In compensation claims under the Real Estate (Regulation and Development) Act, a promoter must deposit only 30% to entertain an appeal, contrary to 100% for return of amounts, as clarified by the Supreme Court.

Judgment :

P. B. Bajanthri, ACJ.

1.Appellant has assailed the order of the learned Single Judge dated 28.08.2024 passed in CWJC No. 15444 of 2021. Appellant and Respondent No. 4 – Savita Sah & Respondent No. 5 - Sita Ram Singh have entered into certain agreement in respect of developing land.

2. Respondent Nos. 4 & 5 are the owners of the land and land promoter is appellant herein. There were certain disputed issues relating to earmarking certain flats in favour of Respondent Nos. 4 & 5. Initial agreement was for construction of five floors. Thereafter, number of floors was increased from five to seven. In this regard, Respondent Nos. 4 & 5 sought certain additional benefits on account of increase in the number of floors. That apart, there were certain belated completion of work for which Respondent Nos. 4 & 5 are entitled to compensation and other benefits. Arising out of these facts and circumstances, Respondent Nos. 4 & 5 have invoked the remedy before the Adjudicating Authority and Adjudicating Authority has passed an order of payment of compensation in their favour against the appellant herein.

3. Appellant feeling aggrieved by the order of the Adjudicating Authority preferred appeal before the Appellate Authority. Initially Appellate Authority proceeded to pass order directing the appellant to deposit 30% of the compensation amount. Thereafter, one more order was passed on 10.08.2021 directing the appellant to deposit 100%.

4. Feeling aggrieved by the order of the Appellate Authority, appellant has preferred CWJC No. 15444 of 2021. The learned Single Judge has affirmed the Appellate Authority’s order insofar as directing the appellant to deposit 100% compensation. Hence, the present LPA on behalf of the appellant.

5. Learned counsel for the appellant submitted that Appellate Authority has committed error in not apprising with reference to the relief sought by the Respondent Nos. 4 & 5 before the Adjudicating Authority in the light of Section 43(5) read with Section 71 of RERA Act, 2016. The Hon’ble Supreme Court in the appellant’s case itself in Civil Appeal No(s). 6745-6749 of 2021 arising out of SLP (Civil) Nos. 3711-3715 of 2021, in Paras 121 & 122 held as under:-

“121. Before we examine the challenge to the proviso to Section 43(5) of the Act of making predeposit for entertaining an appeal before the Tribunal, it may be apposite to take note of Section 43(5) of the Act, 2016. Section 43(5) reads as follows:-

“43. Establishment of Real Estate Appellate Tribunal-

…….

(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter:

Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least thirty per cent of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.

Explanation – For the purpose of this subsection “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.

122. It may straightaway be noticed that Section 43(5) of the Act envisages the filing of an appeal before the appellate tribunal against the order of an authority or the adjudicating officer by any person aggrieved and where the promoter intends to appeal against an order of authority or adjudicating officer against impos