Surendra G. Shankar vs Esque Finamark Pvt. Ltd

2025 INSC 102 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 928 OF 2025 (Arising out of SLP (Civil) No. 25540 of 2023)

Surendra G. Shankar & Anr. … Appellant(s)

Versus

Esque Finamark Pvt. Ltd & Ors. … Respondent(s)

With

CIVIL APPEAL NO. 929 OF 2025 (Arising out of SLP (Civil) No. 24959 of 2023)

Dilip Kumar … Appellant(s)

Versus

Esque Finamark Pvt. Ltd & Ors. … Respondent(s)

JUDGMENT

MANOJ MISRA, J.

1. Leave granted.

2. These two appeals assail a common judgment and

order of the High Court of Judicature at Bombay1 dated Signature Not Verified Digitally signed by KAPIL TANDON Date: 2025.01.23 1 The High Court 17:15:10 Reason:

IST

SLP (C) No. 25540 & 24959/2023 Page 1 of 7 23.08.2023, inter alia, passed in Second Appeal Nos.475

and 188 of 2023. As these appeals assail a common order,

they have been heard together and are being decided by a

common order.

3. Special Leave Petition (Civil) No. 25540 of 2023

arises from Complaint No. CC006000000056663 whereas

Special Leave Petition (Civil) No. 24959 of 2023 arises from

Complaint No.006000000056656; both complaints were

filed before the Maharastra Real Estate Regulatory

Authority, Mumbai2 for possession of flat in a building

complex known as “Lodha Venezia” & “Lodha Azzuro”. The

appellants herein separately filed the aforesaid complaints

claiming themselves to be allottees in a building project

registered with RERA. The complainants, inter-alia,

impleaded Esque Finmark Pvt. Ltd (Respondent No.1

herein) (for short R-1) and Macrotech Developers Ltd.

(erstwhile “Lodha Developers Ltd.”) (Respondent no.2

herein) (for short R-2) as opposite parties to the complaint.

During the course of the proceedings before RERA,

2 RERA Mumbai

SLP (C) No. 25540 & 24959/2023 Page 2 of 7 Mumbai, on the objection raised by R2 that there is no

privity of contract between the complainant and R2, RERA,

Mumbai, vide order dated 23.07.2019, discharged R2 from

the proceedings. Thereafter, the two complaints, including

other similar complaints, were dismissed by RERA,

Mumbai by a common order dated 16.10.2019.

4. Aggrieved by dismissal of their complaints, the

appellants herein separately filed appeals before the

Maharashtra Real Estate Appellate Tribunal, Mumbai3

questioning the final order dated 16.10.2019 as well as the

order dated 23.07.2019. Importantly, these appeals were

filed on 10.12.2019 i.e., within 60 days of the final order

dated 16.10.2019. However, since these appeals also

questioned the order dated 23.07.2019, a formal

application seeking condonation of the delay was also

presented, though later.

5. The Appellate Tribunal, Mumbai vide order dated

1.12.2022 dismissed the appeals as barred by limitation

while observing that since the order dated 23.07.2019 was

3 Appellate Tribunal, Mumbai

SLP (C) No. 25540 & 24959/2023 Page 3 of 7 passed in the presence of the parties (which includes their

counsel), there was no sufficient cause to condone the

delay in filing the appeal.

6. Aggrieved by dismissal of those appeals, the

appellants along with other aggrieved parties separately

preferred second appeals before the High Court.

7. By the impugned common order, the High Court

dismissed the appeals while observing as under:

“In the normal circumstances, I would have condoned the delay. However, it appears that the order dated 23 July 2019 was passed with consent. According to the learned counsel for the appellant(s), the Advocate was not authorized to give such consent. However, admittedly, no application was thereafter made seeking recall of the said order. On the contrary, it appears from the final order dated 16 October 2019, that the same submissions were made at the time of final hearing of the complaint(s). The learned counsel for the appellant(s) submit that the merits of the order dated 23 July 2019 cannot be examined at this stage. However, considering the overall facts and circumstances of the case, I am not inclined to interfere with the impugned order(s). The Second Appeals are dismissed.”

8. We have heard Mr. Vinay Navare for the appellants

and Mr. S. Niranjan Reddy for the respondents. Although

multiple submissions were raised from both sides

touching upon the merits of the case, we do not deem it

SLP (C) No. 25540 & 24959/2023 Page 4 of 7 necessary to refer to them as 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. In such

circumstances, 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.

9. 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,

SLP (C) No. 25540 & 24959/2023 Page 5 of 7 the merits of the order could be examined by the Appellate

Court4.

10. 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.

11. For the reasons above, these appeals are allowed.

The judgment and order of the High Court dated

23.08.2023 passed in Second Appeal Nos.475 and 188 of

2023 is set aside. The order dated 01.12.2022 passed by

the Appellate Tribunal, Mumbai, refusing to condone the

delay in filing the appeals by the appellants herein against

the orders dated 23.07.2019 and 16.10.2019, is set aside.

The delay in filing those appeals is condoned. Those

appeals shall stand restored on the file of the Appellate

Tribunal, Mumbai. The Appellate Tribunal, Mumbai shall

4 See: Ram Kali Devi (Smt) v. Manager, Punjab National Bank, Shamshabad and Others, (1998) 9 SCC 558.

SLP (C) No. 25540 & 24959/2023 Page 6 of 7 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.

12. It is made clear that we have not expressed any

opinion on the merits of the orders dated 23.07.2019 and

16.10.2019 passed by RERA, Mumbai.

13. Pending applications, if any, shall stand disposed

of.

….............................................J. (Pamidighantam Sri Narasimha)

................................................J. (Manoj Misra)

New Delhi;

January 22, 2025

SLP (C) No. 25540 & 24959/2023 Page 7 of 7