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5) The Adjudicating Officer found that the claims of Complainant Nos.3, 4, 11, and 12 are not maintainable, as they are not the Allottees of the Project. The Adjudicating Officer, relying on Exts.A10 and A16, found that rectification costs for rectifying the structural defects of the common areas is Rs.40,17,131/- and the rectification costs for rectifying the structural defects of the apartments of the Complainant Nos.1, 5, 6 and 10 are Rs.57,533/-, Rs.96,000/-, Rs.74,833/- and Rs.28,167/- respectively. The Adjudicating Officer divided the rectification costs of Rs.40,17,131/- with respect to the common area among the total 15 numbers of allottees and found that each of the allottees is entitled to get Rs.2,67,809/-. Accordingly, the Complaint was partly allowed, declaring that the Complainant Nos.1, 2, 5 to 10 and 13 are entitled to get Rs.2,67,809/- each MSA Nos.12 & 15 of 2025 2025:KER:97489 and the Complainant Nos.1, 5, 6 and10 are entitled to get Rs.57,533/-, Rs.96,000/-, Rs.74,833/- and Rs.28,167/- respectively from the Respondents Nos.1 to 3 and their assets with interest @ 14.85% per annum from the date of the Complaint till realisation with a cost of Rs.25,000/- and dismissing the Complaint against the Respondent No.4.

13) Per Contra, the Learned Counsel for the contesting Respondents contended that the Tribunal ought to have remanded the matter back to the Adjudicating Officer after setting aside the Order of the Adjudicating Officer when it found fundamental mistakes in the proceedings on account of non- impleadment of necessary parties. Learned Counsel referred to the Proviso to Order I Rule 9 of the Code of Civil Procedure, 1908, and contended that the general rule that no suit shall be defeated by reason of the misjoinder or non-joinder of parties MSA Nos.12 & 15 of 2025 2025:KER:97489 shall not apply to the non-joinder of necessary parties. After finding that the Association of Allottees is a necessary party to the Complaint, the Tribunal ought to have set aside the Order of the Adjudicating Officer and dismissed the Complaint. The Tribunal should not have remanded the matter back to enable the Complainants to cure the material defect. The Act does not authorise the Tribunal to remand the matter back to the Adjudicating Officer. Neither Section 53 of the Act nor Rule 33 of the Kerala Real Estate (Regulation and Development) Rules, 2018, dealing with the powers of the Tribunal, provides for remand. There is misjoinder of cause of action. The claims in the Complaint include the claims of individual Allottees alleging structural defects in their individual apartments and the claim alleging structural defects to the common area, which can be claimed only by the Association. Separate Complaints should have been filed by each of the Allottees with respect to their MSA Nos.12 & 15 of 2025 2025:KER:97489 individual claims, and a separate claim should have been filed by the Association with respect to the alleged defects of the common area. Going by the Scheme of the Act, the custodian of the common area is the Association of Allottees, and hence the Association of Allottees alone has the right to claim compensation for the alleged structural defects of the common area. It is not within the powers of the Adjudicating Officer to bifurcate the compensation among Allottees. The Complainant No.1 alone adduced evidence in support of his claim by examining him as CW1. There is no evidence from the other Complainants to prove their individual claims. The Adjudicating Officer should have considered the individual claim of the Complainant No.1 alone, who was examined as CW1. At any rate, the remand should have been for consideration of the said claim alone. When the Tribunal found that the evidence of the Private Engineer is not acceptable, the Tribunal ought to have MSA Nos.12 & 15 of 2025 2025:KER:97489 set aside the impugned Order and to have dismissed the Complaint, holding that there is no evidence to support the claim. The Adjudicating Officer illegally relied on Ext.A10 Report and Ext.A16 Estimate, which were obtained without notice to and behind the back of the Promoters. The Tribunal is the final Court on adjudication of facts, and hence this Court has no jurisdiction to substitute the findings on facts rendered by the Tribunal sitting in Second Appeal jurisdiction. Learned Counsel concluded his arguments, praying to allow the Appeal filed by the Promoters and to dismiss the Appeal filed by the Allottees, answering the substantial questions of law in favour of the Promoters.

22) Section 14(3) of the Act deals with compensation for structural defect of the building. It does not differentiate between the structural defect of the individual apartment and the structural defect of the common area. It provides for compensation from the Promoter in case of his failure to rectify the defects. Section 14(3) provides that the aggrieved Allottees shall be entitled to MSA Nos.12 & 15 of 2025 2025:KER:97489 receive the compensation. True, there is no provision in the Act specifically enabling the Association of Allottees to claim compensation for the structural defect of the common area. The Scheme of the Act is that the undivided proportionate title of the common area shall vest with the Association of Allottees, since it is the Association of the Allottees which is managing the common area for and on behalf of the Allottees for their benefit. The Association of the Allottees represents all the Allottees and is bound to protect the interests of all the Allottees. When structural defects in the common areas are noticed, it is the Association that has to initiate action to get it rectified by the Promoter, and in case of his failure, to initiate action for compensation from the Promoter for and on behalf of all the Allottees. Such compensation obtained by the Association from the Promoter is the compensation due from the Promoter to the aggrieved Allottees. In such case, the Association of Allottees MSA Nos.12 & 15 of 2025 2025:KER:97489 receives the compensation collectively and expends it for rectifying the defects in the common areas for and on behalf of the aggrieved Allottees for their collective benefits. None of the provisions in the Act say as to who has to file a Complaint before the Adjudicating Officer claiming compensation for the structural defect in the common areas. Section 14(3) does not say it is to be initiated by the aggrieved Allottee. Section 14(3) provides only the entitlement of compensation by the aggrieved Allottee. Hence, I hold that the Association of Allottees is to file a Complaint before the Adjudicating Officer claiming compensation for the defects in the common area, collectively representing the aggrieved Allottees who are entitled to receive compensation.

23) Then a question arises whether individual Allottees can file a Complaint claiming compensation for the structural defects in the common area. The management of the common area is with MSA Nos.12 & 15 of 2025 2025:KER:97489 the Association of Allottees. Section 17(1) of the Act mandates the transfer of the undivided proportionate title in the common area to the Association of the Allottees by the Promoter. Even if such a transfer is not made by the Promoter, on transfer of the apartments to the Allottees and formation of the Association of the Allottees, the Promoter will not have any control over the common areas, even if the undivided proportionate title in the common area is still with the Promoter. In case the Promoter refuses to transfer the undivided proportionate title in the common area to the Association of Allottees in compliance with Section 17(1), the Promoter is liable to pay a penalty under Section 61 of the Act. These provisions are incorporated in the Act to ensure proper management and protection of the common areas by the Association of Allottees for and on behalf of the Allottees. The Association of Allottees can maintain a Complaint claiming compensation for the structural defects in MSA Nos.12 & 15 of 2025 2025:KER:97489 the common areas even if the title over the same is not transferred to it by the Promoter in compliance with Section 17(1) of the Act. Hence, the contention of the learned Counsel for the Appellants that, for want of transfer of the undivided proportionate title in the common area, the Allottees alone can file a Complaint claiming compensation for the structural defects in the common areas is unsustainable. Nevertheless, if the Association of Allottees does not bring an action for rectifying the defects in the common areas, any of the Allottees can bring an action for the same before the Adjudicating Officer. But the Allottee cannot claim compensation with reference to his proportionate undivided interest. He has to pray for quantification of the compensation for rectifying the defects in the common area, with further prayer to direct the Association of Allottees to rectify the mistakes using such compensation. The Association of Allottees is a necessary party in a Complaint MSA Nos.12 & 15 of 2025 2025:KER:97489 claiming compensation for rectification of defects in the common area; otherwise, the Adjudicating Officer will not be able to pass effective orders in the matter.