IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 28^TH DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945 MSA NO. 32 OF 2023 AGAINST THE ORDER IN REFA 1/2023 DT.15.09.2023 OF KERALA REAL ESTATE APPELLATE TRIBUNAL, ERNAKULAM ORDER IN COMPLAINT NO.235/2022 DT.15.12.2022 OF KERALA REAL ESTATE REGULATORY AUTHORITY, THIRUVANANTHAPURAM APPELLANTS/APPELLANTS:

1 M/S.CORDIAL FOUNDATION PVT. LTD., 27, JANVILLE LANE, VELLAYAMBALAM, SHASTHAMANGALAM P.O., THIRUVANANTHAPURAM - REPRESENTED BY ITS EXECUTIVE DIRECTOR N. VIJAYAN UNNITHAN, AGED 70 YEARS, S/O LATE R.

PARAMESWARAN NAIR, PIN – 695010.

2 SHRI N. VIJAYAN UNNITHAN, AGED 70 YEARS, S/O LATE R. PARAMESWARAN NAIR, EXE. DIRECTOR, M/S.

CORDIAL FOUNDATION PVT. LTD., 27, JANVILLE LANE, VELLAYAMBALAM, SHASTHAMANGALAM P.O., THIRUVANANTHAPURAM , PIN – 695010.

3 SHRI. KOCHANIYAN UNNITHAN, AGED 65 YEARS, S/O LATE R. PARAMESWARAN NAIR, EXE. DIRECTOR, M/S.

CORDIAL FOUNDATION PVT. LTD., 27, JANVILLE LANE, VELLAYAMBALAM, SHASTHAMANGALAM P.O., THIRUVANANTHAPURAM , PIN – 695010.

4 SHRI. N. DHANANJAYAN UNNITHAN, AGED 66 YEARS, S/O LATE R. PARAMESWARAN NAIR, EXE. DIRECTOR, M/S.

CORDIAL FOUNDATION PVT. LTD., 27, JANVILLE LANE, VELLAYAMBALAM, SHASTHAMANGALAM P.O., THIRUVANANTHAPURAM , PIN – 695010.

BY ADVS.

P.MARTIN JOSE SANTHAN V.NAIR P.PRIJITH R.GITHESH THOMAS P.KURUVILLA SACHIN JACOB AMBAT AJAY BEN JOSE MANJUNATH MENON ANNA LINDA EDEN HARIKRISHNAN S.

S.SREEKUMAR (SR.)

RESPONDENT/RESPONDENT:

DR. PURUSHOTHAMA BHARATHI, AGED 75 YEARS, S/O LATE MATHEW M KUZHIVELI, 18A, CORDIAL BHARATHI, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM, PIN – 695003.

ADV. K.PAUL KURIAKOSE THIS MISC. SECOND APPEAL HAVING BEEN FINALLY HEARD ON

02.11.2023, THE COURT ON 28.11.2023 DELIVERED THE FOLLOWING:

"C.R"

A. BADHARUDEEN, J.

================================

M.S.A No.32 of 2023 ================================

Dated this the 28^th day of November, 2023

J U D G M E N T

This Miscellaneous Second Appeal has been filed under Section 58 of the Real Estate (Regulation and Development) Act, 2016 read with Section 100 of the Code of Civil Procedure, 1908 (`the Act’ hereinafter for convenience). The appellants herein are the respondents in complaint No.235/2022 on the files of the Kerala Real Estate Regulatory Authority, Thiruvananthapuram and the appellants in REFA No.1/2023 on the files of the Kerala Real Estate Appellate Tribunal, Ernakulam. The appellants impugn order in complaint No.235/2022 dated 15.12.2022 and the order of the Kerala Real Estate Appellate Tribunal in REFA No.1/2023 dated 15.09.2023. The respondent is the petitioner before the Regulatory Authority.

2. Heard the learned counsel for the appellants as well as the respondent in detail and the following substantial questions of law have been raised for consideration:

(i) Whether the landowner, who executed an agreement to effect constructions in his property along with the property of the builder with covenant to share the built up area is an “allottee” as defined in Section 2(d) of the Act?

(ii) Whether the landowner who executed an agreement with the builder to construct building in the property owned by both and has no direct involvement in the construction activities with the builder, falls under the definition of “promoter” as defined in Section 2(zk) of the Act?

(iii) Whether builder in pursuance of such agreement is required to execute registered deed of conveyance in favour of the landowner whose property also partly given for such construction as defined in Section 17(1) of the Act, on completion of the project?

3. It is submitted by the learned Senior Counsel for the appellants that a joint venture development agreement was executed in between the appellants and the respondent and the copy of the same is Annexure-A. It is pointed out by the learned Senior Counsel appearing for the appellants that as per the terms of Annexure-A, it was agreed between the parties as to how the built area would be shared and the appellants are ready to give the