Rare Townships Private Limited vs Saji Mathews
2026 Latest Caselaw 3712 Bom

Bombay High Court

Rare Townships Private Limited vs Saji Mathews on 15 April, 2026

Author: N.J.Jamadar

Bench: N.J.Jamadar

2026:BHC-AS:17812

                                                                           sa 144 of 2026.doc

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION
                                  SECOND APPEAL NO.144 OF 2026

            Rare Townships Pvt. Ltd.,
            CTS No.134B, PWD Ground,
            Off Eastern Express Highway,
            Ghatkopar Mankuhurd Link Road,
            Ghatkopar (East), Mumbai - 400 089               ...   Appellant

                    versus

            1.      Saji Mathews
            2.      Mrs. Simmy Saji,
                    Both residing at F-1/104,
                    Near Mulund Colony, Mulund (W),
                    Mumbai - 400 080.                   ...    Respondents
                                               WITH
                               INTERIM APPLICATION NO.2337 OF 2026

            Mr. Rubin Vakil with Ms. Sana Khan, Ms. Bijal Parikh i/by SNG and Partners,
            for Appellant.
            Mr. Bishwajeet Mukherjee, for Respondents.

                               CORAM:      N.J.JAMADAR, J.

                               RESERVED ON             : 25 MARCH 2026
                               PRONOUNCED ON           : 15 APRIL 2026

            JUDGMENT :

1. This appeal is directed against a judgment and order dated 19 January

2026 passed by the Maharashtra Real Estate Appellate Tribunal (the

Appellate Tribunal) in Appeal No.196938 of 2022, whereby the appeal

preferred by the Appellant - original opponent - Promoter, came to be

dismissed and the order dated 17 December 2021 passed by the

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Maharashtra Real Estate Regulatory Authority (the Authority) in Complaint

No.196938, came to be modified to the extent of grant of benefit of

moratorium period in regard to the payment of interest under Section 18 of the

Real Estate (Regulation and Development) Act, 2016 (RERA, 2016).

2. The Appellant is a promoter. The Appellant is developing a project

under the name and style 'Rising City - North Sea Heights' at Ghatopkar,

Mumbai.

3. The Respondents - allottees agreed to purchase a flat, bearing No.405,

on the fourth floor of the said project, admeasuring 1103.01 sq.ft. carpet area,

for a consideration of Rs.2,04,61,903/- under an Agreement for Sale dated 19

December 2014. The Respondents parted with the consideration of

Rs.1,03,06,187/-. Under the terms of the agreement, possession of the

subject flat was to be delivered to the allottees by 31 December 2018.

4. Asserting that the Promoter committed default in the discharge of its

statutory and contractual obligations, in as much as the Promoter failed to

complete the project and obtain occupation certificate, the allottees filed the

abovenumbered Complaint before the Authority seeking, inter alia, delivery of

possession of the subject flat along with the fixtures, fittings and amenities, as

promised under the terms of the agreement, interest on the amount of

consideration already paid by the allottees from the agreed date of

possession i.e. 31 December 2018 till the actual delivery of possession, and

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compensation, under Section 18 of the RERA 2016.

5. Myriad defences were raised by the Promoter. One of the principal

defence was that the construction of the project got delayed on account of the

pendency of the proceedings before this Court in relation to restrictions on the

height of the building imposed by the Airport Authority of India. Delay in the

completion of project was also attributed to the enforcement of the Mumbai

Development Control Regulations, 2034 and the Covid - 19 Pandemic. It

was contended that, all the allottees, including the Respondents were duly

apprised of the force majeure events and the consequent delay on account of

the circumstances beyond the control of the promoter.

6. By an order dated 17 December 2021, the Authority was persuaded to

allow the Complaint and declare that the allottees were entitled to claim

interest on the amount of consideration paid by the allottees with effect from 1

January 2019, till the delivery of possession of the subject flat along with the

occupation certificate at the rate prescribed under the Rule 18 of the

Maharashtra Real Estate (Regulation and Development) (Registration of Real

Estate Projects, Registration of Real Estate Agents, Rates of Interest and

Disclosures on Websites) Rules, 2017. The Authority, however, granted the

benefit of the moratorium period on account of Covid 19 Pandemic in terms of

the Notification/Orders 13/14 and 21, issued by MAHARERA. It was further

provided that the Promoter would be entitled to adjust the interest due to the

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Promoter from the allottees towards the delay in payment at the rate

prescribed under the aforesaid Rules, 2017.

7. Being aggrieved, the Promoter preferred an appeal before the Appellate

Tribunal.

8. By the impugned order, the Appellate Tribunal was persuaded to

dismiss the appeal holding, inter alia, that the force majeure events sought to

be pressed into service on behalf of the Promoter did not fall within the ambit

of 'force majeure', in terms of the Explanation to Section 6 of RERA, 2016.

Upon analysis of facts and material, the Appellate Tribunal also came to the

conclusion that the contention of the Appellant that the project could not be

completed on account of the orders passed by the High Court, and the delay

in clearance of the height of the buildings by the Airport Authority of India, did

not merit countenance. Holding the Promoter responsible for the delay, the

Appellate Tribunal concurred with the findings of the Authority that the

allottees were entitled to claim interest under Section 18 of the RERA 2016.

9. The Appellate Tribuanal also found that the Authority had unjustifiably

granted the benefit of the moratorium on account of Covid 19 Pandemic

situation to the Promoter as the date of delivery of possession was much

before the onset of the Pandemic. Drawing support from the provisions

contained in Order XLI Rule 33 of the Code of Civil Procedure, 1908, the

Appellate Tribunal ventured to modify the order in regard to the payment of

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interest by declaring that the Promoter was not entitled to the benefit of the

moratorium period under the Notification/orders 13/14 and 21 issued by the

MAHARERA.

10. Being further aggrieved, the Promoter has preferred this appeal.

11. I have heard Mr. Rubin Vakil, learned Counsel for the Appellant, and Mr.

Bishwajeet Mukherjee, learned Counsel for the Respondents, at some length.

12. Mr. Vakil canvassed a three pronged submission. First, the Appellate

Tribunal committed a grave error in law in modifying the order passed by the

Authority to the detriment of the Appellant in the absence of any appeal

against the order passed by the Authority or the cross-objection in the appeal

preferred by the Appellant. Mr. Vakil would submit that, in the absence of such

cross-appeal or cross-objection, the Appellate Tribunal had no power to grant

the relief to the allottees, which was expressly negatived by the Authority. Mr.

Vakil submitted that the provisions contained in Order XLI Rule 22 of the

Code, govern a case where the relief was not granted to the Respondents by

the Authority in the first instance, and, therefore, cross objections were a

must to empower the Tribunal to modify the order passed by the Authority. A

very strong reliance was placed by Mr. Vakil on the judgment of the Supreme

Court in the case of Banarsi and Ors. V/s. Ram Phal1.

13. Second, Mr. Vakil would urge, the Appellate Tribunal erred in holding

1 (2003) 9 SCC 606

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that the Promoter was liable to pay interest even when the Promoter was

unable to give possession of the apartment due to the restrictions on

development imposed by the statutory authorities. It was submitted that, in a

situation governed by Section 18(1)(b) of the RERA, 2016, the Promoter

cannot be fastened with the liability to pay interest.

14. Thirdly, the Appellate Tribunal was in error in holding that the force

majeure clause contained in the contract between the parties did not govern

the rights and obligations of the parties. It was submitted that the definition of

force majeure contained in Explanation to Section 6 of the RERA 2016, is not

the only repository of the force majeure events. Thus, the question as to

whether the force majeure events, as delineated under the terms of the

contract between the parties, would govern the rights and liabilities of the

parties and the Appellate Tribunal committed an error in ignoring the terms of

the contract between the parties, arises for consideration.

15. In opposition to this, Mr. Mukherjee, learned Counsel for the

Respondents - allottees, would submit that the Promoter has reneged from

the promise to deliver the possession of the subject flat not only in

accordance with the terms of the contract between the parties, but even the

subsequent assurance under the letter dated 23 May 2018, whereby the

allottees were assured that the project would be completed upto 11 th floor and

the possession would be delivered to the allottees along with the occupation

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certificate.

16. What accentuates the situation, according to Mr. Mukherjee, was that,

the occupation certificate could not be obtained even till the filing of the

instant appeal. Laying emphasis on the date of the execution of the

agreement for sale, parting of substantial consideration and lapse of a period

of over seven years from the agreed date of delivery of possession, Mr.

Mukherjee would urge that the appeal does not deserve to be entertained.

17. To start with, it is necessary to note that the fulcrum of the submission

of Mr. Vakil was that, clause 37 of the Agreement for Sale defined the force

majeure events. The circumstances which prevented the Promoter from

completing the project, highlighted above, squarely fall within the force

majeure events, agreed by and between the parties, urged Mr. Vakil. Clause

37 of the Agreement for Sale reads as under :

"37. Force Majeure shall be event or combination of events or circumstances beyond the control of the Promoter which cannot (a) by the exercise of reasonable due diligence or (b) despite the adoption of reasonable prevention and/or alternative measures, be prevented or caused to be prevented and which adversely affects the Promoter its ability to perform its obligations under this Agreement, which shall include but not be limited to :

37.1.1 Act of god e.g. Fire, drought, flood, earthquake, epidemics, natural disasters,

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37.1.2 Explosions or accidents, air crashes, act of terrorism: 37.1.3 Strikes or lock outs, industrial disputes; 37.1.4 Non-availability of cement, steel or other construction material due to strikes of manufactures, suppliers, transporters, or other intermediaries or due to any reason whatsoever;

37.1.5 War and hostilities or war, riots, bandh or civil commotion;

37.1.6 The promulgator of or amendment in any law, rule or regulation made or issued by the Government or any other authority which would affect the development or; 37.1.7 If any competent authority(ies) refuses, delays (including administrative delays), withholds, denies the grant of necessary approvals for the said Buildings, or; 37.1.8 lf any matters, issued in relation to such approvals, permissions, notices, notifications by the competent authorities become subject matter of any suit/writ before a competent Court or;

37.1.9 In case of the construction work or development under the scheme is delayed due to more than 25% of the purchasers (other than the purchasers) not paying their instalments or does on their respective due dates, then the Purchasers herein will not hold the Promoter responsible for delay in delivery of possession of the said flat by the Possession Date;

37.1.10 Economic slowdown in general; 37.1.11 Delay in issue of Commencement Certificate and/or Occupation Certificate and/or Building Completion Certificate by the concern competent Authority 37.1.12 Any event or circumstances analogous to the

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foregoing 37.1.13 lf the said building or any part thereof gets demolished and/or gets damaged due to any reason whatsoever;"

18. Laying emphasis on the aforesaid elaboration of the force majeure

events, Mr. Vakil would urge that, the enforcement mechanism under RERA

2016 does not dilute contractual rights and obligations. If the parties had

agreed that the aforesaid events would constitute force majeure events, it was

not open for the Authority/Tribunal to construe a new contract for the parties.

The Explanation to Section 6 of the RERA 2016 defines what constitute force

majeure events only for the purpose of the said Section, which envisages the

extension of registration by the Authority.

19. The Explanation to Section 6 of RERA 2016, reads as under :

"Explanation - for the purpose of this section, the expression "force majeure" shall mean a case of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the real estate project."

20. If the force majeure events enlisted in clause 37 (supra), are compared

and contrasted with the expression "force majeure" as explained under

Section 6, it becomes abundantly clear that the force majeure events have

been defined too expansively under clause 37. For instance, denial or

withholding of necessary approvals by the Competent Authority; matters in

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respect of those permissions, approvals and notices getting entangled in

litigation, delay in issue of commencement certificate and/or occupation

certificate and/or building completion certificate by the Competent Authority,

are all included in the force majeure events. Even the "economic slowdown in

general", is designated as the force majeure event. Delay on the part of more

than 25% of the allottees in payment of their respective installments would

also insulate the Promoter from the consequences of delay in delivery of

possession of the subject flat by the agreed date of possession. The

aforesaid contingencies, under no circumstances, qualify as the force majeure

events. Neither can these events be termed as unforeseen or inconceivable

by the Promoter. Nor beyond the control of human agency. In fact, those

events are driven by human action or inaction. Those contingencies lack the

essential element of absolute inability of a human being to prevent their

occurrence.

21. What constitutes a force majeure event, is well-recognized in law. The

term 'act of god' has a definite legal connotation. By simply including the

ordinary events, referred to above, in the force majeure clause, those events

cannot partake the character of force majeure events. In P. Ramanatha

Aiyar's Advanced Law Lexicon, the Act of God is described, as under :

"Act of God (Vis Major) : an overwhelming, unpreventable event caused exclusively by forces of nature, such as an earthquake, flood, or torando. The definition has been

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statutorily broadened to include all natural phenomena that are exceptional, inevitable, and irresistible, the effects of which could not be prevented or avoided by the exercise of due care or foresight. 42 USCA & 9601(1). - Also termed act of nature: act of Providence (Black, 7th Edn., 1999). The expression 'act of God' signifies the operation of natural force free from human intervention, such as lightning. It may be thought to include such unexpected occurrences of nature as severe gale, snowstorms, hurricanes, cyclones and tidal- bures and the like. But every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening. An act of God provides no excuse, unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence, having regard to the conditions of time and place known to be prevailing at."

22. In the case of The Divisional Controller, KSRTC V/s. Mahadeva

Shetty2, the Supreme Court enunciated that The expression "Act of God"

signifies the operation of natural forces free from human intervention, such as

lightening, storm etc. It may include such unexpected occurrences of nature

as severe gale, snowstorms, hurricanes, cyclones, tidal waves and the like.

23. In the case of Vohra Sadikbhai Rajakbhai and Ors. V/s. State of

Gujarat and Ors.3, the Supreme Court after referring to the rule of strict

liability recognized in Rylands V/s. Fletcher4, expounded the juridical 2 (2003) 7 SCC 197 3 (2016) 12 SCC 1 4 (1868) LR 3 HL 330

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connotation of 'act of God' as under :

"22. There are two exceptions to the aforesaid rule of strict liability, which were recognized in Rylands v. Fletcher itself, viz.:

(a) where it can be shown that the escape was owing to the plaintiff's default, or

(b) the escape was the consequence of vis major or the act of God.

An act of God is that which is a direct, violent, sudden and irresistible act of nature as could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted. Generally, those acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause will come under the category of acts of God. Examples are: storm, tempest, lightning, extraordinary fall of rain, extraordinary high tide, extraordinary severe frost, or a tidal bore which sweeps a ship in mid-water. What is important here is that it is not necessary that it should be unique or that it should happen for the first time. It is enough that it is extraordinary and such as could not reasonably be anticipated. We would like to discuss a few cases having bearing on this issue with which we are confronted in the instant appeal. (emphasis supplied)

24. If the promoters are permitted to expand the scope of force majeure by

including the ordinary incidents associated with the development of the

project, then the very object of RERA 2016 would be completely defeated. As

a matter of principle, force majeure events cannot be given an expansive

meaning so as to act as a buffer against the contractual obligation of the

promoter. Lest the very scheme of RERA 2016 and the transformative

change sought to be enshrined thereby, would be completely frustrated. The

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Appellate Tribunal, thus, committed no error in declining to accept the

contention of the Promoter that the obligation of the Promoter was subject to

the force majeure events enlisted in the Agreement for Sale.

25. A reference to a Division Bench Judgment of this Court in the case of

Neelkamal Realtors Suburban Pvt. Ltd. and Anr. V/s. Union of India and

Ors.5, constitutes a complete answer to the submissions premised on the

delay in obtaining regulatory approvals and statutory clearances, sought to be

canvassed on behalf of the Promoter :

"119. Under the provisions of Section 18, the delay in handing over the possession would be counted from the date mentioned in the agreement for sale entered into by the promoter and the allottee prior to its registration under RERA. Under the provisions of RERA, the promoter is given a facility to revise the date of completion of project and declare the same under Section 4. The RERA does not contemplate rewriting of contract between the flat purchaser and the promoter. The promoter would tender an application for registration with the necessary preparations and requirements in law. While the proposal is submitted, the promoter is supposed to be conscious of the consequences of getting the project registered under RERA. Having sufficient experience in the open market, the promoter is expected to have a fair assessment of the time required for completing the project. After completing all the formalities, the promoter submits an application for registration and prescribes a date of completion of project. It was submitted 5 (2017) SCC Online Bom 9302

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that interest be made payable from the date of registration of the project under RERA and not from the time-line consequent to execution of private agreement for sale entered between a promoter and a allottee. It was submitted that retrospective effect of law, having adverse effect on the contractual rights of the parties, is unwarranted, illegal and highly arbitrary in nature."

26. The second submission sought to be canvassed by Mr. Vakil, that the

liability of the Promoter as envisaged under Section 18 of the RERA 2016,

does not arise when the Promoter is unable to give possession of an

apartment due to his inability on account of actions of statutory authorities, is

required to be stated to be repelled. The relevant part of Section 18 reads as

under :

18. Return of amount and compensation (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building, -

(a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or

(b) due to discontinuation of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be

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prescribed in this behalf including compensation in the manner as provided under this Act :

Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the Promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed."

27. The proviso to sub-section (1) of Section 18 which fastens liability on

the Promoter to pay interest to the allottees, who do not wish to withdraw from

the project till the handing over of the possession governs both clauses (a)

and (b) of the main part of sub-section (1) of Section 18. Any other

interpretation would render the provisions of Section 18(1) a dead letter. The

right of the allottee to receive interest under Section 18 and Section 19(4) of

the RERA 2016, has been construed to be an absolute right.

28. A useful reference can be made to the decision of the Supreme Court

in the case of Newtech Promoters and Developers Pvt. Ltd. V/s. State of

Uttar Pradesh and Ors.6, which illuminates the path. The relevant part reads

as under :

"24. The unqualified right of the allottee to seek refund referred under Section 18(1)(a) and Section 19(4) of the Act is not dependent on any contingencies or stipulations thereof. It appears that the legislature has consciously provided this right of refund on demand as an unconditional absolute right to the allottee, if the promoter fails to give

6 (2021) 18 SCC 1

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possession of the apartment, plot or building within the time stipulated under the terms of the agreement regardless of unforeseen events or stay orders of the Court/Tribunal, which is in either way not attributable to the allottee/home buyer, the promoter is under an obligation to refund the amount on demand with interest at the rate prescribed by the State Government including compensation in the manner provided under the Act with the proviso that if the allottee does not wish to withdraw from the project, he shall be entitled for interest for the period of delay till handing over possession at the rate prescribed." (emphasis supplied)

29. The third submission assiduously canvassed by Mr. Vakil that, in any

event, the Appellate Tribunal could not have granted interest for the

moratorium period, which was justifiably excluded by the Authority in the

absence of a cross-appeal or cross-objection under Order XLI Rule 22 of the

Code, 1908, now deserves consideration. The Appellate Tribunal was of the

view that, to ensure the complete justice, it had requisite power to modify the

order passed by the Authority, notwithstanding the allottee not having

preferred an appeal against the order excluding interest for the 'moratorium

period'.

30. The aforesaid challenge deserves to be appreciated in the light of the

legislative change brought about by the Civil Procedure Code Amendment

(Act 104 of 1976). Under the said Amendment Act, Rule 22 of Order 41 of the

Code, suffered a significant amendment. The expression, "may not only

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support the decree but may also state that the finding against him in the Court

below in respect of any issue ought to have been in his favour; and may also

take any cross-objection to the decree" came to be substituted for the

expression, "may not only support the decree on any of the grounds decided

against him in the Court below, but take any cross-objection to the decree".

31. The portion which is emphasised above ( in italics) marks a significant

departure from the unamended provision, in two ways. Firstly, the scope of

filing of a cross-objection stood enlarged to include objections against,

"finding of the lower Court". Secondly, it permitted the Respondent to assail

the findings of the lower Court without filing a cross-objection, by employing

the phrase, "but may also state that the finding against him in the Court below

in respect of any issue ought to have been in his favour". The two parts of the

expression introduced by the amendment are required to be construed

disjunctively as they are separated by a semi colon.

32. In the case of Banarsi and Ors. (supra), on which reliance was placed

by Mr. Vakil, the Supreme Court considered the import of the 1976

Amendment and postulated the three situations which may arise where the

Respondent professes to assail the finding and decree of the Court of the first

instance. The observations of the Supreme Court in paragraphs 10 and 11 are

instructive and hence extracted below.

"10. CPC Amendment of 1976 has not materially or

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substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:

(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent;

(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent;

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the

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respondent to take any cross objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross objection to & finding recorded against him either while answering an issue or while dealing with an issue."

33. In the case of S. Nazeer Ahmed Vs State Bank of Mysore & Ors. 7,

the Supreme Court clarified the law in the following words:

"7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross- objections in terms of Order XLI Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order 2 Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross- objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived

7 AIR 2007 SC 989

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to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the Appellant not having filed a memorandum of cross-objections, was not entitled to canvass the correctness of the finding on the bar of Order 2 Rule 2 rendered by the trial court." (emphasis supplied)

34. Following the aforesaid pronouncements, in the case of Saurav Jain

and Anr. V/s. A.B.P. Design and Anr. 8, it was enunciated that only when a

part of the decree was assailed by the Respondent, should a memorandum of

cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an

adverse finding of Court of first instance before the Appellate Court without a

cross-objection.

35. Rule 33 of Order XLI of the Code from which support and sustenance

was drawn by the Appellate Tribunal provides that the appellate Court shall

have power to pass any decree and make any order which ought to have

been passed or made and to pass or make such further or other decree or

order as the case may require, and this power may be exercised by the Court

notwithstanding that the appeal is as to part only of the decree and may be

exercised in favour of all or any of the respondents or parties, although such

respondents or parties may not have filed any appeal or objection. Rule 33 of

8 (2022) 18 SCC 633

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Order XLI confers power on the Appellate Court in wide terms. Such powers

are vested in the Appellate Court with the object of equipping the Appellate

Court to pass such orders as are necessary to do complete justice between

the parties. Rule 33 of Order XLI is, in a sense, an enabling provision, which

empowers the Appellate Court to pass such orders which ought to have been

passed by the trial Court.

36. In the case of Banarsi V/s. Ram Phal (supra), the Supreme Court

expounded the import of Rule 33 of Order 41, as under :

"15......While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the Appellate Court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the

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decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41." (emphasis supplied)

37. The Supreme Court has in terms enunciated that the overriding

consideration is achieving the ends of justice. Usually the power under Rule

33 is exercised when the portion of the decree appealed against or the portion

of the decree held liable to be set aside or interfered by the appellate court is

so inseparably connected with the portion not appealed against or left

untouched that for the reason of the latter portion being left untouched either

injustice would result or inconsistent decrees would follow.

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38. The aforesaid nature of the power of the Appellate Court under the

Code, especially the inter-play between Rules 22 and 33 of Order XLI of the

Code, deserves to be appreciated in the context of the nature of the

jurisdiction exercised by the Appellate Tribunal under RERA 2016. The

provisions of Section 53 of RERA 2016 spell out the powers of the Appellate

Tribunal. The relevant part of Section 53 reads as under :

53. Powers of Tribunal (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.

(2) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure. (3) The Appellate Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.

..........."

39. Sub-section (1) of Section 53 declares that the Appellate Tribunal shall

not be bound by the procedure prescribed in the Code, but shall be guided by

the principles of natural justice. Nor the Appellate Tribunal is constrained in

discharge of its adjudicatory functions by the rules of evidence contained in

the Indian Evidence Act, 1872. RERA 2016, thus, professes to unshakle the

Appellate Tribunal of the strict rules of procedure and evidence. Conferment

of such power on the Appellate Tribunal is to mitigate the rigours of the

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technical rules of procedure and evidence for achieving the object of RERA

2016, inter alia, for regulation and promotion of the real estate sector, ensure

the transparency and efficiency of the transactions in the real estate and

protect the interest of consumers in the real estate sector.

40. It could thus be inferred that, the technical and fashioned notions of

absolute necessity of a cross-objection may not apply with the strict rigour. If

the matter is open before the Appellate Tribunal and the Appellate Tribunal

follows the fundamental principles of judicial process and adheres to the rules

of natural justice and hears the parties on the aspect of the legality and

correctness of a part of the order passed by the Authority, and the eventual

order passed by the Appellate Tribunal otherwise satisfies the dictates of

command of justice, such order may not be suspectible to interference by the

High Court under the regime of Section 100 of the Code, 1908.

41. In the case at hand, the most significant factor is the failure on the part

of the Appellant to deliver possession, even after lapse of seven years of the

agreed date of possession. Incontrovertibly, the agreed date of possession

was much before the onset of Covid-19 Pandemic. In fact, a period of almost

15 months had elapsed before the Covid - 19 Pandemic struck. In such a

situation, the Authority could not have granted the benefit of the moratorium

on the payment of interest. In a sense, this dispensation of moratorium ought

not to have been extended by the Authority and the interest ought to have

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been granted throughout till the delivery of possession of the subject flat.

42. From this standpoint, the order passed by the Appellate Tribunal

appears to be in consonance with the overarching objective of achieving ends

of justice. Therefore, this Court does not find any fault with the approach

adopted by the Appellate Tribunal.

43. The conspectus of aforesaid consideration is that, no substantial

question of law arises for consideration. The Appeal, thus, deserves to be

dismissed.

44. Hence, the following order :

ORDER

(i) The Appeal stands dismissed.

(ii) Interim Application No.2337 of 2026 also stands disposed.

(ii) No costs.

( N.J.JAMADAR, J. )

Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 16/04/2026 18:03:19