Orbit Enterprises vs Vazirani Realty Private Limited

CNR No : HCBM010234492026

2026:BHC-AS:42194
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 333 OF 2026
WITH
INTERIM APPLICATION NO. 5578 OF 2026

Orbit Enterprises,
A partnership firm,
having office at Dheeraj Plaza,
th
4 Floor, Hill Road, Bandra (W),
Mumbai – 400 050, through its partnership
Rajen Dhruv and Sarkar Heritage,
Bandstand, Bandra (West),
Mumbai – 400 250. ..Appellant
Versus
Vazirani Realty Private Limited
A company registered Under the
Companies Act, 1956 having office at
Transasia House, B, Chandivali Studio
Road, Andheri (East),
…Respondent
Mumbai – 400 072.
WITH
SECOND APPEAL NO. 334 OF 2026
WITH
INTERIM APPLICATION NO. 5575 OF 2026
Orbit Enterprises,
A partnership firm,
having office at Dheeraj Plaza,
th
4 Floor, Hill Road, Bandra (W),
Mumbai – 400 050, through its partnership
Rajen Dhruv and Sarkar Heritage,
Bandstand, Bandra (West),
Mumbai – 400 250. ..Appellant
Versus
Vazirani Realty Private Limited
A company registered Under the
Companies Act, 1956 having office at
Transasia House, B, Chandivali Studio
Road, Andheri (East),
…Respondent
Mumbai – 400 072.
SANTOSH
SUBHASH
KULKARNI
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2026.10.16
09:18:32 +0530
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WITH
SECOND APPEAL NO. 335 OF 2026
WITH
INTERIM APPLICATION NO. 5564 OF 2026
Orbit Enterprises,
A partnership firm,
having office at Dheeraj Plaza,
th
4 Floor, Hill Road, Bandra (W),
Mumbai – 400 050, through its partnership
Rajen Dhruv and Sarkar Heritage,
Bandstand, Bandra (West),
Mumbai – 400 250. ..Appellant
Versus
Vazirani Realty Private Limited
A company registered Under the
Companies Act, 1956 having office at
Transasia House, B, Chandivali Studio
Road, Andheri (East),
Mumbai – 400 072.
…Respondent
Mr. Aspi Chinoy, Senior Advocate, with Vibhav Krishna, for the
Appellant/Applicant in all Appeals/Applications.
Mr. Manish Gala, with Nilesh Gala and Ashok Suthar, for the
Respondent in all Appeals/Applications.
CORAM: N. J. JAMADAR, J.
rd
RESERVED ON : 23 SEPTEMBER 2026
th
PRONOUNCED ON : 14 OCTOBER 2026
JUDGMENT:
1. These Second Appeals are directed against a common
th
judgment and order dated 26 March 2026 passed by the
Maharashtra Real Estate Appellate Tribunal, Mumbai (“the
Appellate Tribunal”) in Appeal Nos. AT006000000133969 of
2022, AT006000000133972 of 2022 and AT006000000133973 of
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2022, whereby the Appeals preferred by the Respondent-allottee
rd
against a common order dated 23 May 2022 passed by the
Maharashtra Real Estate Regulatory Authority (“the Authority”)
in the complaints filed by the allottee, came to be partly allowed
and the Appellant-promoter was directed to pay interest on the
amounts paid by the allottee towards consideration at the
specified rate from the respective dates of delivery of possession
th
of the apartments till 24 September 2021.
2. The background facts leading to these Appeals can be
stated in brief as under:
2.1 The Appellant is the promoter of the project: “Indian
Newspapers Society” (hereinafter referred to as the promoter).
The Respondent had booked nine units in the said project on
th
the 9 floor being unit Nos. 901, 902 and 905 to 911. The
Appellant had executed agreements for sale in respect of unit
Nos. 907 and 908 and agreed to deliver the possession thereof
st
on 31 May 2015 (subject matter of Complaint No.
CC006000000057464 -Appeal No. 133973 of 2022). Allotment
letters were issued in respect of unit Nos. 909, 910 and 911 and
st
the agreed date of delivery of possession of those units was 31
May 2015 (subject matter of Complaint No.
CC006000000057197 and Appeal No. 133972 of 2022 ). The
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Allotment letters were also issued in respect of unit Nos. 901,
902, 905 and 906 and the possession thereof was to be
th
delivered on 30 June 2017 (subject matter of Complaint No.
CC006000000056953 and Appeal No. 133969 of 2022).
2.2 Asserting that the promoter had failed to execute and
register agreements for sale in respect of the units, for which
only allotment letters were issued, and failed to deliver the
possession of the units as agreed, the Respondent-allottee filed
the above-numbered complaints with the Authority, seeking
execution of registered agreements for sale, delivery of
possession and interest for delay in delivery of possession.
2.3 Pursuant to an interim order passed by the Authority on
th
16 December 2019, the promoter executed agreements for sale
th
dated 8 July 2020 in respect of unit Nos. 901, 902, 905, 906,
909, 910 and 911. However, as the promoter failed and neglected
to deliver possession of the subject units, the allottee filed a Writ
Petition being Writ Petition No. 5542 of 2021 in this Court.
th
Pursuant to an order dated 24 September 2021 passed by a
Division Bench of this Court, the promoter delivered the keys of
th
the subject units to the allottee on 24 September 2021. The
complaints were thus prosecuted for the Award of interest for
delay in delivery of possession of the subject units.
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2.4 After recording that the promoter had obtained the
th
Occupation Certificate (“O.C.”) on 12 February 2021 and failed
and neglected to deliver the possession of the subject units in
accordance with the terms of the contracts, the Authority
directed the promoter to pay interest for the delayed delivery of
possession in respect of unit Nos. 907, 908, 909, 910 and 911
st th
from 1 May 2017 to 12 February 2021; the day on which the
O.C. was obtained, and in respect of unit Nos. 901, 902, 905
st th
and 906 from 1 July 2007 till 12 February 2021. The
Authority was also persuaded to grant the benefit of the
moratorium to the promoter in terms of the Notifications/Order
nd th
Nos. 13 and 14 dated 2 April 2020 and 18 May 2020 issued
by the MahaRERA, in the wake of the Covid-19 pandemic.
2.5 Being aggrieved, the allottee preferred the appeals before
the Appellate Tribunal, seeking inter alia, modification of the
impugned order in regard to the period for which the interest
was awarded by the Authority, and a direction to the promoter
to pay interest for the delayed delivery of possession in respect
st
of unit Nos. 907 and 908 from 1 June 2015, in respect of unit
st
Nos. 909, 910 and 911 from 1 June 2015 and in respect of unit
st
Nos. 901, 902, 905 and 906 from 1 July 2017, till the date of
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actual delivery of possession of those units, i.e., 24 September
2021.
2.6 The promoter resisted the Appeals on the grounds, inter
alia, that the promoter had offered possession of the subject
th
units to the allottee as soon as the O.C. was obtained on 12
February 2021 and the allottee had failed to take possession of
the subject units and, therefore, the Authority was justified in
awarding interest only up to the date of the O.C .
2.7 The Appellate Tribunal, after noting uncontroverted facts,
found that there was no justification for the delay in delivery of
possession. The fact that the allottee had made full/substantial
payment and other charges qua the respective units was
indisputable. No fault could be attributed to the allottee. Thus,
in accordance with the mandate contained in Section 18 of the
Real Estate (Regulation and Development) Act, 2016 (“RERA
2016”), the allottee was entitled to interest.
2.8 The Appellate Tribunal was persuaded to modify the order
passed by the Authority on two counts. First, the Authority had
no jurisdiction to change the agreed date of delivery of
possession; from which interest for delayed delivery of
possession on the amounts parted with by the allottee became
due and payable. Second, the Authority committed an error in
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extending the benefit of the moratorium period as the dates of
the delivery of possession of the respective units were much
prior to the onset of the Covid-19 pandemic. Therefore, the
Appellate Tribunal modified the order passed by the Authority to
direct the payment of interest at the specified rate from the
agreed date of delivery of possession of the respective units till
th
the actual delivery of possession, i.e., 24 September 2021.
2.9 Being aggrieved, the promoter is in Appeal.
3. I have heard Mr. Aspi Chinoy, the learned Senior Advocate
for the Appellant-promoter, and Mr. Manish Gala, the learned
Counsel for the Respondent. With the assistance of the learned
Counsel for the parties, I have perused the material on record.
4. Mr. Chinoy, the learned Senior Advocate, mounted a two-
fold challenge to the impugned order. First, the Appellate
Tribunal committed a gross error in law in determining the
liability to pay interest. It was urged with tenacity that, under a
fortnight of the issue of the O.C., the promoter had called upon
the allottee to take possession of the subject units vide
th
communication dated 25 February 2021. Yet the allottee failed
to take possession of the subject units. Attention of the Court
th
was invited to a copy of the communication dated 25 February
2021 purportedly addressed by the promoter to the allottee,
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whereunder the allottee was requested to make the payment of
final dues within a period of 15 days and complete all legal
formalities including execution and registration of agreement for
sale and, thereupon, the allottee would be intimated about the
date of handover of keys and occupation of the subject units. In
the face of the said communication, Mr. Chinoy urged, the
Appellate Tribunal was clearly in error in holding that there was
nothing to show that the promoter had offered possession of the
subject units.
5. Secondly, Mr. Chinoy would urge, the Appellate Tribunal
committed a manifest error in law in interfering with the order
of the Authority extending the benefit of moratorium period
though there was no challenge to the said order by the
Appellant. The said point was never urged by the allottee before
the Appellate Tribunal. Yet, the Appellate Tribunal, modified the
said order on its own. Such a course was legally impermissible.
Therefore, the substantial questions of law on the aspect as to
whether the Appellate Tribunal could have awarded interest for
th
the period beyond 25 February 2021, despite the offer of
possession, and tinkered with the benefit of the moratorium
period without such a ground having been raised in the appeals
and urged before the Appellate Tribunal, arise for consideration.
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6. Mr. Gala, the learned Counsel for the respondent –
allottee submitted that none of the aforesaid grounds urged on
behalf of the appellant merits consideration. Mr. Gala laid
emphasis on the fact that the Appellate Tribunal has recorded
in no uncertain terms that, despite a specific query by the
Appellate Tribunal, the promoter could not demonstrate that it
had addressed any communication to evidence the fact that the
promoter had offered possession after obtaining the Occupation
th
Certificate. The letter dated 25 February, 2021, now sought to
be pressed into service on behalf of the promoter, was never
addressed to the allottee. Even otherwise, the allottee had
purchased almost all the units on the ninth floor. The letter
th
dated 25 February, 2021, even if taken at par, indicates that it
was in respect of unit Nos. 905, 906, 909, 910 and 911. The said
letter thus runs counter to the claim of the promoter that it had
offered possession of all the units as soon as the Occupation
Certificate was obtained. Moreover, Mr. Gala would urge, in an
appeal under the regime of Section 100 of the Code of Civil
Procedure, 1908 (“the Code”), the factual aspect as to whether
such letter was addressed, especially in the face of the
observations of the Appellate Tribunal, cannot be examined. Mr.
Galla stoutly submitted that it was the failure and refusal on
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the part of the promoter to deliver the possession of the subject
units, despite having received the entire consideration, forced
the allottee to approach this Court by filing WP/5542/2021.
Therefore, the submission that the Appellate Tribunal could not
have granted interest up to the date of actual delivery of
possession is neither well-founded in facts nor well-grounded in
law.
7. Mr. Gala further submitted that, the Appellate Tribunal
was fully justified in disallowing the benefit of the moratorium
period in the wake of the COVID-19 pandemic, wrongly
extended by the Authority as the possession of the respective
units, in accordance with the terms of the contract, was to be
delivered years before the onset of the COVID-19 pandemic.
Thus, the appeals deserve to be dismissed, submitted Mr. Gala.
8. At the threshold, it is necessary to note that there is not
much controversy over the fact that the allottee had parted with
rd
almost the entire consideration in respect of all the units by 3
July, 2018. A copy of the account of Orbit Enterprises (page
643) indicates that the allottee had paid a consideration of
₹
78,25,61,184/-. At any rate, it cannot be disputed that the
allottee had parted with substantial consideration even in
respect of the units for which full payment was not made.
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Secondly, the Appellate Tribunal, on the basis of the
stipulations in the Agreement for Sale, has arrived at a finding
of fact that the possession of unit Nos. 907 to 911 was agreed to
st
be delivered by 31 May, 2015, and the possession of unit Nos.
th
901, 902, 905 and 906 was agreed to be delivered by 30 June,
2017. Thirdly and incontrovertibly, the Occupation Certificate
th
was obtained on 12 February, 2021. Fourthly, the possession
th
of the subject units was delivered to the allottee on 24
September, 2021, pursuant to the order in WP/5542/2021. It
needs no emphasis that the possession of the subject units
could not be delivered to the allottee on or before the date of
delivery of possession in accordance with the terms of the
contract.
9. In the event of delay in delivery of the possession of the
apartment/units in accordance with the terms of the contract
between the parties, under Sections 18(1) and 19(4) of the RERA
2016, the allottee becomes entitled to two rights to be exercised
at its option. If the allottee elects to withdraw from the project,
the allottee is entitled to a refund of the amount paid by him in
respect of the apartment/unit, with interest at the prescribed
rate. This right of the allottee is without prejudice to any other
remedy available to the allottee on account of the breach of the
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terms of the contract by the promoter. In a sense, the main part
of sub-section (1) of Section 18 confers an unconditional,
unqualified and absolute right on the allottee to seek refund of
the amount alongwith interest. In the event, the allottee wishes
to continue with the project, the proviso to sub-section (1) of
Section 18 confers a right on the allottee to receive interest for
every month of delay till the handing over of possession, at the
prescribed rate.
10. In either eventuality, the Parliament has designedly
protected the interest of the allottee by ensuring that the allottee
is monetarily compensated for the failure or delay on the part of
the promoter. The decisions of the Supreme Court in the cases
of M/s. Newtech promoters and Developers Private Limited vs.
1
State of Uttar Pradesh , and M/s. Imperia Structures Limited
2
vs. Anil Patni and Others highlight the unqualified and
absolute right of the allottee.
11. It is pertinent to note that, under the proviso to Section
18(1), the liability of the promoter to pay interest subsists till the
handing over of the possession. Thus, the date on which the
possession was agreed to be delivered and the date on which the
possession has actually been delivered assume significance. The
1 2021 SCC OnLine SC 1044.
2
AIR 2021 SUPREME COURT 70
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promoter is statutorily liable to pay interest at the prescribed
rate for the aforesaid period.
12. It is conceivable that, in a given case, the promoter might
have offered the possession and the allottee refused to accept
the possession unjustifiably and, yet, seeks interest up to the
date of actual delivery of possession. RERA 2016 provides
mutual rights and obligations, though the overarching object of
RERA 2016 is to secure the interest of consumers. Sub-section
(10) of Section 19 casts an obligation on the allottee to take
physical possession of the apartment, within a period of two
months from the date of issue of the Occupancy Certificate. It
could thus be urged that the promoter had done all that was
within its powers to complete the construction, obtain the
Occupation Certificate and offer possession, and, in that
situation, the allottee, who unjustifiably refused to accept
delivery of possession, is not entitled to claim interest for the
period beyond the date of offer of possession or at any rate
beyond two months of the grant of Occupancy Certificate, if it
can be demonstrated that, after the grant of Occupancy
Certificate, possession was, in fact, offered to the allottee.
13. The aforesaid was the premise on which Mr. Chinoy
canvassed the submission on behalf of the promoter. It is
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imperative to note that, the Appellate Tribunal has made
categorical observations in paragraph 41 of the impugned order
that no document was placed on record to show that the
promoter had offered the possession to the allottee and that,
even after a specific query, the promoter failed to demonstrate
that such communication was addressed.
14. Mr. Chinoy attempted to salvage the position by pressing
th
into service the letter dated 25 February, 2021. Mr. Gala was
justified in canvassing the submission that, in this appeal the
question as to whether such a document was produced before
the Appellate Tribunal cannot be delved into.
15. It would be rather difficult to accede to the submission
that, despite such document having been placed on record of
the Tribunal, the latter made categorical observations in
paragraph 41 of the impugned order. The legal position in this
context is absolutely clear. If a party is aggrieved by an
incorrect observation made by the Court/Tribunal, the proper
course would be to first approach such Court/Tribunal and
seek the correction of its record. A useful reference in this
context can be made to the judgment of the Supreme Court in
the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak &
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3
Anr. , wherein the Supreme Court delineated the correct
practice, in case a party thinks that, the observations in regard
to the happenings in the Court and the conduct recorded by the
Judge are incorrect. The Supreme Court delineated the practice
as under:-
“4. ….. We are bound to accept the statement of the
Judges recorded in their judgment, as to what transpired in
court. We cannot allow the statement of the Judges to be
contradicted by statements at the Bar or by affidavit and
other evidence. If the Judges say in their judgment that
something was done, said or admitted before them, that has
to be the last word on the subject. The principle is well-
settled that statements of fact as to what transpired at the
hearing, recorded in the judgment of the court, are
conclusive of the facts so stated and no one can contradict
such statements by affidavit or other evidence. If a party
thinks that the happenings in court have been wrongly
recorded in a judgment, it is incumbent upon the party,
while the matter is still fresh in the minds of the Judges, to
call the attention of the very Judges, who have made the
record to the fact that the statement made with regard to his
conduct was a statement that had been made in error (Per
Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917
PC 30 ). That is the only way to have the record corrected. If
no such step is taken, the matter must necessarily end there.
…..”
(emphasis supplied)
16. Even otherwise this Court finds that, the said letter dated
th
25 February, 2021 was in respect of five units only. The
promoter had not indicated any amount which remained to be
paid by the allottee therein. This assumes critical salience as
the material on record indicates that the allottee had parted
with almost the entire consideration by the year 2018. Likewise,
3 AIR 1982 SC 1249
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the invitation to execute the agreement for sale was also
uncalled for as the agreements for sale were already executed.
Moreover, the filing of the writ petition by the allottee seeking a
direction to the promoter to deliver possession of the subject
units indicates that the state of affairs was not as was sought
to be projected by the promoter.
17. Cumulatively, this Court is not persuaded to interfere with
the findings of fact recorded by the Appellate Tribunal that the
promoter had not offered the possession of the subject units to
the allottee and, therefore, the liability of the promoter to pay
interest continued till the actual delivery of possession of the
subject units.
18. The second ground of unjustified disallowance of the
benefit of the moratorium period, forcefully canvassed by Mr.
Chinoy, also does not carry much substance. The promoter had
st
agreed to deliver possession of unit Nos. 907 to 911 by 31 May,
th
2015 and unit Nos. 901, 902, 905 and 906 by 30 June, 2017.
The said agreed dates of delivery of possession of the subject
units expired four and two years, respectively, before the COVID-
19 pandemic restrictions came into force. The Appellate Tribunal
was, therefore, fully justified in holding that the Authority could
not have extended the benefit of the moratorium period, where
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the liability to pay interest had commenced years before the
COVID-19 pandemic situation.
19. The submission of Mr. Chinoy that the said ground was
not urged before the Appellate Tribunal and the latter interfered
with the order of the Authority on that count, on its own, need
not detain the Court. In view of the provisions contained in
Order XLI Rule 33 of the Code, the Appellate Court is conferred
with wide powers so as to do complete justice.
20. Rule 33 of Order XLI of the Code, empowers the Appellate
Court to pass any decree and make any order which ought to
have been passed or made by the trial court, notwithstanding
that the appeal is as to part only of the decree, and the said
power 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.
4
21. In the case of Banarsi & ors. Vs. Ram Phal , the Supreme
Court, after referring to the provisions contained in Rule 4 and
Rule 33 of Order XLI of the Code, observed as under :-
“15. …..The abovesaid provisions confer power of the widest
amplitude on the appellate court so as to do complete
justice between the parties and such power is unfettered by
consideration of facts like what is the subject-matter of the
appeal, who has filed the appeal and whether the appeal is
being dismissed, allowed or disposed of by modifying the
4 (2003) 9 SCC 606
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judgment appealed against. 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. ….. 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.”
22. In the case of K. Muthuswami Gounder Vs. N. Palaniappa
5
Gounder , a three-Judge Bench of the Supreme Court exposited
the powers of the Appellate Court under Order XLI Rule 33 of
the Code, as under :-
“12. Order 41 Rule 33 enables the appellate court to pass
any decree or order which ought to have been made and to
make such further order or decree as the case may be in
favour of all or any of the parties even though (i) the appeal
is as to part only of the decree; and (ii) such party or parties
may not have filed an appeal. The necessary condition for
exercising the power under the Rule is that the parties to
the proceeding are before the court and the question raised
properly arises (sic out of) one of the judgments of the lower
court and in that event, the appellate court could consider
any objection to any part of the order or decree of the court
and set it right. We are fortified in this view by the decision
of this Court in Mahani Dhangir vs. Madan Mohan (AIR
5 (1998) 7 SCC 327
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1988 SC 54). No hard and fast rule can be laid down as to
the circumstances under which the power can be exercised
under Order 41 Rule 33 CPC and each case must depend
upon its own facts. The Rule enables the appellate court to
pass any order/decree which ought to have been passed.
The general principle is that a decree is binding on the
parties to it until it is set aside in appropriate proceedings.
…..”
23. Applying the aforesaid principles to the facts of the case at
hand, it becomes evident that, the allottee had preferred the
appeals before the Appellate Tribunal primarily seeking the
interest from the agreed date of delivery of possession of the
respective units till the date of actual delivery of possession of
the subject units. The challenge to the order passed by the
Authority also in regard to the grant of benefit of moratorium to
the promoter was thus implicit therein. Therefore, in the
considered view of this Court, no question of law, much less, a
substantial question of law, arises for consideration.
24. Resultantly, the Second Appeals deserve to be dismissed.
25. Hence, the following order:
: O R D E R :
(i) The second appeals stand dismissed with costs.
(ii) In view of the dismissal of the appeals, interim
applications also stand disposed.
[N. J. JAMADAR, J.]
ARS 19/19
Judgment corrected as per order dated 15/12/2026.
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