Bombay High Court
Macrotech Developers Ltd vs Joint Sub - Registrar, Mumbai -Iv on 6 October, 2025
Author: R.I. Chagla
Bench: R.I. Chagla
2025:BHC-OS:17744-DB
JPP
12. W.P.L. 18256.2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 18256 OF 2025
Macrotech Developers Ltd. ... Petitioner
V/s.
Joint Sub-Registrar and Ors. ... Respondents
_______________________________________
Mr. Amogh Singh with Mr. Rahul Arora i/b. Mr. Jeet Gandhi for the
Petitioner
Dr. Birendra Saraf, Advocate General with Mr. Aseem Naphade, 'B'
Panel Counsel and Ms. Sheetal Malvankar, AGP for Respondent
Nos. 1 and 2
Mr. A.K. Saxena for Respondent No.3 - MahaRERA
_______________________________________
CORAM : R.I. CHAGLA AND
FARHAN P. DUBASH, JJ.
RESERVED ON : 30th SEPTEMBER 2025
PRONOUNCED ON : 6th OCTOBER 2025
JUDGMENT :(Per FARHAN P. DUBASH, J.)
1. By the present Writ Petition, Macrotech Developers Ltd.
- the Petitioner herein has invoked the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India and sought an order and direction against the Joint Sub-Registrar, Pune
- Respondent No.1 herein to register the cancellation of the Agreement for Sale dated 9th May 2018 bearing Registration No. LNL/1889/2018 and other reliefs, more particularly set out therein. Page 1 of 10 ::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:26:45 ::: JPP
12. W.P.L. 18256.2025.doc For the purposes of deciding the present Writ Petition, the following facts are required to be noticed:
2. The Petitioner is the Promotor of a Real Estate Project known as "Lodha Bellmondo" situated near the Mumbai-Pune Expressway at Pune (Project) registered with the MahaRERA under Registration No. P52100000283. Respondent Nos. 4 and 5 herein are allottees of Flat No. 404 located on the 4 th floor of the Project from the Petitioner, under an Agreement for Sale, executed and registered on 9th May 2018 under Registration No. LNL/1889/2018 (Agreement for Sale).
3. The Petition asserts that on account of persistent defaults in making the payment of instalments under the Agreement for Sale, the Petitioner issued a termination notice dated 13th May 2021 and thereafter, filed a complaint under Section 31 of the Real Estate (Regulation and Development) Act, 2016 (RERA) before the Maharashtra Real Estate Recovery Authority (MahaRERA) being Complaint No. CC0000005279868/2023 (Complaint) for an order against Respondent Nos. 4 and 5 herein, interalia directing them to execute and register a Deed of Cancellation in respect of the said Agreement for Sale. In the alternative to this main relief, the Page 2 of 10 ::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:26:45 ::: JPP
12. W.P.L. 18256.2025.doc Complaint sought appointment of a fit person, including an officer of MahaRERA, with a direction that such person execute and register an appropriate Deed of Cancellation in respect of the said Agreement for Sale, and a further direction to the concerned Sub-
Registrar of Assurances to effect registration of the same. This Complaint is stated to have been allowed by the MahaRERA by its final order dated 14th August 2024 (MahaRERA Order), whereunder, the Petitioner was granted the reliefs sought in the said Complaint. The MahaRERA Order was a common order passed in the said Complaint and another similar complaint bearing No. CCOO5000000279885 filed by the Petitioner against Vishal Passi and Nikhil Passi in respect of another flat in the same Project.
4. The Petition then asserts that since Respondents No. 4 and 5 herein failed to comply with the said MahaRERA Order, it was constrained to file a non-compliance application (Execution Application) invoking the provisions of Section 40 of RERA. This Execution Application is stated to have been disposed of by an order dated 28th November 2024 passed by the MahaRERA (MahaRERA Execution Order). However, by this order, it appears that the executing court of MahaRERA, instead of appointing a fit person to execute and register the requisite Deed of Cancellation in respect of the Agreement for Sale, suo motu Page 3 of 10 ::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:26:45 ::: JPP
12. W.P.L. 18256.2025.doc issued directions to the Sub-Registrar of Assurances - Respondent No. 1 herein, to cancel the said Agreement for Sale.
5. The Petition then asserts that when this MahaRERA Execution Order was served on Respondent No.1, with a direction to comply with the same, Respondent No.1 addressed a letter dated 13th February 2025 refusing to comply interalia pointing out that MahaRERA did not have the power or authority to direct Respondent No. 1 to unilaterally cancel the registered instrument. Faced with this dilemma, the Petitioner has approached this Court interalia seeking the reliefs, more particularly sought in the present Writ Petition.
6. Considering the peculiar facts of this case and the nature of the controversy raised in the present Writ Petition, we requested the assistance of the learned Advocate General and pursuant thereto, he is present in court today. At the outset, the learned Advocate General has taken us through some of the relevant provisions of RERA. He has invited our attention to Section 11(5) thereof, which relates to the functions and duties of a Promotor and prescribes that the Promoter may cancel the allotment made to an allottee only in terms of the agreement for sale. He has also invited our attention to Section 34(g) which deals Page 4 of 10 ::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:26:45 ::: JPP
12. W.P.L. 18256.2025.doc with the functions of the Authority, in particular, to ensure compliance of its powers under the Act. Our attention was also invited to Section 37 which empowers the Authority to issue directions for performing its functions which are binding on the Promoters, Allottees and also on Real Estate Agents. Our attention was also invited to Sub-Section 2 of Section 40 which interalia deals with enforcement of orders and prescribes that if any AO or Authority or Appellate Tribunal issues any order or directs any person to do any act or refrain from doing any act which it is empowered to do under RERA or the Rules or Regulations made thereunder, then in the case of failure by such person to comply with such order or direction, the same shall be enforced in the prescribed manner.
7. Our attention was then drawn to the Maharashtra Real Estate (Regulation and Development) (Recovery of Interest, Penalty, Compensation, Fine Payable, Forms of Complaints and Appeal, etc.) Rules, 2017 (MahaRERA Rules) and in particular Rule 4 thereunder, which deals with the manner of implementation of orders, directions or decisions that may be passed by the Adjudicating Officer (AO), the Authority or the Appellate Tribunal. Rule 4 further provides that for the purposes of Section 40(2) of RERA, every order passed by the AO, Authority or Appellate Page 5 of 10 ::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:26:45 ::: JPP
12. W.P.L. 18256.2025.doc Tribunal shall be enforced in the same manner as if it were a decree or order made by the principal civil court of original jurisdiction in a suit.
8. The learned Advocate General then invited our attention to the relevant provisions of the Code of Civil Procedure, 1908 (CPC) and in particular Rule 34 of Order XXI thereof, which interalia deals with Decrees for execution of documents and prescribes the manner in which an Executing Court would implement an order that directs the execution of a document and which order is not complied with by the judgment-debtor.
9. Our attention was also invited to the provisions of Section 31 of the Specific Relief Act, 1963 (SRA) which are found in Chapter V therein, which deals with the topic of Cancellation of Instruments. For the sake of convenience, the same is reproduced hereunder:
"31. When cancellation may be ordered -
(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."Page 6 of 10 ::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:26:45 :::
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12. W.P.L. 18256.2025.doc
10. The learned Advocate General submits that though such a power is given to Court, the same was not available with the Authority in the present case, whilst passing the said MahaRERA Execution Order since this was not a case where the Agreement for Sale was either stated to be void or voidable.
11. Relying on the aforesaid provisions, the learned Advocate General argued that in the instant case, whilst passing the MahaRERA Execution Order, the Authority had committed a grave error in directing Respondent No. 1 to unilaterally register the cancellation of the said Agreement for Sale instead of granting the alternate relief that was not only sought by the Petitioner in the Complaint but, which was also granted in MahaRERA Order viz. for appointment of a fit person, including an officer of MahaRERA, to execute and register an appropriate Deed of Cancellation in respect of the said Agreement for Sale and then a direction to Respondent No.1 to register such Deed of Cancellation.
12. Mr. Amogh Singh, learned counsel for the Petitioner invites our attention to the Full Bench decision of the Supreme Court in Deccan Paper Mills Company Limited v/s Regency Mahavir Properties and Others1 and submits that the power to 1 (2021) 4 SCC 786 Page 7 of 10 ::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:26:45 ::: JPP
12. W.P.L. 18256.2025.doc direct unilateral cancellation of an instrument that is contained in Section 31(2) of the SRA need not be exercised only by a Court but can also be exercised by the MahaRERA Authority, by relying on the aforesaid decision where such power was exercised by an Arbitral Tribunal.
13. We have heard the parties and with their able assistance, also perused the record that is available before this Court. Upon consideration of the submissions recorded hereinabove and after going through the relevant provisions of law, this Court is inclined to agree with the submissions of the learned Advocate General. The decision in Deccan Paper Mills (supra) will not assist the Petitioner and can easily be distinguished especially as it is not the Petitioner's contention that the said Agreement for Sale was either void or voidable. In the present case, we note that the said Complaint not only seeks the main relief of directing Respondent Nos. 4 and 5 herein to execute a Deed of Cancellation in respect of the said Agreement for Sale but also an alternative relief (in the event of non-compliance by Respondent Nos. 4 and 5 of such main relief) for the appointment of a fit and proper person, including an officer of the MahaRERA Authority, with a direction to such person to execute and register an appropriate Deed of Cancellation in respect of the said Page 8 of 10 ::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:26:45 ::: JPP
12. W.P.L. 18256.2025.doc Agreement for Sale and thereafter, a direction to Respondent No. 1 to register such Deed of Cancellation. We further note that despite the said Complaint being allowed by the MahaRERA Order, the Executing Court, upon non-compliance of the main relief by Respondent Nos. 4 and 5 herein, seems to have lost sight of the alternative relief and instead, erroneously proceeded to pass the MahaRERA Execution Order directing Respondent No.1 to unilaterally make an entry in the concerned Register for cancellation of the said Agreement for Sale. This has resulted in the peculiar situation that the Petitioner is now faced with, since MahaRERA Execution Order grants a relief that is neither warranted nor which the Petitioner had sought for.
14. This Court is conscious that the Petitioner in the present Writ Petition wherein has not impugned the said MahaRERA Execution Order but has instead sought to enforce the same. However, it is well settled that in such circumstances, this Court is not powerless. Whilst exercising extra-ordinary writ jurisdiction under Article 226 of the Constitution of India, this Court possesses the power to mould the reliefs, depending on the facts and circumstances of the case and with a view to do justice to the parties before it.
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12. W.P.L. 18256.2025.doc
15. In these circumstances and without recording any finding on the point of whether or not, the MahaRERA has the power to direct the Inspector General of Registration & Controller of Stamps to unilaterally revoke or cancel a registered instrument, this Court proceeds to dispose of the present Writ Petition with the following order:
ORDER
(i) The Petitioner is granted liberty to approach the concerned Authority of MahaRERA and file a fresh application seeking execution of the said MahaRERA Order dated 14th August 2024, passed in Complaint No. CC00500000279868 and the said Authority shall hear and expeditiously decide such application in accordance with law and uninfluenced by the said MahaRERA Exe-
cution Order dated 28th November 2024 within a period of 8 weeks from the date on which such application is filed.
(ii) The present Writ Petition is disposed of with no order as to costs.
( FARHAN P. DUBASH, J. ) ( R.I. CHAGLA J. ) Digitally signed JYOTI by JYOTI PRAKASH Page 10 of 10 PRAKASH PAWAR PAWAR Date: 2025.10.06 17:57:55 +0530 ::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:26:45 :::