A promoter's appeal under the Real Estate (Regulation and Development) Act, 2016 cannot be entertained without depositing the statutory amount, including interest, as mandated by law.

JUDGMENT :

RAJESH MAZUMDAR, J.

Heard Ms P. Chakraborty, learned counsel appearing for the petitioner. Also heard Mr G Z Ahmed, learned counsel appearing for the respondent No. 2.

2. This writ petition had been initiated by the petitioner being aggrieved with the order dated 1st of November, 2022, passed by the Assam Real Estate Appellate Tribunal, at Guwahati, in REAT/ESTATE/Appeal No. 10/2022. By the aforesaid order, the Tribunal had refused to entertain the appeal filed by the writ petitioner herein, by dismissing the appeal in limine, on the failure of the petitioner herein to deposit the statutory requirement of an amount of Rs. 64, 21,955/-, being a principal amount and interest calculated up to 22.08.2022, in terms of proviso of Sub-Section (5) of Section 43 of the RERA Act, 2016.

3. The facts leading to the present writ petition is that the respondent No. 2 along with his wife (who has not been arrayed as a respondent in this writ petition), had approached the Real Estate Regulatory Authority, Assam, Case No. Assam/RERA/2017/47, against one M/s Gargi & Associates Private Limited, a company and the writ petitioner, herein, describing her as a Director of the said company, complaining that although the full amount in respect of sale agreement for a flat had been paid to the builder, the said flat had not been handed over to the respondent No. 2 and his wife. The Real Estate Regulatory Authority by order dated 02.06.2022, had directed the company, i.e., M/s Gargi & Associates Private Limited and the writ petitioner, herein, who is the Director of the company to return the full advance amount of Rs. 34,00,000/-, with interest at State Bank of India’s marginal cost of lending rate plus 2% calculated from the date of receipt of the amount, as prescribed under Rule 17 of the Assam RERA Rules, 2017. The amount along with the interest was directed to be paid within a period of 45 days from the date of the order.

4. Challenging the aforesaid order, the writ petitioner herein, filed an appeal before the Assam Real Estate Appellate Tribunal, which came to be registered as REAT/ESTATE/Appeal No. 10 of 2022, wherein by the order dated 8th of September, 2022, the petitioner was directed to deposit an amount of Rs. 64,21,955/-, in the form of demand draft drawn on a nationalized Bank, in favour of the Tribunal within an outer limit of 3 (three) weeks from the date of the order. The matter having been listed again on 30th of September, 2022, the time period for deposit of the amount was extended for 30 (thirty) days from the request made by the appellant therein/writ petitioner herein. By the order dated 1st of November, 2022, on the failure of the writ petitioner to deposit the aforesaid amount, the appeal was dismissed in limine, along with imposition of cost of Rs. 5,000/- on the petitioner herein for back tracking the undertakings given to the Tribunal, with wastage of judicial time. This order is under challenge in the present writ petition.

5. The Registrar of Real Estate Regulatory Authority has filed an affidavit-in-opposition and the respondent No. 2 has also filed affidavit-in-opposition.

6. We have considered the submissions made by the learned counsel appearing for the contesting parties.

7. The provisions of the Real Estate Regulation and Development Act, 2016, in Section 43 has clearly mandated that where a promoter files an appeal with the appellate Tribunal, the appeal shall not be entertained, without the promoter first having deposited the total amount to be paid to the allottee, including interest and compensation imposed on him, if any. In the present case, the petitioner has not been able to de