EXPERION DEVELOPERS PRIVATE LIMITED versus HIMANSHU DEWAN AND SONALI DEWAN AND OTHERS

Citation: [2023] 12 S.C.R. 1118 · Decided: 18-08-2023 · Supreme Court of India · Bench: SANJIV KHANNA · Disposal: Disposed off

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Judgment (excerpt)

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

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