Supreme Court of India
Surendra G. Shankar vs Esque Finamark Pvt. Ltd on 22 January, 2025
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha
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.475and 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
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