required to consider and examine contentions of appellant and not overrule the same on the grounds of principle of res judicata and on rule of binding precedent, which do not apply – Order of remand on question of merits as to stipulation and increase in sale area is required – Impugned order and judgment passed by National Commission set aside and matter remanded. (Paras 35, 36, 37 and 38)

(D) Constitution of India – Articles 136 and 141 – Binding Precedents – Precedents cannot decide questions of fact – Effect of a non-speaking order of dismissal of special leave petition without anything more indicating grounds or reasons for dismissal by a necessary implication cannot be taken as acceptance of reasons or ratio of judgment under challenge – It is not correct to assume that Court has implicitly decided all questions – There could be multiple reasons why in a particular case a special leave to appeal can be refused – A case may not raise a question of general principle but turn on its own facts – Facts of particular case may not be suitable as a foundation for determining some question of a general principle – There is a clear distinction between binding law of precedents in terms of Article 141 of Constitution of India and doctrine of merger and res judicata – Doctrine of merger is not of universal or unlimited application – Nature of jurisdiction exercised by superior court and content or subject matter of challenge laid or could have been laid will have to be kept in view – Law of binding precedents, in terms of Article 141 of Constitution of India, has a larger connotation as it settles principles of law which emanates from judgment, which are then treated as binding precedents. (Paras 27, 32, 34 and 36)

(E) Civil Procedure Code, 1908 – Section 11 – Res Judicata – Principle of res judicata should apply where the lis was inter-parties and has attained finality on issues involved – Principle of res judicata will have no application in cases where judgment or order has been passed by Court having no jurisdiction thereof or involving a pure question of law. (Para 34)

Facts of the case:

Instant appeal filed by Appellant under Section 67 of Consumer Protection Act, 2019, is directed against the order and judgment dated 16.01.2023 passed by National Consumer Disputes Redressal Commission, in the Consumer Case No. 34/2022, whereby appellant has been directed to refund to Himanshu Dewan & Sonali Dewan & Others, amount collected towards excess sale area, and to execute supplementary correction deeds within six weeks from the date of the order.

Findings of Court:

Impugned order and judgment passed by National Commission is set aside and appeal is disposed of with direction of remand in terms of observations and directions given herein. There would be no order as to costs.

Result : Appeal disposed of with observations and directions.