Mandatory pre-deposit under Section 43(5) of the Act is compulsory for admitting appeals before the Appellate Tribunal.

JUDGMENT

These appeals are directed against the orders passed by the Kerala Real Estate Appellate Tribunal, Ernakulam, in rejecting an appeal under Section 43 (5) of the Real Estate (Regulation and Development) Act, 2016 , (hereinafter referred to as the ‘Act’ for short).

2. The appellant was visited with an order passed by the Adjudicating Authority in a complaint filed by the allottees directing to return the amount received together with interest. Other directions were also issued. Contending that the order thus passed is without jurisdiction and is a nullity, two appeals were preferred as REFA Nos. 58 and 59 of 2021. Pending the appeals, I.A. Nos.70 and 72 of 2021 was filed in REFA Nos. 58 and 59 of 2021 seeking for waiver of the pre-deposit under Section 43 (5) of the Act. These applications were ordered on 20.01.2022 holding that there is no provision under the Act by which the Tribunal could waive the mandatory pre-deposit. The orders on Interlocutory Application were challenged by the appellant in MSA Nos. 1 and 2 of 2022 and by judgment dated 09.11.2022, this Court dismissed the appeal leaving open the appellant to raise all the contentions on merit before the Tribunal. Consequent to the dismissal of the said appeal, the Tribunal by order dated 15.12.2022 noticed that the appellant has not deposited the pre-deposit as ordered by the Tribunal. Consequently, the appeals were dismissed for failure on the part of the appellant to make a statutory deposit. The dismissal of the appeal on account of failure to make a pre-deposit is challenged in these appeals.

3. Heard Sri. Legith T. Kottakkal, the learned counsel appearing for the appellant and Sri. G. Sreekumar (Chelur), the learned Counsel appearing for the respondent.

4. The learned counsel for the appellant, placing reliance on the decision of the Supreme Court inNewtech Promoters & Developers Pvt. Ltd. vs. State of U.P. & Ors. [(2021) 18 SCC 1], contended that the order passed by the Adjudicating Authority is a nullity. With specific reference to the finding of the Supreme Court in the aforesaid judgment, the learned counsel contended that an application seeking refund of the amount will lie before the Adjudicating Authority and, therefore, the order passed by the Adjudicating Authority is a nullity. It is thus contended that since the original order is one without jurisdiction, it will be highly onerous for the appellant to deposit the aforesaid amount and contest the matter.

5. Per contra, Sri. G. Sreekumar (Chelur), the learned Counsel for the appellant, contended that the mandatory pre-deposit for admitting an appeal under Section 43 of the Act cannot be waived by the Tribunal in the absence of any enabling provision under the statute. At any rate, it is pointed out that since the orders on the interlocutory applications were confirmed by this Court in MSA Nos. 1 and 2 of 2022, it is not possible for the appellant to reagitate the said issue in the present appeals.

6. I have considered the rival contentions raised across the Bar and perused in the orders impugned in the appeal.

7. On an anxious consideration of the submissions raised across the Bar, this Court is of the considered view that no substantial question of law arises for consideration in the present case. Primarily because, the order on the interlocutory application requesting the tribunal to waive the pre-deposit stood dismissed by the Appellate Tribunal by order dated 20.01.2022 and the said order was affirmed by this Court in judgment dated 09.11.2022 in MSA Nos. 1 and 2 of 2022. The contention of the appellant that because of the fact that the orders passed by the Adjudicating Authority is a nullity, it is relived of the obliga