Bombay HC: RERA appellate tribunal that reverses a dismissal on maintainability must remand, not decide the case itself

The Bombay High Court set aside an order of the Maharashtra Real Estate Appellate Tribunal (REAT) that had decided to rule on the merits of a flat-buyers' complaint itself, instead of sending it back to the Maharashtra Real Estate Regulatory Authority (MahaRERA). MahaRERA had dismissed the allottees' complaint only on the ground that the sale agreement contained an arbitration clause, without examining the merits. On appeal, the REAT disagreed, held the complaint maintainable despite the arbitration clause, but then proceeded to decide the complaint on merits itself, reasoning that the complainants were senior citizens.

Allowing the promoter's second appeal, Justice Sandeep V. Marne held that once an appellate forum reverses a first-instance body's finding that a case is not maintainable, without that body ever examining the merits, the appellate forum cannot leapfrog into deciding the merits for the first time; it must remand the case, so that the parties retain their right to one further appeal on merits. The Court distinguished the Supreme Court's ruling in Nadakerappa v. Pillamma, holding that that case permits an appellate court to decide merits only where the lower court had already examined evidence on merits, not where it had dismissed the case purely on a preliminary point. The complaint was remanded to MahaRERA, which was directed to decide it within six weeks.