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BEFORE THE MAHARASHTRA
REAL ESTATE REGULATORY AUTHORITY, MUMBAI
Virtual Hearing held through video conference as per
MahaRERA Circular No.: 27/2020

1. COMPLAINT NO. CC006000000580864


AMIT GHARKUL BUILDERS LLP
…COMPLAINANT
VS

HONEST SHELTERS PRIVATE LTD

…PROMOTER/RESPONENT NO.1
a/w

2. APPLICATION NO. CC006000000580864/APPL/UH/1
IN

COMPLAINT NO. CC006000000580864


AMIT GHARKUL BUILDERS LLP
…COMPLAINANT
VS

HONEST SHELTERS PRIVATE LTD

…PROMOTER/RESPONENT NO.1
a/w

3. APPLICATION NO. CC006000000580864/APPL/IR/2
IN

COMPLAINT NO. CC006000000580864


AMIT GHARKUL BUILDERS LLP
…COMPLAINANT
VS

HONEST SHELTERS PRIVATE LTD

…PROMOTER/RESPONENT NO.1


MAHARERA PROJECT REGISTRATION NO. P51900006786


INTERIM ORDER


November 25, 2024
(Last Date of hearing –04.11.2024 wherein the matter was reserved for order.)


Coram: Manoj Saunik, Chairperson, MahaRERA

Advocate Harshad Bhadbhade for the complainants at Sr. nos. 1 to 3.
Adv. Mayur Khandeparkar, Adv. Rubin Vakil a/w
Adv. Saloni Sulakhe, Adv. Ramana Deshmukh i/b
Dhaval Vussonji & Associates for the Respondents at Sr. nos. 1 to 3.

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1. The complainant is home buyer/ allottee within the meaning of section 2(d) of the
Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the
“said Act”) of Real Estate Regulatory Authority (hereinafter referred to as the
“RERA”) and the respondent no. 1 is the promoter/developer within the meaning of
section 2(zk) of the said Act. The respondent no. 1 has registered a project namely
“PALAIS ROYALE” under section 5 of the said Act bearing
MAHARERA project
registration No. P51900006786
(hereinafter referred to as the “said Project”). On the
MahaRERA project registration webpage the proposed completion date of the said
project is mentioned as 30.06.2022, revised date of completion is mentioned as

30. 12.2022 and extended date of completion is mentioned as 30.12.2024.

2. The complainant is seeking the following reliefs:
“1. The Promoter be directed to hand over possession of flat bearing no. 30 NE in the
building ‘Palais Royale’, Worli Estate, Lower Parel, Mumbai-400013 to the Complainant,

2. It be declared that the Complainant is not required to pay the transfer charges as demanded
by the Promoter,

3. It be declared that the termination by the Promoter of the said Flat is null and void and the
Agreement dated 5.7.2012 is legal, valid, subsisting and binding on the Promoter.”

3. The captioned complaint at sr. no. 1 was heard on 01.07.2024, 21.10.2024 & 04.11.2024
and the applications at sr. no’s 2 & 3 were heard on 21.10.2024 & 04.11.2024 wherein
the following roznama was recorded by this Authority on 04.11.2024 in the captioned
complaint and applications:
“Both the parties are present.
Heard both the parties on interim application at length. Both the parties to submit written
submissions/note of arguments, within three days from today. Subsequent to which, the
matter will be reserved for interim orders.”

4. The brief submission of the complainant is as follows:
A.
That the complaint was filed on 21.06.2024.
B.
The complainant vide agreement dated 05.07.2012 purchased a flat no. ‘30NE’,
in the said project for total consideration of Rs. 33,75,00,000/- of which approx.
Rs. 22,00,00,000/- is paid (hereinafter referred to as the “said flat” and “said
agreement”).

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C.
That as per clause no. 30 of the said agreement the promoter was under a legal
obligation to handover the said flat on or before 31st December 2013.
D.
That in the said agreement the name of the promoter/developer is shown as
'Shree Ram Urban Infrastructure Ltd’.
E. That Shree Ram Urban Infrastructure Ltd. faced insolvency proceedings, and its
rights were transferred to Honest Shelters Pvt. Ltd. i.e. the present respondent.
F. That the present respondent i.e. Honest Shelters Pvt. Ltd. have registered itself
as promoter/developer under the provisions of the Act. The record shows that
MahaRERA has approved the change of promoter from 25.03.2021.
G. That the respondent entered into certain communication with the complainant
and when the complainant sought the inspection of the said flat, all of a sudden
vide alleged notice dated 20.04.2024 the respondent sought to wrongfully
terminate the said agreement on the ground that control and management is
transferred to Mr. Atul Ishwardas Chordia and Mrs. Varsha Atul Chordia.
H. That the said agreement cannot be cancelled by the respondent in any manner
whatsoever. That the said agreement is executed and registered under the
provisions of the Maharashtra Ownership of Flats Act, 1963 and the Real Estate
Regulation and Development Act, 2016 are also applicable to the said
transaction and agreement.
I. That at the cost of repetition the complainant submits that the said agreement
was executed and registered by a Limited Liability Partnership, Amit Gharkul
Builders LLP. It is submitted that Section 3(3) of the Limited Liability
Partnership Act which mandates that the change of the partners would not
affect the rights and liabilities of the Limited Liability Partnership.
J. Thus, it becomes clear that allegation in the notice dated 20.04.2024 by the
respondent that, earlier partners have retired, and new partners have joined and
therefore, the so called clause (h) of para 33 of the said agreement is violated, is
far from truth and factual details. It is submitted that said assertion is also
against the provisions of Limited Liability Partnership Act, 2008.
K. That without prejudice to the abovesaid, that the so-called written permission of
the Promoter contemplated in clause (h) is a mere formality and no discretion of
whatsoever nature is bestowed contractually or otherwise on the promoter to
refuse such a permission under any circumstances whatsoever.

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L. That the aforesaid facts were brought to the knowledge and notice of the
respondent by the complainant vide its notice reply dated 06.05.2024. It is
submitted that in the said reply, the complainant had also attached original
cheques towards the remaining consideration. It is submitted that without
prejudice to the rights of the complainant, the complainant has also tendered the
cheque for alleged transfer charges.
M. That vide letter dated 16.12.2022 it was informed to complainant that the
respondent has obtained/procured part occupation certificate dated 12.08.2022
bearing Ref. No. EB/987/GS/A/OCC/1. It is submitted that, as an answer to
the said letter, the Complainant vide letter dated 27.12.2022 had forwarded
demand draft dated 26.12.2022 for a sum of Rs. 11,80,00,000/- issued by RBL
Bank Limited in favour of Honest Shelters Pvt. Ltd. It is submitted that the total
consideration is Rs. 33,75,00,000/- of which the complainant had already made
payment of more than 60% of the amount as per demand of the respondent and
rest of the amount was offered by demand draft vide letter dated 16.12.2022
itself. It is submitted that no explanation of whatsoever nature is offered by the
respondent at any time as to why the said demand draft was not accepted and
why possession of the said flat is not given to the complainant as promised and
assured by the respondent. It is submitted that the clause mandating prior
permission of the respondent and levy of Rs. 3 Crores as a "Transfer Charges" is
illegal.
N. That the said reply dated 06.05.2024 was duly received by the respondent.
However, the respondent and its directors have kept conspicuous silence about
the same and has not replied on the same and thus, the complainant apprehends
that the respondent through its directors may breach the said agreement and
cause loss to the complainant by creating third-party rights and thus, the
complainant is left with no other alternative but to approach this Hon'ble
Authority.

5. The complainant has filed two applications mentioned at sr. no’s 2 & 3 on 13.09.2024
and 16.10.2024 respectively on the following grounds:
“For sr. no. 2 -urgent hearing application:

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The complainant, most respectfully submits that the complainant has already received
notice claiming termination of the apartment. The complainant seriously apprehends
that based upon said termination notice the respondent will create third-party
rights in respect of the said apartment. The complainant states that the complainant
has registered agreement for sale and has paid all the consideration, and he is also ready
and willing to pay the balance consideration. In such circumstances, the termination is
absolutely bad in law. However, the complaint will become infructuous if the
Respondent is permitted to create third-party right. The complainant seriously
apprehend in view of recent developments and the conduct of the Respondent, that the
Respondent will create third-party rights in respect of the apartment already allotted to
present complainant and therefore complainant seek to take an order of injunction,
restraining the respondent herein from creating third-party rights in respect of the
apartment. In such circumstances, the complainant states that there is urgency and
therefore complainant seek urgent circulation of the aforesaid complaint before this
Authority only for the purposes of hearing on interim relief

For sr. no. 3- interim application:

1. The Applicant is the original Complainant in the captioned Complaint. The
Complainant. The applicant/ Complainant are the Allottees in respect of the project and
have booked the apartments in the aforesaid project, henceforth referred to as “The
Complainant”. The Complainant is ‘Allottee’ as per section 2(d) of the Real Estate
(Regulation and Development) Act, 2016. 2. The Respondents are the promoter who is
developing the said project. 3. The present application is filed by the Applicants seeking
urgent reliefs in view of the extreme urgency in the captioned matter. 4. The brief facts
of the case are as follows: 5. The complainant has purchased flat bearing number 30 NE
in the building by name “Palais Royale” Worli Estate, Lower Parel, Mumbai- 4000 13
wide agreement for sale dated 5 July, 2012, registered in the office of Sub Registrar of
Assurance Mumbai 3 at Sr. no. 6422/2012. 6. It is submitted that in the said
agreement, the name of the promoter developer is shown as Sriram Urban
Infrastructure Limited. 7. It is submitted that as per clause 30 of the said agreement, the
promoter Developer was under a legal obligation to handover the said flat i.e. flat
number 30 NE on or before 31 December 2013. 8. It is submitted that it appears that the
said Shri Ram Urban Infrastructure Limited faced Insolvency proceeding and its rights
were transferred to Honest Shelter Private Limited. i.e. the present Respondent. It is
submitted that the present respondent appears to have registered itself as a
Promoter/developer under the provision of RERA 9. It is submitted that after acquiring
the rights as a promoter in respect of the said building “Palais Royale”, the respondent
entered into certain communication with the complainant and when the component
sought the inspection of the said flat, all of sudden vide alleged notice dated 20/04/2024
the respondent sought to wrongfully terminate the registered agreement dated 05/07/
2012 on the ground that control and management of the complainant Limited liability
partnership is transferred to Mr Atul Ishwardas Chordia and Miss Varsha Atul
Chordia. 10. The complainant, most respectfully submits that the complainant has
already received notice claiming termination of the apartment. The complainant
seriously apprehends that based upon said termination notice the respondent will
create third-party rights in respect of the said apartment. The complainant states
that the complainant has registered agreement for sale and has paid all the
consideration, and he is also ready and willing to pay the balance consideration. In such
circumstances, the termination is absolutely bad in law. However, the complaint will

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become infructuous if the Respondent is permitted to create third-party right. The
complainant seriously apprehend in view of recent developments and the conduct of the
Respondent, that the Respondent will create third-party rights in respect of the
apartment already allotted to present complainant and therefore complainant seek to
take an order of injunction, restraining the respondent herein from creating third-party
rights in respect of the apartment. GROUNDS a) That the termination notice issued by
the Respondent is bad and arbitrary and without following due process of law. b) It is
submitted that in the agreement for sale dated 05.07 2012, the title with name itself
shows that assignment and transfers of all the natures are permitted. For the sake of
ready reference. (I crave to refer and rely upon the AFS) c) It is submitted that the said
definition of the flat purchaser itself shows that all the permitted assign transfer or
permitted by the said agreement on page number 2 itself. d) It is submitted that thus at
the cost of repetition, the complainant submits that the agreement dated 05.07.2012 was
executed and signed and registered by a limited liability partnership. Amit Gharkul
builders LLP. It is submitted that section 3 (3) of the Limited liability partnership act,
which mandates that the change of the partners would not affect the right and liability
of the LLP. e) It is submitted that thus it become clear that allegation in the notice dated
20/04/2024 by the respondent that, earlier partners have retired and new partners have
joined and therefore, the so called clause (h) of para 33 of the agreement dated 05/07/
2012 is violated, is far from truth and factual details. It is submitted that the said
assertion is also against the provision of LLP act 2008. f) The applicant states that the
applicant has already filed complaint. To avoid repetition of averments the applicant
prays that the averments made in the complaint be treated as forming part of this
application. g) In such circumstances, the complainant states that there is urgency and
therefore complainant seeks urgent relief in the said matter. PRAYERS: In view of the
aforesaid facts & circumstance, the Applicants/ complainants prays for the following
interim reliefs: a) That this Hon’ble Authority may be pleased to circulate and hear the
captioned complaint on 23rd October, 2024 at 11.00 am, or anytime thereafter, in view
of the urgency as elaborated hereinabove. b) That pending the hearing and final disposal
of the captioned complaint, this Hon’ble Authority may be pleased to direct the
Respondents and / or its servants, agents, assignee or any person claiming through and
/or under the Respondents from acting upon the termination notice 20.04.2024. c) That
pending the hearing and final disposal of the captioned complaint, this Hon’ble
Authority may be pleased to direct the Respondents and / or its servants, agents,
assignee or any person claiming through and /or under the Respondents from creating
any third party rights, or encumbrances in respect of the flat bearing no 30 NE in the
said project namely “PALAIS ROYALE”. d) Ad-interim reliefs in terms of prayer
clause (a) (b) & (c) as above. e) For costs f) For such other and further reliefs as this
Hon’ble Authority may deem fit and proper in the facts & circumstances of the present
case.”

6. It is observed that the complaint at sr. no. 1 is the main complaint (hereinafter
referred to the said complaint”) and applications at sr. no 2 & 3 are the urgent
hearing and interim application filed by the complainant in the main complaint at sr.
no. 1 (hereinafter referred to the said application/s”). Further it is observed as per
roznama dated 04.11.2024 that the captioned complaint and applications are reserved

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for orders only on the limited issue of interim reliefs sought by the complainant.
Therefore, in view thereof, the captioned complaint is not heard on merits and issue
that now only remains to be decided is on the applications filed in the captioned
complaint.

7. It is observed that the advocate of the respondent was present in hearings held on

21. 10.2024 & 04.11.2024 before the Authority. Further it is also observed that
respondents have not filed any written submission nor any replies in the captioned
complaint and the said applications despite liberty and been given to the respondent.

8. Their entire case rests on the clause 33(h) of the agreement for sale which bars the
purchaser from parting with any flat purchaser’s interest till the full payment of the
consideration amount. The respondent argues that the composition of the LLP
changed and hence they are justified in cancelling the agreement of sale.

9. From the facts and the submissions, the preliminary issue to be considered is
whether the interim relief prayed for can be granted to the complainant and under
which provisions of the Act.

10. Before moving further, the followings observations are noteworthy:

a. The entire matter hinges on the adjudication of issues under the Limited
Liability Partnership Act, 2008 which this authority is not legally competent.
b. The respondent’s impugned action of issuance of the termination notice
emanates from his interpretation of the composition of the LLP as per
provisions of the LLP Act.
c. Similarly the complainants entire case is based on the definition and
composition of LLPs as per the LLP Act.

11. In view of the observations in the para no. 10 above the Authority is unable to grant
any interim relief as prayed for. Parties may seek adjudication of the issues
emanating from the LLP Act, 2008 at the proper forum.

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12. The captioned complaint at Sr. no. 1 shall be listed as per seniority for final
hearing on merits. The said interim application at Sr. no. 3 is disposed without
any directions for the reasons hereinabove.


Manoj Saunik


Chairperson, MahaRERA
MANOJ
SAUNIK
Digitally signed by
MANOJ SAUNIK
Date: 2024.11.25
11:22:38 +05'30'