The burden of proof lies on the party asserting a fact, and the appellant failed to substantiate claims of double GST payment, leading to the upholding of the Tribunal's decision regarding the refund.

JUDGMENT :

J.Nisha Banu, J.

The appellant has approached this Court under Section 58 of the Real Estate (Regulation and Development) Act, read with Section 100 of the Civil Procedure Code against the judgment of the Tamil Nadu Real Estate Appellate Tribunal, Chennai dated 07.08.2024 passed in Appeal No.18 of 2024, confirming the judgment passed by the Tamil Nadu Real Estate Regulatory Authority, Chennai dated 26.04.2023 in C.C.P.No.233 of 2021.

2. The essential facts of the case would run thus:-

2.1. A flat bearing No.B-102, with undivided share of land measuring 1203 sq.ft and having carpet area of 1236 sq.ft., type 4 BHK 3T in the first floor, Block B, along with a balcony area of 101 square feet, in the residential cum commercial building complex known as TVS Emerald “Green Enclave” project was originally booked by the father of the first respondent for a base price of Rs.1,03,74,276/- i.e. Rs.17,98,485/- being the land cost and Rs.85,75,791/- being the civil construction cost. Pursuant to the same, construction agreements and sale agreements were entered into by and between the parties on 10.02.2020 and the expected delivery of the apartment was fixed during the month of October 2023.

2.2. Subsequently, the father of the first respondent has paid a sum of Rs.47,08,604/- to the appellant/Promoter towards the amount payable for the purchase of the flat. All of a sudden, the first respondent's father died on 05.09.2020, due to illness which ultimately resulted in huge medical expenses on the side of the first respondent. After the sudden demise of the first respondent's father, his mother decided to settle in Kerala itself and owing to reduction of 50% of salary of the first respondent due to COVID pandemic, the first respondent decided not to purchase the subject flat. Therefore, the first respondent sent an email dated 24.11.2020 to the appellant/Promoter requesting to sort out the issue raised by him.

2.3. In this regard, the appellant/Promoter has suggested the first respondent that instead of cancelling the 4 BHK flat, the first respondent shall prefer to purchase a 2 BHK flat, so that, the first respondent can save the cancellation fees, which is 10% of the total consideration, which has been already mentioned under the terms of the unregistered construction agreement. Therefore, the first respondent decided to swap the 4BHK apartment with a 2BHK apartment for a total consideration of Rs.59,50,821/-, wherein the appellant/Promoter's representatives have assured the first respondent that one reserved car parking will be part and parcel of the 2BHK flat. On 20.01.2021, the appellant/Promoter sent a letter to the first respondent, to confirm the provisional allotment of flat No.D-103 to the first respondent.

2.4. Meanwhile, after 20.01.2021, one Ms.Gayathri, staff of the appellant/Promoter's firm, visited the residence of the brother of the first respondent, who is the Power Agent of the first respondent and the new agreements, allotment letter, payment demand letter of newly allotted Unit D 103 along with Cancellation Agreement dated 19.01.2021 with respect to B- 102 were handed over on 20.01.2021. In return, she has taken the unregistered original Construction and Sale Agreements dated 27.01.2020 with respect to B-102 and did not return the authorized copy of the signed cancellation agreement. When the same was questioned by the first respondent, he was informed that the same would be given to him, when the first respondent signs the unregistered Sale and Construction Agreements with respect to the newly allotted flat D-103.

2.5. Later when the first respondent perused the draft sale and construction agreements for flat D-103, he realized that contrary to the discussion had with the appellant/Promoter's representatives at the time of swapping of the flats, the newly allotted flat D 103 did not have reserved covered car parking. Therefore, the first respondent did not agree with the terms of the Construction agreement and did not