Delay Condonation Application Cannot Be Separated From Appeal For RERA Pre-Deposit: Bombay High Court

The Bombay High Court on 5 August held that a promoter cannot have a delay condonation application considered without first making the mandatory pre-deposit under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 (RERA), holding that a delay application forms part of the appeal and cannot be treated independently.

Justice N. J. Jamadar delivered the judgment while dismissing two second appeals filed by Neumec Developers and Builders against homebuyers, upholding the Maharashtra Real Estate Appellate Tribunal's direction requiring the promoter to make the pre-deposit before its delay condonation application could be considered. The Bench observed:

“The key words in the proviso are 'entertain' and 'before the said appeal is heard'. The word 'entertain' does not imply the filing or institution of the proceeding. The word 'entertain' has reference to the judicial/quasi-judicial act of application of mind by the Court/Tribunal, in contradistinction to the filing or institution, which is a ministerial act.”

The dispute concerned Flat No. 2601 in “Shreeji Towers”, a project developed by Neumec Developers and Builders at Wadala (East), Mumbai, under a Slum Rehabilitation Scheme and registered with the Maharashtra Real Estate Regulatory Authority (MahaRERA).

On 24 September 2021, Chirag Jain and another homebuyer booked the flat for Rs. 2,13,41,430. Neumec Developers agreed to deliver possession by 31 December 2021, while the homebuyers claimed to have paid Rs. 1,64,22,791 towards the consideration.

The homebuyers subsequently approached MahaRERA alleging breach of contract and demands beyond the agreed consideration.

On 22 July 2025, MahaRERA directed Neumec Developers to hand over possession with an Occupation Certificate upon receiving the balance consideration of Rs. 27,60,090. It also awarded simple interest on Rs. 1,64,22,791 from 1 January 2022 until possession. Neumec Developers filed a delayed appeal before the Maharashtra Real Estate Appellate Tribunal along with an application seeking condonation of delay.

On 27 March 2026, the Tribunal directed Neumec Developers to deposit the entire amount awarded by MahaRERA along with accrued interest under Section 43(5) of RERA before considering the delay application.

After the promoter failed to comply with the direction, the Tribunal on 6 May 2026 rejected the delay application, following which the appeal stood dismissed. Neumec Developers challenged both orders before the Bombay High Court.

Neumec Developers argued that “entertain” means consideration of the appeal on merits and that hearing a delay application cannot amount to hearing the appeal. The homebuyers argued that an appeal accompanied by a delay application remains an appeal in law and attracts the mandatory pre-deposit requirement.

The High Court rejected the promoter's contention, holding that a delay condonation application cannot be treated independently of the appeal as both form a composite proceeding. It explained:

“To put it in other words, an application for condonation of delay cannot be construed as a proceeding which is independent of the appeal, and though the hearing of such application does not amount to hearing of the appeal on the merits in the strict sense of examining the legality and correctness of the impugned order, nonetheless such an application is an appeal in the eyes of law”.

It held that rejecting the delay application itself amounts to a decision in the appeal because it results in dismissal of the appeal and leaves the order under challenge undisturbed.

The Bench therefore held that the delay application could not be considered unless the promoter first made the statutory pre-deposit. The Court observed that if a promoter filing an appeal within limitation must make the deposit, a promoter approaching the Tribunal belatedly must also comply with the requirement.

It further held that allowing a delayed appeal to proceed without the deposit would prejudice the successful homebuyer, defeat the object of RERA and lead to absurd consequences.

Accordingly, the High Court dismissed both second appeals. It clarified that if Neumec Developers makes the deposit and seeks revival of its delay application, and such a course is available in law, the Maharashtra Real Estate Appellate Tribunal may consider it in accordance with law.

Appearances for appellant (M/s Neumec Developers And Builders): Advocates Rubin Vakil, Chirag Sarawagi and Yash Sheth, i/b Tushar Goradia.

Appearances for respondents (Chirag Jain and Anr.): Advocates Amrut Joshi, Gaurav Jangle, Akshita Jain, Akshit Vats and Tharakesh Dharumaraj, i/b I. V. Merchant and Co. Chirag Jain was also present in person.