Uttar Pradesh Real Estate Regulatory Authority: Rajesh Kumar Tyagi (Secretary) upheld the decision of the Arbitration Tribunal (‘Tribunal') and accorded Saya Cementation Limited. (‘Saya Cementation') the status of promoter in accordance with Section 2(zk) of the Real Estate (Regulation and Development) Act, 2016 (‘RERA Act'), by approving the proposal to transfer the majority rights and liabilities of the project ‘OH MY GOD' to Saya Cementation jointly with the land-owning company Alisa Infratech Pvt. (‘Alisa Infratech').
The project ‘OH MY GOD' being commercial project was registered with UP RERA(‘Authority') in the name of Baya Weaver Limited (‘Baya Weaver'). The promoter added land-owning company Alisa Infratech as a promoter by editing promoter details without obtaining the approval of the Authority. Subsequently, Alisa Infratech approached the Authority to transfer the project’s registration in the name of the land-owner company Alisa Infratech and to allow the change of name to SAYA STATUS on the grounds that Baya Weaver had defaulted on the timelines to complete the project and that Alisa Infratech had taken over all the assets and liabilities of the project including the 300 crores+ loan amount. Thereafter, Baya Weaver, approached the Authority for mutating the project in favour of land-owning company Alisa Infratech
A public notice in four leading newspapers was published informing the allottees regarding the transfer of majority rights and liabilities in the project pursuant to which objections were filed by six of the allottees. The Authority directed Alisa Infratech to file an undertaking assuring the allottees of its intentions.
In addition to this, a share purchase agreement was entered between Saya Cementation, Baya Weaver, and Alisa Infratech, whereby Saya Cementation purchased 100 per cent equity share capital of the companies and had issued no objection certificate to the effect that Saya Cementation had paid the whole of purchase consideration and the companies had handed over the possession of the site to entitle it to mortgage project. However, a dispute arose between the companies and Saya Cementation which led the parties to approach the Arbitration Tribunal.
The Arbitration Tribunal in the case of Alisa Infratech v Saya Cementation had passed an order of injunction to the effect that the claimants i.e., Alisa Infratech should not create any hindrance to the respondents i.e., Saya Cementation for taking over the claimant companies and continuing with the project and shall give all necessary assistance to properly execute the project. It was an admitted position that the possession was given to the respondent by the claimant, however, not all documents were handed over to the respondent which did not give the respondents an effective control of the project resulting into delay and making the investment made by the buyers at risk. Saya cementation had taken over the liabilities of its subsidiary companies i.e., both Baya Weaver as well as the Alisa Infratech, however, created mortgage to discharge their liabilities.
While navigating through section 2[zk] of RERA Act, the Authority held that Saya Cementation was entitled to be the promoter of the project as it had taken over all the rights and obligations in the project and was also in physical possession of the project for its development. As per section 11[g], it is the promoter who is responsible for payments of the outgoings, including mortgage loans and interest on a mortgage making it the duty and obligation of Saya Cementations, as per the relevant provisions of the RERA Act.
The Authority after taking into account all the relevant material on record and exercising its power under Section 15 of RERA Act decided to approve the proposal to transfer the majority rights and liabilities in the project ‘OH MY GOD' to Saya Cementation Ltd. jointly with the land-owning company Alisa Infratech subject to certain terms and conditions.
Therefore, the request of Saya Cementations to be the promoter of the project along with Alisa Infratech to comply with all the pending and forthcoming obligations jointly and severely under the rules and regulations of the RERA Act was accepted by the Authority.
[In the matter of project ‘Oh My God', 2022 SCC OnLine RERA (UP) 136, decided on 08-12-2022]