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
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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.
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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
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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
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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
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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
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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."
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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
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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
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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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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. )
JYOTI by JYOTI
PRAKASH PAWAR
PAWAR Date: 2025.10.06
17:57:55 +0530
