Builder Failed to Complete Housing Project; Bombay High Court Allows Allottees to Seek Construction Through Third Parties During Execution
Facts
The respondent, Swadhinta Builders LLP, was developing a real estate project named Shri Vallabh Residency at Kandivali (West), Mumbai. The appellant, Rajan Chandiramani, was allotted Flat No. 902 in the project through an allotment letter dated 28 October 2010 for a consideration of ₹48,78,125. The appellant paid ₹7.5 lakhs towards the purchase price.
The promoter failed to complete the project within the stipulated time and did not execute the agreement for sale despite receiving consideration from the allottee. Consequently, the appellant filed a complaint before the Maharashtra Real Estate Regulatory Authority (MahaRERA).
MahaRERA initially declined to grant substantive relief and only protected the allottee’s rights. On appeal, the Maharashtra Real Estate Appellate Tribunal (MREAT) directed the promoter to execute the agreement for sale within 30 days, complete construction within 12 months after obtaining approvals, and pay interest on amounts paid by the allottees.
When the promoter failed to comply with these directions, execution proceedings were initiated. The allottees sought amendment of the execution applications to invoke Order XXI Rule 32(5) CPC, requesting that the Tribunal permit construction of the project through the decree-holders or another person appointed by the Tribunal at the promoter’s cost.
The Tribunal rejected this specific amendment, holding that the allottees should instead pursue remedies under Sections 7 and 8 of the Real Estate (Regulation and Development) Act, 2016 (RERA). The allottees challenged this decision before the Bombay High Court.
Issues
- Whether the Appellate Tribunal erred in examining the merits of the proposed amendment while deciding the amendment application.
- Whether the proposed amendment seeking relief under Order XXI Rule 32(5) CPC was legally permissible.
- Whether the remedy under Order XXI Rule 32(5) CPC is independent of and additional to the remedies available under Sections 7 and 35 of RERA.
Petitioner’s Arguments
The appellants contended that:
- The Tribunal improperly examined the merits and consequences of the proposed amendment instead of limiting itself to whether the amendment was legally permissible.
- The proposed amendment merely added an additional mode of execution available under Order XXI Rule 32(5) CPC and did not expand or alter the decree.
- Under Section 57 of RERA, the Appellate Tribunal possesses all powers of a civil court while executing its orders.
- The liberty granted in the original order to invoke Section 7 RERA did not make that remedy exclusive.
- Requiring allottees to initiate separate proceedings under Section 7 would unnecessarily prolong litigation and frustrate enforcement of the decree.
- Order XXI Rule 32(5) CPC allows execution of a decree through a third party at the judgment-debtor’s cost and therefore could be invoked in the present case.
Respondent’s Arguments
The respondent argued that:
- The power to amend execution proceedings is narrower than the power to amend pleadings in original proceedings.
- An executing court cannot travel beyond the decree, and the proposed amendment would materially enlarge the scope of the decree.
- The original appellate order specifically provided liberty to invoke Section 7 of RERA upon non-compliance by the promoter.
- Sections 7 and 8 of RERA provide a comprehensive mechanism for protecting all allottees and ensuring completion of the project.
- Allowing individual allottees to complete the project under Order XXI Rule 32(5) CPC could adversely affect the interests of other allottees.
- Section 57 creates only a limited legal fiction and should not be interpreted so broadly as to bypass the special statutory framework under RERA.
- Being a special statute, RERA should prevail over the general provisions of the CPC in case of conflict.
Analysis of the Law
The Court examined:
Section 57 of RERA
Section 57 provides that every order of the Appellate Tribunal is executable as a decree of a civil court and that the Tribunal possesses all powers of a civil court for execution purposes.
The Court observed that the legislative intent behind Section 57 is to ensure effective enforcement of the Tribunal’s orders by granting it full execution powers similar to those exercised by civil courts.
Order XXI Rule 32(5) CPC
This provision permits a court, where a decree for specific performance or injunction has not been obeyed, to direct that the required act be performed by the decree-holder or another person appointed by the court at the judgment-debtor’s expense.
The Court noted that this provision serves as an effective execution mechanism where compliance by the judgment-debtor is absent.
Sections 7 and 8 of RERA
The Court held that Sections 7 and 8 primarily concern regulatory actions such as revocation of registration and arrangements for project completion after revocation.
These provisions are not intended to function as exclusive modes for executing decrees passed by the Appellate Tribunal.
Precedent Analysis
The Court relied upon several precedents:
Rajesh Kumar Aggarwal v. K.K. Modi (2006) 4 SCC 385
The Supreme Court held that while considering amendment applications, courts should not examine the correctness or merits of the proposed amendment. The focus should be on whether the amendment is necessary for resolving the controversy.
Rajes Kanta Roy v. Shanti Debi (AIR 1957 SC 255)
Relied upon by the appellants regarding execution and enforcement principles.
Kamlesh Aggarwal v. Narain Singh Dabbas (2015) 11 SCC 661
Cited in support of the broad powers available during execution proceedings.
Ratnakar Bank Ltd. v. Usha Rajaram Nimbalkar
Recognized that executing courts possess powers to permit amendments in execution proceedings.
Topanmal Chhotamal v. Kundomal Gangaram (AIR 1960 SC 388)
Relied upon by the respondent for the principle that an executing court cannot travel beyond the decree.
Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185
Discussed the limits of legal fictions and their interpretation.
The High Court held that these authorities did not prevent the Tribunal from considering execution under Order XXI Rule 32(5).
Court’s Reasoning
The Court found that:
- The Tribunal improperly ventured into the merits of the amendment application.
- The Tribunal’s findings regarding the appropriateness of Section 7 remedies and absence of wilful disobedience were matters for final execution proceedings and not amendment proceedings.
- The proposed amendment was a verbatim reproduction of the remedy available under Order XXI Rule 32(5) CPC and therefore legally maintainable.
- Section 57 of RERA expressly empowers the Appellate Tribunal to execute its orders as a civil court decree.
- The remedies under Sections 7 and 8 of RERA operate in a different sphere and do not replace execution remedies.
- There is no conflict between RERA and Order XXI Rule 32(5) CPC.
- The remedy under Order XXI Rule 32(5) is discretionary, and the Tribunal retains the authority to determine whether its exercise is appropriate based on the facts of each case.
- Preventing allottees from seeking execution under Rule 32(5) would undermine the effectiveness of orders passed by the Appellate Tribunal.
Conclusion
The Bombay High Court allowed the appeals and held that:
- The Tribunal erred by examining the merits of the proposed amendment.
- The amendment seeking execution under Order XXI Rule 32(5) CPC was legally permissible.
- The remedy under Order XXI Rule 32(5) CPC is independent of and additional to remedies available under Sections 7 and 35 of RERA.
- The Appellate Tribunal possesses the power to execute its orders through the mechanisms available under the CPC, including Order XXI Rule 32(5).
The impugned order rejecting the amendment was set aside, and the amendment applications were allowed.
Case Details
Case: Rajan Chandiramani v. Swadhinta Builders LLP (Batch Matters)
Court: High Court of Judicature at Bombay
Case Number: Second Appeal No. 559 of 2025 (along with Second Appeal Nos. 597, 598, 599 & 600 of 2025)
Judge: Justice N. J. Jamadar
Date: 24 June 2026
Result: Appeals Allowed; impugned order set aside; amendment applications permitted; matter remanded for consideration of execution proceedings on merits.
