Madras High Court
M/S.Medhika Infrastructures vs Mrs.Santhakumari on 4 March, 2021
C.M.S.A.No.33 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.03.2021
CORAM :
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Ms.Justice R.N.MANJULA
C.M.S.A.No.33 of 2021
and
C.M.P.No.3459 of 2021
M/s.Medhika Infrastructures,
Represented by its Sole Proprietor
Mrs.S.Tamilselvi ...Appellant
Vs
1. Mrs.Santhakumari
2. Crescentz Homes and
Infrastructures Private Limited,
Represented by its Director
Mr.Zubair Ahmed Thajudeen
3. Altimiz Infrastructures Limited,
Represented by its Director
Mr.Zubair Ahmed Thajudeen
4. M/s.Crescentz Square,
Represented by its Partner
Mr.Jalal Ahmed ...Respondents
1/8
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C.M.S.A.No.33 of 2021
Appeal filed under Section 100 of Civil Procedure Code read with
Section 58 of the Real Estate (Regulation and Development) Act, 2016 to
set aside the order in Appeal No.51 of 2020 dated 17.12.2020 on the file of
Hon'ble Tamil Nadu Real Estate Appellate Tribunal (TNRERA), confirming
the order in I.A.No.105 of 2019 in C.C.P.No.261 of 2019 dated 20.03.2020
on the file of the Adjudication Officer, TNRERA, Chennai.
For Appellant: Mr.K.M.Vijayan, Sr. Counsel
for M/s.K.M.Vijayan Associates
JUDGMENT
(Delivered by T.S.Sivagnanam,J)
This appeal has been filed challenging the order dated 17.12.2020
passed in Appeal No.51 of 2020 by the Tamil Nadu Real Estate Appellate
Tribunal confirming the order dated 20.03.2020 passed in I.A.No.105 of
2019 in C.C.P.No.261 of 2019 on the file of the Tamil Nadu Real Estate
Regulatory Authority, Chennai ('RERA' for brevity).
2. We have elaborately heard Mr.K.M.Vijayan, learned Senior
Counsel appearing for the appellant.
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C.M.S.A.No.33 of 2021
3. In the array of parties before the RERA in C.C.P.No.261 of
2019, initially there were two respondents, namely Crescentz Homes and
Infrastructure Private Limited and Altimiz Infrastructure Limited.
Subsequently, on account of the order passed by the RERA, the complaint
was not pressed against the aforementioned two parties and M/s.Crescentz
Square was impleaded as a respondent. The first respondent before us,
namely Mrs.Santhakumari, had filed I.A.No.105 of 2019 in C.C.P.No.261 of
2019 seeking to implead the appellant herein as well as M/s.Crescentz
Square as respondents 3 and 4.
4. This interlocutory application was resisted by the appellant
herein by filing a counter affidavit stating as to how there is no privity
between the appellant and the first respondent herein and there was an
earlier memorandum of understanding between the three parties, to which
the first respondent was not a signatory and several other matters touching
upon the factual issue.
5. In sum and substance, the appellant before us vehemently
objected the impleaded and sought for dismissal.
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C.M.S.A.No.33 of 2021
6. The RERA, by order dated 20.03.2020, after considering the
facts, allowed the application, wherein it has observed as to whether the
appellant before us along with the other respondents are liable for the reliefs
claimed by the first respondent/petitioner in the complaint, will have to be
decided after giving an opportunity of being heard to both sides and on the
merits of the case. Consequent to such order, the appellant and
M/s.Crescentz Square, fourth respondent before us, were impleaded as
parties in C.C.P.No.261 of 2019. Aggrieved by such order passed by the
RERA, the appellant preferred appeal before the Tribunal. The Tribunal
considered the case and agreed with the authority stating that the appellant
before us would be a necessary party to the proceedings, so as to have a
binding adjudication. Aggrieved by the order of the Tribunal, the appellant
is before us.
7. The contention of the learned Senior Counsel appearing for the
appellant is that fraud has been played by not pressing the complaint against
the second respondent, who was originally impleaded and subsequently
seeking for impleadment of the appellant and the fourth respondent by a
person, who was never a party to the earlier proceedings of the Tribunal in
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C.M.S.A.No.33 of 2021
C.Nos.370 to 291, 396 and 397 of 2019 dated 21.11.2019. Further, it is
submitted that the first respondent has no locus standi to implead the
appellant herein in the proceedings and the RERA and the Tribunal
committed serious error in impleading the appellant. Further, it is contended
that the RERA and the Tribunal failed to take note of the fundamental
principles of law with regard to the impleadment of parties by taking note of
Order I Rule 10 of CPC.
8. After we have elaborately heard the learned Senior Counsel
appearing for the appellant, we are of the considered view that the appellant
cannot be said to be prejudiced on account of the order passed by the RERA
impleading them as respondent nor the order passed by the Tribunal
affirming the order passed by the RERA. We say so because the RERA has
rightly held that the question whether the appellant along with other
respondents are liable for the reliefs claimed by the first respondent in the
complaint will have to be decided after giving an opportunity of being heard
to both sides and on the merits of the case. On the same lines, the Tribunal
has also confirmed the order and also observed, for a binding adjudication,
the appellant would be a necessary party.
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C.M.S.A.No.33 of 2021
9. The provisions of Order I Rule 10 of CPC are clear in the sense
that the Court may at any stage of the proceedings either upon or without
the application of either parties and on such terms as may appear to the
Court to be just, order that the name of any party improperly joined, whether
as plaintiff or defendant, be struck out, and that the name of any person who
ought to have been joined, whether as plaintiff or defendant, or whose
presence before the Court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle all the questions
involved in the proceedings.
10. That apart, the RERA and the Tribunal have not rendered any
finding as regards the appellant's liability, but impleaded the appellant and
the fourth respondent herein, so that the matter could be effectively
adjudicated. The discretion exercised by the authority and the Tribunal
cannot be faulted.
11. We make it clear that it will be open to the appellant to file a
comprehensive counter before the RERA both as facts as well as law, which
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C.M.S.A.No.33 of 2021
the authority would consider and take a decision on merits and in
accordance with law, after hearing all the parties.
12. The learned Senior Counsel submitted that a time frame may
be fixed within which the RERA may take up the matter and consider the
issue.
13. Since we are not aware as to the number of cases which are
pending before the RERA, we cannot stipulate any specific time, but we
would request the RERA to consider an earlier hearing in the matter, since
the complaint is of the year 2019.
14. With these observations, the Civil Miscellaneous Second
Appeal stands dismissed. No costs. Consequently, connected miscellaneous
petition is also dismissed.
(T.S.S.,J.) (R.N.M.,J.)
04.03.2021
Index: Yes/No
Internet:Yes/No
hvk
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.33 of 2021
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
hvk
To
The Tamil Nadu Real Estate
Appellate Tribunal.
C.M.S.A.No.33 of 2021
and
C.M.P.No.3459 of 2021
04.03.2021
https://www.mhc.tn.gov.in/judis/
