SA-258-26.DOC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 258 OF 2026

Rare Townships Pvt. Ltd.

CTS 194-B, Ghatkopar – Mankhurd Road,

Opp. Chedda Nagar, Chembur (East),

Mumbai – 400089, Maharashtra ...Appellant

Versus

1. Archana Y A Upadhyay & anr.

Age : - Adult,

2. Dr. A K Upadhyay,

Age:- Adult,

Both having residential address

at Flat No. A-802, Sabari

Aashiana, Near Anushaktinagar,

Deonar Farm Road, Deonar,

Mumbai – 400088, Maharashtra.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

…Respondents

_ _ _ _ _ _ _ _ _

WITH

INTERIM APPLICATION NO. 3953 OF 2026

IN

SECOND APPEAL NO. 258 OF 2026

Mr. Mayur Khandeparkar, a/w Mr. Rubin Vakil, Ms. Ayushi

Anandpara, Mr. Shubham Hundia, i/b Satyaki Law

Associates, for the Appellant.

Ms. Archana Upadhyay & Mr. A K Upadhyay – Respondents.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

CORAM :N. J. JAMADAR, J.

RESERVED ON : 28

th

SEPTEMBER 2026

PRONOUNCED ON : 13

th

OCTOBER 2026

SAINATH, PA 1/23 2026:BHC-AS:41705

SA-258-26.DOC

JUDGMENT:

1.This Appeal is directed against an order dated 26

th

November, 2025 passed by the Maharashtra Real Estate

Appellate Tribunal, Mumbai (“Appellate Tribunal”) in

Miscellaneous Application No. 860/2025 in Appeal No.

AT06/00747/2025 preferred by the Respondents/allottees,

and an order dated 16

th

April, 2026 in Review Application

No. 05/2026 whereby the first order was modified to

correct the amount paid by the allottees and the date of

the allotment letter.

2.The background facts leading to this Appeal can be

summarized as under :-

2.1The appellant is the promoter of the project “Rising

City”, Ghatkopar, Mumbai. On 15

th

January, 2011, the

appellant issued a Holding Receipt in respect of a Flat

bearing No. B-706 admeasuring 1200 sq.ft. plus one

parking space, for a total consideration of Rs.

1,35,72,000/- (Rupees One Crore Thirty Five Lakhs

Seventy Two Thousand only).

2.2Subsequently, on 30

th

September 2014, an allotment

letter was issued in favour of the allottees in respect of Flat

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No. 805 in building ‘A-1’ admeasuring 1103.01 sq. ft, (“the

subject flat”) for a consideration of Rs. 1,24,80,000/-

(Rupees One Crore Twenty Four Lakhs Eighty Thousand

only). The allottees claimed to have paid a sum of Rs.

58,47,609/- (Rupees Fifty Eight Lakhs Forty Seven

Thousand Six Hundred and Nine only) up to 07

th

November, 2016. Upon coming into force of the Real Estate

(Regulation and Development) Act, 2016 (“the RERA,

2016”), the project in question came to be registered with

the Maharashtra Real Estate Regulatory Authority (“the

Authority”) as “North Sea Heights (A-1)”.

2.3On 05

th

May, 2024, asserting that, the promoter

failed to execute a registered agreement for sale despite

having received a substantial consideration; complete the

project and deliver the possession of the subject flat, the

allottees filed a complaint before the Authority seeking

diverse reliefs including of interest for delayed possession

and compensation.

2.4By a judgment and order dated 02

nd

July, 2025, the

Authority was persuaded to partly allow the complaint. The

promoter was directed to execute a registered agreement for

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sale with respect to the subject flat in conformity with the

statutory obligation under Section 13 of the Act, 2016 as

per the terms and conditions incorporated in the allotment

letter dated 30

th

September, 2014, within a period of 30

days thereof.

2.5It was declared that, upon execution of the

agreement for sale, the allottees shall be liable to pay the

outstanding amount towards the consideration and also

interest for the delay in making the payments as per the

stage of construction as mandated under Section 19(7) of

the Act, 2016. Simultaneously, the promoter was directed

to pay interest for the delayed delivery of possession to the

allottees from 04

th

October, 2024 at the stipulated rate till

the date of offer of possession with an Occupation

Certificate (OC) on the actual amount paid by the allottees

towards consideration. Making a provision for adjustment

and set off, the Authority directed that the balance

amount, if any, payable by either party shall be paid at the

time of delivery of possession.

2.6The allottees preferred an appeal before the Appellate

Tribunal seeking inter alia directions to the promoter to

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execute a RERA compliant agreement in favour of both the

allottees, and incorporating therein the promised amenities

including specific parking slot, and clauses compliant with

the model agreement for sale, and to refrain from

demanding payments and issuing termination notices until

a RERA compliant agreement for sale was executed and

registered.

2.7In the said appeal, the allottees filed an application,

inter alia, seeking stay to the execution of the agreement

for sale until compliance with the orders was verified by

the Authority and to restrain the promoter from

demanding payments or issuing termination notices till the

decision of the appeal.

2.8By an order dated 26

th

November, 2025, the Appellate

Tribunal was persuaded to allow the said interim

application, with the following directions :-

“i) The promoter shall, in the light of

observations made here-in-above, share the draft

Agreement for Sale which is RERA compliant and in

terms of the allotment letter dated 30.11.2014 and

shall execute RERA complaint Agreement for Sale

within 60 days of this order.

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ii) The applicants have paid Rs. 58,47,609/-

towards the consideration of the said flat to the

promoter which shall be recorded in the draft

Agreement for Sale.

iii)The consideration amount of Rs.

1,24,80,000/- will be in accordance with the said

allotment letter dated 30.11.2014.

iv) The draft Agreement for Sale shall also

specify the due date of possession as per the said

allotment letter and if not specified in the said

allotment letter, shall not be more than three years

from the date of the said allotment letter. Further,

Agreement for Sale shall specify the payment

schedules to be paid by the applicants in the

Agreement for Sale to be executed and registered and

also specify the car parking space as per the said

allotment letter.

v) The promoter shall not further make demand

of any amounts from the applicants till the RERA

compliant Agreement for Sale is executed and

registered.

vi) There would be no question of any interest

on account of delayed payments would arise for any

prior period of Agreement for Sale to be executed and

registered and the payments would be strictly made

by the applicants as per the payment schedule as

incorporated in Agreement for Sale to be executed

and registered by the parties.

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vii)Further, the promoter shall provide to the

applicants the deviation report with respect to the

model Agreement for Sale as made available by the

MahaRERA before execution of the said Agreement

for Sale.

viii)The promoter shall not issue any termination

notice on the grounds of non-payment of

outstanding amounts, unless the Agreement for Sale

is executed and registered.

ix) The applicants have granted liberty to file

appropirate Misc. Application for bring on record

additional documents without prejudice to the rights

of the non-applicant to respond to such an

application to be filed by the applicants within 2

weeks of this order.”

2.9In the Review Application filed by the promoter, after

noticing that, upon reconciliation of the accounts, the

parties were ad idem that, the allottees had paid a sum of

Rs. 38,47,247/- (Rupees Thirty Eight Lakhs Forty Seven

Thousand Two Hundred and Forty Seven only) and the

correct date of allotment letter was 30

th

November, 2014,

the Appellate Tribunal corrected the figure in clause (ii)

(extracted above) to Rs. 38,47,247/- from Rs. 58,47,690/-,

and the date of the allotment letter from 30

th

November,

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2024 to 30

th

November, 2014. The rest of the prayers of the

promoter in the Review Application were not acceded to.

3.Being aggrieved, the promoter has preferred this

Appeal.

4.I have heard Mr. Mayur Khandeparkar and Mr. Rubin

Vakil, the learned Counsel for the appellant/promoter, and

the Respondents – allottees in person. With the assistance

of the learned Counsel and the parties-in-person, I have

perused the material on record.

5.Mr. Khandeparkar would urge that, the order dated

26

th

November, 2025 passed by the Appellate Tribunal at

an interim stage almost forecloses the determination of the

appeal. At an interim stage, the Appellate Tribunal could

not have issued mandatory directions, that too without

recording reasons, was the thrust of the submission of Mr.

Khandeparkar. Criticizing the directions under clause (iv)

of the impugned order, (extracted above), Mr.

Khandeparkar would urge that, the date on which the

possession of the subject flat was agreed to be delivered

was a matter of contest and yet to be adjudicated by the

Appellate Tribunal. Thus, the direction therein that the

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agreement for sale should also specify the due date of

possession as per the allotment letter dated 30

th

November,

2014 and, if not specified therein, the date of possession

should not be more than 3 years from the date of the said

allotment letter, renders the adjudication in the appeal

redundant.

6.Likewise, the direction in clause (vi) of the impugned

order restraining the promoter from claiming interest on

account of delayed payment in accordance with the terms

of the contract between the parties for the period prior to

the execution of the agreement for sale has the trappings

of finally deciding the appeal. Therefore, Mr. Khandeparkar

would urge, at the least, two substantial questions of law

arise. First, whether the Appellate Tribunal committed a

manifest error in passing the interlocutory operative

directions as contained in clause (iv) of the order dated 26

th

November, 2025 sans reasons ? And second, whether the

Appellate Tribunal committed manifest error in specifying

the date of delivery of possession to be incorporated in the

agreement for sale without recording reasons in support

thereof, especially in the context of the operative directions

at Paragraph No. 14(f) of the order passed by the Authority.

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7.The allottees in person have stoutly countered the

submissions on behalf of the appellant. Highlighting the

nature of the dispute and the defaults on the part of the

promoter to deliver the possession of the subject flat

though a period of more than 15 years has elapsed, the

allottees have asserted that no substantial question of law

arises for consideration. The allottees laid emphasis on the

purported blameworthy conduct of the promoter. It was

urged that, since the promoter did not prefer an appeal

against the order passed by the Authority, the said order

has attained finality qua the promoter and the impugned

order passed by the Appellate Tribunal has merely

operationalised and given meaning and content to the

order passed by the Authority.

8.To start with the uncontroverted facts. First, the jural

relationship between the appellant and the respondents as

promoter – allottees is not in dispute. There is also not

much controversy over the fact that initially a Holding

Receipt dated 15

th

January, 2011 in respect of Flat No. B-

706/East Block for a consideration of Rs. 1,35,72,000/-

(Rupees One Crore Thirty Five Lakhs Seventy Two

Thousand only) was issued and, subsequently, the parties

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agreed to a change in flat and consideration therefor. The

consequent issuance of a provisional letter of allotment

dated 30

th

November, 2014 in favour of allottees in respect

of the subject flat for a consideration of Rs. 1,24,80,000/-

(Rupees One Crore Twenty Four Lakhs Eighty Thousand

only), is incontestable. The parties are also not at issue

over the registration of the project under the name and

style “North Sea Heights (A-1)” after the coming into force

of the RERA, 2016.

9.By and large, there is not much controversy over the

fact that the allottees have paid a sum of Rs. 38,47,247/-

towards consideration, by the year 2016. As a matter of

fact, the agreement for sale has not been executed by the

promoter in favour of the allottees. The controversy

between the parties revolves around the defaults in the

execution of the agreement for sale, the payment of

balance consideration, the terms of the agreement for sale

and the delay in the completion of the project and the

resultant liability of the parties.

10.The imperativeness of the execution of a registered

agreement for sale cannot be overemphasized. It is the

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mischief of accepting substantial amounts from the flat

purchasers without executing the Agreements for Sale that

was sought to be addressed by legislative measures. The

provisions contained in Section 4 of the Maharashtra

Ownership Flats (Regulation of the Promotion of

Construction, Sale, Management and Transfer) Act, 1963,

(“MOFA, 1963”), proscribed acceptance of any sum of

money as advance payment or deposit exceeding 20% of

the sale price without entering into a written agreement for

sale and mandated that such agreements shall be

registered under the Registration Act, 1908. To address

the further mischief of exploiting the vulnerabilities and

lack of bargaining power of flat purchasers, the law

mandated that the Agreements for Sale should be executed

in the prescribed form, incorporating essential terms of the

bargain, so as to protect the interest of the flat purchasers.

MOFA 1963, thus directed that such agreement shall be in

the prescribed form.

11.RERA, 2016, has made it obligatory on the promoter

to execute a registered agreement for sale, before the

promoter accepts a sum of more than 10% of the cost of

the apartment. Sub-section (1) of Section 13 mandates

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that the promoter shall not accept a sum of more than 10%

of the cost of the apartment, plot or building, as an

advance payment or an application fee from a person

without first entering into a registered written agreement

for sale. Sub-section (2) of Section 13 provides that the

agreement for sale shall be in such form as may be

prescribed, and enumerates the particulars that are

required to be mandatorily specified therein, apart from

such other particulars, as may be prescribed.

12.The mandatory specifications include, inter alia, the

particulars of the development of the project including the

construction of the building and apartments, alongwith

specifications and internal development works and

external development works, the dates and manner by

which the payment towards the cost of the apartment, plot

or building, as the case may be, is to be made by the

allottee, and the date on which possession of the

apartment is to be handed over, and the rates of interest

payable by the promoter to the allottee and the allottee to

the promoter in case of default.

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13.In the light of the aforementioned statutory mandate,

which has been incorporated to ensure that the sale of the

apartment takes place in a transparent manner and to

protect the interest of consumers in the real estate sector,

the legality and justifiability of the impugned order

deserves to be appreciated.

14.As noted above, the promoter has accepted a sum of

Rs. 38,47,247/- without executing an agreement for sale.

The said amount constitutes more than 30% of the agreed

consideration. Under the legal regime governing the field,

even before the enforcement of RERA 2016, also, the

promoter could not have accepted the said amount without

executing a registered agreement for sale. Thus, the

direction issued by the Authority to execute the registered

agreement for sale in favour of the allottees, in conformity

with the provisions contained in Section 13 of RERA 2016

is legally impeccable.

15.The fulcrum of the challenge was the specification of

the date of delivery of possession in the agreement for sale

to be executed by the promoter in favour of the allottees.

The Authority did not, in terms, indicate the date of

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delivery of possession to be incorporated in the agreement

for sale in Clause 14(c), which directed the execution of a

registered agreement for sale. The substance of the

submission on behalf of the promoter was that the

direction in Clause (iv) of the impugned order to specify the

due date of possession as per the allotment letter and, in

the absence of such specification in the allotment letter,

the date of possession shall not be more than three years

from the date of the allotment letter was sans

consideration and reasons, and that could not have been

done at an interlocutory stage.

16.To appreciate the aforesaid submission in the

backdrop of the facts that prima facie emerge from the

record, (being fully conscious of the fact that the appeal

preferred by the allottees awaits final adjudication by the

Appellate Tribunal), recourse to the stipulations in the

allotment letter becomes necessary. Clause (10) of the

allotment letter dated 30

th

September, 2014 reads as under:

“10.We have informed you that the said building will

be completed within a period of 42-months from the date

of start of construction and or of obtaining of the

commencement certificate in respect whereof, subject

however, to force majeure and circumstances beyond our

control.”

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17.The aforesaid stipulation makes it crystal clear that

the promoter had agreed to complete the construction of

the building within a period of 42 months from the grant of

the commencement certificate. The allotment letter thus

indicated the time frame within which the building was to

be constructed and possession of the subject flat was to be

delivered to the allottees.

18.This Court finds that in paragraph 13(i), (j), (k) and

(l), the Authority construed the terms of the allotment

letter to arrive at a finding regarding the date of delivery of

possession of the subject flat by the promoter to the

allottees. Taking note of the grant of the commencement

certificate on 1

st

October, 2016 and the revision thereof, the

Authority recorded that the expected date of delivery of

possession would have been 4

th

April, 2023. The Authority

further professed to grant the benefit of the provisions

contained in Section 8(b) of MOFA 1963, and the extension

granted by the Authority in the wake of the COVID-19

pandemic and held that the date of delivery of possession

of the subject flat stood extended upto 4

th

October, 2024.

The allottees were thus held entitled to seek interest on

account of delay in the delivery of possession, as

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prescribed under Section 18 of the RERA 2016, from 4

th

October, 2024 till the date of offer of possession of the

subject flat with Occupation Certificate (OC).

19.Undoubtedly the aforesaid determination by the

Authority is under challenge before the Appellate Tribunal.

Yet, it is imperative to note that, the aforesaid order passed

by the Authority was not challenged by the promoter. Nor

does it appear that the promoter preferred any cross-

objection in the appeal preferred by the allottees.

20.In the light of the above, the broad features of the

case deserve to be noted. First, the termination of the

allotment by the promoter has been explicitly declared by

the Authority to be neither proper nor legal as it was in

contravention of Section 13 of RERA 2016. Second, the

statutory liability to execute the registered agreement for

sale can hardly be disputed. Third, in the order passed by

the Authority, which is impugned before the Appellate

Tribunal, the date of delivery of possession has been

arrived at by the Authority, though in the operative order,

the Authority has not specified the said date. Fourth, the

promoter has not challenged the order passed by the

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Authority, including the direction in paragraph 14(f) of the

order passed by the Authority to pay interest for the

delayed possession from 4

th

October, 2024.

21.If considered, in the backdrop of the aforesaid

features, the directions in the impugned order appear to be

in consonance with the object of RERA 2016, and the

provisions thereunder, save and except the stipulation as

to the date to be specified in the agreement for sale for the

delivery of possession of the subject flat. In the considered

view of this Court, the date of delivery of possession is a

matter which warrants adjudication at the final hearing of

the Appeal, especially in view of the categorical finding of

the Authority that the date of possession stood extended

upto 4

th

October 2024.

22.It would be contextually relevant to note that, the

respondents-allottees have filed an affidavit regarding the

date of delivery of possession of the subject flat to be

determined by the Appellate Tribunal at the time of final

adjudication of the appeal. In the affidavit filed on behalf of

the allottees on 19

th

August, 2026 the allottees have

affirmed that, without prejudice to the rights and

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contentions of the allottees, the Appellate Tribunal may fix

the date of delivery of possession of the subject flat.

Paragraphs 10 and 11 of the said affidavit read as under:

“10.As suggested during the deliberations

before this Hon’ble Court, we have no objection if

the Hon’ble Maharashtra Real Estate Appellate

Tribunal (MahaREAT) considers fixing a definite

date of possession in place of the present

direction contained in Clause (iv) of the operative

portion at page 14 of the order dated 26

th

November 2025, which reads as under :

“iv) The draft agreement for sale shall also specify

the due date of possession as per the said

allotment letter and if not specified in the said

allotment letter, shall not be more than three

years from the date of the said allotment letter.”

11.It is humbly submitted that our no

objection recorded above is, however, subject to

the following so as to fully safeguard our interests

and to ensure that all facets of the pending appeal

before the Hon’ble MahaREAT continue without

any prejudice :

(a)Any definite date of possession that may be

fixed by the Hon’ble MahaREAT shall be without

prejudice to all our rights, contentions, claims

and remedies in the pending Appeal

No.AT06/00747 of 2025 and connected

proceedings before the Hon’ble MahaREAT.

(b)The pending appeal before the Hon’ble

MahaREAT shall continue on all issues,

including but not limited to the correct date of

booking (January 2011), quantum of payments

made, deviations from the model Agreement for

Sale, interest and compensation under Section 18

of the Real Estate (Regulation and Development)

Act, 2016, parking, amenities, and all other

grounds raised by us;

(c)Fixation of any definite possession date

shall not amount to waiver, abandonment,

curtailment or prejudice of any our rights or

contentions, nor shall it limit or affect the scope of

the Appeal pending before the Hon’ble MahaREAT

in any manner;

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(d)All other directions contained in the order

dated 26

th

November 2025 (as modified /

corrected by the Review Order dated 16

th

April

2026) shall continue to operate with full force and

effect; and

(e)The present statement of no

objection is made purely in furtherance

speedy delivery of justice and is without

prejudice to all our rights and contentions

in the present Second Appeal as well as in

the proceedings pending before the

Hon’ble MahaREAT.”

23.In view of the aforesaid statement made on behalf of

the allottees that, the question of date of delivery of

possession be kept open to be adjudicated by the Appellate

Tribunal, it would be appropriate to modify the direction in

regard to the date of delivery of possession, to be

incorporated in the agreement and specify that the date

stipulated by the Authority in the order impugned before

the Tribunal, i.e., 4

th

October, 2024, shall be incorporated

in the agreement for sale as a tentative date, subject to the

final adjudication by the Appellate Tribunal. In the event

the Appellate Tribunal alters the date of delivery of

possession determined by the Authority, the parties rights

and liabilities will be governed by the determination so

made by the Appellate Tribunal, and the parties will have

to execute an appropriate deed of rectification.

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24.At this juncture, this Court need not delve into the

other disputes between the parties, including the terms of

the agreement for sale. Suffice to clarify that the agreement

for sale to be executed by the promoter in favour of the

allottees, shall be in conformity with the provisions

contained in Section 13 of RERA, 2016, and the model

form of the agreement for sale prescribed by the Authority.

And all questions shall remain open for adjudication by the

Appellate Tribunal.

25.Hence, the following order:

: O R D E R :

(I)The second appeal stands disposed with the following

directions:

(a)The date of delivery of possession to be incorporated

in the agreement for sale to be executed by the

appellant in favour of the respondents shall be 4

th

October, 2024.

(b) The aforesaid date shall be tentative and without

prejudice to the rights and contentions of the parties,

and subject to the final adjudication by the Appellate

Tribunal in the appeal preferred by the allottees.

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(c)In the event the Appellate Tribunal alters the

aforesaid date, the rights and liabilities of the parties

shall be governed by such date of delivery of

possession to be determined by the Appellate

Tribunal and, in that event, the parties shall execute

the requisite deed of rectification.

(d) The agreement for sale to be executed by the

Appellant in favour of the respondents shall be in

conformity with the provisions of Section 13 of RERA

2016, and the model form of agreement (Annexure ‘A’)

prescribed under Rule 10(1) of the Maharashtra Real

Estate (Regulation and Development) (Registration of

Real Estate Projects, Registration of Real Estate

Agents, Rates of Interest and Disclosure on website)

Rules, 2017.

(e) Such agreement for sale shall be executed and

registered within a period of four weeks from today.

(f)All contentions of the parties on all the points are

expressly kept open and shall be adjudicated by the

Appellate Tribunal at the time of final adjudication of

the appeal.

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(II)In view of disposal of the appeal, IA/3953/2026 also

stands disposed.

[N. J. JAMADAR, J.]

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