DATE OF FILING                    :     26-03-2012.

DATE OF S/R                            :      18-05-2012.

DATE OF FINAL ORDER      :     28-12-2012.

Smt. Sulochana Devi Saraogi,

widow of late Subhag Chand Saraogi,

residing at 20, Pathariaghata Street, P.S. Jorabagan,

Kolkata – 700006.--------------------------------------------------------------  COMPLAINANT.

-          Versus   -

Smt. Nirmala Devi Agarwal,

wife of Sri Puranmal Agarwal,

residing at 16/2, Round Tank Lane, P.S. Howrah,

Howrah – 711101.-------------------------------------------------------------OPPOSITE PARTY.

                                                P   R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

F  I   N   A    L       O   R   D    E     R

1.                  The instant case was filed by complainant, Sulochana Devi Saraogi U/S

12 of the  C.P.  Act, 1986, as amended against the O.P.  alleging deficiency in service U/S 2( 1 )( g ),  2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the O.P. Smt. Nirmala Devi Agarwal  to execute and register the deed of  conveyance in favour of the complainant with respect to the flat no. 102 at premises no. 16/2, Round Tank Lane, P.S. Howrah, as the o.p. in spite of repeated requests did not execute the same though the complainant is very much in possession of the flat.  

2.                  The o.p. in filing written version contended interalia that the flat was

delivered to the complainant on 25-04-2004 but the delay in filing the complaint has not been properly explained; that the self-same dispute is pending before the ld. District Judge, Howrah, and the complainant has been contesting the said case; that the complainant has made over the flat to a third party without causing registration of the deed; that the complaint is not maintainable before this Forum in view of the West Bengal Building ( Regulation of Protection of Construction and Transfer by Promoters ) Act, 1993. So the complaint should be dismissed forthwith.

3.         Upon pleadings of both parties three points arose for determination :

i)          Whether the complaint is maintainable before this Forum ?

            ii)         Is there any deficiency in service on the part of the O.P.  ?

iii)                Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

4.         POINT  NO. 1

            Ld. lawyer for the o.p. argued that the case is not maintainable in view of  Section 12A of the West Bengal Building ( Regulation of Protection of Construction and Transfer by Promoters ) Act, 1993. This section bars the jurisdiction of the Civil court to entertain any matter in respect of the Special Act. In support of his contention ld. lawyer for the o.p. has placed a decision reported in 2012(3) CLJ (Cal) page 291 wherein the Hon'ble Court is of opinion that Section 12A of the Act serves as a bar to entertain such complaint before Consumer Forum. With respect to the point of limitation, we are of the view that the complaint was filed on 26-03-2012. It appears  from enclosure C that the last correspondence with the o.p. was made on 16-01-2012. So the point of limitation has no legs to stand upon.

5.         With respect to the bar of Section 12A of the West Bengal Building ( Regulation of Protection of Construction and Transfer by Promoters ) Act, 1993 we are of the view that the legislators incorporated the Housing Construction Clause by way of amendment in the year 1993. So presently Section 2(o) includes the Housing Construction within the meaning and definition of 'Service'. We are very  much respectful to the cited decision. At the same time, we are only concerned if the complainant is a consumer or not. Since she entered into an agreement with the o.p. on 28-12-2003 for purchasing a self-contained flat, she has become the consumer within the meaning of Section 2(d) of the  C.P. Act, 1986. We are further concerned whether there occurred deficiency in service within the meaning of Section 2(g) of the Consumer Protection Act, 1986.  Furthermore, Section 3 of the C.P. Act, 1986 empowers this Forum to entertain the complaint of any person if he is consumer within the meaning of Section 2(d) of the  C.P. Act, 1986. We are of the clear view that the legislators were very much aware of the existence of the West Bengal Building ( Regulation of Protection of Construction and Transfer by Promoters ) Act, 1993 while enacting this beneficial legislation namely Consumer Protection Act, 1986. In the result, we are of the view that the complaint is quite maintainable before this Forum. The point is accordingly disposed of.

POINT NOS. 2 & 3 :

      Both the points are  taken up together for consideration. The complainant is very much in possession of the suit flat. It is immaterial if she has sold it to any 3^rd party pending registration. The o.p. has not filed any single piece of paper to justify her claim that the same flat has been sold to any 3^rd party. On the contrary, the correspondences namely C, D, E indicate that the complainant left no stone unturned to cause the execution and registration of the deed in question. When the possession has already been delivered to the complainant, it is the bounden  duty of the o.p. to cause execution and registration of the deed. Because possession remains incomplete unless the flat is registered. We, therefore, arrive at the irresistible conclusion that the o.p. has no escape from the rigours of law. Therefore, it is a fit case where the prayer of the complainant shall be allowed. Both the points are accordingly disposed of as there occurred gross deficiency in service on the part of the o.p.

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No. 26 of 2012 ( HDF 26 of 2012 )  be and the same is allowed on contest with costs against the o.p.  

      The O.P. be directed to execute and register deed of conveyance with respect to flat no. 102 measuring 984 sq. ft. approximately on the 1^st floor at premises no. 16/2, Round Tank Lane, Howrah, within 30 days from the date of this order.

      The complainant is entitled to a compensation to the tune of Rs. 1,00,000/- for causing mental agony and prolonged harassment by the o.p.

      The complainant is further entitled to a litigation costs of Rs. 5,000/- from the o.p.           

      The o.p. be directed to pay the total amount aggregating Rs. 1,05,000/-  ( Rs. 1,00.000 + Rs. 5,000/- ) within one month from the date of this order failing the amount shall carry interest @ 12% per annum.

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.