STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL FIRST APPEAL NO. SC/19/A/284/2023 SRI SARAL KUMAR GUHA & ANOTHER PRESENT ADDRESS - 751/N, RAJA RAM MOHAN ROY ROAD, MUCHIPARA ,WEST BENGAL.

SMT. SABITA GUHA PRESENT ADDRESS - 751/N, RAJA RAM MOHAN ROY ROAD, MUCHIPARA, KOLKATA ,WEST BENGAL.

.......Appellant(s)

Versus IDEAL REAL ESTATES PVT. LTD PRESENT ADDRESS - 50, JAWAHAR LAL NEHRU ROAD, POLICE STATION - SHAKESPEARE SARANI, KOLKATA- 700 071. REPRESENTED BY ITS DIRECTOR, SRAWAN KUMAR HIMATSINGKA. ,WEST BENGAL.

.......Respondent(s)

BEFORE:

HON'BLE MR. JUSTICE MANOJIT MANDAL , PRESIDENT HON'BLE MRS. MRIDULA ROY , MEMBER FOR THE APPELLANT:

BINAY KUMAR SETH (Advocate) BINAY KUMAR SETH (Advocate)

FOR THE RESPONDENT: Sanhita sahoo (Advocate)

DATED: 04/07/2025

ORDER

MRIDULA ROY, MEMBER The instant appeal is arising out of an order dated 07.06.2023 passed by the Ld. District Consumer Disputes Redressal Commission (referred as `Ld. District Commission` hereinafter) in consumer complaint case no. CC/245/2021 allowing the same ex parte directing the OP to refund Rs.51,22,863/- within two months from the date of communication of the order, further directing the OP to pay Rs.8,000/- to the Complainant towards cost of litigation within the aforesaid period.

Being aggrieved by and dissatisfied with the said order the Complainant has preferred the instant appeal on the ground inter alia that the Ld. District Commission ought to have granted the relief specially considering the fact that the OP utilized the amount of consideration of Rs.51,22,863/- paid by the Complainants to them for more than eight years and thereby made profit but the Ld. District Commission directed the OP to refund the paid amount only without avoiding any compensation or interest to be accrued on the said amount.

The Appellants/Complainants and the OP/Respondent have filed respective BNAs.

In course of argument, Ld. Advocate for the Complainants has submitted that a hefty amount like Rs.51,22,863/- has been remaining with the Respondent/Developer which the Developer utilize in development of their business and made profit with it but the Ld. District Commission has failed to appreciate the issue and passed no award as to interest or compensation. Hence, the appeal is filed. Ld. Advocate for the Respondent has submitted that though it is mentioned in the impugned order that the order was passed ex parte but in nowhere of the said final order it is mentioned that the OPs were served with notice.

Having heard submissions made by both sides and on perusal of the documents on record it appears that the Appellants/Complainants entered into an Agreement for Sale with the Respondent/OP on 12.02.2015 in respect of one residential flat being no. 6B in the 6^th floor of a proposed residential high rise building to be named as Gardenia in the proposed project namely “Ideal Greens” to be constructed within the premises no. 591A, Motilal Gupta Road, P.S.-Haridevpur, Kolkata-700008 within the territorial limit of Kolkata Municipal Corporation in its Ward No. 122, District-South 24 Parganas at a consideration of Rs.1,06,46,098/-. The Complainants have stated that in accordance with the agreed mode of payment they had paid Rs.51,22,863/- by seven instalments including all taxes, TDS and service taxes upto January, 2016 and thereafter, compelled to make no payment since no construction work took place as per the Agreement for Sale. Subsequently, the OP demanded payment of EMI but the Complainants did not make further payment and claimed to have cancelled the Agreement for Sale.

On perusal of the Agreement for Sale dated 12.02.2015 it appears in clause no. 9.5 that the completion date was agreed as on or before April, 2018 provided that may be extended by a period of 12 months at the option of the vendor. In the instant case, the Complainants made payment upto January, 2016 but payment schedule showed that they have paid about 50% of the total amount of consideration. The OP/Developer sent demand no