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Synopsis

The Supreme Court recently set aside a Bombay High Court order that had dismissed a plea challenging the Maharashtra Real Estate Appellate Tribunal's refusal to condone delay in filing appeals. The high court, while rejecting the plea, had also touched upon the merits of the case.

A bench comprising Justices P.S. Narasimha and Manoj Misra held that the appeals filed by Surendra G. Shankar and others could be allowed on a narrow ground—that the issue before the High Court was solely the tribunal's refusal to condone the delay, and it ought not to have delved into the merits of the matter.

"Once the High Court opined that in normal circumstances the delay ought to have been condoned, it ought not to have commented upon the merits of the orders dated 23.07.2019 and 16.10.2019, particularly, when the Appellate Tribunal, Mumbai had not dealt with the correctness of those orders," the bench said.

In such circumstances, the court felt, the high court should have set aside the order rejecting the delay condonation application, condoned the delay and restored the appeals on the file of the Appellate Tribunal, Mumbai for consideration on merits.

"This we say so because the scope of the appeal before the High Court was limited to examining the correctness of the order of the Appellate Tribunal, Mumbai declining condonation of delay. Only when the delay is condoned, the merits of the order could be examined by the Appellate Court," the bench said.

The court was dealing with two appeals against the common judgment of the high court of August 28, 2023.

Two complaints were filed before the Maharastra Real Estate Regulatory Authority, Mumbai for possession of flats in a building complex known as “Lodha Venezia” and “Lodha Azzuro”.

The appellants separately filed the complaints claiming themselves to be allottees in a building project registered with RERA. The complainants, inter-alia, impleaded Esque Finmark Pvt Ltd and Macrotech Developers Ltd (erstwhile “Lodha Developers Ltd") as opposite parties to the complaint.

Before RERA Mumbai, on the objection raised that there was no privity of contract between the complainant and respondent number 2, RERA, Mumbai, by order on July 23, 2019, discharged the respondent number two from the proceedings. Thereafter, the two complaints, including other similar complaints, were dismissed by RERA, Mumbai by a common order on October 16, 2019.

Aggrieved by dismissal of their complaints, the appellants separately filed appeals before the Maharashtra Real Estate Appellate Tribunal, Mumbai questioning the final order as well as the order of July 23, 2019.

The court noted, importantly, these appeals were filed on December 10, 2019 i.e., within 60 days of the final order of October 16, 2019.

However, since these appeals also questioned the order of July 23, 2019, a formal application seeking condonation of the delay was also presented, though later.

The Appellate Tribunal, Mumbai by its order on December 1, 2022 dismissed the appeals as barred by limitation while observing that since the order of July 23, 2019 passed in the presence of the parties (which includes their counsel), there was no sufficient cause to condone the delay in filing the appeal.

Aggrieved by dismissal of those appeals, the appellants along with other aggrieved parties separately preferred second appeals before the high court, which declined to interfere with the orders.

The bench, however, said, "We may also put on record that before the Appellate Tribunal, the appellants had disputed that the order dated 23.07.2019 was based on consent of the parties. In these circumstances, when merits of the orders impugned in the appeal was not touched upon by the Appellate Tribunal, the High Court ought not to have commented on the merits."

The court thus condoned the delay in filing those appeals and restored those appeals on the file of the Appellate Tribunal, Mumbai.

"The Appellate Tribunal, Mumbai shall proceed to decide the appeals on its own merits without being prejudiced by any observations made in the orders which have been set aside," the bench said clarifying that it had not expressed any opinion on the merits of the orders passed by RERA, Mumbai.

Case Title: Surendra G Shankar & Anr Vs Esque Finamark Pvt Ltd & Ors