Kerala High Court
Nagoor Jehangir Rawther vs Mrs.P.Bhagavathy Lekshmy on 13 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 13TH DAY OF MARCH 2025 / 22ND PHALGUNA, 1946
MSA NO. 20 OF 2025
ORDER DATED 10.12.2024 IN
AGAINST THE ORDER DATED 10.12.2024 IN REFA NO.109/2024 OF THE KERALA REAL
ESTATE APPELLATE TRIBUNAL, ERNAKULAM
ARISING OUT OF THE ORDER DATED 13.06.2024 IN UNNUMBERED I.A. IN COMPLAINT
NO.253/2022 AND ORDER DATED 11.09.2023 IN COMPLAINT NO.253/2022 OF THE
KERALA REAL ESTATE REGULATORY AUTHORITY, THIRUVANANTHAPURAM
APPELLANTS/RESPONDENTS 4 TO 6/RESPONDENTS 4 TO 6/RESPONDENTS 4 TO 6:
1 NAGOOR JEHANGIR RAWTHER
AGED 69 YEARS
S/O.NAGOORRAWTHER, DOOR NO XX/125, MACKERMANZIL,
THYNOTHILLANE, ALWAYE, ERNAKULAM, PIN - 683101
2 JAVAD KUTTIKARAN HASSAN
AGED 84 YEARS
S/O.NAGOORRAWTHER, DOOR NO XX/125, MACKERMANZIL,
THYNOTHILLANE, ALWAYE, ERNAKULAM REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER, MRNAGOOR JEHANGIR RAWTHER, AGED 69 YEARS,
S/O NAGOORRAWTHER, DOOR NO.XX/125, MACKERMANZIL,
THYNOTHILLANE, ALWAYE, ERNAKULAM 683101, PIN - 683101
3 ALTHAAF JEHANGIR
AGED 39 YEARS
S/O.NAGOOR JEHANGIR RAWTHER, DOOR NO XX/125, MACKERMANZIL,
THYNOTHILLANE, ALWAYE, ERNAKULAM, PIN - 683101
BY ADVS.
M.H.ASIF ALI
S.MUHAMMED HANEEFF
ARAVIND T RAMESH
ASHIK ALI M.H.
RAJANA JOSE
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RESPONDENTS/APPELLANT AND RESPONDENTS 1 TO 3 AND 7/APPELLANT AND
RESPONDENTS 1 TO 3 AND 7/APPELLANT AND RESPONDENTS 1 TO 3 AND 7:
1 MRS.P.BHAGAVATHY LEKSHMY
FLAT NO. 2A, HI LIFE CAPITOL APARTMENTS, OUTPOST JUNCTION,
LAOOR ROAD, AYYANTHOLE, THRISSUR, PIN - 680003
2 F.M.SHEMIER MARICKAR
THE CEO AND WHOLE TIME DIRECTOR OF NEST REALTIES INDIA PVT.
LTD, RESIDING AT A6, KENT NALUKETTU, CHAKKARAPARAMBU,
ERNAKULAM, PIN - 682028
3 M/S.NEST REALITIES INDIA (P) LTD
HAVING ITS REGISTERED OFFICE AT XIX/346, STONE HOUSE, MARKET
ROAD, ALUVA, ERNAKULAM- REPRESENTED BY ITS CEO AND
WHOLE TIME DIRECTOR MR F.M SHEMIER MARICKAR., PIN - 683101
4 MARICKAR PLANTATIONS PRIVATE LTD
HAVING ITS REGISTERED OFFICE IN MALAYALAM MOTORS BUILDING,
OPPOSITE MILMA, EDAPPALLY, ERNAKULAM REPRESENTED BY ITS
DIRECTOR, MR F.M SHEMIER MARICKAR, PIN - 682024
5 MRS.PREMIN SHAMIER MARICKAR
DIRECTOR OF MARICKAR PLANTATIONS LTD, RESIDING AT A10 KENT
PARADISE, PALARIVATTOM, KOCHI, PIN - 682023
OTHER PRESENT : ADV.SRI.C.M.NAZAR, SC K-RERA
THIS MISC. SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The respondents 4 to 6 in the Complaint before the Kerala Real
Estate Regulatory Authority, Thiruvananthapuram (K-RERA),
are the appellants in this Appeal. The first respondent is the
allottee who filed Complaint before the K-RERA. The complaint
was against 7 persons, including two private limited
companies.
2. The first respondent alone contested the matter. The other
respondents remained absent. In spite of remaining absent
without advancing any contentions with respect to their
liability, the K-RERA was granted an order awarding a refund
of the amount only against respondents 1 and 2. Thereafter, the
complainant filed an Application for rectification before the
K-RERA and the same was dismissed by K-RERA holding that
there is no power for the K-RERA to invoke the jurisdiction
under Section 39 of the Real Estate (Regulation &
Development) Act, 2016.
3. The first respondent/applicant challenged the matter before
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the Appellate Tribunal by filing REFA No.109/2024. The
Appellate Tribunal passed the impugned order setting aside the
order passed by the K-RERA finding that respondents 3 to 7
remained ex parte and the necessary adjudication with regard
to the liability of respondents 3 to 7 was not done by the
K-RERA. The said order is challenged in this Appeal.
4. I heard the learned counsel for the appellants, Sri.M.H Asif Ali,
and the learned Standing Counsel for K-RERA, Sri.C.M.Nazar.
5. The learned counsel for the appellants contended that the
directors' liability is specifically considered in the order passed
by the K-RERA. In the order objecting to the rectification
application, it is made clear that the liability is only against
respondents 1 and 2. In such a situation, the Appellate Tribunal
ought not to have set aside the order of the K-RERA and
remanded the matter back to the authority for consideration.
The learned counsel further contended that the order
challenged before the Appellate Tribunal is the order rejecting
the rectification application and not the original order. Hence
the Appellate Tribunal has no jurisdiction to consider the
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legality of the original order passed by the K-RERA.
6. I have considered the contentions.
7. On going through the order passed by K-RERA, I find that there
is no discussion or adjudication with regard to the liability of
respondents 3 to 7 in the said order. When the complainant
alleged liability against respondents 3 to 7, the K-RERA ought
to have considered the said contention and ought to have
entered a specific finding in this regard. That was not done by
the K-RERA. Order was not passed against the respondents 3
to 7 without assigning any reason when they remained absent.
Finding this material defect, the Appellate Tribunal set aside
the order and remanded the matter. It is true, as contended by
the learned counsel for the appellants, that the Appeal was filed
by the first respondent only against the rectification order.
Even though it is a ground for challenging the impugned order,
I do not find any substantial question of law to entertain this
Appeal. No prejudice whatsoever would be caused to the
respondents by directing the remand of the matter to the
K-RERA for consideration of their liability. They remained
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ex parte before the K-RERA. In fact, they also got an
opportunity to substantiate their contentions. Accordingly, I do
not find any ground or reason to interfere in this Appeal.
Accordingly, the Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
shg/xx
