This case has been arising out of the complaint filed by the complainant against the O.Ps named above u/s. 12 of the Consumer Protection Act, 1986.

           The case of the complainants is that they have purchased flats constructed by the O.P and it was duly registered in respect of their names and they are in position in their respective flats. The O.P constructed the said premises as G+4 storied building 14 numbers of flats. According to the plan duly sanctioned by the Alipurduar Municipality out of that said flats the complainant No. 1 purchased one  2-BHK flat by making payment of Rs. 27,50,000/- and it was registered on 07/08/2017. The complainant No. 2 also purchased a 2-BHK flat and the complainant No. 3 purchased a 2-BHK flat in the said premises being names and style as N.M. Infra Project Private Limited.  At the time of sale the O.P assured all the purchasers that is the complainant and others that she will provide open common parking space in the ground floor and also assured that she will provide the facility in respect of the common areas and the common users as follows:-  I. All the stair case and landings and lift included II. All the electrical fitting of the stair case and landing with common meter. III. All the drains, sewerage, rain water pipes, outside water lines and all outside sanitary pipe lines. IV. Water reservoir on roof top of the building. V. Deep boring pipe, pump and motor, water main line, pump house. VI. Top vacant roof. VII. Common parking. VIII. Electrical mains, meters fittings (except those installed for individual flats relay switches, electrical switches). The common main meter shall be enjoyed by the residents of the said building. IX. Boundary walls and main gate of the buildings. X. Septic tank, soak pit, main sanitary pipe and fittings. XI. Partial margin land surrounding the building front. XII. Such other common parts, area, equipments. XIII. Utilities, fittings and fixings as are necessary for beneficial common use. XIV. Common parking space. XV. Common lighting system for the building and generator. XVI. All other parts of the property necessary or convenient to is existence, maintenance and safety or normally in common use of the flat owners. XVII. Road and pathway to be used as entrance to exit from the building to the connected road. XVIII. C.C. TV facility.  But till the date of filing of this case the elevator / lift has not yet been installed by the O.P, no CCTV facilities have been given by the O.P, O.P failed to installed transformer for which the complainant could not obtain respective electric connection as the O.P did not keep any space for installation of transformer she also started to construct in the roof of the top floor without any sanctioned plan. The O.P also started construction on the ground floor covering half of the open common parking space. The complainant and other occupants raised objection against such illegal construction and submitted written representation before various concern authorities but no result. The O.P provided electric connection from her own commercial meter without arranging the separate individual meter of the occupants as a result complainants have to pay the higher electric charges. The O.P developer also assured that the roof of the building will be maintained by special treatment but it was not done and the roof water leakage in the rainy season. The complainants submitted a written representation before the District Magistrate, Alipurduar regarding the illegal construction and also submitted the letter to the Superintendent of Police, Alipurduar and the Municipal Authorities and also to the Office-in charge of the Fire Station, Alipurduar as there was no fire safety in the said premises. The O.P developer did not fulfill the entire terms and conditions which are mentioned in the agreement. Due to the non cooperation from the side of the O.P as well as not provided the services as agreed by the O.P. The complainants are suffering mental agony and harassment due to the laches from the side of the O.P. The complainants have prayed for direct the O.P to fulfill the services as agreed by the O.P in their deeds and also pay compensation of Rs. 1,00,000/- to each of the complainant and  also to pay Rs. 5,000/-  each as litigation costs.

           The O.P has contested the case by filing written version. They have denied all the allegations made by the complainant.  They have specially stated that there is no cause of action against the O.P. The complainants have no protection or remedy within the frame of C.P. Act. The complainants are not entitled to get any relief from this case.  The complainant are not consumer as defined in the C.P. Act and  complainant Nos. 1 and 2 are barred by limitation as because their cause of action was arose on 21/06/2017 and 07/08/2017. The O.P also denied all the allegations made parawise of the complaint. According to the O.P they have constructed 19 numbers of flats for sale and out of those flats 15 numbers of flats are already sold out. The sale agreement has already done and only the registration part is pending. After purchasing the flats the flat owners create a society and the society is maintaining the said building and the O.P did not interfere with them. The further case is that the complainants purchased the flats long before and they have ample time and opportunity and to verify physical details of purchase flats. This Commission has no jurisdiction to pass any order which the complainant prayed before the prayer portion of the complainant is vague as the O.P never assured of the complainant. The O.P has prayed for dismissal of the case.

            We have perused the materials on record meticulously. Considering the above pleadings the following issues are necessarily come out to consideration to reach just decision of the case.        

                                                  POINTS FOR CONSIDERATION

1. Is the complainant a consumer u/s.12 (1)(d)(ii) of Consumer Protection Act, 1986 ?
2. Has this Forum jurisdiction to entertain the instant case?
3. Is there is any cause of action arose?
4. Is the case barred by limitation?
5. Is the complainant entitled to get any relief/reliefs as he prayed for?

                                         DECISION WITH REASON

           Considering the nature and character of the case all the points are taken up together for consideration for the sake of brevity and convenience.

           Point No. 1:- The complainants have purchased the flats from the O.P by making payment and according to allegation the O.P assured to give some facilities to the complainants which the O.P promised at the time of purchasing of the flats by the complainants but ultimately she did not provide the said facility so, according to the provision of section 2(7) of Consumer Protection Act, 2019 the complainants are the consumer and they are entitled to file this case to getting relief if the allegation is proved.

Point No. 2:- In this case the O.P raised the strong objection and stating that this Commission has no jurisdiction to try of non-performance of it’s obligation by a vender under any agreement to sale. In this regard he has filed some case laws of Hon’ble N.C.D.R.C. and argued strongly on this point that the complainants have to file a case of specific performance of contract before the competent civil court and this Commission has no jurisdiction to give any relief to the complainants. In reply the Ld. Advocate for the complainants stated that this Commission has the jurisdiction to try this case and to give relief to the complainants in this type of cases.

We have heard bothsides at length. It appears that the complainants have made some allegations that the O.P did not provide the promise or assurance which she was given at the time of purchase of the flats. The complainants have filed their respective copy of registered deed from which it appears that in Schedule - C of the said deed the O.P assured to provide the common facilities to the complainants but she did not provide said facilities. It also appears that three deeds of the complainants that assurance of common facilities was given by the O.P. Now question is whether this Commission has jurisdiction to pass any relief in favour of the complainants in this matter or whether it is a fit case in the civil court for specific performance of the contract. In this regard the case laws of Hon’ble N.C.D.R.C. between Prakash Govindrao Mandore Vs Shrikanta Ramesh Pande on 30^th May, 2013 being Revision Petition No. 112 of 2013 the similar question raised before the Hon’ble N.C.D.R.C. wherein the Hon’ble N.C.D.R.C. held that “In most of other matters coming-up before the consumer courts, the agreement itself is not denied, but the failure to act according to the terms and conditions of said agreement may lead to deficiency in service or unfair trade practice, for which the consumer for a may grant appropriate compensation, looking at the facts and circumstances of the case. However, in the case in question, if the existence of agreement is denied, it becomes a case for filing civil suit for specific performance between the parties. The said agreement is not a registered document and moreover the money supposed to have been given by the complainant to the other party has been stated to be given in cash only. In such a situation, both the parties shall have to lead evidence before a court of competent jurisdiction, which could adjudicate upon the issue whether the agreement is a genuine documents or not. We, therefore, agree with the finding of the District Forum that the civil court is the appropriate Forum for filing suit for specific performance so that the validity of the agreement in question could be examined.”  According to the opinion of the Hon’ble N.C.D.R.C. it was not a fit case for Consumer Protection Act as because the agreement was denied it was not registered for that reason the Hon’ble N.C.D.R.C. held that it is a fit case to file before the competent civil court by adducing evidence regarding genuineness of agreement. But, here in the present situation is otherwise in the present case complainants have filed their registered sale deeds and all the sale deeds, the O.P assured to provide some facilities as mentioned in the sale deeds and after that he did not provide the same according to the provision of section 2(37)(ii)(a) of Consumer Protection Act, 2019. In the present case the genuineness of registered sale deed is not required to be proved. It is very much clear that “the service provider does not include a seller of immovable property unless such person is engaged in the sale of constructed house or in the construction home of flats,” so, here according to the section the O.P has constructed flats for the purpose of sale and he is within the definition of product seller and it is very much come within the provision of Consumer Protection Act.

In another case laws of Hon’ble N.C.D.R.C. has been filed by the O.P is Mangilal Soni Vs T Marappa & Others Dated – 25^th March, 2011 wherein the Hon’ble N.C.D.R.C. held that as the sale deed was not executed and the balance amount was not received by the vender then it is a fit case of the non-performance of it’s obligation by a vender under agreement to sale for which the complainants would advice to file civil suit but this case laws is not applicable here as because there is no allegation for not executed a sale deed here is the case that O.P has violated the promise which she was made in the sale deed which duly executed by her. The another case laws filed by the O.P is that passed by the Hon’ble N.C.D.R.C.in between Vandana Aggarwal Vs M/S Mahagun Developers Ltd. & others Dated – 11^th September, 2012 wherein the Hon’ble N.C.D.R.C. held that in that case all the flats were sold out only one was left and the flats were allotted on 10/05/2007 and the sale deed was registered on 15/06/2007 therefore, the complainant had ample time and opportunity to verify physical details before registering the purchase. These case laws are not applicable here that there is no such case of the O.P that before registration of the deeds allotment was handed over to the complainants. Here, this case not only to provide common facilities as agreed by the O.P on this contrary. Ld. Advocate for the complainants filed a judgment of Hon’ble Supreme Court being Civil Appeal No. 4432-4450 of 2012 in between M/s Narne Construction Pvt. Ltd. etc. Vs Union of India & Others wherein the Hon’ble Supreme Court held that “the short question that falls for determination in these appeals by special leave is whether the appellant-company was, in the facts and circumstances of the case, offering any ‘service’ to the respondents within the meaning of the Consumer protection Act, 1986 so as to make it amenable to the jurisdiction of the Fora established under the said Act. Relying upon the decision of this Court in Lucknow development Authority Vs. M.K. Gupta (1994) 1 SCC 243, the High Court has answered the question in the affirmative and held that the respondents were ‘consumers’ and the appellant was a ‘service’ provider within the meaning of the Act aforementioned, hence amenable to the jurisdiction of the Fora under the said Act.”  In that case Hon’ble Supreme Court further held that “this Court further held that when a person applies for allotment of building site or for a flat constructed by development authority and enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression ‘service’ of any description. The housing construction or building activity carried on by a private or statutory body was, therefore, held to be ‘service’ within the meaning of clause (o) of Section 2(1) of the Act as it stood prior to the inclusion of the expression ‘housing construction’ in the definition of ‘service’ by Ordinance No. 24 of 1993. In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant company in the present case involving offer to plots for sale to its customers/members with an assurance of development of infrastructure/amenities, lay-out approvals etc. was a ‘service’ within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the Fora established under the statute ………….…………………….. It is a case where a clear cut assurance was made  the purchasers as to the nature and the extent of development that would be carried out by the appellant-company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents.”  From this judgment of the Hon’ble Apex Court it is very much clear that the construction company is the service provider and he assured to the purchaser to give some common facilities to them but ultimately she refused. So, it is clear that it is a case under C.P. Act as opined by the Hon’ble Supreme Court. That a part it another case law the Hon’ble N.C.D.R.C. in a case reported in I(2022) CPJ 78(NC) Nitin Juneja  Vs IREO Pvt. Ltd. and Others opined that absence of facilities promised by the developer is an unfair trade practice which is deficiency in service and comes within the provision of Consumer Protection Act.

So, after discussion all the above facts and circumstances including the case laws both the parties we find that the O.P/developer is a service provider as she constructed the flats for sale and she is bound to provide all the common facilities as agreed by her in the sale deeds and in that case in absence of any facilities provided it is come within the provision of C.P. Act and this Commission has the jurisdiction to try this case. The contention of the O.P is not acceptable here.

           Point No. 3 and 4:- Ld. Advocate for the O.P argued that the case of complainant Nos. 1 and 2 is barred by limitation as because the complainant No. 1 has purchased the flats by a registered deed on 21/06/2017 and the complainant No. 2 also purchased the same on 07/08/2017 so they have filed this case on January, 2020. So, according to the provision of Consumer Protection Act it is barred by limitation and they have no cause of action.  After perusal of the case record we find that the complainant No. 1 (Tripti Guha) has purchased a flat on 21/06/2017 but the complainant No. 2 (Bipasha Chakroborty) has purchased the flat by a registered deed on 25/05/2018 and complainant No. 3 (Mita Ghosh) has purchased the same on 26/06/2019. This case has been filed on 20/01/2020. According to the provision of C.P. Act the case should be filed within two years for the date of cause of action. It appears that this complainant issued the letter of several times to different authority in the years 2020 etc. but the O.P did not provide the common facilities to the complainants. If we accept the case of the O.P then we find that there is a cause of action of complainant Nos. 2 and 3 and their case is not barred by limitation they have filed this case within time but the case of the complainant No. 1 which was filed after expiry of two years. In that case the complainant No. 1 will not get personal benefit in this case but this case is well maintainable in respect of complainant Nos. 2 and 3 as this case are not any barred by limitation. That a part the case has been filed with a common intention the relief has claimed is not an individual relief but common relief of all the flat owners who have purchased the flats in the said premises.  So, if the case of the complainant No. 1 is not maintainable due to limitation then the entire case shall not be defeated as it is well maintainable for complainant Nos. 2 and 3 and the interest and claim at the common in nature. So, the entire case shall not be said barred by limitation.

Point No. 5:- In this case the allegation is that the complainants have purchased the flats from the O.P and the registered deed was executed. That in the said registered deeds of Schedule - C some common facilities agreed to provide by the O.P but the O.P did not provide the same to the complainant. Ld. Advocate for the O.P practically did not pray regarding the violation of Schedule - C of the deeds and there is no such evidence that all the common facilities to give them. Ld. Advocate for the O.P argued that the prayer of the complainant is not tenable in law and this Commission has no jurisdiction to pass the order. But, according to the provision of Section - 84 of Consumer Protection Act, 2019. The O.P is liable to give the facilities as she was agreed in the sale deed of the common purpose and this Commission can pass the order in this regard.  We find that the common facilities as mentioned in Schedule - C of the deeds of the parties should be provided by the O.P for smooth running of livelihood of the flat owners as the O.P agreed to provide the same and due to non-provide of the said facilities the owners that is the complainants are suffering and then they are paid higher costs of electricity as because no individual meter was provided to them due to not installing any transformer. The lift was not provided which was very much difficult for the owner to go to their flats particularly third and fourth floor. The roof treatment as agreed should be provided for leakage of rain water for the roof. The sewerage should be provided for normal living condition and other facilities as stated in the complaint as agreed by the O.P in the deeds of the complainants the complainant Nos. 2 and 3 and other flat owners are entitled to get the facilities for their common intention. There is deficiency in service and unfair trade practice occurred from the side of the O.P for not providing the common facilities to the flat owners. There is the harassment and mental agony caused by the O.P to the complainant and the complainant Nos. 2 and 3 is entitled to get compensation for that @ Rs. 50,000/- each for their mental agony and harassment and also get Rs. 10,000/- each as litigation costs. The O.P is directed to provide all the common facilities as mentioned in the deeds of the complainants as well as the prayer made in the complainants. The O.P is also directed to pay the compensation and litigation costs to the complainant Nos. 2 and 3.

Thus all the points are disposed of accordingly.

Hence, for ends of justice; it is;-

                                                              ORDERED

that the instant case be and same is allowed on contest against the O.P. The case

of the complainant No. 1 (Tripti Guha) is dismissed because her case is barred by limitation. The complainant Nos. 2 (Bipasha Chakroborty) and 3 (Mita Ghosh) do get the award to provide the common facilities according to the prayer as well as mentioned in the sale deeds in Schedule - C as assured by the O.P. The complainant Nos. 2 (Bipasha Chakroborty) and 3 (Mita Ghosh) also do get an award amounting to Rs. 50,000/- (Fifty Thousands) each as compensation for his mental agony and sufferings and also Rs. 10,000/- (Ten Thousands) each as his litigation costs. The O.P is hereby directed to comply this order within 30 days from this day, failing which legal action will be taken against him.

Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.

Dictated & Corrected by me