Bombay High Court
Sana Hospitality Services Pvt Ltd vs Madan Kishan Gurow And Ors on 25 November, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:51049
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 606 OF 2024
Sana Hospitality Services Pvt. Ltd. ...Applicants
(Org.Deft.No.2)
Versus
Madan Kishan Gurow and ors. ...Respondents/
Ori. Plaintiffs
Mr. M. A. Memon, i/b Lexim Associates, for the Applicants.
Mr. Vishal Phal, i/b Mr. Kunal Damle, for Respondent Nos.1
and 2.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 11th NOVEMBER, 2025
PRONOUNCED ON: 25th NOVEMBER, 2025
JUDGMENT :
1. This revision application is directed against an order dated
22nd March, 2023, passed by the learned Civil Judge, Belapur,
whereby an application filed by the applicant - defendant No.2
for rejection of the plaint under the provisions of Order VII Rule
11 of the Code of Civil Procedure, 1908 ("the Code"), came to be
rejected.
2. Shorn of necessary details, the background facts can be
stated as under:
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2.1 For the sake of convenience and clarity, the parties are
hereinafter referred to in the capacity which they are arrayed
before the Civil Court.
2.2 Defendant No.2 is a company registered under the
Companies Act, 2013. Mrs. Sushila Malge is the Proprietress of
M/s. Mount Mary Builders - defendant No.1. A real estate
project, "Green World" was developed by defendant No.1 ("the
promoter"). Under a Sale Deed dated 23 rd March, 2016,
defendant No.1 sold a flat being Flat No.1703 situated on the 17 th
floor in "G" Wing of the said project for a consideration of
Rs.44,00,000/-.
2.2 As defendant No.1 did not deliver the possession of the
subject flat in accordance with the terms of the contract,
defendant No.2 was constrained to file a complaint before
Maharashtra Real Estate Regulatory Authority ("MahaRERA")
being Complaint No.89795. By an order dated 5 th November,
2019, the MahaRERA directed defendant No.1 to pay interest for
the delay in delivery of possession. However, as MahaRERA did
not issue a direction for delivery of possession of the subject
flat, defendant No.2 filed an appeal before the Maharashtra Real
Estate Appellate Tribunal ("the Appellate Tribunal"). By an
order dated 10th December, 2021, the Appellate Tribunal
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disposed the appeal by issuing directions to defendant No.1 to
hand over the possession of the subject flat to defendant No.2
within a period of 60 days, with a stipulation for payment of
interest in the event of default.
2.4 In the meanwhile, defendant No.2 caused a title search of
the subject flat. It transpired that defendant No.1, allegedly in
connivance with respondent Nos.1 and 2 - the plaintiffs, had
created third party rights in respect of the subject flat in favour
of Plaintiffs under a registered Agreement dated 7 th August,
2017, subsequent to the execution of the Sale Deed in favour of
defendant No.2.
2.5 Defendant No.2 apprised the plaintiffs about the order
passed by the Appellate Tribunal, and called upon the plaintiffs
to deliver possession of the subject flat. As defendant No.1 did
not comply with the orders of the Appellate Tribunal, defendant
No.2 filed Execution Application No.16 of 2022 for execution of
the order dated 10th December, 2021 passed by the Appellate
Tribunal. The plaintiffs came to be impleaded as parties in the
said execution application.
2.6 The plaintiffs, in turn, approached the Civil Court by
instituting a suit for declaration that, the agreement dated 7th
August, 2017 executed by and between defendant No.1 and
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plaintiffs is valid and subsisting, the plaintiffs are bona fide
purchasers of subject flat without notice and the Sale Deed
dated 23rd March, 2016 executed between defendant Nos.1 and 2
was null and void and not binding upon the plaintiffs.
Consequential injunctive reliefs were also sought.
2.7 The plaintiffs assert that, they had parted with valuable
consideration, inter alia, by availing loan from HDFC Bank.
They were unaware of the execution of the Sale Deed by
defendant No.1 in favour of defendant No.2. Upon being
confronted, defendant No.1 assured them that, defendant No.2
was an investor and defendant No.1 would return the amount
invested by defendant No.2. Thus, the plaintiffs were
constrained to institute the suit for declaration and injunction.
2.8 Defendant No.2 filed an application for rejection of the
plaint on the ground that, in view of the exclusive jurisdiction
conferred on the authorities under The Real Estate (Regulation
and Development) Act, 2016 ("the RERA, 2016") the Civil Court's
jurisdiction was expressly barred. Therefore, the plaint was
liable to be rejected under the provisions of Order VII Rule 11(d)
of the Code.
2.9 By the impugned order, the learned Civil Judge was
persuaded to reject the application opining, inter alia, that the
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remedies under the RERA, 2016 were in addition to the other
remedies and the Authorities under the RERA, 2016 had no
power either to decide a title dispute between two allottees or to
grant the reliefs of declaration as sought by the plaintiffs. It
was required to be seen, whether the Authorities under the
RERA, 2016 are competent to grant reliefs, which the Civil Court
would normally grant in a suit, and finding that the Authorities
under the RERA, 2016 cannot grant the reliefs claimed by the
plaintiffs, the application came to be rejected.
3. Being aggrieved, defendant No.2 has invoked the revisional
jurisdiction.
4. I have heard Mr. Memon, the learned Counsel for the
applicant - defendant No.2, and Mr. Phal, the learned Counsel
for respondent Nos.1 and 2 - plaintiffs, at some length. With the
assistance of the learned Counsel for the parties, I have perused
the material on record especially the averments in the plaint in
Special Civil Suit No.774 of 2023.
5. Mr. Memon, the learned Counsel for the applicant,
submitted that the learned Civil Judge completely misconceived
the nature of the suit. The essential dispute was between two
sets of "allottees" and the promoter. Therefore, the view of the
trial Court that, the bar under Section 79 of the RERA, 2016
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was not attracted, was clearly erroneous. Mr. Memon laid
emphasis on the fact that the Appellate Tribunal has directed
defendant No.1 to deliver the possession of the subject flat. A
second appeal preferred by defendant No.1 against the said
order came to be dismissed by the High Court with costs. In
these circumstances, when the plaintiffs, who are in possession
of the subject flat, assert independent rights in the subject flat,
emanating from the same promoter - the defendant No.1, the
dispute clearly falls within the realm of the jurisdiction of the
Authorities under the RERA, 2016.
6. Mr. Memon would urge that, the question, whether the
plaintiffs are entitled to protect their possession can also be
legitimately decided by the Appellate Tribunal in the execution
proceeding. Attention of the Court was invited to the provisions
contained in Section 57 of the RERA, 2016, which provides that,
every order made by the Appellate Tribunal shall be executable
by the Appellate Tribunal as a decree of Civil Court, and for the
said purpose, the Appellate Tribunal shall have all the powers of
a Civil Court. Therefore, the learned Civil Judge, according to
Mr. Memon, committed an error in returning a finding that the
Appellate Tribunal does not have the power to do what the Civil
Court would do in a civil suit. It was submitted that though the
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said contention in the context of the provisions contained in
Section 57 of the RERA, 2016, was specifically raised, the
learned Civil Judge did not deal with the same adequately.
7. In opposition to this, Mr. Phal, the learned Counsel for the
plaintiffs - defendant Nos.1 and 2, would urge that, the
defendant No.2 cannot be permitted to draw any mileage from
the orders passed by the Authorities under the RERA, 2016, as
the plaintiffs were not impleaded as parties to the proceedings
before MahaRERA and the Appellate Tribunal. It was submitted
that the plaintiffs were put in possession of the subject flat in
the year 2019, itself. It is only after the execution of the
Agreement to Sale in favour of the plaintiffs and the plaintiffs
having been put in possession of the subject flat, orders were
obtained from the Authorities under the RERA, 2016.
8. Mr. Phal submitted that, the Authorities under the RERA,
2016 have no jurisdiction to inquire into and determine the
dispute inter se allottees. Therefore, the learned Civil Judge was
fully justified in holding that the reliefs claimed by the plaintiffs
in the instant suit cannot be granted by the Authorities under
the RERA, 2016 and, therefore, the bar under Section 79 of the
RERA, 2016, was not attracted.
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9. The facts appear to be, by and large, incontrovertible.
Firstly, defendant No.1 is the promoter of the project. Initially
defendant No.1 entered into transaction with defendant No.2 in
respect of Flat No.1703 and executed a Sale Deed on 23 rd March,
2016. Subsequently, defendant No.1 entered into an Agreement
for Sale of the subject flat in favour of the plaintiffs on 7 th
August, 2017. The plaintiffs were put in possession of the
subject flat on 10th June, 2019. Conversely, as defendant No.1
did not deliver the possession of the subject flat, defendant No.2
filed complaint before MahaRERA, and dissatisfied with the
order passed by the MahaRERA preferred an appeal before the
Appellate Tribunal and, eventually, the Appellate Tribunal by an
order dated 10th December, 2021 directed defendant No.1 to
deliver the possession of the subject flat. A second appeal
preferred thereagainst was dismissed by this Court. Since the
order passed by the Appellate Tribunal was not complied with,
defendant No.2 took out execution application. Upon being
impleaded as the party in the said execution application, the
plaintiffs have instituted the instant suit for the reliefs of
declaration and injunction.
10. In the backdrop of the aforesaid facts, the question as to
whether the suit is barred by the provisions contained in the
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RERA, 2016, especially Section 79, which bars the jurisdiction
of the Civil Court, arises for consideration.
11. To explore an answer, it may be apposite to consider the
object and scheme of RERA and the nature of the jurisdiction of
the Civil Court. The statement of Object and Reasons of the
RERA, 2016 read as under:
"The Statement Of Objects And Reasons.- The real estate
sector plays a catalytic role in fulfilling the need and demand
for housing and infrastructure in the country. While this sector
has grown significantly in recent years, it has been largely
unregulated, with absence of professionalism and
standardisation and lack of adequate consumer protection.
Though the Consumer Protection Act, 1986 is available as a
forum to the buyers in the real estate market, the recourse is
only curative and is not adequate to address all the concerns of
buyers and promoters in that sector. The lack of
standardisation has been a constraint to the healthy and
orderly growth of industry. Therefore, the need for regulating
the sector has been emphasised in various forums.
In view of the above, it becomes necessary to have a
Central legislation, namely, the Real Estate (Regulation and
Development) Bill, 2013 in the interests of effective consumer
protection, uniformity and standardisation of business
practices and the transactions in the real estate sector. The
proposed Bill provides for the establishment of the Real Estate
Regulatory Authority (the Authority) for regulation and
promotion of real estate sector and to ensure sale of plot,
apartment or building, as the case may be, in an efficient and
transparent manner and to protect the interest of consumers in
real estate sector and establish the Real Estate Appellate
Tribunal to hear appeals from the decisions, directions or
orders of the Authority."
12. Under Section 2(c)(d), "allottee", in relation to a real estate
project, means the person to whom a plot, apartment or
building, as the case may be, has been allotted, sold (whether as
freehold or leasehold) or otherwise transferred by the promoter,
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and includes the person who subsequently acquires the said
allotment through the sale, transfer or otherwise but does not
include a person to whom such plot, apartment or building, as
the case may be, is given on rent.
13. Section 18 of the RERA, 2016, provides the remedy of
refund with interest and compensation to allottees, when a
developer fails to complete the construction or give possession
as per the Agreement for Sale. However, remedies under Section
18 are "without prejudice to any other remedy" available to the
allottee.
14. The rights and duties of allottees are enshrined in Section
19. Under sub-section (3) of Section 19, the allottee shall be
entitled to claim the possession of apartment, plot or building,
as the case may be, and the association of allottees shall be
entitled to claim the possession of the common areas. Under
sub-section (4) of Section 19, the allottee shall be entitled to
claim the refund of the amount paid along with interest at such
rate as may be prescribed and compensation in the manner as
provided under this Act, from the promoter, if the promoter fails
to comply or is unable to give possession of the apartment, plot
or building, as the case may be, in accordance with the terms of
agreement for sale or due to discontinuance of his business as a
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developer on account of suspension or revocation of his
registration.
15. Section 79 incorporates the bar of jurisdiction as under:
"Section 79. Bar of Jurisdiction
No civil court shall have jurisdiction to entertain any suit
or proceeding in respect of any matter which the Authority or
the adjudicating officer or the Appellate Tribunal is empowered
by or under this Act to determine and no injunction shall be
granted by any court or other authority in respect of any
action taken or to be taken in pursuance of any power
conferred by or under this Act."
16. Section 88 declares that the provisions of the said Act
shall be in addition to, and not in derogation of, the provisions
of any other law for the time being in force.
17. Section 89 gives overriding effect to the provisions of the
said Act by providing that, the provisions of the said Act shall
have effect, notwithstanding anything inconsistent therewith
contained in any other law for the time being in force.
18. A conjoint reading of the aforesaid provisions in the light
of the statement of objects and reasons of RERA, 2016 would
indicate that a special machinery is provided for enforcement of
the rights and liabilities of both the allottees and promoter in
relation to real estate transactions. RERA, 2016 defines the
right and liabilities of the promoter and the allottees and
remedies for enforcement of those rights and liabilities. Yet,
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Section 87 of the RERA, 2016, declares that the provisions of
the said Act, shall be in addition to and not in derogation of the
provisions of any other law for the time being in force.
19. In the case of Imperia Structures Ltd. V/s. Anil Patni and
Anr.1, the Supreme Court had an occasion to consider the
availability of remedies before the other forums, like Consumer
Fora, in the face of the bar under Section 79 of the RERA. The
Supreme Court expounded the legal position in the following
words :
"24. Before we consider whether the provisions of the
RERA Act have made any change in the legal position
stated in the preceding paragraph,we may note that an
allottee placed in circumstances similar to that of the
Complainants, could have initiated following proceedings
before the RERA Act came into force.
(A) If he satisfied the requirements of being a
"consumer" under the CP Act, he could have initiated
proceedings under the CP Act inaddition to normal civil
remedies.
(B) However, if he did not fulfil the requirements of
being a"consumer", he could initiate and avail only
normal civil remedies.
(C) If the agreement with the developer or the
builder provided for arbitration:-
(i) in cases covered under Clause 'B' hereinabove,
he could initiate or could be called upon to invoke the
remedies in arbitration.
(ii) in cases covered under Clause 'A' hereinabove,
inaccordance with law laid down in Emaar MGF Ltd
andanr. Vs. Aftab Singh, he could still choose to proceed
under the CP Act.
......
26. It is, therefore, required to be considered
whether the remedy so provided under the RERA Act to
1 (2020) 10 SCC 783
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an allottee is the only and exclusive modality to raise a
grievance and whether the provisions of the RERA Act
bar consideration of the grievance of an allottee by other
fora.
.....
28. On plain reading of Section 79 of the RERA Act, an
allottee described in category (B) stated in paragraph 22
hereinabove, would stand barred from invoking the
jurisdiction of a Civil Court. However,as regards the allottees
who can be called "consumers" within the meaning of the
CP Act, two questions would arise; a) whether the bar
specified under Section 79 of the RERA Act would apply to
proceedings initiated under the provisions of the CP Act;
and b) whether there is anything inconsistent in the
provisions of the CP Act with that of the RERA Act.
......
34. It is true that some special authorities are created
under the RERA Act for the regulation and promotion of the
real estate sector and the issues concerning a registered
project are specifically entrusted to functionaries under the
RERA Act. But for the present purposes, we must go by the
purport of Section 18 of the RERA Act. Since it gives a right
"without prejudice to any other remedy available', in effect,
such other remedy is acknowledged and saved subject
always to the applicability of Section 79.
35. At this stage, we may profitably refer to the decision in
Pioneer Urban Land and Infrastructure Limited and another
vs. Union of India and another, where a bench of three
Judges of this Court was called upon to consider the
provisions of Insolvency and Bankruptcy Code, 2016, RERA
Act and other legislations including the provisions of the CP
Act. One of the conclusions arrived at by this Court
was:-"100. RERA is to be read harmoniously with the Code,
as amended by the Amendment Act. It is only in the event of
conflict that the Code will prevail over RERA. Remedies that
are given to allottees of flats/apartments are therefore
concurrent remedies, such allottees of flats/apartments
being in a position to avail of remedies under the Consumer
Protection Act, 1986, RERA as well as the triggering of the
Code.
36. We, therefore, reject the submissions advanced by the
Appellant and answer the questions raised in paragraph 26
hereinabove against the Appellant."
(emphasis supplied)
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20. The aforesaid judgment was followed with approval by a
three Judge bench of the Supreme Court in the case of Ireo
Grace Realtech Pvt. Ltd. V/s. Abhishek Khanna2.
21. The aforesaid pronouncements indicate that the remedies
available to the allottee under Section 18 of the RERA, 2016 are
without prejudice to any other remedies available in law. If the
provisions of Section 18 of the RERA, 2016 are read in
juxtaposition with Section 88 of the Act, an inference becomes
justifiable that Section 18 of the RERA, 2016, is not sole
repository of the rights and remedies of an allottee, in all
situations. Remedies therein are without prejudice to any other
remedy available in law.
22. The aforesaid position is required to be borne in mind,
while appreciating the bar under Section 79 to the jurisdiction
of the civil court. On its plan terms, the bar under Section 79
of the RERA, 2016 to the suit or proceeding before the Civil
Court is only in respect of any matter, which the authority or
adjudicating officer or the Appellate Tribunal is empowered by or
under the said Act, to determine.
23. It, therefore, becomes imperative to examine whether the
Appellate Tribunal is empowered to determine the issues that
2 (2021) 3 SCC 241
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arise for consideration and the reliefs which the Plaintiffs seek
in the instant suit. That brings to the fore the nature of the
jurisdiction of the Civil Court.
24. Under Section 9 of the Code, the Civil Courts have
jurisdiction to try all suits of a civil nature, excepting suits of
which their cognizance is either expressly or impliedly barred.
The jurisdiction of the Civil Court is, therefore, of widest
amplitude. In a sense, it is plenary and residuary. Fetters can
be put on the jurisdiction of the civil court only where the
statute expressly or impliedly bars the jurisdiction. Even in
cases where the statute imposes fetters on the civil court's
jurisdiction, the jurisdiction of the civil court to entertain and
try the suit or proceeding has to be decided on the touchstone
as to whether the statute which has created rights, provides the
remedies for the same. It is necessary to examine whether an
effective mechanism to provide adequate and sufficient remedies
has been enshrined under such statute. There is always
presumption in favour of the existence of the jurisdiction of the
Civil Court and against the exclusion thereof.
25. Often the decision of the Constitution Bench in the case of
Dhulabhai v/s. State of Madhya Pradesh3 is consulted when
3 AIR 1969 SC 78
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the courts are confronted with the question as to whether the
jurisdiction of the civil court is excluded. The following
propositions enunciated therein are instructive, and, hence,
extracted below :
"(1) Where the statute gives a finality to the orders of
the special tribunals the civil court's jurisdiction
must be held to be excluded if there is adequate
remedy to do what the civil courts would normally
do in a suit. Such provision, however, does not
exclude those cases where the provisions of the
particular Act have not been complied with or the
statutory tribunal has not acted in conformity with the
fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction
of the court, an examination of the scheme of the
particular Act to find the adequacy or the
sufficiency of the remedies provided may be relevant
but is not decisive to sustain the jurisdiction of the
civil court. Where there is no express exclusion the
examination of the remedies and the scheme of the
particular Act to find out the intendment becomes
necessary and the result of the inquiry may be
decisive. In the latter case, it is necessary to see if
the statute creates a special right or a liability and
provides for the determination of the right or liability
and further lays down that all questions about the said
right and liability shall be determined by the
tribunals so constituted, and whether remedies
normally associated with actions in civil courts are
prescribed by the said statute or not.
...........
(7) An exclusion of the jurisdiction of the Civil Court is
not readily to be inferred unless the conditions above
set down apply."
(emphasis supplied)
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26. In the case of State of Tamil Nadu v/s. Ramalinga Samigal
Madam4, the Supreme Court further elucidated the propositions
in the case of Dhulabhai (supra), as under :
"13. Secondly, the principle indicated in the
second proposition enunciated in Dhulabhai's case
requires that the statute: when it creates a special
right or liability and provides for its determination,
should also lay down that all questions about the
said right or liability shall be determined by the
Tribunal or authority constituted by it, suggesting
thereby that if there is no such provision it will be
difficult to infer ouster of the Civil Court's
jurisdiction to adjudicate all other questions
pertaining to such right or liability.
14. Thirdly, having regard to the principle
stated by the Supreme Court while enunciating the
first proposition in Dhulabhai's case, it is clear that
even where the statute has given finality to the
orders of the special tribunal the civil Court's
jurisdiction can be regarded as having been
excluded if there is adequate remedy to do what
the Civil Court would normally do in a suit. In
other words, even where finality is accorded to the
orders passed by the special tribunal one will
have to see whether such special tribunal has
powers to grant reliefs which Civil Court would
normally grant in a suit and if the answer is in
the negative it would be difficult to imply or infer
exclusion of Civil Court's jurisdiction."
27. In the light of the aforesaid position in law, re-
adverting to the facts of the case, it becomes abundantly
clear that the essential dispute is now between the
4 (1985) 4 SCC 10
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Plaintiffs and defendant No.2, albeit on account of the
execution of the two instruments by the Defendant No.1 in
respect of one and the same flat. The Plaintiffs seek
declarations that the agreement to sale executed in their
favour is legal and valid; the Plaintiffs are the bonafide
purchasers of the subject flat without notice and the sale
deed dated 23 March 2016 executed by Defendant No.1 in
favour of Defendant No.2 is null and void and not binding
upon the Plaintiffs.
28. Thus the core issue that arises for determination as to
whether the Plaintiffs are bonafide purchasers for value without
notice of the prior instrument between Defendant Nos.1 and 2,
would warrant investigation into a host of facts. Dispute would,
thus, partakes the character of a lis between the two sets of
allottees. Such a dispute between the allottees, nay which of
the two instruments is legal and valid, is not a matter which the
authorities under the RERA are empowered to adjudicate.
Consequently, the reliefs of declaration and injunction sought by
the Plaintiffs in the instant suit, may not be granted by
authorities under RERA.
29. The endeavour of Mr. Memon to draw home the point that
since the order made by the Appellate Tribunal can be executed
as a decree of a Civil Court and, for that purpose, the Appellate
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Tribunal shall have all the powers of a Civil Court, and,
therefore, the legality and validity of the claim of the Plaintiffs
can also be decided by Appellate Tribunal, does not merit
acceptance unreservedly.
30. Undoubtedly, Section 57 cloths the order passed by the
Appellate Tribunal with the status of a decree, and, for the
purpose of execution of such order, the Appellate Tribunal has
been conferred the powers of a Civil Court. However, that by
itself, does not make the Appellate Tribunal a Civil Court. At
best, it can be said that, while executing an order, the Appellate
Tribunal may have the trappings of the civil Court, but it cannot
be called a Civil Court, in the sense that, it can grant reliefs
which can be granted by the Civil Court as the court of plenary
and residuary jurisdiction while determining a suit of civil
nature.
31. In the aforesaid view of the matter, learned Civil Judge
was justified in declining to reject the plaint on the ground that
the suit was barred by the provisions contained in Section 79 of
the RERA. Resultantly, this Court does not find any patent
illegality or material irregularity in the exercise of jurisdiction by
the Civil Court, which would warrant correction in exercise of
revisional jurisdiction.
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32. Hence, the following order:
:ORDER:
The application stands rejected.
No costs.
[N. J. JAMADAR, J.]
Designation: PS To Honourable Judge
Date: 25/11/2025 21:26:43
