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IN THE HIGH COURT OF KERALA AT ERNAKULAM
EASWARAN S.
Rajiv Nahar Son Of Kantilalji Nahar – Appellant
Versus
C. Gopakumar – Respondent
| Table of Content |
|---|
| 1. overview and facts of the dispute. (Para 1) |
| 2. background on disputes involving the appellants. (Para 2) |
| 3. arguments regarding the status of the appellants. (Para 4) |
| 4. arguments about the appellants' status as promoters. (Para 5 , 6) |
| 5. court's interpretation of the statutory requirement for pre-deposit. (Para 7 , 8 , 9 , 10) |
| 6. the necessity of pre-deposit based on promoter status. (Para 11) |
| 7. conclusion to set aside the previous order. (Para 12) |
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 6th respondent Company. The 1st respondent herein is an allottee in respect of a flat which was undertaken to be constructed by the 6th 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.
Mandatory pre-deposit under the Real Estate (Regulation and Development) Act applies only to appeals filed by promoters, not by other parties.
Mandatory pre-deposit under Section 43(5) of the Act is compulsory for admitting appeals before the Appellate Tribunal.
Pre-deposit under Section 43(5) of the Real Estate Act must be refunded post-appeal resolution, safeguarding allottee interests.
The definition of 'promoter' under real estate law requires clear agreement for liability; mere directorship does not impose such liability without consent.
The requirement of a pre-deposit under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 is mandatory for promoters appealing against orders, with no discretion to waive this re....
The pre-deposit requirement under Section 43(5) of the Real Estate Act is obligatory, and cannot be replaced with security measures like a Bank Guarantee.
The mandatory pre-deposit under Section 43(5) of the Real Estate Regulation and Development Act cannot be substituted with a bank guarantee, as the ordered amount is compensation.
The main legal point established in the judgment is the court's authority to reduce the pre-deposit condition for hearing an appeal under Section 43(5) of the RERA Act based on genuine hardships, as ....
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