1) Both these Miscellaneous Second Appeals are filed under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as ‘the Act’) against the Order of the Real Estate Appellate Tribunal (hereinafter referred to as ‘the Tribunal’) in REFA No.28 of 2024 arising from the Order of the Adjudicating Officer in CCP No.35 of 2022. Hence, both these Appeals are disposed of by a common judgment.

2) The Appellants in MSA No.12/2025 were the Complainants and the Appellants in MSA No.15/2025 were the Respondent Nos.1 to 3 before the Adjudicating Officer. The Complainants are the Allottees, and the Respondents 1 to 3 are the Promoters of the Apartment building by the name ‘Sparkle Spaces’ launched by the Respondent Nos.1 to 3. The Respondent No.4 was the Architectural Firm of the Project, which did not appear either before the Adjudicating Officer or before the Tribunal. It did not appear in these Appeals either.

3) The apartment building has 15 numbers of Apartments. The Complaint was filed by 13 persons, of whom 9 are Apartment Owners and 4 are occupants in 4 Apartments. They claimed Rs.85,00,000/- towards costs of rectification of the defects to the Apartment building, Rs.7,00,000/- each towards the cost of purchasing water at commercial rate on account of the delay in providing water connections, and Rs.10,00,000/- each towards mental agony.

4) On the side of the Complainants, the Complainant No.1 was examined as CW1, the Chartered Engineer who prepared Ext.A10 Report and Ext.A16 Estimate was examined as CW2 and marked Exts.A1 to A37. On the side of the Respondents, no oral evidence was adduced, but marked Exts.B1 to B17.

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 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.

6) The Respondent Nos.1 to 3 alone filed Appeal before the Tribunal challenging the Order of the Adjudicating Officer.

7) The Tribunal remanded the matter back to the Adjudicating Officer holding that it is not permissible to bifurcate the compensation pertaining to the common area as it is a common issue affecting the entire allottees; that the Association of Apartment Owners is a necessary party with respect to compensation for the defects of the common area; and that the issue pertaining to the entitlement of compensation and the Report of the Private Structural Engineer is left open. Both sides are permitted to adduce additional evidence, if any, found necessary.

8) This Court admitted MSA No.12/2025 on the following substantial question of law:

                  . Whether the rights of the Allottees as defined under S.31 of the Act be disallowed on the ground that the Association is not a party in the original proceedings?

                  . Whether the rights of the Allottees to claim reliefs in respect to common areas be disallowed/barred, especially when there is no registered conveyance of the common areas by the builder to the Association under S.17 of the Act?

                  . Whether the locus standi of the Allottees to approach the Adjudicating Authority under S.31 stands barred without the Association being in the party array?

                  . Whether the authority of the Adjudicating Officer to award compensation under S.71(3) prohibits any bifurcation of the compensation to the complainants?

                  . Is there any bar under S.71(3) of the Act prohibiting the Adjudicating Authority from bifurcating the compensation among the Complainants/Allottees?

9) This Court admitted MSA No.15/2025 on the following substantial questions of law.

                  i.        Whether the Tribunal has the power to remand the matter back to the Adjudicating Officer?

                  ii.       When the Tribunal has found that only the Association and not the Complainant has the right to seek compensation for alleged deficiencies in common areas, whether the Tribunal is justified in remanding the matter back to the Adjudicating Officer for permitting the complainant to implead the Association?

10) MSA No.12/2025 is treated as the leading case, and the parties are referred to according to their status in the said Appeal.

11) I heard the learned Counsel for the Appellants, Sri. Arun Babu, and the learned Counsel for the Respondent Nos.1 to 3, Sri. Sunil Shankar A.

12) The learned Counsel for the Appellants contended that structural defect is dealt with under Section 14(3) of the Act, and it provides that aggrieved allottees are entitled to get compensation. It does not refer to the Association of Allottees. In view of the Explanation to Section 31(1) of the Act, the aggrieved person mentioned in Section 31 includes the Association of Allottees. It does not authorise the Association to file a Complaint claiming compensation, as the Complaint mentioned therein is limited to violation or contravention of the provisions of the Act, the Rules and Regulations and not for compensation. The Tribunal has added something which is not there in the Statute Book by holding that the Association is a necessary party. Section 17(1) of the Act mandates the transfer of undivided proportionate title in the common areas to the Association of Allottees. Though an Association of Allottees is formed for the Apartment Project, the Promoters have not transferred the undivided proportionate title in the common areas in favour of the Association. Hence, the Allottees of the Project are perfectly justified in claiming compensation for the rectification of defects of the common area, without the intervention of the Association. The Adjudicating Officer correctly divided the eligible compensation among the eligible allottees. The Adjudicating Officer correctly relied on Ext.A10 Report and Ext.A16 Estimate proved by CW2 Expert. No contrary evidence is adduced by the contesting Respondents. The Adjudicating Officer considered each and every item in Exts.A10 and A16 and allowed only the items that are to the satisfaction of the Adjudicating Officer. There is nothing in the Act that prohibits bifurcation of the compensation. Bifurcation of compensation is perfectly justified when it is required in the facts and circumstances of the case. Learned Counsel invited my attention to the Affidavits of the Appellants produced along with I.A. No.3/2025 stating that they have no objection to transferring the amounts ordered by the Adjudicating Officer to the Association. Hence, the remand to the Adjudicating Officer for the purpose of impleading the Association is unwarranted. The Tribunal did not find anything contrary to law or fact in the Order of the Adjudicating Officer. Learned Counsel for the Appellants pointed out Rule 37(2) (e), (f) and (g) of the Kerala Real Estate (Regulation and Development) Rules, 2018, which provides that in case the Adjudicating Officer is satisfied on the basis of the submissions made that there is need for further hearing into the complaint it may order production of documents or other evidence; that the Adjudicating Officer shall have the power to carry out an inquiry into the complaint on the basis of documents and submissions; and that the Adjudicating Officer upon consideration of the evidence produced before him and other records and submissions is satisfied that the promoter is liable to pay compensation, the Adjudicating Officer may, by order in writing, order payment of such compensation, as deemed fit by the promoter to the complainant. It is contended that the Adjudicating Officer acted in full compliance with the Rules while passing the Order. The Tribunal ought not to have interfered with the well-considered Order of the Adjudicating Officer. Learned Counsel cited the decision of the Hon’ble Court in Pioneer Urban Land and Infrastructure Limited and Another v. Union of India and Others [(2019) 8 SCC 416] to substantiate the point that Allottees are entitled to claim compensation in case of any loss caused to them; that when a provision of law is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. Learned Counsel cited the decision of the Madhya Pradesh High Court in M/s. Treasure India Through Its Partner Pankaj Mathur v. Smt. Anjula Malviya [Misc.Petition No.2168/2024], in which it is held that it is the duty of the Adjudicating Authority to see that the disputes under the Act are disposed of quickly in a time-bound manner. Learned Counsel cited the decision of the Allahabad High Court in U.P. Avas Evam Vikas Parishad v. Dhruv Kumar Chaturvedi and Others [MANU/UP/3810/2023] in which it is held that the provisions of the Act are wide enough to empower the Adjudicating Officer to adjudicate the quantum of compensation and grant the same in the form of interest. Learned Counsel cited the decision of this Court in Nidhish v. Sivaprakash [2023 (6) KLT 572] to enlighten the powers of the Tribunal. Learned Counsel cited the decision of this Court in Gopakumar B. Nair v. K.V. Sugunan and Others [(2025) ibclaw.in 195 HC], in which the objects of the Act and the powers of the Adjudicating Officer are dealt with. Learned Counsel concluded his arguments, praying to allow the Appeal filed by the Allottees and to dismiss the Appeal filed by the Promoters, answering the substantial questions of law in favour of the Allottees.

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 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 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 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.

14) I have considered the rival contentions.

15) The Complaint filed by the Allottees is having claims under three heads – (1) Compensation for Structural Defect, (2) Compensation for procuring water on account of the delay in providing water supply and (3) Compensation for mental agony. The Adjudicating Officer granted compensation only under the first head. The Allottees did not file any Appeal before the Tribunal. Hence, the claim that arises for consideration in these appeals is only under the first head.

16) In light of the substantial questions of law formulated in both the Appeals, the following points arise for consideration in these Appeals.

                  1. Whether the Tribunal is having the power of remand under the provisions of the Act?

                  2. Whether the Association of Allottees is a necessary party to the claim for compensation for the structural defects of the common area?

                  3. Whether the Adjudicating Officer has the power to bifurcate the compensation among the Allottees?

17)    Answers to the aforesaid points determine substantial questions of law in these Appeals.

POINT NO.1

18) The Tribunal has remanded the matter back to the Adjudicating Officer as per the impugned Order to enable the Complainants to implead the Association of Allottees and reconsider the issue with respect to the entitlement of compensation and the reliability of the Report of the Private Structural Engineer, permitting the parties to adduce additional evidence, if any, found necessary. The contention of the learned Counsel for the contesting Respondents is that neither the Act nor the Rules made thereunder provide the power of remand to the Tribunal. It is true that neither the Act nor the Rules or Regulations made thereunder do provide the power of remand to the Tribunal. Order XLI Rules 23 and 23A of the CPC dealing with the power of remand is not available to the Tribunal, as the application of the Code of Civil Procedure to the Tribunal specifically is excluded by Section 53 of the Act, except for certain matters mentioned therein, which do not include the power of remand. In such a case, the question is whether the Tribunal is having the inherent power of remand.

19) The Full Bench of this Court in Dharmadas v. State Transport Appellate Tribunal [1962 KLT 505] considered the question of whether a power to remand should be considered as having been granted by necessary implication, while dealing with Section 64 of the Motor Vehicles Act, 1939, providing appeal which does specifically mention the power of remand. The Full Bench considered the argument that the absence of a provision making the Code of Civil Procedure, 1908, applicable to the proceedings indicates that the power of remand was not intended to be granted. The Full Bench found that the said argument is clearly wrong and held that if the power of remand is implicit in an appellate jurisdiction on the ground that it is incidental to, and essential for, the proper exercise of that jurisdiction, the fact that the Code of Civil Procedure, 1908, has not been made applicable can have no reaction on the existence or otherwise of that power. It is ultimately held that the Full Bench entertains no doubt that a power to remand is available to a Tribunal functioning under Section 64 of the Motor Vehicles Act, 1939, and that the said power is incidental to and implicit in the appellate jurisdiction created by that Section. The said Full Bench decision is followed in the Division Bench decision of this Court in Kochukunju Pillai v. Revenue Divisional Officer [1978 KLT 478], holding that there is enough authority to hold, and we have no hesitation to hold, that a power of remand is inherent in the power of the Appellate Authority; that were authority needed for the proposition, we have it in the Full Bench decision of this Court in Dharmadas (Supra). The principle laid down in these decisions are squarely applicable to the case on hand.

20) That apart, Section 44(3) of the Act provides that on receipt of an appeal, the Appellate Tribunal may, after giving the parties an opportunity of being heard, pass such orders, including interim orders, as it thinks fit. When this provision is interpreted in the light of the object of the enactment, viz., a fast-track dispute resolution mechanism, it could only be held that the Tribunal is having wide powers under the Act to mould reliefs for effective and complete adjudication of the matter. While setting aside the Order of the Adjudicating Officer or K-RERA, if the Tribunal finds that the matter requires reconsideration at the hands of the Adjudicating Officer or K-RERA, it is perfectly within the powers of the Tribunal to remand the matter back to the Adjudicating Officer or K-RERA, as the case may be.

21)    Since Order XLI Rules 23 and 23A of the CPC are not applicable to the Tribunal, the power of the Tribunal for remand is not regulated by the conditions in those provisions. Section 53 of the Act mandates that the Tribunal shall be guided by the principles of natural justice and that, subject to the provisions of the Act, the Tribunal shall have power to regulate its own procedure. None of the provisions in the Act restricts the power of the Tribunal in any way. Hence, I hold that the Tribunal is having the power of remand under the provisions of the Act.

POINT NO.2

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 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 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 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 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 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.

24) There is no direction in the Order of the Adjudicating Officer to the nine Allottees to whom compensation for rectification of defects in the common area is awarded to utilize the compensation of Rs.2,67,809/- each received by them for the said purpose. Such direction can be given only to the Association of Allottees and not to the individual Allottees in the Project. There is no guarantee that such nine Allottees will use the compensation for rectification of the defects in the common area. Hence, I hold that the Association of Allottees is a necessary party to the claim for compensation for the structural defects of the common area. Since Order I Rule 9 CPC is not applicable to the proceedings, it could not be said that the proceedings shall be defeated for non-joinder of a necessary party.

POINT NO.3

25) The total compensation claimed in the Complaint for the structural defect of the Project building is Rs.85,00,000/-. It is inclusive of the compensation for rectification of defects in the common area and in the individual apartments. The Adjudicating Officer has found that Rs.40,17,131/- is the compensation payable for the rectification of defects in the common area, and Rs.57,533/-, Rs.96,000/-, Rs.74,833/-, and Rs.28,167/- are the compensation payable for the rectification of the defects in the apartments of the Complainant Nos.1, 5, 6, and 10, relying on Ext.A10 Report and Ext.A16 Estimate of the CW2 Expert. The legality of the fixation of such compensation relying on Ext.A10 Report and Ext.A16 Estimate of CW2 Expert is a matter to be considered by the Adjudicating Officer afresh in the light of the remand order passed by the Tribunal based on the evidence available before it. This Court does not find any error in the direction of the Tribunal to consider the said issue by the Adjudicating Officer.

26) Section 71(3) of the Act deals with procedure before the Adjudicating Officer, and Section 53 of the Act deals with procedure before the Tribunal. Section 71(3) contemplates only an inquiry. Section 53 provides that the Tribunal shall not be guided by the procedure laid down by the Code of Civil Procedure; that the Tribunal shall not be bound by the rules of evidence contained in the Indian Evidence Act, 1982; that the Tribunal shall be guided by the principles of natural justice; and that the Tribunal shall have power to regulate its own procedure, subject to the provisions of the Act. Powers of the Civil Court under the Code of Civil Procedure are vested in the Tribunal for the purpose of discharging certain functions specified therein. These provisions would indicate that strict rules of pleadings and evidence are not applicable to the proceedings before the different forums under the Act. Each of the Forums under the Act shall adopt its procedure bearing in mind the objects of the enactment enshrined in its Preamble. One of the objects in the Preamble of the Act is to establish an adjudicating mechanism for speedy dispute redressal. The Statement of Objects and Reasons for the enactment also includes a fast-track dispute resolution mechanism. Hence, the Adjudicating Officer is perfectly justified in bifurcating the individual claims and the collective claims with respect to the common area for granting compensation.

27) Regulation 7(6) of the Kerala Real Estate Regulatory Authority (General) Regulations, 2020, provides that when a number of claims for compensation are made to the Adjudicating Officer based on similar facts and seeking the same or similar relief against the same promoter in the same project, the Adjudicating Officer shall ordinarily club all such claims for compensation, hear them jointly and dispose them through a common order. In the present Complaint, the Allottees have clubbed their individual claims for compensation based on similar facts and are seeking the same or similar relief against the same promoter in the same project. This provision is made to avoid multiplicity of the proceedings and conflicting orders. Even if the Allottees had filed separate Complaints, the Adjudicating Officer had to club all such claims for compensation, hear them jointly, and dispose them through a common order. No prejudice whatsoever was caused to the Promoter by filing a single Complaint by the Allottees clubbing their individual claims for compensation. In light of the above provision, the contention of the learned Counsel for the contesting Respondents that the Allottees should have filed separate complaints for their individual claims is unsustainable.

28) Rule 37(2)(e), (f), and (g) of the Kerala Real Estate (Regulation and Development) Rules, 2018, contemplates only an inquiry and satisfaction of the Adjudicating Officer for ordering compensation. A full-fledged trial is not required. Even oral evidence is not required if the Adjudicating Officer is satisfied with the claim on the basis of the materials before him. Hence, the contention of the learned Counsel for the contesting Respondents that the Adjudicating Officer should have considered the Complainant No.1 alone, as he was the only person who adduced evidence, is unsustainable.

29) But the Adjudicating Officer acted illegally in dividing the said amount of compensation of Rs.40,17,131/- among the 15 numbers of Allottees to the tune of Rs.2,67,809/- each and allowing 9 out of 13 Complainants before the Adjudicating Officer to recover Rs.2,67,809/- each from the Promoter. The compensation for rectification of the defects in the common area is a collective amount required for such works. It could not be divided among the Allottees. It has to be paid only to the Association of Allottees for undertaking such works in the common area. Hence, I hold that bifurcation of the compensation for rectification of the defects in the common area by the Adjudicating Officer is unsustainable.

30) In view of the findings under the aforesaid points, I answer the substantial questions of law Nos. (i), (ii) & (iii) in MSA No.12/2025 and the substantial questions of law Nos.(i) & (ii) in MSA No.15/2025 in the affirmative and the substantial questions of law Nos.(iv) & (v) in MSA No.12/2025 partly in favour of the appellants and partly in favour of the contesting Respondents as held above.

31) In view of the answers to the substantial questions of law in the above Appeals, both the Appeals are dismissed, confirming the remand order, but subject to the observations contained in this judgment. The Adjudicating Officer is directed to dispose of the Complaint within a period of four months from today.