SHRI SAI VISHRAM CO OPERATIVE HOUSING SOCIETY LTD AND ORSversusBEENA HITESH TRIVEDI

                                                                909 12 13 15-SA148-2026+.DOC

                                                                                     Santosh

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION


                                       SECOND APPEAL NO. 148 OF 2026
                                                   WITH
                                    INTERIM APPLICATION NO. 2307 OF 2026

                      Shri Sai Vishram Co-operative Housing Society
                      Ltd. and ors.                                           ...Applicants
                                         Versus
                      Ninad Padmakar Paralkar and ors.                      …Respondents
                                                  WITH
                                      SECOND APPEAL NO. 161 OF 2026
                                                  WITH
                                   INTERIM APPLICATION NO. 2495 OF 2026

                      Shri Sai Vishram Co-operative Housing Society
                      Ltd. and ors.                                           ...Applicants
                                           Versus
                      Shreya Hitesh Trivedi And Ors                         …Respondents
                                                  WITH
                                      SECOND APPEAL NO. 162 OF 2026
                                                  WITH
                                   INTERIM APPLICATION NO. 2496 OF 2026
ARUN
RAMCHANDRA
SANKPAL
                      Shri Sai Vishram Co-operative Housing Society
Digitally signed by
                      Ltd. and ors.                                           ...Applicants
ARUN
RAMCHANDRA
SANKPAL
Date: 2026.04.11
18:34:08 +0530
                                           Versus
                      Beena Hitesh Trivedi And Ors.                         …Respondents
                                                  WITH
                                      SECOND APPEAL NO. 164 OF 2026
                                                  WITH
                                   INTERIM APPLICATION NO. 2512 OF 2026

                      Shri Sai Vishram Co-operative Housing Society
                      Ltd. and ors.                                           ...Applicants
                                         Versus
                      Meera Padmakar Paralkar Since Deceased
                      Through LRs.                                          …Respondents

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Ms. Kashmira Bharucha, i/b Akshay Pawar, for the Applicants –
      Appellants in all IA and SA.
Mr. Mohit Khanna, a/w Harsh B. and Saloni Manjrekar and Gaurav
      Gawali, i/b HN Legal, for the Respondents.

                                     CORAM:         N. J. JAMADAR, J.
                                     DATED:         8th APRIL, 2026

ORDER:-

1.    The learned Counsel for the respondents seeks leave to tender

affidavit-in-reply in SA/148/2026.

2.    The learned Counsel for the respondents submits that the said

affidavit-in-reply be treated as an affidavit-in-reply in the interim

applications for stay in the rest of the appeals.

3.    Heard Ms. Kashmira Bharucha, the learned Counsel for the

Appellants, and Mr. Mohit Khanna, the learned Counsel for the

Respondents.

4.    These appeals are directed against a common order dated 18 th

December, 2024 passed by the Maharashtra Real Estate Appellate

Tribunal in the miscellaneous applications preferred by the appellants in

the appeals assailing the common order dated 20th March, 2025 passed

by the Maharashtra Real Estate Regulatory Authority (“the Authority”),

in the complaints filed by the respondents allottees.

5.    By a common order dated 20th March, 2025, the Authority

directed the appellant-society (Respondent No.3 therein) and the


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promoters (Respondent Nos.1 and 2 therein) to pay interest under the

provisions of Section 18 of the Real Estate (Regulation and

Development) Act, 2016 (“RERA 2016”), construing the appellant also

as a promoter.

6.    Being aggrieved, the appellant preferred the appeal before the

Appellate Tribunal. By the impugned order, the Appellate Tribunal

directed the appellant to deposit the amount in terms of the proviso to

Sub-section (5) of Section 43 of the RERA 2016. The Appellate Tribunal

repelled the contention of the appellant-society that it was not a

promoter within the meaning of Section 2(zk) of the RERA 2016 and,

thus, could not have been saddled with the liability to pay interest

under Section 18 of the RERA 2016.

7.    Ms. Kashmira Bharucha, the learned Counsel for the appellant,

would urge that the Appellate Tribunal has committed a manifest error

in law in holding that the appellant is a promoter within the meaning of

Section 2(zk) of the RERA 2016. The Appellate Tribunal, according to

Ms. Bharucha, has completely misconstrued the ratio of the binding

decisions of this Court in the cases of Vaidehi Akash Housing Pvt. Ltd.

vs. New D.N. Nagar Co-op. Housing Society Union Ltd. and Others 1,

Goregaon Pearl CHSL vs. Dr. Seem Mahadev Paryekar & Ors. 2 and



1     2014 SCC Online Bom.5068.
2     2019 SCC Online Bam 3274.
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Deepak Prabhakar Thakoor & Ors Vis. MHADA & Ors. 3, that the

allottees of the erstwhile developer, the development agreement with

whom stands terminated, have no right against the Society and their

remedy is against the erstwhile developer with whom they had privity

of contract. Ms. Bharucha would urge, despite noticing the ratio in the

aforesaid judgments, the Appellate Tribunal committed a grave error in

law in basing its finding on the Circular issued by the MahaRERA dated

4th December 2017. Thus, a substantial question of law as to whether

the Appellate Tribunal could have returned the finding that the

appellant-society is a promoter on the basis of the said Circular in the

face of binding decisions of this Court, arises for consideration.

8.    Mr. Mohit Khanna, the learned Counsel for the respondents,

submitted that the appeals do not deserve to be entertained for the

reason that the appellants have already complied with the impugned

order, in part, and had sought time to deposit the balance amount. Even

otherwise, the facts of the case at hand indicate that the appellant

Society has not only ratified the agreement between the erstwhile

developer and new developer but even obtained consideration in the

form of enhanced constructed portion in the project and a substantial

monetary consideration of Rs.3 Crore, in addition thereto. If the recitals

in all the agreements are read in the correct perspective, Mr. Khanna

would urge, it cannot be said that the appellant is not a promoter.

3      2023 SCC Online Bom. 2234.
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9.    Mr Khanna invited attention of the Court to the Development

Agreement between the appellant-society and M/s SAAGA Infraprojects

Ltd, the erstwhile developer; Memorandum of Understanding between

M/s   SAAGA     Infraprojects   and   M/s   AARYADEEP       Builders   and

Developers, the new developer; the Development Agreement between

the appellant-society and new developers, dated 26 th September 2016;

Supplementary Agreement dated 27th July 2019 executed by and

between the appellant-society and the new developer, and the consent

terms executed between the Plaintiff-society and new developer in

Commercial Suit(L) No. 24609 of 2023, to buttress the submission that

the appellant-society has received a share in the constructed area and a

sum of Rs. 3 Crores by way of corpus funds for the additional area.

10.   Taking the Court through the aforesaid ageements, Mr. Khanna

submitted that the appellant-society clearly falls within the definition of

“Promoter” under Section 2(zk) of the RERA 2016.

11.   There can be no quarrel with the proposition that the persons

who had entered into Agreement with the erstwhile developer, the

development agreement with whom stands terminated, do not have

privity of contract with the society. The agreements executed by the

terminated developer during the subsisting Development Agreement do

not bind the society. Such persons would be required to enforce their

rights and, workout their remedies, qua the erstwhile developer.


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However, where it is demonstrated that under the Development

Agreement, the society has a share in the constructed area or revenue to

be generated out of the sale of the Units in the project, slightly different

considerations come into play. In that case, an investigation into the

nature of the development agreement and the recitals therein to

appreciate the true character of the benefit derived by the society

becomes necessary.

12.   In the instant case, the Appellate Tribunal after considering the

terms of the Development Agreement with the erstwhile developer,

especially Clause 12(p) has drawn an inference that since the additional

constructed area has been agreed to be distributed between the

appellant-society and the developer in the ratio of 50% : 50% there was

an area sharing agreement between the appellant and the erstwhile

developer. Co-relating the said stipulations with the Circular No. 12 of

2017, the Appellate Tribunal has declared that the appellant-society was

a Promoter within the meaning of Section 2(zk) of the RERA 2016.

13.   The aforesaid finding is, in a sense, tentative in nature and made

for the purpose of determination of the question as to whether the

appellant-society was also required to make the pre-deposit under

Section 43(5) of the RERA 2016, in its capacity as a promoter. At the

stage of final decision of the Appeals, the said question may be

examined in the fullness it deserves. Thus, at this stage, this Court need


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not elaborately delve into the said question lest it would amount to pre-

judging the Appeals sub-judice before the Appellate Tribunal.

14.   Suffice to note that, the definition of “Promoter” under Section

2(zk) is of widest amplitude. Under Clauses (i) to (iv), specified

categories of persons are designated as Promoter. Under Clause (v) any

other person who acts himself as a builder, coloniser, contractor,

developer, estate developer or by any other name or claims to be acting

as the holder of a power of attorney from the owner of the land on

which the building or apartment is constructed or plot is developed for

sale, is also a Promoter. Under Clause (vi) of Section 2(zk), Promoter is

such other person who constructs any building or apartment for sale to

the general public. The Explanation to Clause (vi) further expands the

scope of the definition of Promoter. It provides that, where the person

who constructs or converts a building into apartments or develops a

plot for sale and the person who sells apartments or plots are different

persons, both of them shall be deemed to be the promoters and shall be

jointly libale as such for the discharge of the functions and

responsibilities specified under the Act 2016 and the rule thereunder.

15.   In the instant case, the documents executed by and between the

appellant-society and erstwhile developer, between the appellant and

new developer and between the erstwhile developer and new new

deveoper, cannot be read in isolation. There is an element of continuity


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and nexus in these documents. Thus, all these documents may be

required to be read in conjuction with each other to appreciate the real

nature of the bargain among the three alleged promoters.

16.   If the recitals in the Develop Agreement between the appellant-

society and the erstwhile developer and between the appellant-society

and the new Developer are construed as a whole it can hardly be

disputed that the appellant-society is entitled to a share in the

additional construction. Under the Supplementary MoU executed

between the appellant-society and the new developer, in consideration

for allowing the developers to utilize the society’s 25% share of the

additional carpet area of constructed flats beyond sancitoned 16 floors,

the society is entitled to corpus amount to be computed as per formula

prescribed therein. It further appears that in the wake of the dispute

between the appellant-society and the new develper, the appellant-

society has agreed to accept a corpus fund of Rs. 3 Crores for the

additonal area as allowed under the Supplementary Agreement dated

27th July 2019.

17.   If all these documents are read cumulatively, the view of the

Appellate Tribunal that, in the peculiar facts of the case, the appellant-

society satisfies the definition of the Promoter, albeit for the purpose of

the compliance of the proviso to Section 43(5) of the RERA 2016,

cannot be said to be legally infirm.


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18.   Thus, no substantial question of law arises for consideration.

19.   I also find substance in the submission of Mr. Khanna that the

appellant-soceity has deposited part of the amount, directed to be

deposited by the Appellate Tribunal, wihtout any demur. A Compliance

Affidavit was filed on behalf of the appellant -society affirming that

since it was directed to make the pre-deposit along with the erstwhile

developer and new developer, its liability was only to the extent of 1/3

of the amount of pre-deposit. By an order dated 26 th March 2026, the

Appellate Tribunal repelled the aforesaid contention and directed

appellant-society to deposit the balance amount holding that, the

appeellant-society was also severally liable to make the pre-deposit

along with the erstwhile and new developer. For this reason also, the

Appeals do not deserve to be entertained.

20.   The Appeals thus stand dismissed.

21.   In view of the dismissal of the Appeals, all Interim Applications

also stand disposed.

                                              [N. J. JAMADAR, J.]




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