The Ld. Counsel for the Complainant is present, who files objection against the MA with a copy to the other side. The Complainant prays for publication of the notices in the newspaper regarding the OP-1 and 2, as the earlier notices could not be effected.

Complainant prays time for publication of the notices in respect of the OP-1 and 2 in the daily and well circulated newspaper namely Bartaman. In our view the prayer of the Complainant has much substance on the ground that until and unless notices will be given to the said OPs, the complaint cannot be proceeded. Therefore the prayer of the Complainant is hereby allowed.

The Complainant is directed to publish the notices in respect of the OP-1 and 2 in the newspaper namely Bartaman without any further delay

Fix 14.06.2021 for submitting the said newspaper showing publication of the notices in respect of the OP-1 and 2.

We have taken up the MA being no-47/2020 for hearing and disposal.

It is pertinent to mention herein that as the notices could not served upon the OP-1 and 2 and due to this reason the OP-1 and 2 did not turn up, hence service of the application being no-47/2020 is not required.

In the application it is stated by the OP-3 and 4 that being the land owners of the property he has no liability with the prayer as made out by the Complainant in the petition of complaint. The Complainant did not hire any service from him by making payment of any consideration amount. The Complainant paid the consideration amount to the OP-1 and 2. Moreover it was settled that the Complainant will purchase the questioned flat from the developer’s allocation, not from the allocation of this land owner. In the prayer portion the Complainant did not seek for registration of the sale deed of the concerned flat, rather the Complainant has sought for refund of the paid amount along with interest component. Therefore liability for refund of the amount will be casted upon the shoulder of the person, who received the same. As the OP-3 and 4 did not receive any amount from the Complainant towards the consideration amount or whatever it may be, then he has no liability to refund him any amount. Due to this reason the Complainant has made him party unnecessarily in this proceeding with a view to harass him and to grab some money from him through an illegal manner. According to the OP-3 and 4 if this application is not allowed, he will suffer irreparable loss and injury and prayer is made by the OP-3 and 4 for allowing this application.

The Ld. Counsel for the Complainant has raised vehement objection orally against this application stating that there was development agreement by and between the OP-1, 2 and 3 i.e. being the developers and the landowners to erect the building and the landowner gave power of attorney to the developers. Subsequently an agreement for sale was executed by and between the landowner, developers and the Complainant being the intending purchaser. Though the Complainant had agreed to purchase flat from the developer’s allocation and paid the consideration amount to the developers, but as the tripartite agreement for sale was executed, the land owner cannot avoid his liability at this juncture. According to the Complainant the MA being no-47/2020 filed by the OP-3 and 4 is liable to be dismissed.

We have heard argument on the MA at length. In our view though the payment was made by the Complainant to the OP-1 and 2, inspite of this there is some liability of the OP-3 in this respect which he cannot bypass as the tripartite agreement for sale was executed by and between the Complainant-Developers and the Land owner.

In this respect we may mention to the Reportable judgment passed by the Hon’ble Supreme Court in the case of Chandigarh Housing Board vs. M/s. Parasvanath Developers private Limited & Another, passed in the Civil Appeal no-10748/2016 (Civil Appellate Jurisdiction), dated 17.12.2019, wherein it has been held that in case held that in case of Tripartite Agreement i.e. builder-landowner-purchaser, if compensation be imposed on the builder due to deficiency in service, then proportionate compensation should be imposed on the land owner.

Having regard to the abovementioned judgment of the Hon’ble Supreme Court we are of the opinion that the prayer for expunging the name of the OP-3 and 4 being the land owner cannot be allowed on the ground that in the case in hand also tripartite agreement for sale was executed.

Going by the foregoing discussion hence it is ordered that the MA being no-47/2020 is hereby dismissed. Considering the facts and circumstances there is no order as to cost.

Fix 14.06.2021 for adducing evidence by the Complainant.