Introduction
In Surendra G. Shankar & Anr. v. Esque Finamark Pvt. Ltd. & Ors. and Dilip Kumar v. Esque Finamark Pvt. Ltd. & Ors., Civil Appeals Nos. 928–929 of 2025 (decided on 22 January 2025), the Supreme Court of India addressed a significant procedural lapse in appellate adjudication under the Real Estate (Regulation and Development) Act, 2016 (RERA). The Court held that the High Court erred in deciding merits of RERA complaints when the only issue before it was whether to condone delay in filing the appeals before the Maharashtra Real Estate Appellate Tribunal. The ruling reasserts procedural discipline and the layered structure of statutory appeals.
1. Factual Background and Procedural History
The appellants were allottees in projects known as “Lodha Venezia” and “Lodha Azzuro.” They had booked flats and filed complaints before the Maharashtra RERA (Mumbai) for possession, naming Esque Finamark Pvt. Ltd. and Macrotech Developers Ltd. as opposite parties.
During proceedings, RERA (Mumbai) passed an interim order dated 23.07.2019, discharging Respondent No. 2 (Macrotech Developers) from the complaints, citing absence of privity of contract. The complaints were subsequently dismissed by a final order dated 16.10.2019.
The appellants challenged these orders before the Maharashtra Real Estate Appellate Tribunal (MREAT) on 10.12.2019. Though the appeals were within the limitation period from the final order, they also challenged the 23.07.2019 interim order and thus required a delay condonation application. The Tribunal rejected the applications for condonation on 01.12.2022.
Second appeals filed before the Bombay High Court were dismissed by a common judgment dated 23.08.2023, wherein the Court—despite acknowledging that delay could normally be condoned—refused relief based on a purported consent aspect in the interim RERA order. This led to the present civil appeals before the Supreme Court.
2. Identification of Legal Issues
- Whether the High Court erred in commenting on merits of the RERA orders while dealing with an appeal arising from refusal to condone delay by the Appellate Tribunal.
- Whether the Appellate Tribunal was justified in refusing to condone delay in appeals that were partly within the limitation period.
- Whether a party is barred from seeking redress merely because an earlier order was allegedly passed with “consent” and no recall was sought.
3. Arguments of the Parties
Appellants:
- Argued that the appeals were filed within time from the final RERA order dated 16.10.2019, and the application for delay condonation in respect of the interim order dated 23.07.2019 was filed bona fide.
- Contended that the High Court’s comments on “consent” were erroneous as no such consent was ever expressly recorded.
- Asserted that the High Court’s role was confined to determining whether the delay ought to be condoned, not adjudicating on the merits of the RERA orders.
Respondents:
- Claimed that the order dated 23.07.2019 was passed with consent and should not have been challenged after delay.
- Argued that the High Court correctly appreciated the procedural history and rightly declined to interfere.
4. Court’s Analysis and Reasoning
Limited Scope of Appeal:
The Supreme Court emphasized that the only issue before the High Court was the correctness of the Appellate Tribunal’s refusal to condone delay. It held that:
“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…”
The Court clarified that merits of the RERA orders could only be examined after condoning the delay, which had not occurred.
On Delay Condonation:
The Court noted that the appeals were timely in respect of the final order (16.10.2019), and the delay only related to the challenge to the 23.07.2019 order. Considering that the delay was marginal and a formal application had been filed, the Supreme Court held that the Tribunal’s refusal to condone delay was unjustified.
On Purported Consent:
The Court observed that the appellants had consistently disputed the “consent” characterization of the 23.07.2019 order. Since the Tribunal did not adjudicate the validity of that order, it was inappropriate for the High Court to decide that issue prematurely.
Precedent Cited:
The Court referenced Ram Kali Devi v. Punjab National Bank [(1998) 9 SCC 558], affirming that appellate courts must first resolve delay issues before examining merits.
5. Final Conclusion and Holding
The Supreme Court allowed the appeals, set aside both the High Court judgment and the Appellate Tribunal’s refusal to condone delay, and restored the appeals before the MREAT for fresh consideration on merits.
Key Holding:
“The High Court ought not to have gone into the merits of the RERA orders when the only issue before it was whether the delay in appeal filing should be condoned.”
This judgment reinforces the procedural integrity of appellate mechanisms and prevents premature judicial conclusions on substantive issues.
FAQs:
1. Can delay in filing RERA appeals be condoned by the Appellate Tribunal?
Yes, if sufficient cause is shown, the RERA Appellate Tribunal can condone delay, especially when appeals are timely against final orders but include prior procedural challenges.
2. Can High Courts examine the merits of RERA orders while deciding delay condonation?
No, the Supreme Court held that High Courts must restrict themselves to delay issues and cannot comment on merits unless delay is first condoned.
3. What is the impact of an alleged consent order in RERA proceedings?
An order claimed to be passed by consent can still be challenged if consent is disputed. Courts cannot summarily assume consent without evidence or adjudication.
4. What is the remedy if the RERA Tribunal rejects appeal as time-barred?
The aggrieved party can appeal to the High Court, and if that fails, seek relief from the Supreme Court, which may restore the appeal if delay was improperly rejected.
5. Why did the Supreme Court restore RERA appeals in this case?
Because the High Court wrongly adjudicated the merits instead of resolving the preliminary issue of delay condonation. The Supreme Court emphasized proper appellate procedure.
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