M/S Solaris Realtech Pvt. Ltd. Thru. ... vs Sanjay Kumar
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Allahabad High Court

M/S Solaris Realtech Pvt. Ltd. Thru. ... vs Sanjay Kumar on 9 April, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:20049
 
Court No. - 8
 

 
Case :- RERA APPEAL No. - 21 of 2025
 

 
Appellant :- M/S Solaris Realtech Pvt. Ltd. Thru. Authorized Representative Rajneesh Kumar
 
Respondent :- Sanjay Kumar
 
Counsel for Appellant :- Rohit Jaiswal,Brij Mohan Singh,Mohit Gupta
 
* * * * *
 
Hon'ble Jaspreet Singh,J.
 

1. Heard Shri Rohit Jaiswal, learned counsel for the appellant and Shri Rishindra Vikram Singh, learned counsel for the respondent.

2. The instant appeal has been preferred under Section 58 of the Real Estate (Regulations and Development) Act, 2016 (for short, 'the RERA Act') against the judgment and order dated 18.12.2024 passed by the U.P. Real Estate Appellate Tribunal (for short, 'the Appellate Tribunal') in Appeal (Defective) No.699 of 2022, whereby the Appellate Tribunal while allowing the appeal of the respondent has directed the appellant herein to refund the deposited amount of the respondent along with interest @ MCLR+1% per annum till the date of payment.

3. The submission of the learned counsel for the appellant is that initially the appellant along with M/s. D.P.L. Builders Pvt. Ltd., had entered into a collaboration agreement dated 30.11.2013 for developing the property in question under the name and style "Flora Heritage". The respondent herein booked a Flat No.C1-602 on sixth floor in Tower Aelius (Tower-1) measuring area 987 sq. flat on 01.09.2015 by paying a sum of Rs.25.00 lakhs.

4. It is also stated that a tripartite allotment agreement dated 01.09.2015 was executed between the parties. Since, the said project could not reach frution, hence, the appellant and M/s. D.P.L. Builders Pvt. Ltd., entered in a business transfer agreement dated 31.07.2018.

5. It is submitted that at this stage the respondent wanted refund of his money deposited towards the flat booked. However, the tripartite agreement between M/s. D.P.L. Builders Pvt. Ltd., the respondent and the present appellant, was not signed by the appellant, hence, the same could not be made binding on the appellant. As per the business transfer agreement, M/s. D.P.L. Builders Pvt. Ltd., had clearly owned its liability for any payment which was payable to erstwhile allottees and in this way the appellant was not required to pay the amount of refund to the respondent rather the respondent should have filed a complaint or raised his grievance against M/s. D.P.L. Builders Pvt. Ltd., and not against the appellant. It is taking note of the aforesaid, the Real Estate Regulatory Authority by means of the its order dated 20.05.2022 dismissed the complaint filed by the respondent.

6. The respondent thereafter preferred an appeal before the Appellate Tribunal, who by means of the order dated 18.12.2024 allowed the appeal and set aside the order passed by the Regulatory Authority and further directed the appellant to refund the amount paid by the respondent along with interest @ MCLR+1% per annum till the date of payment.

7. Learned counsel for the appellant has primarily urged that the Appellate Tribunal has erred in treating the appellant to be a promoter. It is further urged that neither the appellant was the promoter and even as per the business transfer agreement, the appellant could not be treated to be an assignee in respect of any liability especially when in the business transfer agreement it was clearly indicated that any third party claims would be the liability of M/s. D.P.L. Builders Pvt. Ltd., and not the present appellant.

8. In view thereof, the Appellate Tribunal was not justified in imposing the liability against the appellant whereas this could only be pressed against M/s. D.P.L. Builders Pvt. Ltd., and since M/s. D.P.L. Builders Pvt. Ltd., was not a party, the claim of the respondent could not be enforced against the appellant. Thus, the Appellate Tribunal has committed a grave error in failing to consider the aforesaid issues and the matter requires consideration.

9. Learned counsel for the appellant in support of his submissions has relied upon a decision of the Rajasthan High Court in Union Bank of India v. Rajasthan Real Estate Regulatory Authority and others, in D.B. Civil Writ Petition No.13688 of 2021, decided on 14.12.2021.

10. Shri Rishindra Vikram Singh, learned counsel for the respondent while refuting the aforesaid submissions has pointed out that the land in question belonged to the appellant and it was the appellant, who entered in a collaboration agreement with M/s. D.P.L. Builders Pvt. Ltd., dated 30.11.2013.

11. It is further submitted that in terms of the agreement dated 01.09.2015, the flat was allotted to the respondent and the said tripartite agreement was signed by M/s. D.P.L. Builders Pvt. Ltd., as well as the respondent and the agreement would indicate that the present appellant was also a party.

12. At this stage, once the said project had been floated wherein both the appellant and M/s. D.P.L. Builders Pvt. Ltd., had a stake coupled with the fact that it was M/s. D.P.L. Builders Pvt. Ltd., and the appellant, who entered into a business transfer agreement and the same could not be enforced against the respondent. It would be extreme strange to suggest that after the business transfer agreement any money which was payable by an allottee to erstwhile M/s. D.P.L. Builders Pvt. Ltd., would be collected by the appellant, however, in order to meet out any obligation, it would be M/s. D.P.L. Builders Pvt. Ltd., who would be responsible and not the appellant.

13. It is further submitted that the business transfer agreement was an arrangement contract between the appellant and M/s. D.P.L. Builders Pvt. Ltd., and whatever arrangement was arrived at was between them and it could not be extended to the detriment of the respondent herein. The Real Estate Regulatory Authority had erroneously dismissed the complaint and the Appellate Tribunal after discussing the provisions of the RERA Act including considering the documents has returned findings which cannot be said to be faulty. Accordingly, the appeal does not involve any substantial question of law, thus, it is liable to be dismissed.

14. The Court has considered the rival submissions and also perused the material on record.

15. Having considered the submissions of the respective parties, this Court finds that the learned counsel for the appellant could not dispute the fact that the land in question belonged to the appellant. It is also not disputed that the appellant and M/s. D.P.L. Builders Pvt. Ltd., entered in a collaboration agreement dated 30.11.2013. It is also not disputed that in terms of the said collaboration agreement, the M/s. D.P.L. Builders Pvt. Ltd., had rights to develop the property in dispute and both M/s. D.P.L. Builders Pvt. Ltd., and the present appellant had financial stakes and revenue sharing arrangement.

16. It also could not be disputed by the learned counsel for the appellant that an agreement dated 01.09.2015 was executed for allotment of the flat in favour of the respondent and in furtherance thereof, a sum of Rs.25.00 lakhs was received. Whether the said amount was received by M/s. D.P.L. Builders Pvt. Ltd., or the appellant is the subject matter which is governed by the arrangement between the M/s. D.P.L. Builders Pvt. Ltd., and the appellant either in terms of the collaboration or business transfer agreements.

17. Since, the allotment of the flat was in furtherance of the collaboration agreement, hence, it cannot be said that the present appellant would have no liability at all. Moreover, if the definition of the word 'promoter' as defined in Section 2(zk) of the RERA Act is seen, it would indicate that it is an expansive definition which includes not only the persons who constructs a building but also includes the person who causes it to be constructed.

18. This aspect has already been taken note of by the Appellate Tribunal and it cannot be said that the present appellant was not a promoter especially when he had already entered in a business transfer agreement on 09.08.2018, whereas the complaint before the Real Estate Regulatory Authority was filed on 20.07.2020.

19. From a perusal of the business transfer agreement dated 09.08.2018, a copy of which has been brought on record as Annexure No.4, would indicate that it relates to transfer of business from M/s. D.P.L. Builders Pvt. Ltd., to the appellant with its terms and conditions. That being so, it cannot be said by the appellant that they have taken over the business alongwith its assets but the liability would be payable by M/s. D.P.L. Builders Pvt. Ltd. Even though the word 'assignee' may not have been defined in the RERA Act, but the fact remains that the appellant has stepped into the shoes of M/s. D.P.L. Builders Pvt. Ltd, in consequence of the business transfer agreement. The record indicates that the allotment was made on the basis of collaboration agreement between M/s. D.P.L. Builders Pvt. Ltd. and the appellant and at a later stage, the appellant had taken over the entire project vide business transfer agreement, hence, in the aforesaid circumstances, it cannot be said that the appellant is not an assignee.

20. In Union Bank of India (supra), Paragraphs 29 and 30, the Court had taken note of the definition of the word 'promoter' as defined in the RERA Act and it further noticed that the term 'assignee' has not been defined in the RERA Act, hence, there is no connotation with the borrower. However, from a perusal of the said judgment, it does not indicate that as to how the appellant can derive any benefit thereof.

21. The appellant has also relied upon a decision of the Apex Court in Khardah Company Ltd. v. Raymon and Co. (India) Private Ltd., AIR 1962 SC 1818 for the purpose of defining an assignee to urge that as a rule obligations under a contract cannot be assigned except with the consent of the promisee and when such consent is given, it is really a novation resulting in substitution of liabilities.

22. Taking the arguments forward, learned counsel for the appellant had also relied upon a decision of the Apex Court in ICICI Bank Limited v. Official Liquidator of APS Star Industries Ltd. and others, (2010) 12 SCR 644. In the instant case as well, the term 'assignee' has been considered. However, none of those judgments indicate that any agreement between two parties can be made binding on a third party/non-signatory of the said agreement. The facts of the case as cited by the learned counsel for the appellant are completely different to the issue involved in the instant case. Hence, none of those decisions have any applicability to the present case.

23. The submission of the learned counsel for the appellant that in order to press the obligations under a contract against the assignee it requires the consent of the promisee and in the instant case, the business transfer agreement clearly indicated that any liability regarding the flat would be of that M/s. D.P.L. Builders Pvt. Ltd., would indicates that the appellant being the promisee had not given its consent, hence, the liability cannot be pressed against the present appellant also is fallacious inasmuch as the business transfer agreement is primarily between the M/s. D.P.L. Builders Pvt. Ltd., and the appellant. Neither the respondent nor the other similarly situated persons i.e. the several other allottees of the said projects were parties thereto. Hence, any arrangement between M/s. D.P.L. Builders Pvt. Ltd., and the appellant cannot be extended to foreclose rights of the respondent, who is an allottee. This being so, this Court finds that the matter has appropriately being decided by the Appellate Tribunal and there is no error muchless a palpable error which gives rise to any substantial question of law for this Court to admit the appeal.

24. Accordingly, this Court is of the view that the appeal is sans merits and is dismissed at the admission stage itself. Costs are made easy.

Order Date :- 09.04.2025

Rakesh/-