Point of Law: There are three classes of cases in which a liability may be established founded upon statute.. . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it…. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.

JUDGMENT :

1. Heard Sri Prashant Chandra, Senior Advocate assisted by Sri Sushant Prakash and Ms. Mahima Pahwa, learned Counsel for the petitioner, Sri Shobhit Mohan Shukla, learned Counsel for respondent Nos.2, Sri Anand Kumar Singh, learned Standing Counsel for respondent No.3/State and Mr. Prashant Kumar, learned Counsel for respondent No.4/Yamuna Expressway Industrial Development Authority.

2. The petitioner is a Private Limited Company engaged in the promotion of development and construction work. It works as a promoter. In respect of one of it's scheme ATS ALLURE, the petitioner is registered as a promoter with RERA (Real Estate Regulatory Authority). Eight complaints were made by different allottees in connection with the above Scheme alleging delay in possession, charging of interest for the delayed period and claiming charges/compensation on account of inordinate delay in putting allottees in possession.

3. All the aforesaid complaints were decided by RERA vide judgment and order dated 25.6.2020 wherein apart from other directions, the petitioner was directed to put the allottees in possession of the respective units allotted to them latest by 31.3.2021 and for payment of interest @ MCLR + 1% from 13.11.2017 till the date of offer of the possession excluding the lockdown period 24.3.2020 to 30.9.2020 due to COVID-19 pandemic. The interest amount was directed to be adjusted in the final outstanding balance to be paid by the allottees and in the event, the interest payable exceeds the balance amount, the same was directed to be paid as directed above.

4. Aggrieved by the aforesaid order dated 25.06.2020, petitioner preferred a statutory appeal before the Real Estate Appellate Tribunal (hereinafter referred to as 'the Tribunal']. Similar appeals were also preferred by the other allottees against the orders passed by RERA in their respective complaints. They all remained defective as the requisite amount required to be paid as a pre-condition for entertaining and hearing the appeals was not deposited by the petitioner but were clubbed together.

5. All appeals (total 10) were dismissed vide order dated 18.10.2020 as despite several opportunities, the petitioner failed to comply with the mandatory condition contained in 43 (5) of the Real Estate (Regulation and Development) Act, 2016 [hereinafter referred to as the 2016 Act']. The Tribunal held that it has no discretionary power to permit the promoter to deposit only 30% of the total amount directed to be paid as compensation and interest to the allottees.

6. Sri Prashant Chandra, Senior Counsel appearing for the petitioner submitted that the petitioner had deposited 30% of the amount as contemplated under Section 43 (5) of the 2016 Act and as such, the appeal was competent which could not have been dismissed. The Tribunal has manifestly erred in interpreting Sub-Section (5) of Section 43 of the 2016 Act to hold that the promoter is liable to deposit the whole amount directed to be paid, whereas the condition is only for payment of 30% of the penalty or the total amount including interest and compensation. If the said condition is read otherwise it would make the condition to be unreasonable and onerous and in turn, would render the provision of statutory appeal to be illusory and negatory.

7. In response to the argument so advanced on behalf of the petitioner, Sri Shobhit Mohan Shukla, learned Counsel for RERA, Sri Anand Kumar Singh, learned Standing Counsel and Sri Prashant Kumar, learned Counsel for respondent No.4 submitted that the language of the proviso to Sub-Section (5) of Section 43 of the 2016 Act is plain and simple. It provides that the appeal shall not be entertained, if the promoter has not deposited with the Tribunal at least 30% of the penalty or the total amount payable to the allottee including interest and compensation, if any, or both as the case may be for hearing of the appeal. It has also been submitted by them that the validity of Sub-Section (5) of Sectio