EXPERION DEVELOPERS PRIVATE LIMITEDversusHIMANSHU DEWAN AND SONALI DEWAN AND OTHERS

               [2023] 12 S.C.R. 1118 : 2023 INSC 748


                     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 justified.
     Constitution of India – Article 141 – Decision in Pawan Gupta
challenged by appellant by filing 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 effect 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 specific 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
                                     1118
    EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                             1119
           DEWAN AND SONALI DEWAN

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 certificates 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 sufficient 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 definite 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 first 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 specific 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 filed by the respondents cannot
be dismissed on the ground of being barred by limitation u/s.69. [Para 14]
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
effective and binding; nevertheless, its finality is put in jeopardy – Once
the superior court disposes the dispute before it in any manner, either by
affirming 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 final
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 flat 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 flat buyers, waiting for their promised flats 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
    EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                          1121
           DEWAN AND SONALI DEWAN

that such delay shall continue indefinitely 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.
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 filed by M/s. Experion Developers Private Limited 1
under Section 67 of the Consumer Protection Act, 2019 2, is directed against
the order and judgment dated 16.01.2023 passed by the National Consumer
Disputes Redressal Commission 3, 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”.
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                              1123
DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

 “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 offer 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 defined 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/
1124             SUPREME COURT REPORTS                       [2023] 12 S.C.R.


       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 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 increase in the carpet area nor in the built-
up 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.
   EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                             1125
   DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

      7. The case was resisted by the appellant by filing 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 filed 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 filed before the National
Commission on 25.02.2022, that is, about five years after the ‘cause of action’
had arisen and three years after the 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
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 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 697 of the Act, which prescribes a two years limitation
to file 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 filed 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 specified in sub-section (1), if the complainant satisfies the
    District Commission, the State Commission or the National Commission, as the case
    may be, that he had sufficient cause for not filing 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.
    EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                                        1127
    DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

      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 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 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 definite 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 first maintained action for a successful
result. In our opinion, the communication/letter dated 27.04.2017 was an
assertion, albeit without any specific 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.
1128         SUPREME COURT REPORTS                        [2023] 12 S.C.R.


sale consideration on increase in the sale area as defined. 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 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. 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 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 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,
    EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                           1129
    DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

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
justified 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 Others 9. 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 possession would not be given and the conveyance deed would
not be executed without the acceptance of the offer 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 offer of possession terms. Any request to take over possession and
execute the documents under protest was untenable. The consumers were,
in fact, asked to file an unconditional affidavit/undertaking to that effect,
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 flat 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 flats for which they
had paid valuable consideration. Accordingly, the question needed to be
addressed was whether a flat 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 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



9   (2020) 16 SCC 512.
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 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 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 benefit 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 flat 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 flat buyers, waiting for their promised
flats 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
indefinitely based upon an a priori assumption. The equities have to be
properly moulded.



10 2021 SCC OnLine SC 479.
   EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                           1131
   DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

      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 first 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 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 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
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
       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 actual reason for increase in the super area based on the
       comparison of the originally approved buildings and finally approved
       buildings. Basically the idea is that the allottee must know the change
       in the finally 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 flat, 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 filing 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 filed 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 find no merit in the review petitions and the
       same are accordingly dismissed.
       3. Pending applications, if any, stand disposed of.”
   EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                            1133
   DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

      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 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 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 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 finality 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 certificate dated 23.09.2020 and a report of
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 certificate 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 filed 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 certificate 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. Specifically 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 filed 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 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.



11 (2000) 6 SCC 359.
12 (2019) 4 SCC 376.
EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                           1135
DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

 (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 latter.
 (iv) An order refusing special leave to appeal may be a non-speaking
 order or a speaking one. In either case it does not attract the doctrine
 of merger. An order refusing special leave to appeal does not stand
 substituted in place of the order under challenge. All that it means is
 that the Court was not inclined to exercise its discretion so as to allow
 the appeal being filed.
 (v) If the order refusing leave to appeal is a speaking order, i.e.,
 gives reasons for refusing the grant of leave, then the order has two
 implications. Firstly, the statement of law contained in the order is
 a declaration of law by the Supreme Court within the meaning of
 Article 141 of the Constitution. Secondly, other than the declaration
 of law, whatever is stated in the order are the findings recorded by
 the Supreme Court which would bind the parties thereto and also the
 court, tribunal or authority in any proceedings subsequent thereto by
 way of judicial discipline, the Supreme Court being the Apex Court
 of the country. But, this does not amount to saying that the order of
 the court, tribunal or authority below has stood merged in the order
 of the Supreme Court rejecting the special leave petition or that the
1136          SUPREME COURT REPORTS                       [2023] 12 S.C.R.


       order of the Supreme Court is the only order binding as res judicata
       in subsequent proceedings between the parties.
       (vi) Once leave to appeal has been granted and appellate jurisdiction
       of Supreme Court has been invoked the order passed in appeal
       would attract the doctrine of merger; the order may be of reversal,
       modification or merely affirmation.
       (vii) On an appeal having been preferred or a petition seeking leave
       to appeal having been converted into an appeal before 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
       CPC.”
      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 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.
   EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                            1137
   DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

       28. Approving this aforesaid ratio, in Khoday Distilleries Ltd. (supra)
it is observed:
     “20. The Court thereafter analysed number of cases where orders
     of different nature were passed and dealt with these judgments by
     classifying them in the following categories:
     (i) Dismissal at the stage of special leave petition — without reasons
     — no res judicata, no merger.
     (ii) Dismissal of the special leave petition by speaking or reasoned
     order — no merger, but rule of discipline and Article 141 attracted.
     (iii) Leave granted — dismissal without reasons — merger results.”
      29. On the question whether there was any conflict in the legal ratios in
Kunhayammed (supra) and earlier judgment of this Court in Abbai Maligai
Partnership Firm and Another v. K. Santhakumaran and Others13, the
three judges’ Bench in Khoday Distilleries Ltd. (supra) has held:
     “24. Having noted the aforesaid two judgments and particularly the
     fact that the earlier judgment in Abbai Maligai Partnership Firm is
     duly taken cognizance of and explained in the latter judgment, we are
     of the view that there is no conflict insofar as ratio of the two cases is
     concerned. Moreover, Abbai Maligai Partnership Firm was decided on
     its peculiar facts, with no discussion on any principle of law, whereas
     Kunhayammed is an elaborate discourse based on well-accepted
     propositions of law which are applicable for such an issue. We are,
     therefore, of the view that detailed judgment in Kunhayammed lays
     down the correct law and there is no need to refer the cases to larger
     Bench, as was contended by the counsel for the appellant.
     25. While taking this view, we may also point out that even in K.
     Rajamouli this Court took note of both these judgments and explained
     the principle of res judicata in the following manner: (SCC p. 41,
     para 4)



13 (1998) 7 SCC 386.
1138          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


            “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 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 order refusing special leave to appeal may be a non-speaking
       order or a speaking one. In either case it does not attract the doctrine
       of merger. An order refusing special leave to appeal does not stand
   EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                            1139
   DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

     substituted in place of the order under challenge. All that it means is
     that the Court was not inclined to exercise its discretion so as to allow
     the appeal being filed.
     (v) If the order refusing leave to appeal is a speaking order i.e.
     gives reasons for refusing the grant of leave, then the order has two
     implications. Firstly, the statement of law contained in the order is
     a declaration of law by the Supreme Court within the meaning of
     Article 141 of the Constitution. Secondly, other than the declaration
     of law, whatever is stated in the order are the findings recorded by
     the Supreme Court which would bind the parties thereto and also the
     court, tribunal or authority in any proceedings subsequent thereto by
     way of judicial discipline, the Supreme Court being the Apex Court
     of the country. But, this does not amount to saying that the order of
     the court, tribunal or authority below has stood merged in the order
     of the Supreme Court rejecting the special leave petition or that the
     order of the Supreme Court is the only order binding as res judicata
     in subsequent proceedings between the parties.
     (vi) Once leave to appeal has been granted and appellate jurisdiction
     of the Supreme Court has been invoked the order passed in appeal
     would attract the doctrine of merger; the order may be of reversal,
     modification or merely affirmation.
     (vii) On an appeal having been preferred or a petition seeking leave
     to appeal having been converted into an appeal before the Supreme
     Court the jurisdiction of the High Court to entertain a review petition
     is lost thereafter as provided by sub-rule (1) of Order 47 Rule 1 CPC.”
     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
1140         SUPREME COURT REPORTS                         [2023] 12 S.C.R.


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 and tribunals in India. There is a
clear distinction between the binding law of precedents in terms of Article
141 of the Constitution of India and the doctrine of merger and res judicata.
To merge, as held in Kunhayammed (supra), and Khoday Distilleries Ltd.
(supra) means to sink or disappear in something else, to become absorbed or
extinguished. 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 effective and binding; nevertheless, its finality is put in jeopardy. Once
the superior court disposes the dispute before it in any manner, either by
affirming 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 final 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,
as has been clarified in both decisions, 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.
   EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                               1141
   DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

      33. What is important is the distinction drawn by this Court between
the law of precedents and res judicata. In State of Rajasthan v. Nemi Chand
Mahela and Others14, it is held:
     “11. The learned counsel for the petitioners had drawn our attention to
     para 22 of the decision 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 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 Others v. State of Punjab and Others15.
      34. In Makhija Construction & Engg. (P) Ltd. v. Indore Development
Authority and Others16, 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. Principle of


14 (2019) 14 SCC 179.
15 (2021) SCC OnLine SC 876.
16 (2005) 6 SCC 304.
1142         SUPREME COURT REPORTS                         [2023] 12 S.C.R.


res judicata should apply where the lis was inter-parties and has attained
finality on the issues involved. The principle of res judicata will have no
application in cases where the judgment or order has been passed by the
Court having no jurisdiction thereof or involving a pure question of law.17
Law of binding precedents, in terms of Article 141 of the Constitution
of India, has a larger connotation as it settles the principles of law which
emanates from the judgment, which are then treated as binding precedents.
      35. In the context of factual background of the present case, and on
examining the judgment in the case of Pawan Gupta (supra) passed by the
National Commission, we are clearly of the view that the order passed by
this Court dismissing the appeal in the case of Pawan Gupta (supra) would
operate as res judicata in the said case but does not lay down a binding
precedent which would be applicable to other cases. As it transpires from
the judgment in the case of Pawan Gupta (supra), the National Commission
itself had specifically observed inter alia that “there was no harm in
communicating and charging for the extra area at the final stage, but for
the sake of transparency opposite party must share the actual reason for the
increase in the super area based on comparison of the originally approved
buildings and finally approved buildings. Basically, the idea is that the
allottee must know the change in the finally approved layout and areas of
common spaces and the originally approved layout and areas”. It is true
that there was no material on record placed by the appellant in the said
case of Pawan Gupta (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,


17 See Fida Hussain and Others v. Moradabad Development Authority and Another,
   (2011) 12 SCC 615.
   EXPERION DEVELOPERS PVT. LTD. v. HIMANSHU                              1143
   DEWAN AND SONALI DEWAN [SANJIV KHANNA, J.]

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 this
Court as additional documents, but a non-reasoned order passed by this
Court dismissing the case cannot be read as accepting and considering the
additional evidence, or as rejecting justification and reasons given therein for
claiming additional/increased sale area. Any additional evidence sought to be
produced at the appellate stage can only be introduced when an appropriate
application under Rule 27 to Order XLI of the Code of Civil Procedure,1908
is moved and an order is passed taking them on record. Therefore, the order
passed by this Court dismissing the appeal in the case of Pawan Gupta
(supra) is confined to the facts of the said case, including the evidence led
by the parties before the National Commission. The 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. An order
of remand on the question of merits as to the stipulation and increase in the
sale area is therefore required.
      37. However, we wish to clarify that the observations made in this
order, insofar as limitation is concerned, would be binding and has attained
finality. Observations made in this order on the question of acquiescence/
estoppel and merits/justification of the increase in the sale area would be
aspects which would have to be considered by the National Commission
afresh in terms of the observations contained in the present judgment. We
1144           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


have not specifically commented on whether or not, in the facts of the
present case, principles of acquiescence/estoppel will apply or whether or
not the appellant has been able to justify and substantiate the claim for the
increase in the sale area. These aspects would be examined by the National
Commission by ascertaining the facts and on merits.
      38. Accordingly, for the reasons stated above, the impugned order and
judgment passed by the National Commission is set aside and the appeal
is disposed of with a direction of remand in terms of the observations and
directions given herein. There would be no order as to costs.




Headnotes prepared by:                  Appeal disposed of with direction of remand.
Divya Pandey