Mandatory pre-deposit under the Real Estate (Regulation and Development) Act applies only to appeals filed by promoters, not by other parties.

JUDGMENT :

EASWARAN S., J.

This Miscellaneous Second Appeal arises out of the order dated 29.05.2024 in I.A No.239 of 2024 in REFA No.78 of 2023 of the Kerala Real Estate Appellate Tribunal, Ernakulam.

2. The facts required for the disposal of the appeal is as follows:-

The appellants claims to be Ex-Directors of the 6^th respondent Company. The 1^st respondent herein is an allottee in respect of a flat which was undertaken to be constructed by the 6^th respondent Company in the land possessed by respondents 4 and 5. Apparently, certain disputes cropped up between the Directors of the Company and the land owners and that the appellants claimed that, the land owners had injuncted the appellants from entering into the project site. It is also contended that the appellants retired from the Company in 2014. However, in 2022, the 1^st respondent preferred a complaint before the Kerala Real Estate Regulatory Authority (KRERA), Thiruvananthapuram claiming for a refund of payment made by him in relation to the flat promised to be constructed for him and he further states that the appellants and respondents 2 to 6 have not registered the project under the Real Estate (Regulation & Development) Act, 2016 (for short, ‘the Act’). Initially, the KRERA without considering the question as regards whether the appellants are the Directors of the Company by way of an interim order dated 24.05.2022, directed the appellants along with respondents 2 to 6 to register the project by the name of ‘AEON BLUE PALM’ with the Authority under Section 3 of the Act. This was taken up before the Kerala Real Estate Appellate Tribunal, Ernakulam (Appellate Tribunal) and the matter was remanded back to the authority by order dated 15.12.2022 in REFA No.50 of 2022. Pursuant to the remand, by order dated 13.02.2023, the KRERA, directed the appellants and respondents 2 to 6 herein to register the project. Later, by order dated 10.03.2023, the KRERA directed the appellants along with the Company, to refund a sum of Rs.41,05,458/- with 13% interest within a period of sixty days from the date of receipt of the order. This order was subjected to challenge before the Appellate Tribunal by the appellants in REFA No.78 of 2023. Along with the appeal, an interlocutory application was preferred seeking for waiver of the pre-deposit as required under proviso to Section 43 (5) of the Act. The said application was taken up by the Appellate Tribunal and by the impugned order, the Appellate Tribunal found that the appeal cannot be entertained without the pre-deposit and accordingly, the application for waiver was rejected.

3. Heard Sri.Issac.T.Paul, the learned counsel appearing for the appellants and Sri.Saji Varghese, the learned counsel appearing for the 1^st respondent.

4. While admitting the appeal, this Court prayed the following question of law for consideration:-

“Whether the appellate tribunal has any discretion in ordering deposit as contemplated under Section 43 (5) of the Real Estate (Regulation and Development) Act, 2016?”

5. The learned counsel for the appellants would submit that going by the definition of the promoter under the Act, the appellants will not qualify themselves within the definition. It is the further submission of Sri.Issac.T.Paul, that going by the proviso to Section 43 (5) of the Act, the pre-deposit is required only for an appeal preferred by the promoter. Therefore, when the question as regards whether the appellants are promoters or not is raised before the Appellate Tribunal, it was incumbent up