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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.318 OF 2022

WITH

INTERIM APPLICATION NO.2259 OF 2022

IN

SECOND APPEAL NO.318 OF 2022

Kapstone Constructions Pvt. Ltd.

... Appellant

V/s.

Nitin K. Parab and Ors.

...Respondents

Mr. Karl Tamboly a/w. Mr. Abir Patel, a/w Protyusha Thanawala,

Advocate i/by. Wadia Ghandy & Co., for the Appellant.

Mr. Santosh Gavade, Advocate for the Respondent Nos.1 and 2.

CORAM : S. M. MODAK, J.

RESERVED ON : 29TH AUGUST 2022

PRONOUNCED ON : 11TH NOVEMBER 2022

JUDGMENT :-

1.

The only short question involved in this appeal is

“whether the first appellate court was right in allowing an application

for amendment moved by the complainants during pendency of the

appeal?” First appeal was preferred by the complainants thereby

challenging the order dated 18/12/2018 passed by Maharashtra Real

Estate Regulatory authority, Mumbai. The Authority dismissed the

complaint filed for grant of compensation.

2.

When an appeal was preferred, the complainants moved

an application seeking comprehensive amendment. The appellate

tribunal allowed it as per the order dated 21/12/2020. This order is

HEMANT

CHANDERSEN

SHIV

Digitally signed

by HEMANT

CHANDERSEN

SHIV

Date:

2022.11.14

17:35:17

+0530

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challenged by the Developer by way of this appeal.

3.

I have extensively heard learned Advocate Shri Karl

Tamboli for the appellant & learned adv. Shri Santosh Gavade for the

respondents. Also perused their written submission & judgments.

Scope of Second Appeal

4.

Any order passed by the appellate tribunal can be

challenged before this Court under the provisions of Section 58 of

RERA ACT. It can be filed on the grounds specified under the

provisions of Section 100 of C.P.C. Even though, the grounds of

appeal are borrowed, there is difference in between the provisions of

Section 58 of Real Estate Regulatory Authority (RERA) Act on one

hand & the provisions of Section 100 of CPC on the other hand. Under

Section 100 of CPC, only decree can be challenged whereas under

Section 58 of RERA Act, any decision/order passed by the appellate

tribunal can be challenged. Such decision/order can be passed during

pendency of an appeal or it can be passed at the end of the

proceeding (which has the effect of culminating the proceedings).

5.

In this case, the imugned order is passed at an interim

stage of the appeal and it has not culminated the proceedings. When

such is the nature of order which is challenged u/s 58 of 2006 Act

before this Court, the provisions of Section 100 of CPC need to be

considered on that background.

6.

At the same time, it is true that the provision of CPC are

not binding on the appellate tribunal and the rules of evidence

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contained in Indian Evidence Act are not applicable. The tribunal has

only to follow principles of natural justice. So also the tribunal can

regulate its own procedure (Section 53).

FACTS

7.

On this background, the facts of the case need to be

looked into. The original authority dismissed the complaint for

comensation on follwing background :-(Page 34)

a)

Complainant purchased an apartment in wing ‘F’

, project

“Rustomjee Azziano” at Thane as per registered

agreement for

sale dated 11/04/2017.

b)

Complainant taken possession in March 2018.

c)

There is allegation that the developer has changed the

layout of wing ‘K’ & constructed two additional flats in open

space.

d)

Layout was amended without consent of complainants.

e)

Hence compensation is claimed.

Developer’s case

a)

Possession of the apartment with common area in terms

of sanctioned plan annexed to the agreement was handed over.

b)

At that time, complainant has handed over consent letter

dated 23/03/2018- mentioning of inspection of the apartment

& amenities & about their satisfaction.

c)

Alleged violations in wing ‘K’ is different from MAHA

RERA registered project & compla