IMPORTANT POINT
Consumer complaint cannot be effectively decided in absence of necessary parties.

V.K. Jain, Presiding Member—The complainant/respondent was allotted a residential flat by the appellant in a project, namely, ‘Shourya Greens’, which the appellant was to develop in Jalandhar. The allotment was made for a total consideration of Rs.3443000/- and a sum of Rs.3021760/- stands already paid by the complainant. The possession of the flat was to be delivered by December, 2012 though there was a grace period of three months available to the builder. Since the possession of the flat was not delivered to him, the complainant approached the concerned State Commission by way of a consumer complaint seeking refund of the amount paid by him along with compensation etc.

2. The complaint was resisted by the appellant which took a preliminary objection that Novena Builders & Developers Pvt. Ltd. was a necessary and proper party to the complaint, in view of the contract dated 12.1.2010 executed between the appellant and Novena Builders & Developers Pvt. Ltd. The State Commission, however, did not go into the question as to whether Novena Builders & Developers Pvt. Ltd. was a necessary party to the complaint or not though it upheld the liability of the appellant towards the complainant. The State Commission directed refund of the entire amount paid by the complainant to the appellant along with interest @ 12% pa., compensation quantified at Rs.3 lakhs and cost of litigation quantified at Rs.30,000/-. Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this appeal.

3. The learned counsel for the appellant has drawn my attention to clause 10 of the Flat Buyers Agreement executed between the parties, which reads as under:-

“That the company reserves its right to enter upon the further collaboration, joint venture development agreement with any third parties or may assign the whole or part of the project to a third party at its sole discretion and without obtaining any approval or consent or intimation to allottee, however in such a case the obligation under this agreement shall be performed by such assignee and accordingly the company shall completely absolved from performing the obligation under the present agreement and same shall be responsibility of the such assignee.”

It would thus be seen that the complainant/respondent had expressly agreed that the appellant could enter into Joint Venture Development Agreement with a third party or it could even assign the whole or part of the project to a third party without his consent, approval or intimation.

4. The learned counsel for the appellant has drawn my attention to the application form submitted by the complainant jointly to Novena Builders & Developers Pvt. Ltd. and the appellant Nitishree Infrastructure Pvt. Ltd. The aforesaid application form clearly shows that the complainant was fully aware of the Joint Venture Agreement dated 12.1.2010 between the appellant and Novena Builders & Developers Pvt. Ltd. and that is why the aforesaid application form was submitted by him jointly to both the aforesaid companies. Despite the appellant having taken a preliminary objection that Novena Builders & Developers Pvt. Ltd. was a necessary and proper party to the complaint, no request was made by the complainant to the State Commission seeking permission to implead Novena Builders & Developers Pvt. Ltd. as a party to the consumer complaint.

(1) The learned counsel for the appellant has also drawn my attention to the bank statements which show transfer Rs.30 lakhs from the account of the appellant. His contention is that out of the amount received from the complainant, a sum of Rs.30 lakhs has already been transferred by the appellant to Novena Builders & Developers Pvt. Ltd. He has also drawn my attention to clause 3 of the application form submitted by the complainant jointly to Novena Builders & Developers Pvt. Ltd. and the appellant which provides that all payments shall be in favour of Novena Builders & Develop