MR. SHAILESH B. CHARATI vs M/S. ARYA GRUHA PRIVATE LIMITED
- Court
- Karnataka High Court
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RERA.A No. 74 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 9 DAY OF JULY, 2026
PRESENT
R
HON'BLE MR. JUSTICE JAYANT BANERJI
AND
HON'BLE MS. JUSTICE TARA VITASTA GANJU
RERA APPEAL NO.74 OF 2025
BETWEEN:
1. MR.SHAILESH B. CHARATI,
S/O BASAVAPRABHU CHARATI,
AGED ABOUT 47 YEARS,
2. MRS. MAMTA S. CHARATI,
W/O SHAILESH B. CHARATI,
AGED ABOUT 44 YEARS,
BOTH ARE R/AT:
5P105, ARYA HAMSA APARTMENTS,
TH
J P NAGAR 8 PHASE,
BENGALURU-560 083.
…APPELLANTS
(BY SRI.VIDYADHAR M. DURGEKAR, ADVOCATE)
AND:
1. M/S. ARYA GRUHA PRIVATE LIMITED,
A COMPANY REGISTERED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956,
REP. BY ITS DIRECTOR
& AUTHORIZED SIGNATORY,
MR.RAMNARAIN.C.K,
HAVING ITS REGISTERED OFFICE AT:
ST
SHOP NO.4, 1 FLOOR,
ARYA HAMSA, SURVEY NO.28/1,
TH
KOTHNOOR, J P NAGAR 8 PHASE,
ND
2 BLOCK, BANGALORE- 560 083.
Digitally signed by
SUMATHY KANNAN
Location: HIGH
COURT OF
KARNTAKA
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2. MR.RAMNARAIN KRISHNA COPPARAM,
DIRECTOR-M/S ARYA GRUHA PRIVATE LIMITED,
MAJOR, E-MAIL [email protected]
R/AT NO.24, RAMAKRISHNAPPA ROAD,
COX TOWN, BENGALURU-560 005.
3. MR.MUNISWAMAPPA MANJUNATH,
DIRECTOR, M/S ARYA GRUHA PRIVATE LIMITED
AND LANDOWNER,
MAJOR, EMAIL [email protected]
4. MR.MOHITH M,
LANDOWNER,
MAJOR,
5. MRS.ROOPA M,
LANDOWNER,
MAJOR,
6.
6(a).
6(b).
MRS.RUKKAMMA,
SINCE DECEASED ON 03-12-2017,
REP. BY HER LEGAL HEIRS,
MRS. PREMAKUMARI.M,
D/O H.MUNISWAMAPPA,
LANDOWNER, MAJOR,
MRS.SARASWATHI.M,
D/O H.MUNISWAMAPPA,
LANDOWNER, MAJOR,
7. MR.VINEETH M,
LANDOWNER,
MAJOR,
R3 TO R7 ARE R/AT
72, VANASHRI VADDARAPALYA VILLAGE,
TH ND
J.P.NAGAR, 8 PHASE, 2 BLOCK
GOTTIGERE, BENGALURU-560 083.
8. REAL ESTATE REGULATORY AUTHORITY,
REPRESENTED BY ITS SECRETARY,
ND
2 FLOOR, SILVER JUBILEE BLOCK,
UNITY BUILDING, CSI COMPOUND,
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RD
3 CROSS, MISSION ROAD,
BENGALURU-560 027
…RESPONDENTS
THIS RERA APPEAL IS FILED UNDER SECTION 58 OF THE REAL
ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
IMPUGNED JUDGMENT AND ORDER DATED 01.08.2025 PASSED
BY THE KARNATAKA REAL ESTATE APPELLATE TRIBUNAL IN
APPEAL NO. (K-REAT) 61/2022 AND ETC.
THIS RERA APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI
and
HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORAL JUDGMENT
(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)
I.A.No.1/2025 :
1. This is an application seeking condonation of delay of
25 days in filing the present appeal.
2. The learned counsel for the appellants submits that
since the documents are voluminous, it took time to
arrange and file them before this Court and thus the delay
was caused. It has also been stated that the reasons for
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the delay are bona fide and no prejudice would be caused
to the respondents, if the delay is condoned.
3. This Court has examined the Affidavit filed by the
appellants. The delay is not inordinate and sufficient cause
has been shown in the affidavit filed in support of the
application for condonation of delay. Accordingly, I.A.No.1/
2025 is allowed and the delay is condoned.
RERA.A.No.74/2025 :
1. The present appeal seeks to challenge an order dated
01.08.2025 passed by the Karnataka Real Estate Appellate
Tribunal in Appeal No.(K-REAT) 61/2022 [hereinafter
referred to as the “Impugned Judgment”]. By the
Impugned Judgment, the appeal filed by the appellants
[hereinafter referred to as the ‘Allottees’] was dismissed
and the order dated 06.05.2022 as amended by Order
dated 24.01.2023 passed by the Karnataka Real Estate
Regulatory Authority [hereinafter referred to as the
“Authority”] in Complaint No.CMP/210402/0007857 was
confirmed.
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2. The challenge in the present appeal has been made
by the Allottees of a Project constructed by the respondent
Nos.1 to 7.
3. Briefly the facts of the case are that the Allottees are
the owners of an apartment named “Arya Hamsa”
constructed on land bearing Survey No.28/1 situated at
Kothnur Village, Uttarahalli Hobli, Bangalore South Taluk.
This project was approved by Bruhat Bengaluru
Mahanagara Palike [BBMP] and received its occupancy
certificate in the year 2015 prior to the enactment of the
Real Estate (Regulation and Development) Act, 2016
[hereinafter referred to as the “RERA Act”].
4. The Respondent No.1 subsequently developed
another project called “Arya Hamsa Grande” on a land
parcel which was adjacent to the Arya Hamsa Project and
situated at Survey No.28/2, Kothnur Village, Uttarahalli
Hobli, Bangalore South Taluk. The ‘Arya Hamsa Gande’
project was an on-going project at the time of the
commencement of the Act and subsequently registered
with K-RERA under Registration No.PRM/ KA/ RERA/ 1251/
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310/ PR/ 171015/ 000479 and Occupancy Certificate in
respect of “Arya Hamsa Grande” Project was obtained on
31.1.2019.
5. The two projects were developed under separate
Joint Development Agreements with different sets of
landowners and were sanctioned under separate and
independent sanction plans. However, it is not disputed
that these Projects were constructed adjacent to each
other.
6. A complaint was filed under Section 31 of the RERA
Act before the Authority, for the relief of revocation of
registration granted to the project of the Developer and to
impose penalty as per Sections 60 and 61 of the RERA Act
for contravention of Sections 4 and 14 of the RERA Act. It
was contended that since both Projects are distinct by
sharing of common amenities such as Club House, roads,
pathways, Entrance and Exit gates etc., designed for
limited use, affected the appellants/Allottees’ right to live
peacefully in their respective properties purchased.
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7. The Authority examined the documents including the
sale deed and found that there is no provision for the
exclusive use of the common amenities for the purchasers
or the Allottees under the Arya Hamsa project. In fact the
Authority found that the recitals of the Sale Deed dated
03.11.2015 executed by the Allottees with the
Respondents and duly registered [hereinafter referred to
as the “Sale Deed”], would go contrary to the demand of
the Allottees. Thus the Authority dismissed the complaint
filed by the Allottees by its Order dated 06.05.2022, as
amended on 24.01.2023 [hereinafter referred to as the
“Order of the Authority”].
8. The Order of the Authority was challenged before the
Appellate Tribunal. The Appellate Tribunal also dismissed
the appeal by holding that the clause(s) of the Sale
Deed(s) are crystal clear that the flat owners of both the
projects had given their consent to share the amenities. It
was further held that since the Sale Deeds clearly stated
that the Flat owners of both the projects are permitted to
make use of the common amenities as provided in both
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the projects, the Allottees are estopped from taking any
stand, which is contrary to the terms of the Sale Deeds
they executed.
9. Learned Counsel for the Allottees has contended that
both the Order of the Authority and the Impugned
Judgment suffers from an infirmity. He submits that in
view of the provisions of Section 11 of the Transfer of
Property Act, 1882 [hereinafter referred to as the “T.P.
Act”] the restriction placed on the Allottees in the Sale
Deed was void. In addition, it is submitted that such a
clause is void for uncertainty in terms of Section 29 of the
Indian Contract Act, 1872 [hereinafter referred to as the
“Contract Act”].
10. An examination of the provisions of Section 11 of the
T.P. Act reflects that this provision sets out that, where, on
a transfer of property, an interest is created in favour of
any person, but the terms of transfer direct that such
interest shall be applied or enjoyed by him in a particular
manner, he shall be entitled to receive and dispose of such
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interest as if there was no such direction. This provision is
extracted below:
“ 11. Restriction repugnant to interest created.—
Where, on a transfer of property, an interest therein is
created absolutely in favour of any person, but the
terms of the transfer direct that such interest shall
be applied or enjoyed by him in a particular
manner, he shall be entitled to receive and dispose
of such interest as if there were no such direction.
Where any such direction has been made in respect of
one piece of immoveable property for the purpose
of securing the beneficial enjoyment of another
piece of such property , nothing in this section shall be
deemed to affect any right which the transferor may
have to enforce such direction or any remedy
which he may have in respect of a breach thereof .”
[Emphasis Supplied]
10.1 Section 11 of the T.P. Act essentially sets out that
any condition conflicting with the interest created in a
transfer, is void, consequently, when property is
transferred absolutely, it must include all its legal
attributes. This provision states that the provision is only
applicable when the transfer is absolute and creates a
complete interest in favour of the transferee, who is then
entitled to deal with the property freely, as though no
specific directions about its use or enjoyment existed.
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nd
10.2 The 2 para of this provision allows for an exception
to the transfer and states that where a direction limits how
the transferee enjoys the transferred property, it would be
valid if it is imposed to ensure the beneficial use of
another property that the transferor keeps.
11. The Supreme Court in the judgment captioned Indu
Kakkar v. Haryana State Industrial Development
1
Corpn. Ltd. , while interpreting this provision has held
that Section 11 of the T.P. Act voids restrictions on
enjoyment only if the transfer creates an absolute interest
in favour of the transferee. The relevant extract is below:
“For a transferee to deal with interest in the
property transferred “as if there were no such
direction” regarding the particular manner of
enjoyment of the property, the instrument of
transfer should evidence that an absolute interest
in favour of the transferee has been created. This is
clearly discernible from Section 11 of the TP Act.
The section rests on a principle that any condition
which is repugnant to the interest created is void
and when property is transferred absolutely, it
must be done with all its legal incidents.”
[Emphasis Supplied]
12. In the present case, the provision would be
inapplicable. The interested Allottees had no exclusive
1
(1999) 2 SCC 37
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rights over the common areas. The only sharing that is
envisaged is with respect to facilities available in the
common areas such as roads, club house and
entertainment facility in any phase by any of the owners of
units in the Project. The interest that is being referred to
by the Allottees is not created on the flat that has been
allotted to them, but on the common facilities such as the
club house and other easementary facilities as provided to
the Allottees by the Respondents. Since such an interest is
not an absolute interest and would not attract the
provisions of Section 11 of the T.P Act.
13. In any event and as stated above, the Allottees
themselves have agreed to the sharing of the facilities in
the Sale Deed, which is a validly executed contract and is
binding on the parties. The registered sale deed,
concededly, has not been challenged by the Allottees in a
Court of law.
14. Both the Authority as well as the Appellate Tribunal
after examining this contention found that the Allottees
have agreed sharing of the facilities in the Sale Deed. In
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fact, the relevant clauses of the Sale Deed have also been
reproduced in the Impugned Judgment. The relevant
extract of the Impugned Judgment is set out below:
“14. Keeping in mind the contention and rival contention
of the parties, we have carefully gone through the
pleadings of the parties and the materials placed before
us. Now it is clear that, though the Developer herein is
one of the Promoters with respect of both projects ‘Arya
Hamsa’ and ‘Arya Hamsa Grande’, it cannot be said that
the Appellants herein are the Allottees with respect to
the project ‘Arya Hamsa Grande’. As stated supra, the
Allottees were the Flat owners of a single unit in
the project ‘Arya Hamsa’ and it was completed
much before the commencement of the RERA Act .
This being the factual position, it is just and proper to
reproduce the recitals incorporated in Para No.1.11 to
1.13 of the Sale Deed dated 03.11.2015, executed
in favour of the Allottees Same is read as under:
“ 1.11 The Developers are providing a Club House
and Entertainment Facility outside the schedule
A Property and common facilities, etc. inside the
Schedule A Property including roads, STP, transformer
yards, electrical infrastructure, etc.
1.12 The Common facilities, Club House and
Entertainment Facility shall be managed and
maintained by the Association of Apartment
Owners and be made available to the Apartment
Owners to manage it on such terms as they find
fit, with no charges payable to the Developers.
1.13 The Purchaser/s hereby consents to use the
space , as may be identified by the Developers for the
purpose and consents to the same being provided for
all owners of units in the project, which may consist
of different phases which may be located within
or outside the Schedule A Property and expressly
consents to the use of common amenities
including the roads, Club House and the use of
common amenities including the roads, Club
House and Entertainment Facility in any phase
by any of the Owners of units in the Project.”
[Underlined for emphasis]
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15. On perusal of the afore-mentioned recitals it is clear
that, the Club house and Entertainment facilities as
provided to the Allottees herein is not in the project
developed by their Promoters in ‘Arya Hamsa’.
Hence, reasons to believe that those 2 facilities were
provided to the Allottees in the other project constructed
by the Developer in ‘Arya Hamsa Grande’. Likewise,
certain other amenities to the Flat owners of ‘Arya
Hamsa Grande’ are provided in the project ‘Arya Hamsa’,
wherein the Flat of the Allottees is situated. On perusal
of the recitals in the Sale Deed of the Allottees it is
crystal clear that, in unambiguous terms, the Flat
owners of both the projects had given their
consent to share the amenities. Since in their Sale
Deed it was clearly mentioned that, the Flat owners
of both the projects are permitted to make use of
common amenities as provided in both the
projects, the Allottees are estopped from taking
any other stand, which is contrary to the terms of their
Sale Deed. As such, taking note of these facts in the
right perspective the Authority has dismissed the
complaint”.
[Emphasis Supplied]
15. So far as concerns the contention of the learned
counsel for the appellants/Allottees that the Sale Deed is
void for ‘uncertainty’ in terms of Section 29 of the Contract
Act, the submission is without any merit. Section 29 of the
Contract Act provides that certain agreements would be
void for uncertainty. The provision is explained by virtue of
its illustrations as below:
“29. Agreements void for uncertainty. —
Agreements, the meaning of which is not certain, or
capable of being made certain, are void.
Illustrations:
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(a) A agrees to sell B "a hundred tons of oil". There is
nothing whatever to show what kind of oil was intended.
The agreement is void for uncertainty.
(b) A agrees to sell B one hundred tons of oil of a
specified description, known as an article of commerce.
There is no uncertainty here to make the agreement
void.
(c) A, who is a dealer in coconut-oil only, agrees to sell
to B "one hundred tons of oil". The nature of A's trade
affords an indication of the meaning of the words, and A
has entered into a contract for the sale of one hundred
tons of coconut-oil.
(d) A agrees to sell B "all the grain in my granary at
Ramnagar". There is no uncertainty here to make the
agreement void.
(e) A agrees to sell to B "one thousand maunds of rice at
a price to be fixed by C". As the price is capable of being
made certain, there is no uncertainty here to make the
agreement void.
(f) A agrees to sell to B "my white horse for rupees five
hundred or rupees one thousand". There is nothing to
show which of the two prices was to be given. The
agreement is void.”
[Emphasis Supplied]
16. This provision would be inapplicable in a case where
a Sale Deed clearly sets out the sale consideration and the
transfer and has been duly registered. In any event and as
stated above, the Sale Deed has not been challenged in a
Civil Court by the Allottees.
17. For the reasons as stated above, no question of law
much less, a substantial question of law arises in the
present appeal.
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18. The appeal is accordingly dismissed . All pending
application(s) shall stand closed.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(TARA VITASTA GANJU)
JUDGE
KSR/BMV*
List No.: 1 Sl No.: 5
15