M/S. Rajat Builders Vs Smt. Kusum Kothari

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2025:CGHC:10672-DB

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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M.A. No. 45 of 2025

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M/s. Rajat Builders, Through Anjay Surana (Partner), Address : Near Shiv Mandir, Shivpara, Durg (C.G.).

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Anjay Surana, S/o Shri Phoolchand Surana, aged about 57 years, Address : Near Shiv Mandir, Shivpara, Durg (C.G.), Present address : Sharda Talkies, Indira market, Durg (C.G.)

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Rajat Surana, S/o Shri Anjay Surana, aged about 32 years, Address : Near Shiv Mandir, Shivpara, Durg (C.G.), Present Address : ShardA Talkies, Indira Market, Durg (C.G.)

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---- Appellants

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Versus

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Smt. Kusum Kothari, W/o Shri Suresh Kothari, R/o HIG 160, Padmanabhpur, District Durg (C.G.)

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Nehru Lal Munda, S/o Shri Mohan Lal Munda, R/o Daily Pahat Office, Polsay para, District Durg (C.G.)

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---- Respondents

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(Cause-title taken from Case Information System)

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For Appellants

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: Mr. Mayank Kumar, Advocate.

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Hon'ble Smt. Justice Rajani Dubey &

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Hon'ble Shri Justice Sachin Singh Rajput

(Judgment on Board )

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Per Rajani Dubey, J.

05.03.2025

Heard on admission.

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The petitioner has filed the writ appeal under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (for short “Act of 2016) challenging the order dated 27.01.2025 passed by Chhattisgarh Real Estate Appellate Tribunal, Raipur (C.G.) (in short "RERA") in unregistered Appeal bearing Appeal No. Nil/2025 arising out of order dated 11.12.2024 passed by the Chhattisgarh Real Estate Regulatory Authority Raipur (C.G.) in Case No.M-PRO2024-02571, whereby the preliminary objection raised by the appellants regarding maintainability of the application filed by the applicants/respondents herein, was dismissed.

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Brief facts of the case are that on 10.11.2014, the respondent no. 1/complainant entered into an agreement with appellant No.1 to purchase residential unit bearing Flat No. 501 on the 5^th floor block 3 at residential complex "Rajat Homes" Hari Nagar, Kadambari Nagar, Durg, for total consideration of Rs.30,00,000/- in the said project of the appellants and as 2 years provisional maintenance charge at the time of the register of the said flat along with the service tax extra to be charged at prevailing rates. Against this consideration, the respondent no.1/complainant had paid Rs. 1,00,000/- at the time of the execution of this agreement to sale through cash and this payment was acknowledged by the appellants on 28-10-2013. The balance consideration was to be

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paid in installments as mentioned in the agreement to sale specifically in payment schedule. According to the respondent no. 1/complainant, she had already made payment of Rs. 23,00,000 to the appellants against the total consideration of Rs. 30,00.000/-. It was also alleged in the complaint that the appellants did not hand over the possession of the flat and not provided the completion certificate within stipulated time period as per the agreement, thereby breached the agreement condition dated 10.11.2014. Thereafter, in the month of September, 2024, the respondent no.1/complainant preferred a complaint (Annexure A/2) against the appellants and respondent no. 2 was impleaded as respondent parties in her complaint seeking reliefs, which are as under :-

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i. To direct the respondents to return back the paid amount by the complainant and the amount of Bank to the bank and also to provide interest of the amount paid for the purchase of flat.

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ii. To direct the OPs for the payment of Rs. 3,00,000/- for mental harassment and litigation expense caused to the complainant due to the unethical trade practice of the Ops.

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iii. To direct the OPs for the payment of interest @ 18% per annum on the entire amount.

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iv. Any other relief which the Hon'ble Authority may feel dim fit and proper under the circumstances.

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In the complaint preferred by the complainant/respondent No.1, the appellants filed a preliminary objection dated 08.11.2024 regarding maintainability of the said complaint before the learned RERA Tribunal. The appellants filed the preliminary objection (Annexure

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A/3) against the complaint enumerating the two substantial grounds i.e. (1) Non Joinder of the then live partner of M/s Rajat Builder Firm namely Shri Suresh Kothari as a 'necessary party' by the respondent no. 1/complainant in her complaint before Learned RERA Tribunal; and (2) Inordinate delay of almost 10 years in filing the complaint without any application seeking condonation, without showing any 'sufficient cause'. According to the appellants, vide cause title of the memo of complaint preferred by the respondent no. 1/complainant, she impleaded appellant no. 2 and 3 & respondent no. 2 herein as necessary respondent parties from No. 2 to 4 in the complainant pleading that they happened to be partners of the M/s Rajat Builders Firm, nonetheless, in an most uncanny manner, did not implead Shri Suresh Kothari as necessary respondent party in the complaint owing to the fact that he was also live and active partner at the time of execution of agreement dated 10.11.2024, solely because Shri Suresh Kothari is husband of respondent no. 1/complainant.

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According to the appellants, the respondent no. 1/complainant did not make any contentions or averments against Shri Suresh Kothari in her complainant, which is nothing but abuse of process of law. The law says that an active partner who was actively participating in the activity and business of the firm has to be impleaded separately as a party, apart from the firm, which is a separate legal entity in law, in any complaint or petition. Further, such a partner is a necessary party, whose presence is essential for the court to effectively and conclusively adjudicate upon a matter.

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According to the appellants, the respondent no. 1/complainant did not impleaded Shri Suresh Kothari as necessary party in her complainant, even though he was active partner at the time of execution of agreement dated 10.11.2014 and also even though, she had made the appellant no. 2 and 3 and respondent no. 2 herein as respondent parties in her complaint. As such, the complaint of the respondent no. 1/complainant was not maintainable and was liable to be dismissed due to non-joinder of necessary party. Furthermore, the complaint was preferred by the respondent no. 1/complaint alleging the breach of agreement dated 10.11.2014 contending non delivery of completion certificate and possession of purchased flat to her, belatedly in the year 2024. That delay of almost 10 years is substantial inordinate delay, which was not sought to be condoned by any application and no sufficient cause was shown. Therefore, the complaint was liable to be dismissed on ground of delay and laches at preliminary stage itself. The aforementioned fact and law was pleaded by the appellant in their preliminary objection filed against the complaint before Learned RERA Tribunal, which was completely ignored by the Tribunal vide impugned order dated 11.12.2024.

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The appellants, assailing the order dated 11.12.2024, preferred an appeal under Section 44 of the Act, 2016 before the Learned Appellate Tribunal, which was disposed off vide impugned order dated 27.01.2025, upholding the findings of the Learned RERA Tribunal and directed Tribunal to consider the ground of limitation raised by appellants at the time of final hearing after taking

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evidences, which is under challenged in this appeal.

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Learned counsel for the appellants submits that the impugned order dated 27.01.2025 is bad in the eye of law and thus liable to be set aside. The learned appellate Tribunal erred in disposing the appeal preferred by the appellant on the ground that the learned RERA Tribunal vide order dated 11.12.2024 rightly dismissed the preliminary objection preferred by the appellant, posing challenge to the maintainability of the complaint preferred by respondent no.1/complainant before Learned RERA Tribunal enumerating the two substantial grounds i.e., (1) Non Joinder of the then live partner of M/s Rajat Builder Firm namely Shri Suresh Kothari as a 'necessary party' by the respondent no. 1/complainant in her complaint before Learned RERA Tribunal and (2) Inordinate delay of almost 10 years in filing the complaint without any application seeking condonation, without showing any 'sufficient cause'. The Learned Appellate Tribunal while disposing the said appeal of the appellant held that the learned RERA Tribunal is correct in rejecting the preliminary objection by observing that there was no need of impleading Shri Suresh Kothari as necessary party, when the respondent No.1/complainant had already made firm M/s Rajat Builders as party. Further, the ground of limitation in RERA is a mixed question of facts and grounds, which has to be decided after adducing evidence. Thus, the learned Appellate Tribunal disposed of the appeal directing the learned RERA Tribunal to decide the ground of limitation after taking evidence of both the parties at the time of disposal of the case.

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Learned counsel further submits that at the time of execution of agreement dated 10.11.2014, Shri Suresh Kothari, who is the husband of respondent no. 1, was a live and active partner of the appellant No. 1’s firm i.e., M/s Rajat Builders in pursuant to the partnership deed dated 16.08.2010 executed by and amongst Shri Nehru Lal Munda, Shri Anjay Surana and Shri Suresh Kothari. Although, later on due to some personal reasons, Shri Suresh Kothari discontinued from the partnership firm since 31.03.2018, through execution of Reconstituted Deed of Partnership executed on 01.04.2018, as such, there was mis-joinder of necessary party, which the learned RERA Tribunal failed to consider while rejecting the preliminary objection. Learned counsel also submits that according to the cause title of the memo of complaint preferred by the respondent no. 1/complainant, she has impleaded appellant no. 2 and 3 & respondent no. 2 herein as necessary respondent parties from No. 2 to 4 in the complaint pleading that they happened to be partners of the M/s Rajat Builders Firm, nonetheless, in an most uncanny manner, did not implead Shri Suresh Kothari, as necessary party in the array of respondent. The respondent No.1/complainant did not make any contentions or averments against Shri Suresh Kothari in her complainant, which is nothing but abuse of process of law. Learned counsel also submits that an active partner who was actively participating in the activity and business of the firm has to be impleaded separately as a party, apart from the firm, which is a separate legal entity in law, in any complaint or petition. Further, such a partner is a necessary party, whose presence is essential for

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the court to effectively and conclusively adjudicate upon a matter. But the respondent no. 1/complainant did not implead Shri Suresh Kothari as necessary party in her complainant, even though he was active partner at the time of execution of agreement dated 10.11.2014 and also even though, she had made the appellant no. 2 and 3 and respondent no. 2 herein as respondent parties in her complaint. As such, the complaint of the respondent no. 1/complainant was not maintainable and was liable to be dismissed at threshold, due to non-joinder of necessary party.

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Learned counsel further submits that the complaint was preferred by the respondent no. 1/complaint alleging the breach of agreement dated 10.11.2014 contending non delivery of completion certificate and possession of purchased flat to her belatedly in the year 2024, which established that there was inordinate delay of almost 10 years, which was not sought to be condoned by any application and no sufficient cause was shown by the complainant. Therefore, also the complaint was liable to be dismissed on ground this ground alone. Learned counsel also submits that the above mentioned fact and law was pleaded by the appellant in their preliminary objection filed against the complaint before Learned RERA Tribunal, which was completely ignored by the Tribunal while passing the order dated 11.12.2024, which was assailed in an appeal under Section 44 of the Act, 2016 before the Learned Appellate Tribunal, which arbitrarily got disposed off vide impugned order dated 27.01.2025, upholding the findings of the Learned RERA Tribunal, concerning rejection of the preliminary objection of appellants, only directing the

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Tribunal to consider the ground of limitation raised by appellant at the time of final hearing after taking evidence of both the parties. Thus, the appeal may be admitted and the orders passed by both the authorities may be be set aside, in the interest of justice.

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Heard learned counsel for the appellant and perused the material available on record.

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The learned Tribunal, after hearing the arguments of appellant, passed the impugned order dated 27.01.2025. For ready reference, operative para of the same is reproduced herein as under :-

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“As per the photocopy of the agreement dated 10.11.2014 the alleged argument was executed by M/s Rajat Builders. The respondents/complainants have made the party M/s Rajat Builders as respondent No.1 in complaint, hence prima-facie it is not necessary for respondents/complainants that they should also incorporate Mr. Suresh Kothari partner of M/s. Rajat Builders as respondent in complaint case, hence primafacie there is no non-joinder of the party in complaint case.

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In the case at hand the question of limitation is a mixed question of fact & law. The aforesaid question cannot be decided as preliminary issue without recording the evidence. In other words, the question of limitation can be decided after the evidence adduced by the both parties and at the time of the disposal of the case as per the provisions of the limitation act. Hence, the RERA is directed to decide the aforesaid question after the evidence adduced by the both parties at the time of disposal of the case considering the provisions of the Limitation Act, along with other relevant issue.

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The appeal is disposed off accordingly at motion hearing stage.”

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It is apparent from the material available on record that the case is pending before the learned RERA for adjudication and the learned Tribunal has rightly disposed off the appeal at motion stage on the ground that limitation is a mixed question of fact and law which cannot be decided without the evidence. We do not find any illegality or infirmity in the order impugned warranting any interference by this Court.

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Accordingly, the appeal is dismissed at admission stage without notice to the other party.

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Sd/Sd/-

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(Rajani Dubey) (Sachin Singh Rajput) Judge Judge

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pekdeDigitally signed by VIJAY BHARATRAO PEKDE

M/S. Rajat Builders v. Smt. Kusum Kothari

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M/S. Rajat Builders v. Smt. Kusum Kothari

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