Locked into your forum choice

In M/s Kabra and Associates & ors. v. Rekha Rajkumar Hemdev & Ors., the Supreme Court has held that a homebuyer who approaches the Real Estate Regulatory Authority (RERA) first — even if the complaint is withdrawn on procedural grounds without any hearing on merits — is permanently barred from pursuing that cause of action before a consumer forum. The doctrine of election, previously a theoretical safeguard against forum-shopping, now operates as an irreversible procedural commitment with real consequences for homebuyers, developers, and real estate funds alike. This article analyses the judgment, the questions it leaves open, and what every stakeholder in a real estate dispute must now do differently.

Rekha and Raj Kumar Hemdev purchased flats in a project developed by M/s Kabra and Associates in Maharashtra. When the developer failed to register the project under Section 3 of the Real Estate (Regulation and Development) Act, 2016, the homebuyers filed complaints before the Maharashtra Real Estate Regulatory Authority (MahaRERA) — one alleging failure to register, and another seeking a refund under Section 18.

MahaRERA noted that the project name in the complaint was incorrect and permitted the complainants to withdraw with liberty to refile. No hearing on merits took place, no notice was issued to the developer, and no substantive adjudication occurred. The complainants did not refile before MahaRERA. Instead, several years later, they filed a fresh complaint before the National Consumer Disputes Redressal Commission (NCDRC) under the Consumer Protection Act, 2019, seeking the same substantive relief. The NCDRC held the complaint maintainable, dismissing the developer’s preliminary objection that the complainants had already elected their remedy under RERA.

The Supreme Court set aside the NCDRC’s order. It held that by approaching MahaRERA and withdrawing with express liberty to refile before the same Authority, the complainants had made their election — and that election was irreversible. They could not now approach the consumer forum for the same cause of action. The Court relied on its earlier decision in IREO Grace Realtech Private Limited v. Abhishek Khanna and affirmed that the doctrine of election applies with full force to the RERA-consumer forum matrix. The Court further rejected the developer’s argument that the absence of project registration would defeat MahaRERA’s jurisdiction, holding that the failure to register is itself a violation within RERA’s regulatory remit and cannot be relied upon by the non-compliant developer to deny the homebuyer access to the forum to which they have been confined.

The Real Estate (Regulation and Development) Act, 2016 (Act), was enacted as a sector-specific statute with its own grievance redressal mechanism. Section 79 of the Act bars civil court jurisdiction over matters within RERA’s purview, but Section 88 declares that RERA’s provisions are in addition to, and not in derogation of, any other law for the time being in force. In M/s Imperia Structures Ltd. v. Anil Patni & another, the Supreme Court settled that consumer forums, unlike civil courts, fall outside the Section 79 bar, and that a homebuyer retains a genuine choice between RERA and consumer forum jurisdiction. What M/s Imperia Structures Ltd. left unanswered was the consequence of exercising that choice.

That question was partially addressed in IREO Grace Realtech Private Limited, where homebuyers had filed before both RERA and consumer forums seeking similar reliefs. The Court invoked the doctrine of election: once an allottee elects one remedy from among concurrent options, the right to simultaneously pursue the other forum for the same cause of action is forfeited. However, IREO Grace Realtech Private Limited left open what constitutes a meaningful election — whether filing alone suffices, or whether substantive engagement with the chosen forum is required. M/s Kabra and Associates now answers that question, and the answer is stricter than many expected.

M/s Kabra and Associates’ most significant, and also, in our view, problematic, implication is the threshold it sets for a binding election. The classical doctrine of election requires three elements: (i) knowledge of alternative forums, (ii) a clear choice between them, and (iii) a deliberate decision to pursue one to the exclusion of the other. Applied rigorously, the third element demands more than a bare filing followed by a procedurally compelled withdrawal.

In M/s Kabra and Associates itself, the complainants’ engagement with MahaRERA was minimal. No hearing on merits occurred. No notice was issued to the developer. The Authority identified a clerical defect, an incorrect project name, and permitted withdrawal with liberty to refile. This is not a deliberate adoption of one remedy over another; it is a forced exit from a procedural dead-end. A court applying the classical three-element test would find it difficult to characterize this as a deliberate election. As such, in our view, the judgment should be read narrowly: the doctrine of election ought to bind only where there has been substantive engagement with the chosen forum — a hearing, an interim order, or adjudication on merits. A bare filing followed by withdrawal on procedural grounds identified by the Authority itself should not constitute an irrevocable election. Courts applying M/s Kabra and Associates should test whether the complainant genuinely exercised a deliberate choice or merely encountered an institutional failure. That distinction is now the critical battleground for homebuyer counsel.

The second concern is effective remedy. The homebuyers in M/s Kabra and Associates were told they had chosen RERA and must return to MahaRERA. But RERA orders are notoriously difficult to enforce, and the Supreme Court itself observed in State of Himachal Pradesh v. Naresh Sharma that RERA’s functioning has fallen short of its statutory mandate. A homebuyer locked into RERA with no avenue to a consumer forum possessing concurrent jurisdiction and more robust enforcement tools is not necessarily a homebuyer with an effective remedy.

The doctrine of election, properly understood, exists to prevent abuse of process — it guards against a litigant extracting tactical advantage by pursuing the same cause of action across multiple forums simultaneously. It was not designed to extinguish remedies. Where its application confines a homebuyer to a forum that cannot deliver effective relief, the doctrine ceases to serve its purpose and operates instead as a denial of justice. Courts must not apply M/s Kabra and Associates mechanically in circumstances where the chosen forum is demonstrably incapable of providing the relief sought.

The question then arises: what remedial avenues survive for a homebuyer caught by the bar imposed by M/s Kabra and Associates? Three possibilities merit consideration. First, a review petition in respect of the RERA order itself, where the withdrawal was occasioned by an error attributable to the Authority — this is a narrow route, available only where the error is apparent on the face of the record, and unlikely to succeed where the withdrawal was voluntary even if procedurally forced. Second, recourse to writ jurisdiction under Article 226 of the Constitution, which is not a “forum” within the meaning of the election doctrine and remains available to challenge jurisdictional errors or violations of natural justice by RERA authorities — particularly where the RERA authority acted without jurisdiction or denied the complainant a fair opportunity to be heard. Third, a fresh complaint before the consumer forum grounded in a legally distinct cause of action — for instance, a post-withdrawal deficiency in service or a new unfair trade practice — that does not overlap with the subject matter of the original RERA filing — this requires demonstrating that the new cause of action is genuinely distinct and not a re-characterization of the original RERA claim, which courts will scrutinize carefully. Counsel should not treat the bar imposed by M/s Kabra and Associates as absolute without first exhausting these residual avenues.

M/s Kabra and Associates applies the doctrine of election to homebuyers who approached RERA without fully appreciating the consequences, encountered a procedural dead-end, and later discovered that their withdrawal had cost them their consumer forum rights. The holding is not novel in principle — it was foreshadowed in IREO Grace Realtech Private Limited — but its application to facts this thin is what gives the judgment its force, and its consequence.

The application is doctrinally defensible but contextually troubling. A doctrine that confines homebuyers to RERA is only tolerable as long as RERA is a forum worth being confined to, a condition not uniformly satisfied across India. The first filing is the final choice. Litigants must treat forum selection as the most consequential strategic decision in any homebuyer dispute, not an afterthought, but the act on which everything else turns.

About the authors: Vikram Sobti is a Partner & Head of Real Estate and Aditya Pandey is a Managing Associate at Chandhiok & Mahajan.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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