THE RAJASTHAN REAL ESTATE REGULAROTY AUTHORITY, JAIPUR. Complaint Number — RAJ-RERA-C-2020-3524 Dheeraj Jain ...Complainant VERSUS Shekhar Home Developers ...Respondent Present: Hon’ble Shri Salvinder Singh Sohata, Member 1. Adv. Abhay Jain, present on behalf of complainant through V.C. 2. Adv., Abhinav Bhandari, appeared on behalf of respondent Dated: 23.07.2021 Either of the party heard at length and examined the record of the case carefully. The factual matrix of the case is that a complaint was filed before the Authority alleging that flat No.FD.1-506, 5" floor in project = Shri Krishna Residency (Registration No. RAJ/P/2017/271) was booked in the year 2013. Applicant further : alleged that builder buyer agreement for the aforesaid unit was cuted on 02.11.2015. The expected delivery of possession was on 02.11.2018 i.e. after 36 months of execution of the Page 10f 8 Comp. No. RAJ-RERA-C-2020-3524agreement. Applicant submits that irrespective of deposits with respondent for Rs.11,96,762/-, the possession is not delivered to the applicant. Applicant pleaded for refund of the aforesaid amount and Rs.1 lac of legal expenses were claimed. On the basis of the reply filed by the respondent, it is revealed that a subsequent agreement on dated 30.06.2018 was executed between the parties for switching over the flat No.B.3-1002, 10" floor. Accordingly, consideration for the changed flat was also enhanced for Rs.24,21,825/- in lieu of agreed consideration for previous flat for Rs.20,86,800/-. The respondent made averments in the reply that demand notice issued against applicant was not being honoured by him. Therefore, being a defaulter, he is not having entitlement for any relief from the Authority. On the basis of averments made in the pleadings and arguments advanced before the Authority, the following issues are required to be looked into:- Applicant claims on the basis of clause 14 of the builder buyer agreement dated 01.11.2015. The impugned unit No.F.1-506 was not handed over within Stipulated time i.e. 02.11.2018, therefore, applicant is entitled to get the refund from the respondent. It is pertinent to mention here that the respondent accepted that Rs.11,96,762/- is deposited by the pplicant against the impugned unit. During the course of arguments, the Advocate on behalf of Page 2 of 8 Comp. No. RAJ-RERA-C-2020-3524respondent agreed upon that the tower for the previously booked flat is not being constructed. Therefore, a subsequent agreement was executed with the consent dated 24.06.2018 of the applicant. The applicant insists that the original unit was not constructed by the promoter-respondent; therefore, delivery of possession is evident. Accordingly, he claims for refund or any other relief under the statutes. (ii) Applicant claims that subsequent agreement was one sided and according to the applicant, the promoter was having the upper hand and as per his direction, an agreement on dated 30.06.2018 was executed. Therefore, the entitlement for refund may not be over looked or defied on the basis of subsequent agreement, but Bench is not convinced with the view ae | ayo \ j point of the applicant. The subsequent agreement was executed on 30.06.2018. It is obvious that the applicant on 29.10.2018, 28.11.2018 and 11.03.2019 paid the instalments to the promoter against the changed unit No.B.3-1002. Once, time and again applicant himself has paid the instalments in pursuant to subsequent agreement, it is not to be deemed that the subsequent agreement was executed on the behest of promoter and it is to be treated one sided after deposition of the aforesaid instalments. Page 3 of 8 Comp. No. RAJ-RERA-C-2020-3524Accordingly, it is proved that it was an amicable settlement between the parties. (iii) The respondent insists that demand notice issued on dated 12.11.2019 and 12.02.2020 were not honoured and applicant is a defaulter for non-payment of the instalments. The Bench is agreed with the view point of t