- (1.) THIS appeal arises from order dated 27th August, 2003 rendered by the learned Ahmedabad City Consumer Disputes Redressal Forum in Complaint No. 385/2002. Impugned order reads as under : "(a) The opponents are held jointly and severally liable. (b) The opponents are hereby directed to pay jointly and severally Rs. 4,45,500/ - with running interest @ 18% per annum from the date of booking dated 3.10.1998 till actual payment to the complainant. (c) The opponents are further directed to pay jointly and severally Rs. 10,000/ - as a mental agony undergone by the complainant and the further Rs. 5,000/ - as a cost to the complainant."
(2.) IT was the complainant's case before the learned Forum that he had an occasion to book flat bearing No. A/203 pursuant to the advertisement issued by the first opponent Prerna Builders Limited inter alia promising to give possession of the flat within two years from the date of that advertisement that is to say on or before 1st October, 2000. It so happened that the complaint had occasion to alter the booking of the flat from A/203 to flat B/202 on 15th May, 1999 when excess consideration of Rs. 66,000/ - out of the consideration of Rs. 5,11,500/ - was returned leaving a balance of Rs. 4,45,500/ - by way of consideration of the newly allotted flat B/202. It would appear that the complainant had the occasion to write number of letters to the opponent No. 1 Builder with regard to possession of the said flat, but since the opponent No. 1 did not deliver the possession of the flat the complainant was required to approach the learned Forum with reliefs of refund of the amount with interest @ 24% p.a. and compensation and cost. It would appear that the complainant had waited nearly two years even after expiry of the reasonable period from 15.5.1999 and filed complaint on or around 24.6.2002. It might also be noted that till that date the first opponent neither offered possession of the flat nor explained the unforeseen circumstances which occurred for not handing over the possession to the complainant though explanation has been given in the complaint proceedings and now before us. Even when the complaint was filed some efforts were made to see that the complainant got the possession of the flat in question. The first opponent was not in a position to give possession even at the relevant point of time of the complaint proceedings. Under such circumstances the learned Forum was required to pass the aforesaid order.
(3.) WHAT the opponents would contend before us is that the complaint should have been dismissed on account of misjoinder and nonjoinder of the parties. In the first place it has been submitted that the opponent No. 2 was not in picture anywhere and so he could not have been joined as a party in the complaint. We do not find any transaction entered into between the complainant on the one hand and the opponent No. 2 on the other hand which will go to indicate assumption of any individual or personal liability by opponent No. 2. Thus, there was no legal and valid reason to join him as a party in the complaint. Hence the submission that opponent No. 2 was unnecessarily joined as a party in the complaint proceeding has to be accepted. However, the complaint will not fail on that count. Impugned order against opponent No. 2 need to be set aside. Opponents would submit that full consideration was paid by the present complainant in the joint name of himself and his wife for the flat in question, but she has not been made party to the complaint. It is not in dispute that she has filed affidavit in favour of the complainant for appropriate direction being issued in his favour. What is important to be noticed from the contention taken on behalf of the opponents is that whenever some order is passed and compliance of such order is made by the opponents, they must get legal discharge with regard to their liability, from both of the allottees, so that another allottee might not take advantage of her absence in the proceeding before the learned Forum. In our considered opinion that defect can also be rectified by issuing appropriate direction of giving receipt of discharge jointly by the complainants. Needless to say that no complaint should fail on account of non -joinder or mis -joinder of party when such a defect can be cured and when there is no likelihood of multiplicity of proceedings. Under such circumstances the submission made on behalf of the opponents will not hold good so as to dismiss the complaint.;