Kanakia Spaces Realty Pvt Ltd vs Mr. Subhash Mahadappa Panchgalle - We are therefore in agreement with the conclusion reached by the learned Authority that the Allottee's entitlement to interest crystallised upon the Promoter's failure to handover possession within the agreed period and it continued till actual handing over possession of the subject flat. Acceptance of possession thereafter does not amount to waiver of such accrued statutory right unless there is a conscious express relinquishment thereof, which is absent in the present case.

 REAT Mumbai (2026.08.06) in  Kanakia Spaces Realty Pvt Ltd vs Mr. Subhash Mahadappa Panchgalle   [Appeal No. AT006000000093932 of 2022 IN Complaint No. CC006000000192401] held that;

• We are therefore in agreement with the conclusion reached by the learned Authority that the Allottee's entitlement to interest crystallised upon the Promoter's failure to handover possession within the agreed period and it continued till actual handing over possession of the subject flat. Acceptance of possession thereafter does not amount to waiver of such accrued statutory right unless there is a conscious express relinquishment thereof, which is absent in the present case.

Excerpts of the Order; 

This captioned appeal arises from the impugned order dated  12th May 2022 passed b the Member - 1, Maharashtra Real Estate  Regulatory Authority (for short 'the Authority') in Complaint No.   CC006000000192401 filed by the Allottee seeking interest for  delayed possession, wherein the said complaint was partly allowed. 

# 2. For the sake of convenience, "Appellant" will hereinafter be referred  to as "Promoter" and "Respondent" will hereinafter be referred to as  "Allottee". 

# 3. The brief facts, as borne out from the pleadings, documents placed  on record, and the impugned order, revealed that the Allottee  purchased Flat No.3205 on the 32nd floor of 'C' Wing in the project  known as "Levels", situated at Malad (East), Taluka Borivali,  Mumbai. An Agreement for Sale dated 01.02.2017 was executed  between the parties for a total consideration of Rs.2,01,59,220/-,  wherein the date of possession was mentioned as on or before  October 2018, with a grace period of six months, thereby making  March 2019 as the contractual date of possession. It is an admitted  position that the Allottee has paid approximately 80% of the total  consideration amount, while the balance amount was payable at the  time of handing over possession. It is not in dispute that the  Occupancy Certificate was obtained on 10.10.2019 and possession  of the flat was handed over to the Allottee on 05.11.2019. 

# 4. Learned Advocate Mr. Vikramjit Garewal, appearing for the  Appellant/Promoter, submitted that the Respondent/Allottee filed  the complaint before the Maharashtra Real Estate Regulatory   Authority on 27.04.2020, nearly five months after accepting  possession of the subject flat, alleging delayed possession. According to him, once the Allottee accepted possession after making full and final settlement, without any protest, no surviving cause of action remained to claim interest for delayed possession or any other relief under the RERA Act, 2016. 

# 5. The learned Counsel for the Appellant/Promoter further submitted that the project registration under the RERA Act, 2016 was initially valid up to 31.10.2019, and was subsequently extended from time to time up to 30.04.2021. It was contended that Clause 13 of the Agreement for Sale entitled the Promoter to reasonable extension of time for handing over possession of the said flat in the event of delays caused by circumstances beyond the control of the Appellant/Promoter. It was contended that even the Respondent/Allottee had accepted the said contractual stipulation without any objection. Moreover, Section 18 of Real Estate (Regulation and Development) Act, 2016 would apply only when the project is incomplete, or the Promoter is unable to handover possession and therefore, once possession has been delivered to the Allottee, after obtaining Occupancy Certificate, the provisions of Section 18 cease to operate. 

 

# 6. The learned Counsel for the Appellant/Promoter further submitted that the said flat was handed over on 05.11.2019 with full and final settlement upon receipt of Occupancy Certificate. If the Allottee/ Respondent was aggrieved by alleged delay, the complaint ought to have been filed before accepting possession of the subject flat. It is evident that merely reserving the right to claim interest would not confer any enforceable cause of action after possession had been accepted. Therefore, the complaint was filed with mala fide intentions, to extract unethical money from the Appellant/Promoter. Hence, the Appellant prayed that the said impugned order should be quashed and set aside. 

# 7. Per contra, learned Advocate Mr. Aman Shukla appearing for the Respondent/Allottee submitted that the Allottee has complied with all obligations under Agreement for Sale and had paid approximately 80% of the total consideration amount well before the completionof the project in November 2019. Upon the Promoter raising final demand of 20%, the payment was paid within five (5) days by the Allottee. Notwithstanding such prompt compliance by the Allottee, the said flat possession was not given on the agreed date i.e. October 2018 or after six months grace period i.e. March 2019. Therefore, being aggrieved by the delay, the Allottee has exercised the statutory right to get interest for delayed possession and filed complaint before the Maharashtra Real Estate Regulatory Authority in April 2020. 

# 8. The learned Counsel for the Respondent/Allottee placed reliance upon the judgment of the Hon'ble Supreme Court in the case of M/s Newtech Promoters and Developers Pvt. Ltd. vs. State of UP & Anr. [Civil Appeal No(s). 6745-6749 of 2021 (Arising out SLP(Civil) No(s). 3711-3715 of 2021], decided on 11th November 2021, particularly paragraphs 25 and 78, as well as the judgment of the Hon'ble Bombay High Court, in Neelkamal Realtors Suburban Pvt.  Ltd. and Anr. vs. Union of India and Ors. [writ petition No. 2737 of  2017], decided on 6th December 2017, particularly paragraphs 258  and 261. In view of the above, the Hon'ble Supreme Court has held  that the right conferred upon an Allottee, under Section 18 of the RERA Act 2016, is unqualified, unconditional, and absolute, regardless of unforeseen events, including stay orders of the Court/Tribunal, or any other reasons stated to be beyond the control of the Promoter. It was further submitted that there is no bar of limitation to seek right of an Allottee to claim interest under Section 18 of RERA Act, 2016. Therefore, the contentions of the Promoter  in the present appeal are baseless and devoid of merit. 

# 9. The learned Counsel for the Respondent/Allottee further submitted  that the extension of the project completion date under RERA  registration does not rewrite or alter the contractual obligations  under the Agreement for Sale. In support of this proposition,  reliance was placed upon judgment of the Hon'ble Bombay High  Court in Neelkamal Realtors Suburban Pvt. Ltd. and Anr. vs. Union  of India and Ors. (supra) in para No. 256 of the judgment, inter alia,  held as follows: 

• "256. Section 4(2)(1)(C) enables the promoter to revise  the date of completion of project and hand over  possession. The provisions of RERA, however, do not  rewrite the clause of completion or handing over  possession in agreement for sale. Section 4(2)(1)(C) enables the promoter to give fresh time line independent  of the time period stipulated in the agreements for sale  entered into between him and the allottees so that he is  not visited with penal consequences laid down under  RERA. In other words, by giving opportunity to the promoter to prescribe fresh time line under Section 4(2)(1)(C) he is not absolved of the liability under the  agreement for sale" 

The Promoter has failed to furnish any satisfactory explanation  for the delay in obtaining Occupancy Certificate and in handing  over possession. Obtaining all statutory approvals, including  Occupancy Certificate, within the agreed timeline is the sole  responsibility of the Promoter. Delay attributable to failure in  securing such approvals cannot be shifted onto the Allottee. It  was therefore contended that the Promoter cannot escape its  statutory and contractual obligations by relying upon the  extension of project registration period under RERA Act.  Therefore, the Allottee continues to be entitled to interest for the  delayed period under Section 18 of the RERA Act, 2016. 

# 10. Learned Advocate Mr. Vikramjit Garewal appearing for the  Appellant/Promoter has placed reliance on the following judgment:  In the case of Linker Shelter Pvt. Ltd. versus Charmaine  Chougule, Adult & Anr. [Second Appeal No. 391 of 2025 with  Interim Application No. 10454 of 2024] decided by the Hon'ble  Bombay High Court on 18th July 2025. 

# 11. Learned Advocate Mr. Aman Shukla appearing for the  Respondent/Allottee has placed reliance on the following  judgments: 

• i. In the case of Park  Xpress JV Through Its Partner Mr. Shravan  D. Agarwal V/s. Sagar H. Saboo and Ors. [Second Appeal no.  180 of 2024 with Interim Application No.6716 of 2024] decided by the Hon'ble Bombay High Court on 22 March 2024. 

• i. In the case of Kalpraj Dharamshi & Anr. Versus Kotak  Investment Advisors Ltd. & Anr. [ in Civil Appeal Nos. 2943- 2944 of 2020] decided by the Hon'ble Supreme Court of India. 

• iii. In the case of Central Inland Water Transport Corporation mLimited and Another Vs. Brojo Nath Ganguly & Another  [(1986) 3 SCC 156 in Civil Appeal No. 4412 of 1985] decided  by the Hon'ble Supreme Court of India. 

• iv. n the case of Pioneer Urban Land & Infrastructure Ltd. Versus  Govindan Raghavan [in Civil Appeal No.12238 of 2018 (with  Civil Appeal No. 1677 of 2019)] decided by the Hon'ble  Supreme Court of India on 2 April, 2019. 

• v. In the case of Ashley Neil Serrao Vs. Propel Developers Pvt.  Ltd. (Appeal No. AT006000000052874)] passed by the  Maharashtra Real Estate Appellate Tribunal, Mumbai on 31  January 2023. 

# 12. After considering the submissions advanced by the learned Advocate  Mr. Vikramjit Garewal appearing for Appellant/Promoter and learned  Advocate Mr. Aman Shukla appearing for Respondent/Allottee,  pleadings of the parties, impugned order and various documents  placed on record, the points arise for our consideration and findings  thereupon for the reasons to follow are as below: 

Sr. Nos.	Points	Findings
	Whether the impugned order dated 12.05.2022 passed by the Member-1,MahaRERA, in the Complaint No.  CC006000000192401 filed by the Respondent/Allottee,  warrants interference in the captioned appeal?	In the  negative
	Whether the Appellant/Promoter is  entitled to relief sought in the  captioned appeal?	In the  negative
	What Order?	As per final Order

REASONS 

# 13. On examination of pleadings of the parties, material placed on record and submissions advanced by learned Counsel appearing for the respective parties revealed that the Appellant/Promoter has developed project known as "Levels" situated at Malad (East),Mumbai. The Respondent/Allottee has booked the subject flat for a total consideration of Rs.2,01,59,220/-. As per the Agreement for Sale, possession was agreed to be handed over by October 2018, with a grace period of six months, making the agreed date of possession March 2019. It is not in dispute that the Respondent/Allottee has paid 80% of total consideration amount and possession was handed over on 05.11.2019 after obtaining Occupancy Certificate on 10.10.2019. 

# 14. It is the case of the Appellant/Promoter  that the Respondent/Allottee accepted possession of the subject flat on 05.11.2019 by making full and final settlement and thereafter filed the complaint before the learned Authority on 27.04.2020, which is much after the possession was handed over to the Respondent/Allottee. According to the Appellant/Promoter, once possession was accepted, no independent cause of action survived for claiming interest under Section 18 of the RERA Act. The moot question before us is whether the Allottee, having taken possession of the flat by making full and final settlement, is precluded from claiming interest for delayed possession under Section 18 RERA Act, 2016. 

# 15. Section 18 of the Real Estate (Regulation and Development) Act, 2016 recognises the right of Allottee to claim interest for delay in handing over possession, within the stipulated time limit for taking steps to seek relief as provided thereunder. The said provision casts an obligation upon the Promoter that in case of delay in possession, it shall be liable to pay interest on the consideration amount paid by the Allottee, if the Allottee elects not to withdraw from the project. While explaining the scope of Allottee's right under Section 18 of RERA Act, 2016, the Hon'ble Supreme Court in M/s Newtech Promoters and Developers Pvt. Ltd. V/s. State of UP & Anr (supra) in observed in paragraph 25 as under: 

• "Para 25. The unqualified right of the allottee to seek refund referred under Section 18(1)(a) and Section 19(4) of the Act is not dependent on any contingencies or stipulations thereof. It appears that the legislature has consciously provided this right of refund on demand as an unconditional absolute right to the allottee, if the promoter fails to give possession of the apartment, plot or building within the time stipulated under the terms of the agreement regardless of unforeseen events or stay orders of the Court/Tribunal, which is in either way not attributable to the allottee/home buyer, the promoter is under an obligation to refund the amount on demand with interest at the rate prescribed by the State Government including compensation in the manner provided under the Act with the proviso that if the allottee does not wish to withdraw from the project, he shall be entitled for interest for the period of delay till handing over possession at the rate prescribed." 

It is clearly indicated that the statutory entitlement under Section 18 of RERA is founded on the Promoter's failure to deliver possession  within the agreed timeline. The said entitlement is not extinguished because possession is subsequently offered or because the project completion date stands revised for regulatory purposes. Thus, the subsequent receipt of Occupancy Certificate or extension of the project's registration does not take away the accrued right of the Allottee to claim interest for the period of delay. 

16. A perusal of Section 18 of Real Estate (Regulation and Development) Act, 2016 makes it evident that the Promoter is obligated to hand over possession on the agreed date as per the Agreement for Sale. The date so specified in Agreement for Sale or in any other manner 

or form is sacrosanct and neither RERA nor Promoter can rewrite the same without the consent of the Allottees. This signifies that Section 18 of RERA would operate only when possession is handed over within the specified date however, where possession is handed over beyond the agreed and specified date, the consequences contemplated under Section 18 automatically follow. The Hon'ble Supreme Court in M/s. Imperia Structures Ltd. Vs. Anil Patni & Anr. [in Civil Appeal No. 3581-3590 of 2020] has held as under: 

• "23. In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed....... by the date specified in the agreement, the Promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made "without prejudice to any other remedy available to him" The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is upto the allottee to proceed either under Section 18(1) or under proviso to Section 18(1)." 

# 17. Section 18 of RERA Act, 2016 gives an option to Allottee to claim interest on the amount paid on failure of Promoter to adhere to his contractual or statutory obligation. The provisions of RERA ensure that Allottee's money is not misutilised or unreasonably held by the Promoter, while assuring completion of project in a time-bound manner. We are therefore in agreement with the conclusion reached by the learned Authority that the Allottee's entitlement to interest crystallised upon the Promoter's failure to handover possession within the agreed period and it continued till actual handing over possession of the subject flat. Acceptance of possession thereafter does not amount to waiver of such accrued statutory right unless there is a conscious express relinquishment thereof, which is absent in the present case. 

# 18. In view of the foregoing reasons and in light of the law laid down by the Hon'ble Supreme Court, we have come to the conclusion that the learned Authority is justified in granting relief of interest to the Allottee under Section 18 of the Real Estate (Regulation and 

Development) Act, 2016. As a result, the impugned order warrants no interference in the present appeal. Consequently, we answer point Nos. 1 to 2 in the negative and accordingly proceed to pass the following order. 

ORDER 

1. Appeal No. AT006000000093932 of 2022 is dismissed. 

2. Parties to bear their own costs. 

3. Copy of this order be communicated to the learned Authority and respective parties as per Section 44(4) of the RERA Act, 2016. 

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Tejas J. Shah & Amisha T. Shah & Ors. Vs. Mantri Technology Constellations Pvt. Ltd. & Ors.,- In our view, this approach is erroneous. In the present case, Respondent No.1 alone is the corporate debtor against whom the CIRP has been initiated. No independent moratorium or independent protection operates in favour of Respondent Nos. 2 to 7. In the absence of any legal bar against continuation of proceedings qua the said respondents, the NCDRC was not justified in rejecting appellants’ prayer to proceed with the complaint against the rest of the respondents.

 SCI (2026.07.27) in  Tejas J. Shah & Amisha T. Shah & Ors. Vs. Mantri Technology Constellations Pvt. Ltd. & Ors.,  [2026 INSC 746, C.A.Nos.4289-4290 OF 2025 ] held that;

• In our view, this approach is erroneous. In the present case, Respondent No.1 alone is the corporate debtor against whom the CIRP has been initiated. No independent moratorium or independent protection operates in favour of Respondent Nos. 2 to 7. In the absence of any legal bar against continuation of proceedings qua the said respondents, the NCDRC was not justified in rejecting appellants’ prayer to  proceed with the complaint against the rest of the respondents.

• Having itself observed that the liability arising from deficiency in service are yet to be determined, it could not have simultaneously concluded that the alleged deficiency was attributable only to Respondent No. 1 and therefore no complaint could proceed against the rest.

• The question was whether, in the absence of any moratorium operating in their favour, the consumer complaint could proceed against them. In the absence of any such statutory bar, the Commission was required to adjudicate the complaint against the said respondents and determine, upon consideration of the rival pleadings and objections, whether any liability could ultimately be fastened upon them.

• It was not open to the Commission to foreclose that  inquiry at the interlocutory stage. The impugned order cannot be sustained as it declines to undertake the said exercise.

Excerpts of the Order; 

# 1. The present civil appeals arise out of the judgment and order dated 20.01.2025 passed by National Consumer Disputes Redressal Commission1 in I.A. No. 15656 of 2024 and I.A. No. 14200 of 2024 in Consumer Complaint No. 13 of 2023, whereby the NCDRC rejected the applications seeking continuation of consumer complaint against Respondent Nos. 2 to 7 in view of the moratorium 1 Hereinafter referred to as NCDRC.

of Insolvency and Bankruptcy Code, 20162, and adjourned the complaint sine die.

# 2. The facts giving rise to the present appeals are as follows:

2.1. The appellants are homebuyers who had booked residential apartments in a project namely ‘Mantri Manyata Energia’ which was being developed by Respondent No. 1, Mantri Technology Constellations Private Limited (now known as Buoyant Technology Constellations Private Limited). Respondent No. 2, Mantri Developers Pvt. Ltd. is a company alleged to have been associated with the development of the said project. Respondent Nos. 3 to 5 are alleged to be the promoters/ directors of Respondent No. 1 and 2 companies, while Respondent No.6 and 7 are the landowners of the project land. Pursuant to the transaction, construction agreements and agreements for sale in respect of undivided share in the project land came to be executed between the appellants and Respondent No. 1 in 2016. As per the terms of the agreement, possession of the apartments was to be handed over on or before 31.12.2018.

2.2. According to the appellants, despite substantial payment of the sale consideration coupled with repeated assurances regarding completion of the project, possession of the apartments was not delivered within the stipulated time. Aggrieved thereby, the appellants, along with other homebuyers instituted Consumer Case No. 13 of 2023 before NCDRC alleging deficiency in service and unfair trade practices against Respondent Nos. 1 to 7. 

2.3. During the pendency of the consumer complaint, the National Company Law Tribunal3, Bengaluru Bench, by an order dated 23.08.2024, admitted an application under Section 9 of the IBC against Respondent No.1 and initiated the Corporate Insolvency Resolution Process (for short, CIRP) as a result of which a moratorium under Section 14 of the IBC came to be imposed against Respondent No.1.

2.4. In view of the subsequent development, the appellants filed I.A. No. 14200 of 2024 before the NCDRC, placing the order of the NCLT and praying that notwithstanding the moratorium operating against Respondent No.1, the consumer complaint be reheard and proceeded with against Respondent Nos. 2 to 7.

2.5. Thereafter, the appellants filed I.A. No. 15656 of 2024 seeking rehearing of I.A. No. 14200 of 2024 and reiterating their prayer for continuing the hearing of the consumer complaint against the rest of the respondents.

2.6. By the impugned order dated 20.01.2025, the NCDRC rejected the aforesaid applications holding, inter alia, that the liability of Respondent Nos. 2 to 7 could not be independently examined at that stage in view of the moratorium operating against Respondent No.1, and consequently adjourned the consumer complaint sine die. 2.7. It is this order which is being assailed before us.

# 3. We have heard learned counsel for the appellants, Mr. D. Seshadri Naidu, learned senior counsel appearing for respondent No. 2, Mr. Sajan Povayya, learned senior counsel appearing for respondent No. 6 and 7, Mr. Shekhar G Devasa, learned senior counsel appearing for respondent No. 3, 4 and 5 and Mr. Ashutosh Dubey, learned counsel appearing for respondent No. 1.

# 4. After examining the material placed on record, it can be concluded that the issue involved before us lies in  a narrow compass. The limited question is whether the NCDRC was justified in rejecting the IAs filed by the appellants on account of the moratorium operating against Respondent No.1.

# 5. In order to answer that, we must begin with an understanding of Section 14 IBC. The statute provides that once the insolvency process has begun and a moratorium is declared, among other things, the continuation of pending suits and proceedings against the corporate debtor, including execution proceedings, comes to an automatic halt. The object of this moratorium is to preserve the assets of the corporate debtor during the insolvency resolution proceedings and to facilitate an orderly resolution.

# 6. The scope of the moratorium is statutory. It is not open either to the adjudicating authority or the Court to enlarge its ambit beyond what the statute contemplates. A plain reading of the provision makes it clear that the moratorium operates against the corporate debtor alone. No other category, whether it be any subsidiary company, any managers/ directors, personal guarantors etc. can be added to it unless specifically provided. This Court in P. Mohanraj v. Shah Brothers Ispat Pvt. Ltd.4 while discussing the scope of applicability of the moratorium on Section 138 of Negotiable Instruments Act, 1881 proceedings, noted that Section 14 applied only to the corporate debtor and that natural persons can be held liable under the Act.

# 7. Again in Ansal Crown Heights Flat Buyers Association v. Ansal Crown Infrabuild Pvt. Ltd.5 wherein a consumer complaint was filed against the developers, this Court held that a moratorium against the corporate debtor does not give protection to the promoters and directors of the corporate debtor and that proceedings can continue against them.

# 8. A similar approach is reflected in the decision of this Court in Saranga Anilkumar Aggarwal.6 Though the case arose in context of Section 96 IBC, the underlying principle remains instructive. It was held that the protective sweep of a moratorium must remain in the four walls as carved out by the statute. It ought not be expanded in a manner that stultifies remedies envisaged under the Consumer Protection Act, unless expressly provided. The object of the Code is to facilitate the resolution process and not to eclipse the statutory remedies.

# 9. Viewed in this backdrop, the appellants had preferred I.A. No. 15656 of 2024 and I.A. No. 14200 of 2024 urging the NCDRC to proceed with the consumer complaint against Respondent Nos. 2-7, notwithstanding the moratorium operating against Respondent No.1, the corporate debtor.

# 10. The NCDRC, however, rejected the aforesaid applications. It observed that the liability arising from the allegations of deficiency in service was yet to be determined. At the same time, it held that the alleged deficiency pertained only to Respondent No.1 since all agreements for construction and sale were entered into between the appellants and respondent No.1. As a result of which, the proceedings could not be split up to continue against the remaining respondents.

# 11. In our view, this approach is erroneous. In the present case, Respondent No.1 alone is the corporate debtor against whom the CIRP has been initiated. No independent moratorium or independent protection operates in favour of Respondent Nos. 2 to 7. In the absence of any legal bar against continuation of proceedings qua the said respondents, the NCDRC was not justified in rejecting appellants’ prayer to  proceed with the complaint against the rest of the respondents.

# 12. The impugned order proceeds on the premise that since the alleged deficiency in service was attributable only to Respondent No.1, no independent proceedings could continue against the remaining respondents. In doing so, the Commission effectively answered the very question which was yet to be adjudicated. Having itself observed that the liability arising from deficiency in service are yet to be determined, it could not have simultaneously concluded that the alleged deficiency was attributable only to Respondent No. 1 and therefore no complaint could proceed against the rest.

# 13. The question that fell for consideration while deciding the interlocutory applications was not whether Respondent Nos.2 to 7 were liable. The question was whether, in the absence of any moratorium operating in their favour, the consumer complaint could proceed against them. In the absence of any such statutory bar, the Commission was required to adjudicate the complaint against the said respondents and determine, upon consideration of the rival pleadings and objections, whether any liability could ultimately be fastened upon them. It was not open to the Commission to foreclose that  inquiry at the interlocutory stage. The impugned order cannot be sustained as it declines to undertake the said exercise.

# 14. Learned counsel appearing for the appellants urged that this Court may proceed to allow the consumer complaint and grant the reliefs claimed therein. We are unable to accede to that submission. The respondents have raised several objections, including absence of privity of contract, maintainability of the complaint and the absence of any independent obligation under the agreements. Since all the objections are yet to be decided by the NCDRC, it would not be appropriate for this Court to undertake that exercise for the first time in the present appeal. Thus, we refrain from expressing any opinion on the merits of the rival contentions.

# 15. For the reasons mentioned above, the impugned order cannot be sustained. The appeals are partly allowed.

# 16. Accordingly, we set aside the rejection of I.A. No. 15656 of 2024 and I.A. No. 14200 of 2024. The said applications are hereby allowed. The NCDRC shall proceed to hear the Consumer Complaint No.13 of 2023.

# 17. Needless to clarify, the proceedings against Respondent No.1 shall continue to remain governed  by the moratorium under Section 14 of the IBC. The NCDRC shall dispose of the complaint, insofar as Respondent Nos.2 to 7 are concerned, in accordance with law.

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Mr. Harshad Dholakia & Anr. vs Shree Mahavir Cooperative Housing Society Limited & Ors. - As per Byelaw No.78(b), the allotment of the parking space is the prime responsibility of managing committee of the society and a member shall have no right to sell or transfer the parking slot allotted by society.

 MCAC (2026.07.10) in Mr. Harshad Dholakia & Anr. vs Shree Mahavir Cooperative Housing Society Limited & Ors.  [CNR No.MHCA010000132026, A.O. NO.5 OF 2026] held that;

• As per Byelaw No.78(b), the allotment of the parking space is the prime responsibility of managing committee of the society and a member shall have no right to sell or transfer the parking slot allotted by society. 

• Hence, the predecessor in title of disputants namely Mr. Ramesh Karla has no right to sell or transfer the parking slot allotted to him by the society to present disputants and present disputants cannot claim any right over the parking slot allotted by the society to their predecessor in title Mr. Karla.

Excerpts of the Order; 

1) This appeal takes an exception to the order passed by the Co-operative Court No.2, Mumbai below application for getting interim relief at Exh.5 dated 03/01/2026 in dispute No.453/2023, whereby the Ld Co-operative Court has rejected the said application. The original disputants are the appellants and original opponents are the respondents. For the sake of convenience, parties are hereinafter referred to by their original status in the dispute as disputants and opponents.

2) In brief the facts of the case are as follows :

Disputants are member of opponent No.1 society which a registered co-operative housing society registered under the Maharashtra Co-operative Societies Act (hereinafter referred to as the MCS Act). The society’s office is situated at the address given in the title clause. The opponent No.2 is member of opponent No.1 society.

3) The disputants are holding 5 fully paid-up shares of Rs.50/- each of the opponent No.1 society bearing Nos.46 to 50 under Share Certificate No.8 issued by opponent No.1 society. The society building consists of 9 floors and 18 flats. As per sanctioned plan, the opponent No.1 society has 20 car parkings. 10 in stilt and remaining all are open car parking. The disputants have purchased their Flat No.402 in the year 2007 vide registered sale deed dated 26/12/2007 from Mr. Ramesh Karla who was original member of opponent No.1 society. Said Karla had purchased Flat No.402 from builder.

4) The society was formed in the year 2000 and at that time building of the opponent No.1 society consists of only 7 floors. The managing committee of the society by resolution dated 24/03/2002 has allotted car parking for Flat No.402. Thus, the erstwhile member of the society Mr. Karla was specifically allotted car parking for Flat No.402 and after purchase of the said flat by the disputants, they come in possession of said car parking of Flat No.402.

5) Since the date of purchase, they were parking their car in the parking slot allotted to Flat No.402. On 23/10/2021 the opponent No.2 forcibly and deliberately parked their second car in the parking space allotted to the disputants. Thereafter he started parking his car in the said slot. The society has already allotted one parking space to opponent No.2 for his first car. Despite of it, he started parking his second car in the car parking slot allotted to the disputants. The said act of opponent No.2 is malafide and mischievous which has deprived disputants of their parking slot. Disputants by their letter dated 23/10/2021, 24/10/2021 and 26/10/2021 informed the society about illegal act of opponent No.2 and requested society to take action against opponent No.2. However, society failed to consider and resolve disputants’ grievance. Due to inaction on the part of opponent No.1 society, disputants compelled to park their car at inconvenient place.

6) The family of opponent No.2 has purchased flat on 8th and 9th floor. Said floors are constructed subsequently by the society using TDR. The opponent No.2 despite of knowledge of resolution dated 24/03/2002 has illegally encroached upon disputants’ parking slot. Opponent No.2 has filed a suit bearing No.229/2021 against society for directing them to frame a parking policy. The said dispute is still pending. Hence, disputants filed dispute and prayed for various reliefs.

7) During pendency of said dispute, they filed interim application at Exh.5 for getting interim relief. It is prayed by them that during the pendency and final disposal of the dispute, the opponent Nos.1 and 2 be temporarily restrained from obstructing the disputants’ use of parking slot for Flat No.402. So also it is prayed that both the respondents be directed to hand over the parking slot of Flat No.402 to the disputants.

8) The opponent No.2 only, filed his say to the interim relief application and resisted it. It appears that opponent No.1 chose not to file any say to the said application. It is alleged that disputants have not produced any document to show that their predecessor in title was allotted a specific parking slot by the society. So also they failed to annex any document to show that they were parking their car in a specific parking slot for 15 years. The disputants are unaware of the fact that a specific parking slot cannot be bought or sold as the parking spaces belong to the co-operative society. The disputants tried to file complaint with local police station on 23/10/2021. However, he failed to produce the proof of any parking slot allotted to them by the society and hence, police refused to intervene in the matter. The disputants failed to produce any office copy of the application filed by them with the managing committee of the society for allotment of parking slot after purchase of the flat in the year 2007. So also they failed to produce the copy of their sale deed. The dispute is nothing but an attempt to create hurdles in allotment of parking slots as per the byelaws, by claiming ownership over particular parking slot on the basis of the allotment done 22 years ago, and that too, in the name of predecessor in title. The allotment of parking done in 2002 does not mention the name of either disputants or opponent No.2. The disputants seem to be under impression that allotment of parking once done by the society remains in force in perpetuity. It was the duty of the disputants to apply for a parking slot after they had purchased Flat No.402 in 2007. No allotment of the parking slot is done by the opponent society by following the byelaws till date. The dispute is filed after delay of two years. And on these grounds, he prayed to dismiss the appeal.

9) The Ld Trial Judge after hearing the parties rejected the interim relief application and said order is impugned in the present appeal.

10) In the appeal memo, it is alleged that appellants being the transferee members of the society has stepped into the shoes of their predecessor in title in respect of Flat No.402. They are entitled to all rights, privileges and benefits attached to the said flat including parking slot. The Trial Court wrongly observed that appellants are required to apply afresh to the society for allotment of car parking. The Trial Court has erred in drawing the adverse inference against the appellants for non-production of registered sale deed at the interim stage. The Trial Court has wrongly held that prima-facie case, balance of convenience does not lie in favour of appellants. The non-production of the sale deed at interim stage would not have been treated as fatal to the appellants’ claim.

11) It is also alleged that the predecessor in title of the disputants were in exclusive open and uninterrupted use of the parking space for more than 15 years. The respondent No.2 has already allotted one parking slot for his first car by the society and he is unlawfully parking his second car in the parking slot of Flat No.402. The Ld Judge failed to consider that interim relief is necessary to preserve the status-quo ante. Neither society nor respondent No.2 or any other member took any objection to the parking slot of disputants for about 15 years On these grounds disputants prayed to allow the appeal and to grant the interim relief as prayed.

12) Following points arise for my consideration and my findings with reasons thereto are as under :-

	POINTS	FINDINGS
	Does prima-facie case lie in favour of disputant/appellant ?	… In the negative
	Does balance of convenience lie in favour of disputant/appellant	… In the negative
	To whom irreparable loss will be caused if injunction is granted as prayed ?	… Does not survive
	Whether interference is called for into the impugned order of the Ld Trial Judge ?	… In the negative
	What order ?	… As per final order

R E A S O N S

13) Heard the Ld Advocates for the appellants/disputants. The Ld Advocates for respondents remained absent.

14) The Ld Advocate for the disputants submitted that the society is having more car parking spaces and less members. There are 18 members of the society and 20 car parking spaces are available in the society. The disputants have purchased the Flat No.402 from the original member of the society namely Mr. Ramesh Karla vide sale deed dated 26/12/2007 and became the member of the society on 31/07/2008. The society has allotted one car parking to Mr. Ramesh Karla vide resolution for his Flat No.402 and after purchase of the said flat, said car parking is being used by disputants. The opponent No.2 has allotted a car parking No.902 by the society for his first car but now he has forcibly encroached on the car parking slot of Flat No.402 and parking his second car there. Since 2008 till October, 2021 the disputants are using the parking slot of Flat No.402. Due to the illegal act of opponent No.2, dispute is filed and he prayed to grant the interim relief as prayed by allowing the appeal.

15) Per contra, the Ld Advocate for opponent No.2 submitted that disputants are claiming right over parking spot. He pointed out the resolution passed by the society in the year 2002 and argued that no specific location, number of parking slot for Flat No.402 is described in the said resolution. He referred Byelaw No.77(b) and 82 of Model Byelaws. He submitted that a member has no right to transfer or sell the parking slot. The disputants has failed to produce on record the office copy of the application submitted by him for allotment of a parking slot. So also, sale deed is not produced by the disputants. No parking slot in fact was allotted to the disputants by the society. He supported the lower Court’s order. According to the disputants the cause of action arose on 23/10/2021. However, the dispute is filed on 10/11/2023. The disputants have not explained the delay and hence, they are not entitled for any equitable relief. He prayed to dismiss the appeal.

As to Point Nos.1 to 3 :

16) The scope of appeal against the order passed by the Trial Judge below interim relief application is very limited. If the Trial Court has exercised its discretion judiciously, then interference in the said order is not called for. Hence, it is necessary to see whether the Ld Trial Court has exercised its discretion judiciously while partly allowing the temporary injunction application filed by the disputant.

17) Before considering the disputed fact, I would like to mention the admitted facts of the case. Disputants and opponent No.2 are members of the opponent No.1 society. The disputants are owner of Flat No.402 which they have purchased from original member of the society Shri Ramesh Karla on 26/12/2007. The society by resolution passed in managing committee meeting dated 24/03/2002 allotted a parking slot in the society building and compound to the predecessor in title of disputants.

18) At this juncture, it is necessary to quote the Byelaw No.78 and 82-

• 78 (a) The society shall in the General Body Meeting frame and adopt Parking Rules to regulate the Parking Slots, in accordance with the Act and Rules thereunder.

• (b) The allotment of Parking Space shall be made by the Committee on the basis of “First Come First Served”, for available parking slots. However, the Member shall have no right to sell or transfer the parking slot allotted by the Society.

• (c) No member may be entitled to utilise more parking spaces than what is allotted to him by the Committee or which he has purchased.

• 82. The Member, desiring to have parking slots, may make an application to the Secretary of the Society giving necessary details. The procedure laid down under the Bye-law No.63 for disposal of applications, shall be followed by the Secretary and the Committee of the Society.”

As per Byelaw No.78(b), the allotment of the parking space is the prime responsibility of managing committee of the society and a member shall have no right to sell or transfer the parking slot allotted by society. Hence, the predecessor in title of disputants namely Mr. Ramesh Karla has no right to sell or transfer the parking slot allotted to him by the society to present disputants and present disputants cannot claim any right over the parking slot allotted by the society to their predecessor in title Mr. Karla.

19) As per Byelaw No.82 the member desiring to have parking slot may make an application to the secretary of the society giving necessary details. The procedure laid down under the Byelaw No.63 for disposal of applications shall be followed by secretary and the committee of the society. Hence, as per this byelaw, it was necessary for the disputants to file application to the secretary of the society for getting a parking slot after purchase of Flat No.402. However, it appears that the disputants never made such an application to the secretary of the society for getting the parking slot to their flat. In absence of a specific procedure followed by the disputants for getting a parking for their flat, they cannot claim any right, interest over the parking slot of their predecessor in title. If they want to claim the parking slot of their predecessor in title, they should have filed an application with the secretary of society for getting the said parking slot. Admittedly, there is no resolution passed by the society granting a specific parking slot to disputants for their Flat No.402. The disputants cannot claim a specific parking slot to their Flat No.402. As such, prima-facie case and balance of convenience does not lie in their favour.

20) As regards the hardship is concerned, according to them, the opponent No.2 is forcibly parking his car in the parking slot allotted to Flat No.402. However, as already pointed out, the disputants cannot claim the parking slot allotted to their predecessor in title by the society as of right. Hence, they have no authority to question the act of opponent No.2. At the most, the disputants can move the secretary of the society for allotment of a parking space to them. Hence, if injunction is not granted, no irreparable loss will be caused to the disputants. Accordingly, I answer said point as does not survive.

21) It is well settled rule of law that delay defeats equity. It is alleged by the disputants that on 23/10/2021 the opponent No.2 forcibly and deliberately parked his second car in the parking slot allotted to disputants. The dispute is filed on 06/11/2023. It means that after the delay of two years from the cause of action, dispute is filed. The said delay is not explained by the disputants and hence, from this angle also, they are not entitled to claim the equitable relief.

22) In the dispute, the disputants have sought relief of mandatory injunction for directing opponent Nos.1 and 2 for handing over car parking space of Flat No.402 to the disputants. In the interim application also, they have sought the same relief. It is well settled rule of law that temporary mandatory injunctions are to be granted rarely. If at the interim stage, the relief of mandatory injunction is granted, then it would amount to granting the main relief at interim stage. Hence, the disputants are not entitled to get any interim relief as prayed.

As to Point No.4 :-

23) The Ld Trial Court has rightly exercised her discretion while refusing to grant the interim relief to disputants. Hence, no interference is called in the said discretion. Hence, I answer Point No.4 in the negative.

24) As a result, I proceed to pass following order :-

ORDER

1. Appeal is dismissed with costs.

2. The order passed by the Ld Trial Judge, Co-operative Court No.2, Mumbai dated 03/01/2026 below application for getting interim relief filed by the disputants at Exh.5 in Dispute No.CC/II/453/ 2023 is hereby confirmed.

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