JUDGMENT :

M. Duraiswamy, J.

1. Challenging the order passed by the Tamil Nadu Real Estate Appellate Tribunal, Chennai in Appeal No.7 of 2022, the appellant before the Tribunal has filed the above Civil Miscellaneous Second Appeal.

2. By the order impugned in the appeal, the Tribunal dismissed the appeal for non-compliance of Section 43(5) of the Real Estate (Regulation and Development) Act, 2016. As per the provision of Section 43(5), where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least 30% of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.

3. In the Judgment reported in 2021 SCC Online SC 1044 [M/s. Newtech Promoters & Developers Pvt. Ltd. V State of UP and others], the Hon'ble Supreme Court, while dealing with the provision of Section 43(5), held that the promoter, while filing an appeal as against the order passed by the Original Authority, should deposit the entire amount awarded by the Original Authority as a condition precedent for entertaining the appeal. The relevant paragraphs of the Judgment passed by the Hon'ble Supreme Court in the said Judgment reads as follows:-

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121 .......Question no. 4: Whether the condition of pre-deposit under proviso to Section 43(5) of the Act for entertaining substantive right of appeal is sustainable in law?

122. Before we examine the challenge to the proviso to Section 43(5) of the Act of making pre-deposit for entertaining an appeal before the Tribunal, it may be apposite to take note of the Act, 2016. Section 43(5) reads as follows: “Section 43(5)43. Establishment of Real Estate Appellate Tribunal ……. and C.M.P. No.10102 of 2022(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter:

Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least thirty per cent of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard. Explanation – For the purpose of this subsection “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.”

123. It may straightaway be noticed that Section 43(5) of the Act envisages the filing of an appeal before the appellate tribunal against the order of an authority or the adjudicating officer by any person aggrieved and where the promoter intends to appeal against an order of authority or adjudicating officer against imposition of penalty, the promoter has to deposit at least 30 per cent of the penalty amount or such higher amount as may be directed by the appellate tribunal. Where the appeal is against any other order which involves the return of the amount to the allottee, the promoter is under obligation to deposit with the appellate tribunal the total amount to be paid to the allottee which includes interest and compensation imposed on him, if any, or with both, as the case may be, before the appeal is to be instituted.

124. The plea advanced by the learned counsel for the appellants is that substantive right of appeal against an order of authority/adjudicating officer cannot remain dependent on fulfillment of pre-deposit which is otherwise onerous on the builders alone and only the builders/promoters who are in appeal are required to make the pre-deposit to get th