The Appellate Tribunal has no discretion to allow a lower deposit than the total amount due before an appeal is entertained under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016.

JUDGMENT :

1. This appeal is filed challenging the order dated 01.11.2024 in I.A. No.400 of 2024 in REFA No.122 of 2024 of the Kerala Real Estate Appellate Tribunal, Ernakulam. The said REFA was filed challenging the order dated 24.06.2024 in Complaint No.47 of 2022 of the Kerala Real Estate Regulatory Authority, Thiruvananthapuram. Appellants herein were the appellants before the Tribunal and respondents 1 and 2 before the Authority. Respondents herein were the respondents before the Tribunal and the complainant and 3^rd respondent respectively before the Authority.

Brief facts:

2. The 1^st respondent (complainant) is an allottee and appellants (respondent Nos.1 and 2) are the promoters of the project 'Artech Empire' at Pattoor, Thiruvananthapuram. An agreement of sale dated 03.10.2015 and agreement for construction dated 03.10.2015 had been entered into between the 1^st respondent and appellants. Subsequently disputes arose between the parties on various counts and the complainant referred Complaint No.47 of 2022 before the Regulatory Authority inter alia seeking to direct the appellants to convey/transfer the title of the land and building, undivided share of 1.22 cents of land and apartment number 7A in the apartment complex 'Artech Empire' in the name of the complainant. After completion of pleadings by both sides, the Regulatory Authority framed two points for consideration and the parties tendered evidence thereupon. Exts.A1 to A8 were marked by the 1^st respondent and Ext.B1 was marked by the appellants. The Regulatory Authority vide its order dated 24.06.2024 disposed of the complaint directing as follows:

“(1) The respondent Nos.1 and 2 shall pay to the complainant, simple interest at the rate of 16.85% per annum for every month of delay from 03.12.2017 to 27.12.2018 on the amount of Rs.1,02,00,000/- paid before the promised date of completion. as shown in the payment schedule above

(2) If respondents No.1 and 2 fail to pay the aforesaid sum as directed within a period of 60 days from the date of receipt of this order, the complainant is at liberty to recover the aforesaid sum from the respondent and their assets by executing this decree in accordance with the Real Estate Regulation and Development Act and Rules.”

Appellants challenged the order by preferring an appeal numbered as REFA No.122 of 2024 before the Appellate Tribunal. Along with the said appeal, they filed I.A.No.400 of 2024 seeking to exempt them from making the statutory deposit or to allow the appellant to deposit 30% of the amount ordered by the Regulatory Authority. The Appellate Tribunal vide order dated 01.11.2024, dismissed the I.A. and directed the appellants to make pre-deposit of the entire amount ordered by the Regulatory Authority with interest calculated on the same till the date of the order by way of fixed deposit receipts drawn in the name of the Tribunal and inter alia granted the appellants three weeks time to produce such fixed deposit receipts. The said order of the Appellate Tribunal is impugned in this appeal.

3. The following substantial questions of law were framed for consideration in this appeal:

“1. Whether the Appellate Tribunal has discretion in ordering deposit as contemplated under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016?

2. Whether the Appellate Tribunal can relax the amount to be deposited under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016?

3. Whether the Appellate Tribunal should look into the facts that the KRERA has gone beyond his jurisdiction before directing the deposit under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016?

4. Whether the Appellate Tribunal failed to exercise its discretion while directing the appellants to deposit the entire amount due under the order of KRERA with interest till the date of order?”

4. Heard Sri. K.M. Sathyanatha Menon, Advocate for the appellants and Sri. O.V. Radhakrishnan, Senior Advocate, instructed by Smt. Path