M/S. SHREE SAI DEVELOPERSversusASHOK ATHMARAM KARIA

                                                                            54-CRA-16-21.doc

Rushi modhe

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

                        CIVIL REVISION APPLICATION NO. 16 OF 2021
              M/s. Shree Sai Developers and Ors.              ...Applicants

                       V/S.
              Ashok Athmaram Karia                                    ...Respondent

              Mr. Shivprasad Shetty i/b Ms. Deepti Mistry, for the applicant.
              None for the respondent.
                                CORAM : PRAFULLA S. KHUBALKAR, J.
                                DATE : 22nd JUNE, 2026.
              P.C. :-

              1.         Heard,

              2.         Rule. Rule made returnable forthwith. Heard learned

              counsel for applicants as well as respondent finally.

              3.         By the instant Civil Revision Application under Section 115

              of the Civil Procedure Code, 1908, the applicants / original defendants

              have challenged order dated 2nd December 2020 passed by the trial

              court rejecting their application under Order VII Rule 11 of C.P.C for

              rejection of plaint.

              4.         The applicants are the original defendants in the suit filed

              by the respondent seeking specific performance of contract and

              permanent injunction. In the suit, the defendants had filed an

              application under Order VII Rule 11 of C.P.C r/w Section 79 of the


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Real Estate Regulatory Authority Act, 2016 (hereinafter referred as

RERA) and prayed for rejection of plaint. The application was opposed

by the original plaintiff and by order dated 2 nd December 2020 the

trial Court had rejected the application. Feeling aggrieved by this

order, the defendants have filed the instant Civil Revision Application.

5.         Mr. Shivprasad Shetty learned counsel for applicant

submitted that the plaint deserved to be rejected in view of bar of

jurisdiction as provided under Section 79 of the Real Estate Regulatory

Authority Act. He submitted that the controversy involved in the suit

should be agitated before the Real Estate Regulatory Authority and in

view of the Section 79 of the Real Estate Regulatory Authority Act the

suit is not maintainable. In support of his submissions about scope of

Order VII Rule 11 of C.P.C, he placed reliance on judgment of Hon'ble

Supreme Court in the matter of Dahiben V/s Arvindbhai Kalyanji

Bhanusali reported (2020) 7 SCC 366.

6.         It has to be noted that the plaintiff’s suit is for specific

performance of contract with a relief of permanent injunction. In the

suit the plaintiff has alleged that he has paid an amount of Rs.

10,00,000/- in accordance with the oral agreement for purchase of the

suit property. Although there is a reference to Real Estate Regulatory

Authority project, it has to be noted that the plaintiffs' primary relief

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is for specific performance of contract. The provision of bar of

jurisdiction as contained in Section 79 of the Real Estate Regulatory

Authority Act deal with matters which can be exclusively dealt with

by the Real Estate Regulatory Authority. A perusal of the Section 79 of

the Real Estate Regulatory Authority Act shows that the jurisdiction of

Civil Court to entertain a suit qua any action taken as per provisions of

the said act is barred. As such since the dispute involved in the suit is

not with respect to an issue to be dealt with by the Real Estate

Regulatory Authority, the suit cannot be said to be barred on that

count. From averments made in the plaint it is clear that the plaintiff

has filed the suit for specific performance of contract based on an oral

agreement and as such only because there is reference to the Real

Estate Regulatory Authority, the suit cannot be said to be not

maintainable on that count. The position of law as laid down in the

matter of Dahiben (Supra) is not disputed but the instant matter has

to be decided by considering the averments in the plaint.

7.         A perusal of the impugned order shows that the Trial Court

has given due consideration to the contentions canvassed on behalf of

the parties and after considering provisions of Section 79 of the Real

Estate Regulatory Authority Act, has recorded its reasons for rejecting

the application. The reasons recorded by the trial court does not at all

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appear to be perverse or palpably erroneous, count warranting

interference by this Court. Hence, the Civil Revision Application is

rejected. No order as to costs.



                                   (PRAFULLA S. KHUBALKAR, J.)




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