HC Not To Comment On Merits When Scope Of Appeal Is Limited To Examining Correctness Of Order Declining Condonation Of Delay: SC
The Apex Court was considering two appeals assailing a common judgment of the Bombay High Court passed in a Second Appeal.
The Supreme Court restored two appeals filed by the appellants-allottees to the Maharashtra Real Estate Appellate Tribunal and observed that the Bombay High Court ought not to have commented upon the merits of the orders when the scope of the appeal was limited to examining the correctness of the order declining condonation of delay.
The Apex Court was considering two appeals assailing a common judgment of the Bombay High Court passed in the Second Appeal.
The Division Bench comprising Justice Pamidighantam Sri Narasimha and Justice Manoj Misra asserted, “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.”
Senior Advocate Vinay Navare represented the Appellants while Advocate Vinayak Bhandari represented the Respondents.
Factual Background
Two complaints were filed before the Maharastra Real Estate Regulatory Authority, Mumbai for possession of a flat in a building complex known as “Lodha Venezia” & “Lodha Azzuro”. The appellants claimed themselves to be allottees in a building project registered with RERA and also impleaded Esque Finmark Pvt. Ltd (Respondent No.1) and Macrotech Developers Ltd. (erstwhile Lodha Developers Ltd.) (Respondent no.2) as opposite parties to the complaint. On the objection raised that there was no privity of contract between the complainant and the second respondent, RERA discharged the second respondent from the proceedings and dismissed the complaints on July 23, 2019.
Aggrieved by the dismissal of their complaints, the appellants separately filed appeals before the Maharashtra Real Estate Appellate Tribunal. A formal application seeking condonation of the delay was also presented. The Appellate Tribunal dismissed the appeals as barred by limitation while observing that since the RERA order dated July 23, 2019 order was passed in the presence of the parties (including their counsel), there was no sufficient cause to condone the delay in filing the appeal. In the second appeal, the High Court dismissed the Appeals. Aggrieved thereby, the appellants approached the Apex Court.
Reasoning
The Bench, at the outset, observed, “... the present appeals can be allowed on a short ground, which is, that the order impugned before the High Court was of refusal to condone the delay in preferring the appeals before the Appellate Tribunal, Mumbai. 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.”
Referring to its judgment in Ram Kali Devi (Smt) v. Manager, Punjab National Bank, Shamshabad and Others, (1998), the Bench said, “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 Apex Court noted that before the Appellate Tribunal, the appellants had disputed that the RERA order was based on the consent of the parties and held that when the merits of the orders impugned in the appeal were not touched upon by the Appellate Tribunal, the High Court ought not to have commented on the merits.
Allowing the appeals and setting aside the judgment of the High Court, the Bench condoned the delay. “Those appeals shall stand restored 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 herein above”, it concluded.
Cause Title: Surendra G. Shankar & Anr. v. Esque Finamark Pvt. Ltd & Ors. (Neutral Citation: 2025 INSC 102)
Appearance:
Appellants: Senior Advocate Vinay Navare, Advocates Harshad Bhadbhade, Siddharth Mehta, AOR Samridhi S. Jain, Advocates Harshada Shrikhande, Chaitanya Dixit
Respondents: Advocate Vinayak Bhandari, AOR Arnav Narain, Advocates Surekha Raman, Amarjit Singh Bedi, Shreyash Kumar, Imilikaba Jamir, AOR M/S. K J John And Co
