The High Court erred by commenting on the merits of orders while only addressing the delay condonation issue, necessitating restoration of appeals for merit consideration.

JUDGMENT

MANOJ MISRA, J.

1. Leave granted.

2. These two appeals assail a common judgment and order of the High Court of Judicature at Bombay [The High Court] dated 23.08.2023, inter alia, passed in Second Appeal Nos.475 and 188 of 2023. As these appeals assail a common order, they have been heard together and are being decided by a common order.

3. Special Leave Petition (Civil) No. 25540 of 2023 arises from Complaint No. CC006000000056663 whereas Special Leave Petition (Civil) No. 24959 of 2023 arises from Complaint No.006000000056656; both complaints were filed before the Maharastra Real Estate Regulatory Authority, Mumbai [RERA Mumbai] for possession of flat in a building complex known as “Lodha Venezia” & “Lodha Azzuro”. The appellants herein separately filed the aforesaid complaints claiming themselves to be allottees in a building project registered with RERA. The complainants, inter-alia, impleaded Esque Finmark Pvt. Ltd (Respondent No.1 herein) (for short R-1) and Macrotech Developers Ltd. (erstwhile “Lodha Developers Ltd.”) (Respondent no.2 herein) (for short R-2) as opposite parties to the complaint. During the course of the proceedings before RERA, Mumbai, on the objection raised by R2 that there is no privity of contract between the complainant and R2, RERA, Mumbai, vide order dated 23.07.2019, discharged R2 from the proceedings. Thereafter, the two complaints, including other similar complaints, were dismissed by RERA, Mumbai by a common order dated 16.10.2019.

4. Aggrieved by dismissal of their complaints, the appellants herein separately filed appeals before the Maharashtra Real Estate Appellate Tribunal, Mumbai [Appellate Tribunal, Mumbai] questioning the final order dated 16.10.2019 as well as the order dated 23.07.2019. Importantly, these appeals were filed on 10.12.2019 i.e., within 60 days of the final order dated 16.10.2019. However, since these appeals also questioned the order dated 23.07.2019, a formal application seeking condonation of the delay was also presented, though later.

5. The Appellate Tribunal, Mumbai vide order dated 1.12.2022 dismissed the appeals as barred by limitation while observing that since the order dated 23.07.2019 was passed in the presence of the parties (which includes their counsel), there was no sufficient cause to condone the delay in filing the appeal.

6. Aggrieved by dismissal of those appeals, the appellants along with other aggrieved parties separately preferred second appeals before the High Court.

7. By the impugned common order, the High Court dismissed the appeals while observing as under:

“In the normal circumstances, I would have condoned the delay. However, it appears that the order dated 23 July 2019 was passed with consent. According to the learned counsel for the appellant(s), the Advocate was not authorized to give such consent. However, admittedly, no application was thereafter made seeking recall of the said order. On the contrary, it appears from the final order dated 16 October 2019, that the same submissions were made at the time of final hearing of the complaint(s). The learned counsel for the appellant(s) submit that the merits of the order dated 23 July 2019 cannot be examined at this stage. However, considering the overall facts and circumstances of the case, I am not inclined to interfere with the impugned order(s). The Second Appeals are dismissed.”

8. We have heard Mr. Vinay Navare for the appellants and Mr. S. Niranjan Reddy for the respondents. Although multiple submissions were raised from both sides touching upon the merits of the case, we do not deem it necessary to refer to them as the present appeals can be allowed on a short ground, which is, that the order impugned before the High Court was of refusal to condone the delay in preferring the appeals before the Appellate Tribunal, Mumbai. Once the High Court opined that in normal circumstances the delay ought to have been condoned, it ought not to have commented upon the merits of the orders dated 23