Point of Law: Lack of payment of higher amount of pre-deposit - Statutory conditions requiring pre deposit to be made with respect to disputed demand of penalty (where a minimum 30% was required to be deposited and a higher deposit required if Tribunal so determined) and other amounts that may be awarded by RERA where no such discretion exists.

JUDGMENT :

1. Heard Sri Ashish Kumar Singh, learned counsel for the appellant and Sri Wasim Masood, learned counsel for the Uttar Pradesh Real Estate Regulatory Authority (RERA in short).

2. The present appeal has been filed against the order passed by the Real Estate Appellate Tribunal (Tribunal in short) in Appeal/Misc. Case No.360 of 2019 dated 28.02.2020 whereby the Tribunal has dismissed that appeal filed by the appellant, under Section 44(2) of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as the 'Act'). Since the appellant's appeal before the Tribunal had been dismissed at the preliminary stage, it was not entertained due to lack of payment of higher amount of pre-deposit directed by the Tribunal. Principally, that issue appears to be an issue between the appellant and the Tribunal, affecting the right of appeal of the appellant without examination on merits. Hence, the present appeal has been heard and decided at the fresh stage itself, without notice to the claimant respondent.

3. Undisputedly, the above-described appeal came to be filed by the appellant against the order of the RERA, dated 10.04.2019 whereby penalty @ MCLR + 1% w.e.f. 01.07.2012 was imposed on the appellant. It may also not be disputed that, at the time of filing the aforesaid appeal, the appellant furnished a demand draft for an amount of Rs.6,33,000/-towards 30% of the penalty amount awarded by the RERA. Further, it appears that there is no dispute to the computation of 30% of the disputed demand of penalty. By an order dated 28.01.2020, the Tribunal required the appellant to deposit the balance amount i.e. the entire amount of penalty awarded by the RERA as a pre-condition to maintain the appeal. For convenience, the relevant part of the order dated 28.01.2020 is quoted below:

"From perusal of the order sheet, it is clear that the Applicant has not complied with the provisions of Section 43(5) of the Act in legal sense.

Applicant is directed to deposit the balance amount, if any, towards Section 43(5) of the Act, in the light of observation laid down by Hon'ble High court Lucknow Bench, "in Second Appeal No. 364 & 367 of 2018 (Radicon Infrastructure & Housing Private Limited vs. Karan Dhyani), decided on 26.7.2019." by the date fixed.

Put up on 28.02.2020 for compliance of Section 43(5) of the Act."

4. Thereafter the matter was listed before the Tribunal on 28.02.2020 whereupon the Tribunal passed the below quoted order:

"From the perusal of order sheet, it is quite clear that on the last date applicant was directed to deposit the balance amount towards Section 43(5) of the Act, in the light of observation laid down by the Hon'ble Allahabad High Court, Lucknow bench, "in Second Appeal No. 364 & 367 of 2018 (Radicon Infrastructure & Housing Private Limited vs. Karan Dhyani), decided on 26.7.2019, but today counsel for the applicant stated that applicant is not in a position to deposit the balance amount in the light of order dated 28.01.2020, hence the instant case is dismissed due to non compliance of Tribunal's order dated 28.01.2020.

From the perusal of order sheet, it also transpires that cost amount Rs. 1,000/- has been imposed on 03.01.2020 and the same has not been deposited so far in the Tribunal's fund.

Applicant's counsel assured that he will deposit the cost amount during the course of day. After deposit the cost amount the file shall be put up before me today at 4:00 p.m."

5. The Tribunal has relied on the observations made by the Lucknow Bench of this Court in Second Appeal No.364 of 2018 (Radicon Infrastructure And Housing Private Limited Vs. Karan Dhyani) and Second Appeal No. 367 of 2018 (Radicon Infrastructure And Housing Private Limited Vs. Dhaneshwari Devi Dhyani), decided on 26.07.2019, to require the appellant to deposit the entire amount of disputed penalty as a condition to maintain the appeal.

6. The present appeal has been pressed on the following question of law:

"Whether deposit of entire disputed deman