HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This revision petition is at the instance of the opposite party No. 2 Pramod Kumar Agarwal (HUF) to assail the order dated 03.03.2023 passed by the Learned Additional District Consumer Disputes Redressal Commission, Rajarhat ( New Town) ( in short, ‘the District Commission’) in  connection with Misc. Application No. 213/2022 arising out of consumer complaint case being No. CC/271/2022 whereby an application filed by the opposite party No. 2 / revisionist to expunge his name from the cause title of the petition of complaint was rejected.

2. The respondent No. 1 herein being the complainant filed the complaint before the Learned Additional District Commission under section 35 read with section 38 of the Consumer Protection Act, 2019 against the revisionist and other opposite party on the allegation of deficiency in service on the part of the opposite parties with a prayer for several reliefs, viz. :-

“i) Giving direction upon the OPs to pay Rs.50,000/- for deficiency of service.

ii) To pay Rs.50,000/- for cost of mental agony and pain

iii) To direction may kindly be given to deliver the peaceful possession of the flat within time fixed by the Ld. Court failing which alternatively return the money of Rs.34,11,053/- alongwith interest on and from 2013 to till realisation @ 18% per annum.

iv) To complete the work as per agreement and condition of Sale Deed i.e. Repay the amount of Rs.34,11,053/- with interest to the complainant.

v) Rs.50,000/- for cost.”

3. The opposite party No. 2 Pramod Kumar Agarwal (HUF) entered appearance in this case but he did not file any written version in support of his case. The opposite party No. 2 resisted the claim of the complainant and prayed for expunging his name from the cause title of the petition of complaint by filing M.A. Application being No. 213/2022.

4. The opposite party No. 2 / revisionist filed an application being M.A. No. 213/2022 stating that the complaint filed by the respondent No. 1 is completely vague and frivolous proceeding at least against the revisionist / opposite party No. 2. Respondent No. 1 / complainant neither discloses any privities of contract by and between the  complainant and the opposite party No.2 nor does it disclose or constitute any cause of action against the revisionist / opposite party No. 2. The complaint case has been filed with sole intention only to harass the opposite party No. 2. As such, the complaint case is liable to be dismissed in limini with exemplary cost at least against the revisionist / opposite party No. 2. The revisionist / petitioner No. 2 has further stated that the complainant failed to make payment of balance amount of consideration money for Rs.05,29,620/-  (Rupees five lakh twenty nine thousand six hundred and twenty) only to the M.A. Applicant / respondent, though the complainant paid Rs.04,09,903/- (Rupees four lakh nine thousand nine hundred and three) only  to the developer / opposite party No. 2 against the dues of consideration money of Rs.05,38,764/- (Rupees five lakh thirty eight thousand seven hundred and sixty four) only. The respondent No. 1 / complainant entered into a separate sale agreement dated 22.10.2013  for the flat and car parking space, directly with the land owner / opposite party No. 4. The developer / opposite party No. 1 represented by the opposite party No. 3  executed the said sale agreement without making the opposite party No. 2 to party to it. Upon failure by the opposite parties No. 2,3 & 4 to complete the construction as per sale agreement dated 22.10.2013, the instant complaint case being No. CC/271/2022 was filed by the respondent No. 1. As per tripartite nomination agreement dated 21.10.2013 the opposite party No. 1 stepped into the shoes of the petitioner by completely releasing the revisionist from the right accrued to it under the said agreement dated 15.04.2013 and due to subsequent execution of a fresh and separate sale agreement dated 22.10.2022 between the opposite parties No. 1,3 & 4 without the involvement of opposite party No. 2 / revisionist.

5. Further case of the revisionist is that the allegations of the complainant / respondent No. 1 who rest upon the opposite parties No. 1,3 & 4 since  the opposite party No. 2 has no privities of contract direct or indirect with the respondent No. 1 / complainant. Therefore, the opposite party No. 2 has made a prayer to expunge his name from the cause title of the petition of complaint.

6. However, by the impugned order, the Learned District Commission rejected the application filed by the revisionist / opposite party No. 2 which prompted the revisionist / opposite party No. 2 to prefer the instant revision petition.

7. We have given due consideration to the submission made by Mr. Anup Kumar Mukhopadhyay, Learned Advocate appearing for the revisionist / petitioner.

8. The whole issue centres around as to whether the revisionist / petitioner, who has been arrayed as opposite party No. 2 will be deleted / expunged from the obligation of performing any part of the contract on behalf of the undivided family.

9. The facts which are necessary for appreciation in the instant revision petition are that the respondent No. 1 herein being a consumer approached the opposite parties for booking one residential flat being No. 201, 2^nd floor, measuring 135 sq. ft. approximately super built up area in Block ‘A’ in the proposed multistoried building at ‘Pather Panchali’ Complex on the terms and conditions as mentioned in a tripartite nomination agreement, in lieu of Rs.35,30,800/- (Rupees thirty five lakh thirty thousand and eight hundred) only. On the date of signing of the agreement a sum of Rs.01,01,000/- ( Rupees one lakh and one thousand) only was paid to the opposite party No. 2 / revisionist. The revisionist / opposite party No.2 cannot escape from his liability as he is in receipt of Rs.05,57,390/- (Rupees five lakh fifty seven thousand three hundred and ninety) only which is a part of consideration money and more so, the opposite party No. 2, being a party to the tripartite nomination agreement dated 21.10.2013 has some responsibility upon the complainant for the purpose of providing proper justice. The complainant / respondent No. 1 challenged the genuinity / propriety of sale agreement dated 15.04.2013 and the same were beyond the knowledge of the complainant. The documents of sale agreement on 15.04.2013 was not shown to the complainant / respondent earlier. The complainant got knowledge regarding the said document for the first time before this Commission. The revisionist / petitioner No. 2 cannot get relief by applying the principle of estoppel against the complainant. The opposite party No. 2 / revisionist cannot take shield of the fresh sale agreement dated 22.10.2013 as he has received part of consideration money along with the other opposite party. As per clause 4.2 of the tripartite agreement, third party’s advance payment in terms of the said agreement, the third party has paid to the second party a sum of Rs.9,57,390/- (Rupees nine lakh fifty seven thousand three hundred and ninety only) with service tax and legal charges. During execution of the agreement between the parties, opposite party No. 2 received a large portion of the amount and it was within the knowledge of the Company as well as the consent of the Company. Neither the revisionist / opposite party No. 2 nor the Company shows any initial agreement signed between them. The revisionist / opposite party No. 2 has duly received the portion of the payment from the respondent No. 1 / complainant out of total consideration amount. So, he cannot shift his part of liability. The Learned Advocate appearing for the revisionist / opposite party No. 2 has urged that the Learned Addl. District Commission has acted illegally and with material irregularity while in exercise of the jurisdiction vested in it while passing the impugned order by completely rejecting the application in a way without putting his judicial mind both in fact and law. He has further urged that the Learned Commission below has failed to consider that in absence of land owners of the said complaint case itself suffers from non joinder of the necessary parties.  The Learned District Commission below has also failed to apply its judicial mind and thereby has erred while hypothetically holding that by an agreement for sale dated 15.04.2013 executed by and between the complainant and the land owners the complainant agreed to purchase the flat and car parking space whereas in fact, the land owners are not at all the parties of the said complaint case and by an agreement for sale dated 15.04.2013 executed by and between the revisionist and the land owners and developer the complainant agreed to purchase the said flat only without any provision of the said car parking space.

10. He has further urged that the Learned Commission below has failed to consider that the subsequent fresh agreement for sale dated 22.10.2013 was executed without any participation of the revisionist.

11. He has further urged that the Learned District Commission has acted illegally and with material irregularity while in exercise of the jurisdiction vested in it by not holding that the judgment in the case of Manohur Koyal Vs. Thakur Das Naskar reported in (1888)  1LR 15 Cal 319 is not at all applicable in view of the totally different facts and circumstances of the matter. Learned Commission below has failed to consider that the revisionist / petitioner is not at all a necessary party to the said complaint case.

12. Learned Advocate for the revisionist / opposite party No. 2 has referred a decision reported in AIR 2016 SC 3974 ( Sasan Power Ltd. Vs. North American Coal Corporation India Pvt. Ltd.) wherein the Hon’ble Apex Court has held that :-

“65. ................. It is for the reason that in order to constitute a “Novation of contract”, it is necessary to prove, in the first place, that the contract is in existence and second, such contract is substituted by a new contract either by the same parties or different parties with a mutual consideration of discharge of the old contract.

66. in other words,  the novation of contract comprises of two elements. First is the discharge of one debt or debtor and the second is the substitution of a new debt or debtor. The novation is not complete unless it results in substitution, recession or extinguishment of the previous contract by the new contract. Mere variation of some terms of a contract does not constitute a novation. (See Pollock & Mulla Indian Contract and Specific Relief Acts, 13^th Edition, pages 1225-1226).”

13. Having heard the Learned Advocate appearing for the revisionist / opposite party No. 2 and on perusal of the materials available on record it appears to us that the opposite party No. 2 cannot escape from his liability as he is in receipt of Rs.9,57,390/- which is a part of consideration money and more so, the opposite party No. 2 / revisionist being a party to the tripartite nomination agreement dated 21.10.2013 has some responsibility upon the complainant.

14. Moreover, it appears to us that the complainant had denied the existence of the agreement dated 15.04.2013 by saying that the said agreement was not produced or brought into her knowledge before filing the instant M.A. Application. Moreover, it appears to us that the opposite party No. 2 has received the major portion of the consideration money against the receipts without discharging his liabilities and being equally responsible cannot jump out of his own wrong at this stage.

15. Considering the entire facts and circumstances we are of the view that the Learned Addl. District Commission has exercised the jurisdiction properly vested in it under the Consumer Protection Act, 1986.

16. Therefore, we are of the view that the said observations as made by the Learned Addl. District Commission below be supported. Therefore, we find no irregularity in the impugned order passed by the Learned Addl. District Commission.

17. Therefore, we are of the view that the revision petition has no merits at all. So, it is dismissed in limini.

18. The revisional application is thus disposed of accordingly.

19. Learned Addl. District Commission is directed to decided the complaint case as expeditiously as possible preferably within a period of three months from the date of receipt of the copy of this order passed by this Commission.

20. Let a copy of this order be sent down to the Learned Addl. District Commission at once.