The requirement of pre-deposit under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 is mandatory and cannot be waived unless there are exceptional circumstances of complete failure of justice or an arbitrary or unjust amount has been ordered to be paid.

JUDGMENT

Harinder Singh Sidhu, J. - In this petition the petitioner has prayed for directions to respondent No.1 - Haryana Real Estate Appellate Tribunal (herein for short 'the Appellate Tribunal') to entertain and decide the appeal preferred by it against order dated 13.10.2020 (P.11), passed by respondent No.2 - Haryana Real Estate Regulatory Authority (for short 'RERA Haryana'), without insisting for deposit of 100% of the amount assessed by respondent No.2.

2. The petitioner is a Company incorporated under the provisions of Companies Act, 1956 having its corporate office at C/o, H-69, Upper Ground Floor, Connaught Place New Delhi. It started the work of construction of Precision Soho Tower in Gurugram. The said tower included the office space as also Studio Apartments. The project was completed by the petitioner in the year 2015. It submitted an application dated 18.05.2015 to the competent authority for grant of Occupation Certificate. The said certificate was issued on 18.02.2017.

3. The petitioner filed CWP No.34271 of 2019 in which it had assailed the constitutionality of Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 which required a pre-deposit to be made before an appeal could be entertained by the Tribunal. The said petition along with some connected petitions was dismissed vide judgment and order dated 16.10.2020. The petitioner filed SLP against that judgment. Initially vide order dated 05.11.2020 an interim stay was granted. The said SLP was finally disposed of vide order dated 13.05.2022 in terms of the decision of the Supreme Court in M/s Newtech Promoters & Developers Pvt. Ltd. Vs. State of U.P. And ors., 2021 SCC OnLine SC 1044 The petitioner was granted relief in terms of paragraph 142 of that decision to file appeal as per which if the appellant intended to prefer appeal before the Appellate Tribunal against the order of the authority, it would be open to it to challenge within 30 days subject to compliance with the condition of pre- deposit as contemplated under the proviso to Section 43(5) of the Act. The Tribunal would decide the appeal on its own merits in accordance with law.

4. It is stated that the petitioner issued letters offering possession to all the private respondents on 24.07.2017. The private respondents filed complaints before the Haryana Real Estate Regulatory Authority, Gurugram claiming relief of interest on account of delay in handing over possession of the units to them and for restraining the petitioner from raising any fresh demand or increasing liability of the complainant. The complaints moved by respondent Nos.13 to 21 were filed in 2020 during the pandemic period.

5. It is the case of the petitioner that the cases were fixed for 21.04.2020 but due in the wake of outbreak of Covid, the same were adjourned to 07.07.2020. On 07.07.2020, the cases were adjourned to 26.08.2020. On 26.08.2020 the cases were adjourned to 13.10.2020. As this was the period when cases as a matter of routine were being adjourned because of the pandemic the petitioner and the counsel remained under the bonafide belief that the cases would be adjourned on 13.10.2020 as well.

6. The petitioner was shocked to learn that on 13.10.2020 it had been proceeded against ex-parte and the complaints were disposed of without hearing the petitioner. The complainants were held entitled to delayed possession charges to be paid by the promoter (petitioner) with interest for every month of delay at the prescribed rates i.e. 9.30% per annum till the handing over of possession. Various demands namely for maintenance charges/ holding charges or demands raised beyond the Builder Buyer agreement by the petitioner were disallowed.

7. The relevant part of order dated 13.10.2020 is as under:

Proceedings:

Case has been called out several times but no one has appeared on behalf of the respondent. It appears that he is not interested in pursuing the complaint. It is already 12.30 PM.

Waited sufficiently. Respondent is pr