The Misc. Application filed by OP2 is taken up for hearing in presence of complainant and Ld. Advocate of OP1 and Ld. Advocate of OP4.

The original complaint case no CC/271/2022 is filed on 03.06.2022 by complainant Ms. Archana Roy against the OP 1 company (developer), Mr. Pramod Kumar Agarwal OP2, Ms Sanchita Roy Chowdhury OP3 (representative of developer)and Mr. Amitabh Roy OP4 and constituted attorney of developer.

The Misc. application is filed by OP 2 praying for expunginghim from this instant complaint case for the reasons stated therein reasoning inter alia that the complainant neither could show existence of any privity of contract between complainant and OP 2 nor any cause of action persists against OP 2. The OP 2 claimed that by an agreement for sale dated 15.04.2013 between the complainant cum purchaser and the land owners (OP 4) and the developer OP 1(represented by OP 3), complainant agreed to purchase flat and car parking space. Accordingly a tripartite nomination agreement dated 21.10.2013 was executed between complainant, landowner OP4, Developer OP 1 represented by OP3 for a consideration money of Rs. 35,30,800/-.The OP2 averred in the MA petition, that by virtue of the said agreementthe complainant already stepped into the shoes of this OP2 to discharge the purchasers liability. But the complainant failed to make payment of balance amount of consideration money for Rs. 5,29,620/- to the MA petitioner cum OP2 , though complainant paid Rs. 4,09,903 /- to  the developer OP2 against dues of consideration money of Rs. 538764/. Thereafter complainant entered into a separate sale agreement dated 22.10.2013 for the said flat and a car parking space, directly with the land owner OP 4 and developer OP 1represented by OP3 but without making the OP 2 a party to it. Upon failure by OP 2, OP 3 and OP 4 to complete the construction as per the sale agreement dated 22.10.2013 the instant case no. CC/271/2022 was filed by the OP 1. Since as per the tripartite nomination agreement dated 21.10.2013 the OP 1 stepped into the shoes of the petitioner by completely releasing the petitioner from the right accrued to it under the sale agreement dated 15.04.2013 and due to subsequent execution of fresh separate sale agreement dated 22.10.2022 directly between the OP 1, OP 3 and OP 4, without the involvement of OP 2, hence the OP 2 claims that he is barred under the settled principle of “Approbation and reprobation” consequentially all the purported allegations and reliefs prayed for by the complainant are barred under the principle of estoppel as the complainant is estopped by her own conduct and admissions made thereof.As such, all the allegations of the complainant should rest upon OP 1, OP 3 and OP 4 since OP 2 has no privity of contract direct or indirect with the complainant. The MA petition is thus allowed with a direction to all concerned to expunge the name of the OP 2 from the cause title.

W/O is filed by the complainant contesting expunction of name of OP2 from cause title stating inter alia that OP2 can not escape his liability as he is in receipt of Rs. 9,57,390/- which is a part of consideration money and more so, the OP2 being a party to the tripartite nomination agreement dated 21.10.2013. Complainant also denied having existence to the agreement dated 15.04.2013 that was ever produced or brought into her knowledge before. The complainant contested on the ground that OP2 is in receipt of major portion of the consideration money against receipts without discharging his liabilities and being equally responsible, can not jump out of his own wrong at this stage.

Perused the MA petition and heard the arguments of both sides.

We have not gone into the merits of this complaint case.

The claim of OP 2 that agreement for sale dated 15.04.2013was executed by complainant cum purchaser with OPs is unfounded as per records as complainant is not a signatory therein. The OP2, alongwiththe land owners (OP 4) and the developer OP 1(represented by OP 3)are the signatories there as per exhibited copy of agreement dated 15.04.2013. In the MA petition, reference of multiple agreements between builders, recipients of consideration money, landowners and consumers were brought in. It is observed by this bench that due to non-fulfilment of the obligations of either of the agreements, it is a matter of continuous cause of action. Hence the stand taken by OP2 having no cause of action is not established. Further the Ld. Advocated argued, brought out the rule of substitution of the contract which is ‘novation of contract’ and cited SC Judgements in support. These were countered by the Ld. Advocate of the complainant with counter arguments about pre requisites of novation of contract as cited in SC Judgements The principle of novation u/s 62A of Indian Contracts Act 1872 provides that if the parties to a contract agree to substitute the new contract or to rescind or alter, it to substitute the new contract, subject to the conditions that the two contracts are not inconsistent to each other. In this case the terms of these two contracts, they are quite inconsistent as per factum of instant case and can not be said to be a substitution for the earlier contract. Also in the instant case, it is observed that the rights under the first contract were not completely given up and all the OPs, including the OP2 were constantly obliged to provide the flat to the consumer since received the considerationmoney from the complainant as per various receipts for Rs. 9,57,390/- in total, as exhibited. It is held that both the contracting parties must consent to substituting the old contract with a new one. Where only one of the party tries to unilaterally bring about novation, there is no good novation. Novation should have essential elements like mutual consent amongst parties, not having breach in the original contract, the new contract being valid and enforceable to sign a novation agreement. In a novated contract by and between the parties, mutual consent of the parties to substitute the old contract by a new one is essential ingredient and the original contract must be unbroken i.e. there should not have been any breach. If so the new contract cannot substitute where the old contract has already been breached. This principle is highlighted in the land mark judgment in the case of KoyelVs. Thakur Das Naskar (SC 1887).The initial agreement would betreated as terminated only on full discharge of liabilities. The OPs here are here under challenge that they should have honoured the commitment under both agreements.

The name of the OP can not be expunged at this stage for proper adjudication of the dispute. Hence the Misc. application for expunging the name of OP2 from cause title stands rejected.

The MA/213/2022 is thus disposed of.

W/V was filed by OP1 and OP4 as per order dated 01.09.2022. The case is running ex-parte against OP3. As per order dated11.10.2022, it was fixed for filing W/V by OP2. But OP2 abstained from filing W/V and filed a MA/213/2022 that was heard on 24.02.2023 and now stands rejected.

Fix 14.03.2023 for filing W/V by OP2.

Note in the diary and cause title accordingly.