MEMORANDUM OF CIVIL MISCELLANEOUS SECOND APPEAL

(Under Section 58 of the Real Estate (Regulation and Development) Act, 2016)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Appellate Jurisdiction)
CMSA No. of 2022
In
Appeal No. 11 of 2021
(on the file of the T.N. Real Estate Appellate Tribunal, TNRERAT,
dated 05.06.2022)
In
C.No. 417 of 2019
(on the file of the T.N. Real Estate Regulatory Authority, TNRERA
dated 09.12.2020)

M/s. Columbia Pacific Communities Pvt ltd

Rep by its Manager K.Manimaran
Previously at
TVH Beliciaa Towers
Tower-2, 9th Floor,
No.94, MRC Nagar,
Chennai – 600028
Presently having office at
“Serene Adinath”
No.283/1, Ramakrishnan Street
ChettiyarThottam, Mannivakkam
Chennai – 600048
… Appellant / Appellant / 2nd Respondent
-Verses-
1. Serene Rose Residents’ Welfare Association
Serene Rose Apartments
Represented by its Secretary
Mr. P.V. MuraleeKesavan
Flat No.C-302, Serene Rose Apartments
Opposite to Kendriya Vidyalaya School
Kadampadi Village, Kangeyampalayam Post
Coimbatore – 641401
… 1st Respondent/ 1st respondent/ Complainant
2. Serene Senior Living (P) Ltd
Represented Managing Director
Mr. Gireesh Kumar Bhandari
No.485, Pantheon Road, Panthoen Plaza
Egmore, Chennai – 600008
… 2ndRespondent / 2nd Respondent / 1st Respondent
 MEMORANDUM OF GROUNDS OF CIVIL MISCELLANEOUS APPEAL
1. The appellant is M/s. Columbia Pacific Communities Pvt ltd, Rep by its
Manager K.Manimaran, Previously at TVH Beliciaa Towers, Tower-2, 9th
Floor, No.94, MRC Nagar, Chennai – 600028, Presently having office at
“Serene Adinath”, No.283/1, Ramakrishnan Street, ChettiyarThottam,
Mannivakkam,Chennai – 600048. The address for service of all notices and
process on the appellant herein is that of his counsel S. Mohamed Uduman,
B.Thulasi, A.R. Balaji & Roshini having office at No. 257, Angappa Naicken
Street, Canara Bank Building, 2nd Floor, Chennai- 600001. The address for
service for all notices and process on the respondent is the same as stated
above.
2. The 1st respondent is Serene Rose Residents’ Welfare Association, Serene
Rose Apartments, Represented by its Secretary,Mr. P.V. MuraleeKesavan,
Flat No.C-302, Serene Rose Apartments, Opposite to Kendriya Vidyalaya
School, Kadampadi Village, Kangeyampalayam Post, Coimbatore – 641401
The 2nd respondent is Serene Senior Living (P) Ltd, Represented Managing
Director, Mr. Gireesh Kumar Bhandari, No.485, Pantheon Road, Panthoen
Plaza, Egmore, Chennai – 600008
The address for service of all notices and processes on the respondents are
as the same as stated in the above cause title
3. The appellant states that the present civil miscellaneous appeal is filed
challenging the order passed in A. No. 11 of 2021 dated 05.01.2022 on the
file of the Tamilnadu Real Estate Appellate Tribunal, TNRERAT, confirming
the order passed in C. No. 417 of 2019 dated 09.12.2020 on the file of the
Tamilnadu Real Estate Regulatory Authority, TNRERA, on the following
among other
GROUNDS
A. The appellant states that the order of TNRERA and TNRERAT in
holding that the Service provided by the Appellant though custom
made for Senior care, would fall under ‘Common Area’ and same is
 covered under the RERA Act is per se illegal and arbitrary and ultra
vires of the jurisdiction.
B. The appellant is a company having expertise, manpower for providing
Senior cares and the service agreement entered into between the
appellants and the members of the 1st respondent/purchasers of the
apartments provides that “Whereas the SFM confirms that they have no
right, title or interest in the common amenities (CAM Area) exclusively
owned by the SSC (appellant) or its nominees/assigns for the purpose of
providing Senior Care Services to the SFM”. Therefore the 1st
respondent Association’s members have entered into a concluded
contract unvitiated by any of the grounds to invalidate the same and
hence the TNRERA & TNRERAT has no jurisdiction to entertain or grant
relief of directing the appellant to reconvey the land on which the
clubhouse is constructed by the appellant and on which the Appellant is
providing Senior care Services.
C. The appellant states that the both TNRERA & TNRERAT have
committed serious error of law that they assumed jurisdiction on
subject which is not conferred by the RERA Act, 2016. The Authority
has no jurisdiction over the ‘Service Provider’ since the same was not
covered under any of the provisions of the Act.
D. The appellant states that both TNRERA & TNRERAT have failed to see
that the common area services and the Specialized Senior Services are
entirely different and exclusive of each other.
E. The appellant states that in the project there are two types of services,
one is of infrastructure services, annual maintenance of assets, upkeep
of landscape areas etc. Other types of services include service for the
Senior such as Dining, physiotherapy, nursing etc. Senior care also
includes catering services, housekeeping and preventive services,
supportive health care services and concierge services. The appellant
states that, the services relating to Senior care would have no impact or
 influence over common area amenities (CAM) provided to the members
of the 1st respondent Association.
F. The appellant states that the Services Agreement in its annexure
contains two types of services to be rendered by two parties separately
namely facilities / amenities provided by the 2nd respondent and the
services provided by the appellant herein. The list enumerates and
differentiates that the general common area amenities are covered by
the 2nd respondent/builder and the service provided by the appellant
does not have any significant reach over the common areas defined
under Section 2 (n) of the RERA Act.
G. The appellant states that the term ‘common area’ is defined under
section 2 (n) of the RERA Act, 2016 and it does not in anyway mean to
include the Specialized Service provided for the Senior people and
custom made to suit the needs of the Senior care. The definition of
‘Common area’ is exhaustive and none of the eight clauses would
attract the senior care services provided by the appellant.
H. The appellant states that both TNRERA & TNRERAT have committed
serious error of law in holding that the service agreement is in violation
of the Section 17 of the RERA Act. The appellant states that the Section
17 mandates conveyance of common areas. In fact there is no
complaint against the appellant in the original complaint all and there
is no grievance against the appellant owning the area of club house to
provide the senior care. Furthermore, even without any prayer being
sought for, the TNRERA & TNRERAT have directed the reconveyance of
the lands and building in favour of the Association.
I. The appellant states that since the members of the 1st
respondent/purchasers of the apartment did not pay any consideration
towards the land and building of the common area; they have no locus
standi and also the RERA Act is not applicable for the said area.
J. The appellant states that the members of the 1 st respondent have paid
consideration for the specific area of their undivided share of lands in
the apartments as per their Sale Deeds and they have paid
consideration to their specific built-up area and the common area
mentioned in their respective Construction Agreement. The common
area mentioned in the construction agreement does not extent in any
manner whatsoever to include the property purchased by the appellant
from the third-party landowner through power agent.
K. The appellant had paid a valid sale consideration all through means of
bank transactions and validly derived the title through registered sale
deed in favour of the appellant. This being the admitted factual
scenario, the TNRERA & TNRERAT have no jurisdiction to annul the
sale deed through its indirect orders by directing the reconveyance of
the said land to the 2nd respondent. Only a competent court of law
having valid jurisdiction alone can have jurisdiction to declare the
validity of the sale deeds.
L. The appellant states that by virtue of the orders passed by the TNRERA
& TNRERAT the purchasers were given undue and unjustifiable
advantage of owning land about 25,746 square feet with efficiently
constructed built up area of 13,982 square feet with fully operational
club house without paying any single rupee from their pockets. The
Object of RERA is not to cause any unjust enrichment for the
purchasers but to protect the purchasers from the developers who may
cause undue influence. Whereas in the present case, the purchasers
were conveyed with the common areas in the project for which they
have paid for and no member of the 1st respondent Association has paid
any money towards the land cost or the building cost of the club house
and it is the appellant who has paid the entire consideration through
proper bank transactions. Therefore direction by the TNRERA &
TNRERAT to convey the land with building in favour of the 1 st
 respondent is arbitrary and the authorities did not see the pure
exploitative mechanism adopted by the 1st respondent association.
M. The appellant states that Section 37 of the RERA Act does not confer
any jurisdiction on such declaratory reliefs touching upon the validity
of the registered instruments and mandatory injunction to do
reconveyance of the immovable property. Furthermore, neither the
appellant nor the 2nd respondent have collected any deposits or money
from the members of the 1st respondent Association towards the
establishment and construction of the building in which the club house
and dining has been constructed meant for providing the senior care
services.
N. The appellant thus states that the infrastructure consisting of the land,
building and the equipment meant and utilized only for the senior care
services is outside the purview of the RERA Act, 2016.
O. The appellant states that the TNRERA & TNRERAT have committed
serious error of law in holding that the Clause 21 of the Construction
agreement is in violation of Section 11 (4) (d) of the RERA Act. The
section 21 of the Construction Agreement reads as follows
“21. M/s.Serene Senior Care private Limited will provide services to
the Purchasers and also to other residents of the Serene Rose for
which a separate service agreement will be signed by the Purchasers,
the SSC as well as the Developer along with this agreement. It is
agreed by all parties that the terms and conditions for the services will
be spelt out in the Service Agreement”
P. Section 11 (4)(d) RERA Act mandates the developer to provide
maintenance and essential services to the allottees till the Association
of Allottees takes over the Maintenance and essential services, whereas
the services provided by the appellant morefully described in the
Services Agreement are entirely distinctive, exclusively custom-made
 and does not fall under either maintenance of the real estate project
nor under essential services.
Q. The appellant in the alternative states that, with regard to any dispute
between the Purchaser (member of the 1st respondent Association) and
the appellant and the 2nd respondent is concerned, the same is
governed by the validly entered Service agreement and the dispute
resolution clauses mentioned therein. Clause 2 of the ‘Jurisdiction and
Dispute Resolution’ signed by all three parties states that
“in the event of dispute among the parties or differences arising out of,
or in connection with this agreement or with regard to performance
of any obligation hereunder by any party, the parties hereto shall use
their best efforts to settle such disputes or differences of opinion by
mutual negotiation. Should an agreement not be reached, any such
dispute shall be referred to the Arbitration of a single Arbitrator to be
appointed by either party provided such sole arbitrator shall not be a
person below the rank of a retired district judge and who is not
employed or a resident in any of the retirement community of the SSC
and such arbitration shall be held in accordance with the provisions
of Indian Arbitration and Conciliation Act, 1996. All such proceedings
shall be subject to the exclusive jurisdiction of courts having
territorial jurisdiction over and to the extent and as conferred under
the Indian Arbitration and Conciliation Act 1996 and will be in the
Courts at Coimbatore”
R. The appellants states that any dispute concerning the service
agreement or even as its validity, only the arbitrator/arbitration shall
have the exclusive jurisdiction. Section 16 of the Arbitration and
Conciliation Act, 1996 states that
“16. Competence of arbitral tribunal to rule on its jurisdiction.—
(1) The arbitral tribunal may ruleon its own jurisdiction, including
 ruling on any objections with respect to the existence or validity of
thearbitration agreement, and for that purpose,—
(a) an arbitration clause which forms part of a contract shall be
treated as an agreementindependent of the other terms of the
contract; and
(b) a decision by the arbitral tribunal that the contract is null and
void shall not entail ipso jure theinvalidity of the arbitration clause.”
Thus, only the Arbitration proceedings can be initiated even to decide
the validity of the arbitration agreements and therefore TNRERA &
TNRERAT does not have jurisdiction and on the other hand the
jurisdiction is exclusively and validly conferred on the Arbitration
proceedings.
S. The appellants states that the service agreements between the
appellant and the purchasers of the apartments were executed much
prior to the enactment and implementation of the provisions of the
RERA Act and therefore the same would not fall under the purview of
the TNRERA & TNRERAT.
T. The appellant states that the clauses in the service agreement would
unequivocally prove that, the purchaser of the Apartment have no right
or claims or interests on the land purchased by the appellant to provide
the senior care to the purchasers. They are namely
“Whereas the SSC needs such common amenities to run the senior care
services to the satisfaction of the SFM (purchaser) as per the terms and
conditions in this agreement
Whereas the SFM (purchaser) confirms that they have no right, title and
interest in the common amenities which are exclusively owned by the SSC
or its nominees/assigns for the purposes of providing senior care services
to the SFM
Whereas this agreement, for all legal and practical purposes is part of the
property acquisition documents, such as construction Agreement and the
 Sale Deed, and shall run as a covenant along with the title of the
document”
U. The appellant states that the 1st respondent has no locus standi file any
complaint as against the appellant, as there is no privity of contract
between the 1st respondent and the appellant, and it is the purchasers
who have entered into tripartite agreement with the appellant and the
2nd respondent.
V. The appellant states that service agreements were entered into and
from the year 2015 between the appellant and the purchaser and the
2nd respondent. Only upon consent and manifest & express affirmation
made by the purchasers, the appellant had entered into Sale Deed with
the 2nd respondent and entered into construction agreement with the
2nd respondent and invested huge sums of money on the club house.
Having been silent from the year 2015 the members of the 1 st
respondent association cannot challenge the veracity of the clauses or
agreements in the year 2020.
W. The appellant states that the time to challenge the terms of the
agreement commences from the date of the execution of the agreement
i.e. 03.12.2015 and the impleading application was made only in
February 2020 and hence the same is barred by limitation.
X. The appellant craves leave of this Honble Court to raise additional
grounds at the time of the hearing.
SUBSTANTIAL QUESTIONS OF LAW
i. Whether the Service Provider providing Senior care services falls
within the jurisdiction of Real Estate Regulation Act, 2016
ii. Whether TNRERA & TNRERAT have committed error of law in
assuming jurisdiction over the areas for which the purchasers
have not paid any money
 iii. Whether the claims of the 1st respondent is barred by law in view
of the Service Agreements are of dated 03.12.2015 and the
impleading applications were filed in February 2020?
iv. Whether the TNRERA & TNRERAT have committed error of law
in holding that the Senior Care Service provided by the appellant
in the Club House owned by the appellant is a common area
within the purview of Section 2 (n) of the RERA Act, 2016 ?
v. Whether TNRERA have any jurisdiction to decide the validity of
the registered sale deed executed by the 2nd respondent in favour
of the appellant much after the consent given by the purchasers
of the apartments?
vi. Whether the TNRERA has wrongly assumed jurisdiction in the
matter squarely covered by the Arbitration Clauses contained in
the Services Agreement entered into between the appellant,
purchaser and the 2nd respondent, despite the power of the
Arbitrator to decide the jurisdiction of the arbitrator and also the
validity arbitration agreement under Section 16 of the
Arbitration and conciliation Act, 1996.
vii. Whether the TNRERA has acted ultra vires in directing the
appellant to reconvey the land and building to 1st respondent
Association by usurping the jurisdiction of the Civil Courts
For the reason stated above it is prayed that this Honble Court may
be pleased to set aside the order passed in A. No. 11 of 2021 dated
05.01.2022 on the file of the Tamilnadu Real Estate Appellate Tribunal,
confirming the order passed in C. No. 417 of 2019 dated 09.12.2020 on the
file of the Tamilnadu Real Estate Regulatory Authority and pass such
further or other orders as this Honble Court may deem fit and proper in
the above facts and circumstances of the case and thus render justice.
 MEMO OF VALUATION

Value of the Original Proceeding. : Rs. Incapable of Valuation

Court Fee Paid : Rs. 5600/-

Value of the Appeal Proceeding : Incapable of Valuation

Court Fee Paid : Rs. 2000/-

Value of C.M.S.A. : Incapable of Valuation

Court Fee Paid : Rs. 1500/-

th
Dated at Chennai, this day of April, 2022

Counsel for appellant