MACROTECH DEVELOPERS LIMITED (NOW LODHA DEVELOPERS LIMITED )versusDILIP KUMAR

2026:BHC-AS:25397

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                            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.


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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



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(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


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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


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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


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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 others 1 , 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

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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


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                      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. )




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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 23/06/2026 11:39:27