Scope of Appeal Limited to Delay Condonation; Merits of Case Cannot Be Addressed: Supreme Court
Safiya Malik
The Supreme Court, in a recent judgment, allowed appeals filed by flat allottees, challenging the dismissal of their complaints by the Maharashtra Real Estate Regulatory Authority (RERA). The Court set aside the Bombay High Court’s judgment that had upheld the dismissal of delay condonation applications by the RERA Appellate Tribunal. The apex court directed that the appeals be restored before the Tribunal for adjudication on their merits.
The dispute arose from complaints filed by the appellants before RERA, Mumbai, seeking possession of flats in two residential projects, “Lodha Venezia” and “Lodha Azzuro.” The complaints named Esque Finamark Pvt. Ltd. (R1) and Macrotech Developers Ltd. (formerly Lodha Developers, R2) as respondents.
On July 23, 2019, RERA Mumbai discharged R2 from the proceedings, holding that no privity of contract existed between the complainants and R2. Subsequently, on October 16, 2019, RERA dismissed the complaints entirely.
The appellants filed appeals against these orders before the RERA Appellate Tribunal on December 10, 2019, within the 60-day limitation period for the October order. However, the appeals also challenged the July order, requiring a delay condonation application for that part of the appeal. The Appellate Tribunal dismissed the appeals on December 1, 2022, refusing to condone the delay and citing insufficient cause.
The appellants challenged the Tribunal’s decision before the Bombay High Court. On August 23, 2023, the High Court dismissed the appeals, noting that the July order appeared to have been passed with the consent of the parties. It also observed that the appellants had failed to seek recall of the July order or provide sufficient justification for the delay.
The Supreme Court observed that the scope of the appeals before the High Court was limited to determining whether the Appellate Tribunal had erred in refusing to condone the delay. The apex court stated: “The High Court, having observed that the delay should have been condoned in normal circumstances, ought not to have commented on the merits of the orders passed by RERA.”
The Court noted that the High Court’s remarks regarding the validity of the RERA orders were unnecessary, as the Appellate Tribunal had not adjudicated on the merits of those orders. It stated: “The High Court’s interference with the merits of the case at this stage was unwarranted and prejudicial to the appellants’ right to a fair hearing.”
The Supreme Court held that the appeals should have been restored for proper adjudication on merits.
The Supreme Court issued the following orders:
- The judgment and order of the Bombay High Court dated August 23, 2023, were set aside.
- The order of the RERA Appellate Tribunal dated December 1, 2022, rejecting the delay condonation application, was quashed.
- The delay in filing the appeals against the July 2019 order was condoned.
- The appeals were restored to the file of the Appellate Tribunal for adjudication on their merits.
The Court directed the Tribunal to proceed independently of any observations made in the High Court or Tribunal orders that had been set aside. It stated: “We have not expressed any opinion on the merits of the orders passed by RERA on July 23, 2019, and October 16, 2019.”
Case Title: Surendra G. Shankar & Anr. vs. Esque Finamark Pvt. Ltd. & Ors.; Dilip Kumar vs. Esque Finamark Pvt. Ltd. & Ors.
Case Numbers: Civil Appeal Nos. 928 and 929 of 2025 (arising out of SLP (C) Nos. 25540 & 24959 of 2023)
Bench: Justice Pamidighantam Sri Narasimha and Justice Manoj Misra
[Read/Download order]
