The mandatory pre-deposit requirement of the real estate legislation is a jurisdictional condition precedent. Courts cannot, through interim orders, substitute statutory interest benchmarks or dilute pre-deposit conditions, as doing so constitutes impermissible judicial legislation and violates the principle of separation of powers.

JUDGMENT :

1. These Writ Appeals have been preferred challenging the common order dated 24.03.2026 passed by the learned Single Judge of this Court in W.P.(C) Nos. 35451, 36421, 36488, 36492, 36503 and 36658 of 2024. By the said order, as an interim measure, the learned Single Judge permitted the writ petitioner who is a promoter/builder, to make payment of the pre-deposit as mandated under the proviso to sub-section (5) of Section 43 of the Real Estate (Regulation and Development) Act, 2016 (Act 16 of 2016), calculated on the basis of the Marginal Cost of Funds based Lending Rate (MCLR) prevailing as on the date of passing of the order. The said order is under challenge in these intra-court appeals filed under Section 5 of the Kerala High Court Act, 1958.

2. Before dealing with the contentions, it would be profitable to refer to the facts which led the writ petitioner to approach this Court.

3. As identical issues are involved, for the sake of clarity, W.A. No. 1063 of 2026 shall be taken as the lead case. The parties shall hereinafter be referred to as "allottee/buyer" and "promoter/builder" as the case may be.

4. The allottees/buyers of a housing project by name “Hoysala EVM” apartments approached RERA and filed separate complaints. The gist of the allegations in the complaint are as under:

a) M/s. Hoysala Projects Pvt. Ltd. is the promoter/builder who entered into a Joint Venture Agreement with the other respondents for the development of a housing project by name “Hoysala EVM”. The allottees/buyers agreed to purchase apartments in the said project each measuring approximately 962 sq.ft. An agreement for sale and construction was entered into on 28.10.2013, as per which the project was to be completed and handed over within a period of 36 months, i.e., by October, 2016. The total sale consideration of Rs. 38,24,396/- was transferred to the builder. The allottees/buyers contended that the construction was not carried out as per specifications, and the project was not completed. In the said circumstances, legal notice was issued on 14.07.2021. Thereafter, separate complaints were lodged seeking issuance of directions to the builder to complete and hand over the apartment with covered car parking, after completing the common areas and amenities, and to execute the conveyance deed.

b) The RERA, after evaluation of the materials, came to the conclusion that the allottees/buyers had remitted a total amount of Rs.34,02,496/- before the assured date of completion, i.e., on 28.10.2016, and that thereafter, the balance amount, thus totalling Rs.38,24,396/-. Taking note of the above, it was held that the promoter/builder is liable to pay interest to the allottees/buyers as per the proviso to Section 18 (1) of Real Estate (Regulation and Development) Act, 2016. The authority took note that as per Rule 18 of the Kerala Real Estate (Regulation and Development) Rules, 2018, the rate of interest payable by the promoter/builder shall be State Bank of India's Benchmark Prime Lending Rate (BMPLR) plus 2% and shall be computed as simple interest. Holding so, the authority directed the promoter/builder to pay simple interest at 16.85% per annum on the amounts paid, calculated from the dates of payment. The authority also directed that if the amounts were not paid, the allottees/buyers were at liberty to recover the amount from the promoter/builder and its assets by initiating execution.

c) Being aggrieved, separate appeals were preferred by the promoter/builder before the Real Estate Appellate Tribunal, Ernakulam. Along with the appeal, an application was filed purportedly under the proviso to Section 43 (5) of Act 16 of 2016, seeking exemption from depositing 30% of the penalty/compensation and to hear the appeal on its merits.

d) The Tribunal considered the request for exemption and also the objection filed by the allottees/buyers and d