No. 4/10.12.2010.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Appellant is present through Ld. Advocate Mr. S. K. Das.  Respondents are absent on calls.

The Complainant has come up in this appeal against the order dated 15.06.2010 passed by the District Forum below by dismissing his complaint purely on the ground of delay.

The Complainant entered into an agreement with the O.P. for purchase of a shop room measuring 200 sq.ft. as shown in the schedule of the complaint on and about 02.12.1990.  It is not in dispute that upon development and completion of the construction work actual physical possession of the shop room has already been delivered to the Complainant on 10.03.1995.  It is also evident from the records of this case that the Complainant is making payment of monthly maintenance charges as well as municipal taxes in respect of the shop room.  In this state of affairs the Complainant approached the O.P. for execution and registration of the Deed of Conveyance in respect of the said shop room which has been denied to him till the date of filing of the complaint.  The said complaint has been filed on sometime in the year 2008 after request made in writing by the Complainant for the same on 04.06.2008; 07.07.2008 and 06.08.2008 had fallen on deaf ears.  It has been consistently held by this Commission that upon construction and delivery of physical possession of the immovable property the right, title and interest in the immovable property would not stand transferred in accordance with law so long the Deed of Conveyance is not executed and registered in favour of the purchaser by the vendor.  The Complainant being in actual physical possession of the flat the right to get the Deed executed and registered by the vendor is a continuing right and, therefore, it cannot be said that the cause of action for taking legal action would start running from the date of entering into the aforesaid agreement or from any other date after possession of the same has been delivered to the purchaser.  Similar view has been expressed by this State Commission in a decision reported in I (2005) CPJ 411 – P. L. Banerjee – vs. – Bhairab Sadhukhan.  In all these views we set aside the impugned judgement and order dated 15.06.2010 as passed by the Forum below.  The appeal is accordingly allowed.

The complaint case is thus allowed.   The O.P. No. 1 is hereby directed to execute and register the Deed of Conveyance in respect of the shop room in question as mentioned in the schedule to the aforesaid agreement dated 02.12.1990 within a period of 90 days from the date of this order.  The complaint case shall accordingly stand allowed as above with cost of Rs.5,000/- on account of harassment and mental agony suffered by the Complainant as well as the cost of litigation.  In case the Deed of Conveyance is not executed and registered by the aforesaid O.P. in terms of the above order the Complainant would be at liberty to put the said order into execution for getting the Deed of Conveyance executed and registered.