25 sa 5 of 2026-3.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.5 OF 2026 WITH INTERIM APPLICATION NO.12 OF 2026 Macrotech Developers Ltd. ... Appellant versus Dilip Kumar and Ors. … Respondents WITH SECOND APPEAL NO.57 OF 2026 WITH INTERIM APPLICATION NO.38621 OF 2025 Esque Finmark Pvt. Ltd. … Appellant versus Surendra Gauri Shankar and Ors. … Respondents WITH SECOND APPEAL NO.52 OF 2026 WITH INTERIM APPLICATION NO.38703 OF 2025 Esque Finmark Pvt. Ltd. … Appellant versus Dilip Kumar and Ors. … Respondents WITH SECOND APPEAL NO.6 OF 2026 WITH INTERIM APPLICATION NO.14 OF 2026 Macrotech Developers Ltd. … Appellant versus Surendra Gauri Shankar and Ors. … Respondents Mr. Amogh Singh i/by Mr. Jeet Gandhi, for Appellant in SA Nos.5 and 6 of 2026. Mr. Vikramjit Garewal with Mr. Rashmin Jain i/by Kanga and Co., for Appellant in SA No.52 and 57 of 2026 and for Respondent No.2 in SA No.5 of 2026 and for Respondent No.3 in SA No.6 of 2026. Mr. Harshad Bhabhade with Ms. Padma Chinta, Ms. Swati Panjwani, Mr. Dileep Satale, for Respondent No.1 in SA Nos.52 of 2026 and 5 of 2026. SSP (corrected order as per speaking to Minutes of Order dt. 19/06/2026) 1/8 2026:BHC-AS:25397 25 sa 5 of 2026-3.doc Mr. Siddharth Mehta, for Respondent Nos.1 and 2 in SA No.57 of 2026 and 6 of 2026. CORAM: N.J.JAMADAR, J. DATE : 17 JUNE 2026 ORDER : 1. Heard the learned Counsel for the parties. 2. These Second Appeals are directed against a common judgment and order dated 25 August 2025 passed by the Maharashtra Real Estate Appellate Tribunal in Appeal Nos.42024 of 2019 and 42042 of 2019 preferred by Mr. Dilip Kumar – Respondent No.1 in SA Nos.5 and 52 of 2026 and Mr. Surendra Gauri Shankar and Anr. - Respondent Nos.1 and 2 in SA Nos.57 and 6 of 2026 (the original complainants), whereby the appeals preferred by the complainants were partly allowed and the orders dated 23 July 2019 and 16 August 2019 passed by the Maharashtra Real Estate Regulatory Authority (‘the Authority’) in the Complaints preferred by the abovenamed complainants were set aside, and the Appellants - Respondent Nos.1 and 2 before the Appellate Tribunal were directed to execute and register agreements for sale in favour of the respective Complainants and deliver possession of the subject flats upon completion of the project with occupation certificate. 3. The background facts can be summerized, as under : 3.1 Esque Finmark Pvt. Ltd. - Appellant in SA Nos.52 and 57 of 2026 SSP (corrected order as per speaking to Minutes of Order dt. 19/06/2026) 2/8 25 sa 5 of 2026-3.doc (Respondent No.1 before the Appellate Tribunal), acquired ownership over the land bearing C.S.No.124 (Part) admeasuring 38750 sq. yards, Kalachowki, Mumbai (the larger land) under registered Deed of Conveyance dated 14 August 2022. The Respondent No.1 proposed to develop a part of the larger land under the name and style of ‘Shanti Darshan’ (the project). 3.2 The Complainants booked flats in the said project. Allotment letters were issued in favour of Complainants : Mr. Dilip Kumar, on 4 May 2005 and Surendra Gauri Shankar and Rajani Goyal, on 15 October 2005. Respondent No.1, however, failed to complete the project. Respondent No.1 initially assigned development rights to M/s. Krona Realities Pvt. Ltd. After a series of assignments, eventually, Respondent No.1 and others transferred rights in the said project in favour of Macrotech Developers Ltd. - Respondent No.2. 3.3 Respondent No.2 launched the projects known as ‘Lodha Venezio’ and ‘Lodha Auzzuro’ on the said larger land. At the time of the enactment of RERA, since the project was an ongoing project, the complainants lodged complaints with the Authority seeking the execution of the agreements and delivery of possession of the apartments in accordance with the terms of the allotment letters and also for award of compensation. 3.4 Initially Respondent No.2 was not impleaded as party Respondent to the Complaints before the Authority. However, since the complaints were filed SSP (corrected order as per speaking to Minutes of Order dt. 19/06/2026) 3/8 25 sa 5 of 2026-3.doc with reference to the project number with which the project being developed by Respondent No.2 were registered, Respondent No.2 appeared before the Authority. 3.5 It appears, by an order dated 23 July 2019, purportedly with the consent of the parties (which complainants later disputed), Respondent No.2 came to be discharged from the complaints by the Authority on the premise that there was no privity of contract between the complainants and Respondent No.2. Subsequently, the complaints were dismissed by the Authority holding, inter alia, that the Respondent No.1 had not registered the subject project with MAHARERA and the proceedings filed by the allottees before the High Court were subjudice, and, thus, it would be appropriate to await the outcome of the said proceedings. 3.5 Being aggrieved, the complainants preferred appeals before the Appellate Tribunal. The complainants also assailed the order dated 23 July 2019, whereby the Respondent No.2 was discharged from the complaints. The Appellate Tribunal was persuaded to allow the appeals and set aside both the orders i.e. the order discharging Respondent No.2 dated 23 July 2019 and, the eventual dismissal of the complaints by an order dated 16 October 2019. 4. Mr. Amogh Singh, learned Counsel for Macrotech - Respondent No.2, would submit that the Appellate Tribunal has passed the impugned order SSP (corrected order as per speaking to Minutes of Order dt. 19/06/2026) 4/8 25 sa 5 of 2026-3.doc fastening the liability on the Respondent No.2, though Respondent No.2 was discharged from the complaints and had no opportunity to participate in the proceedings before the Authority. Having given consent for dropping the proceedings against Respondent No.2, it was not open for the complainants to implead Respondent No.2 as party in appeals, especially when the complaints were dismissed by the authority. Had the complaints been allowed by the Authority, Respondent No.2 would not have been made liable as, in that event, the order could have been passed against Respondent No.1 only. The Appellate Tribunal was, thus, in error in allowing the appeals qua Respondent No.2 as well. 5. Learned Counsel for the Complainants initially submitted that the Respondent No.2 got an efficacious opportunity of hearing before the Appellate Tribunal, and, therefore, the fact that the Respondent No.2 was not heard by the Authority, did not cause any prejudice to the Respondent No.2. 6. The situation which, thus, obtains is that, though Respondent No.2 was not a party to the proceedings before the Authority when the complaints were heard and decided, yet, Respondent No.2 was impleaded as a party Respondent before the Appellate Tribunal. The order of discharging Respondent No.2 was also set aside by the Appellate Tribunal by the impugned order. 7. In the aforesaid setting of the matter, the appropriate course for the SSP (corrected order as per speaking to Minutes of Order dt. 19/06/2026) 5/8 25 sa 5 of 2026-3.doc Appellate Tribunal was to remit the complaints back to the Authority to determine the complaints afresh, after providing an opportunity of hearing to the Respondent No.2. 8. The submission that the Respondent No.2 got an efficacious opportunity of hearing before the Appellate Tribunal, though it was not a party before the Authority, cannot be countenanced as it is well recognized that an unfair trial before the Court / Authority at the first instance cannot be cured by a fair hearing before the Appellate Court / Authority. If an efficacious opportunity of hearing was not given to a party in the court of first instance, the prejudice thereby caused cannot be remedied by providing an opportunity of hearing in the appeal. If natural justice is violated at the first instance, the right of appeal cannot be a panacea. The net effect would be, instead of a fair trial followed by appeal, there would be, at best, an unfair trial followed by fair trial. 9. In a recent pronouncement in the case of Krishnadatt Awasthy vs. State of Madhya Pradesh and others1 , a three-Judge Bench of the Supreme Court considered the question whether denial of natural justice at the initial stage can be cured by an appellate body. The Supreme Court enunciated that the provision for an appeal should not rest on the assumption that the appellate body is infallible. When one party is denied the opportunity 1 (2025) 7 SCC 545 SSP (corrected order as per speaking to Minutes of Order dt. 19/06/2026) 6/8 25 sa 5 of 2026-3.doc to present their case, the initial decision fails to provide meaningful guidance to the appellate authority, in achieving a fair and just resolution. The Supreme Court answered the question as under : “70. Following the above discussion, it must be concluded that a defect at the initial stage cannot generally be cured at the appellate stage. Even in cases where a “full jurisdiction” may be available at the appellate stage, the courts must have the discretion to relegate it to the original stage for an opportunity of hearing. Therefore, the ex parte decision to set aside the appellants’ selection stands vitiated.” (emphasis supplied) 10. In the light of the aforesaid position in law, learned Counsel for the complainants submitted that the complaints be remanded back to the Authority for afresh decision. 11. Thus, with the consent of the parties, the following order is passed: ORDER (i) The Second Appeals stand allowed. (ii) The impugned order as well as the orders passed by the Authority stand quashed and set aside. (iii) Complaint Nos.56656 and 56663 stand restored to the file of the Authority. (iv) Respondent No.2 is permitted to be impleaded as party SSP (corrected order as per speaking to Minutes of Order dt. 19/06/2026) 7/8 25 sa 5 of 2026-3.doc Respondent to the said complaints. (v) The parties shall appear before the Authority on 1 July 2026. (vi) No separate notice would be required to be issued to the complainants and Respondents. (vii) All contentions of all the parties are kept open for consideration by the Authority. However, Respondent No.2 shall not be entitled to again agitate the issue of the discharge of the Respondent No.2 from the complaints purportedly with the consent of the complainants. (viii) The Authority is requested to make an endeavour to hear and decide the said complainants afresh, as expeditiously as possible, and preferably within a period of 60 days from 1 July 2026. (ix) In view of the disposal of the Second Appeals, Interim Applications also stand disposed. (x) No costs. ( N.J.JAMADAR, J. ) SSP (corrected order as per speaking to Minutes of Order dt. 19/06/2026) 8/8 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 23/06/2026 11:39:27