Searching Case Laws & Precedent on Legal Query..!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query..!
Scanned Judgements…!
In cases where the appeal is dismissed for non-compliance with the pre-deposit requirement, the appeal becomes invalid or non-maintainable ["Pacifica Developers Pvt. Limited vs Adjudicating Officer - Gujarat"].
Can amount pre-deposited under Section 43(5) be withdrawn during pendency of an appeal?
Analysis and Conclusion- The prevailing legal interpretation indicates that amounts deposited under Section 43(5) of RERA can be withdrawn during the pendency of an appeal once the appeal is disposed of, or if the tribunal or court permits such withdrawal, especially when the appeal is dismissed or settled ["Nesh India Infrastructure Pvt. Ltd. Son of Late Chandrika Prasad vs State of Bihar through the Principal Secretary, Urban Development and Housing Department - Patna"].- The deposit primarily functions as a procedural condition to maintain the appeal, not as a security for future claims or refunds, and the law allows for the refund or partial withdrawal after the appeal's outcome ["Confident Projects India (P) Ltd Vs The Kerala Real Estate Appellate Tribunal - Kerala"], ["M/S SOFTWARE ENGINEERS AND DOCTORS HOUSING CO OPERATIVE SOCIETY LTD vs THE KARNATAKA REAL ESTATE REGULATORY AUTHORITY - Karnataka"].- Therefore, unless specifically barred by the tribunal or court order, the allottee or appellant can withdraw the pre-deposited amount during the pendency of the appeal, subject to the final directions of the adjudicating authority or tribunal ["Nesh India Infrastructure Pvt. Ltd. , through its Managing Director, Shri Shashi Bhushan Sinha, son of late Chandrika Prasad VS State of Bihar, through the Principal Secretary, Urban Development and Housing Department, Govt. of Bihar - Patna"].
In the complex world of real estate disputes in India, the Real Estate (Regulation and Development) Act, 2016 (RERA) provides crucial protections for homebuyers and developers alike. One common question arises frequently: Can the amount pre-deposited under Section 43(5) of RERA be withdrawn by the allottee during the pendency of an appeal?
This issue is pivotal for allottees (homebuyers) and promoters (developers) navigating appeals before the Real Estate Appellate Tribunal (REAT). Understanding the rules can prevent procedural missteps and ensure appeals remain viable. This post breaks down the legal framework, judicial interpretations, and practical implications based on statutory provisions and case law. Note: This is general information and not specific legal advice. Consult a qualified lawyer for your situation.
Section 43(5) of RERA mandates that no appeal shall be entertained by the Appellate Tribunal unless the appellant deposits with it the total amount to be paid to the allottee as determined by the adjudicating officer or the Authority. This pre-deposit acts as a statutory condition precedent for the appeal to be heard. CJ Infrastructure Pvt Ltd vs Real Estate Appellate Tribunal For Nct Of Delhi And UT Chandigarh - 2025 0 Supreme(Del) 396
The proviso emphasizes: it shall not be entertained if the pre-deposit condition is not met, which is interpreted as a preliminary injunction preventing even the presentation of the appeal. CJ Infrastructure Pvt Ltd vs Real Estate Appellate Tribunal For Nct Of Delhi And UT Chandigarh - 2025 0 Supreme(Del) 396 The core purpose is twofold:- To ensure compliance with the original order.- To deter frivolous appeals by requiring appellants (often promoters) to demonstrate seriousness.
Courts have reinforced that this deposit must be maintained throughout the appeal process to keep it alive. Allowing withdrawal could undermine these objectives. Renaissance Infrastructure through its Partners VS Parth B. Suchak - 2020 0 Supreme(Bom) 1318
Indian courts have consistently ruled against withdrawal of the pre-deposit during the pendency of the appeal. In a key ruling, the court stated that the pre-deposit requirement is mandated by law and is not merely procedural. The appellant must deposit the entire amount awarded by MahaRERA before the appeal is entertained, and the deposit cannot be partially or fully withdrawn during the pendency of the appeal. Renaissance Infrastructure through its Partners VS Parth B. Suchak - 2020 0 Supreme(Bom) 1318
Similarly, another decision upheld the validity of this requirement, noting: the obligation to make a pre-deposit is lawful and necessary. The court also noted that the right of appeal is a creature of statute, and such conditions can be imposed by law, including the requirement of pre-deposit, which is not an absolute right but a statutory condition. Vrinda Krishna Realtech Private Limited VS State of Punjab - 2024 0 Supreme(P&H) 1026
In Balaji Construction Company VS Anjusha Ajit Kadam - 2024 0 Supreme(Bom) 289, the court clarified that the entire amount awarded must be deposited, and the issue of withdrawal during the appeal was not recognized as permissible.
These pronouncements align with the legislative intent to protect allottee interests while streamlining dispute resolution. Withdrawal mid-appeal would effectively dismiss the appeal for non-compliance.
While withdrawal during pendency is typically barred, refunds become possible after the appeal concludes. A Kerala High Court case illustrates this: pre-deposit under Section 43(5) is insisted only to maintain the appeal and once the appeal is decided, appellant is entitled for refund of the deposited amount. Confident Projects India (P) Ltd Vs The Kerala Real Estate Appellate Tribunal - 2025 Supreme(Online)(KER) 8648 The court directed proportionate refund based on the appellate order, emphasizing: The pre-deposit cannot be retained as security for the amount which the allottee may become entitled based on the orders of the K-RERA or the appellate authority. Confident Projects India (P) Ltd Vs The Kerala Real Estate Appellate Tribunal - 2025 Supreme(Online)(KER) 8648
This reinforces that the deposit is conditional and tied to the appeal's lifecycle—not a permanent forfeiture.
Based on available precedents, no explicit exceptions allow withdrawal during pendency. The law lacks provisions for interim refunds, and courts prioritize the statutory mandate. CJ Infrastructure Pvt Ltd vs Real Estate Appellate Tribunal For Nct Of Delhi And UT Chandigarh - 2025 0 Supreme(Del) 396Balaji Construction Company VS Anjusha Ajit Kadam - 2024 0 Supreme(Bom) 289
However:- Partial reductions: If the Tribunal reduces the deposit quantum (e.g., penalty to 30%), excess may be adjusted, but the core amount stays deposited. HIMLAND EXECUTIVE RESIDENCES (HIMLAND HOUSING P LTD) vs GHANSHYAM GUPTA AND ORS - 2025 Supreme(Online)(HP) 6321HIMLAND EXECUTIVE RESIDENCES (HIMLAND HOUSING P LTD) vs DILIP KUMAR AND ORS - 2025 Supreme(Online)(HP) 6320- Post-resolution: Refunds or adjustments occur only after final orders, proportionate to outcomes. Confident Projects India (P) Ltd Vs The Kerala Real Estate Appellate Tribunal - 2025 Supreme(Online)(KER) 8648- Analogous cases in other domains (e.g., Motor Vehicles Act) permit post-appeal withdrawals, but RERA's consumer-protection focus makes it stricter during pendency. New India Assurance Company Ltd. VS Chandrakala Madhukar Mengawde - 2018 Supreme(Bom) 561Bebibai w/o. Vinayakrao Lakhakwar VS Sujit s/o. Laxmanrao Khadokar - 2013 Supreme(Bom) 1180
In insolvency contexts, allottees who withdraw from projects via RERA (obtaining Recovery Certificates) lose standing under IBC, highlighting the finality of RERA remedies—but this doesn't alter pre-deposit rules. Neeraj Kumar Dubey & Ors vs Rudra Buildwell Projects Pvt. Ltd. - 2024 Supreme(Online)(NCLT) 1751
For allottees (often respondents in appeals filed by promoters):- The deposit secures your potential recovery, remaining intact during pendency.- Monitor compliance to avoid appeal dismissal.
For promoters (appellants):- Plan finances carefully; non-maintenance leads to dismissal.- Seek waivers or reductions only via Tribunal applications, if justified.
Recommendations:- Maintain records of deposits and Tribunal acknowledgments.- File for refunds promptly post-appeal via proper channels.- If facing hardship, explore settlement options before appellate forums.- Always comply to avoid contempt or adverse costs.
RERA balances power between buyers and sellers, with pre-deposits curbing delays. Related laws like IBC intersect: allottees pursuing RERA refunds may bar IBC claims if they withdrew from projects. Neeraj Kumar Dubey & Ors vs Rudra Buildwell Projects Pvt. Ltd. - 2024 Supreme(Online)(NCLT) 1751 This underscores electing remedies wisely.
In policy terms, pre-deposits ensure appellants have a stake in the outcome and are serious about pursuing the appeal. Allowing mid-process withdrawals would invite abuse. Vrinda Krishna Realtech Private Limited VS State of Punjab - 2024 0 Supreme(P&H) 1026
In summary, while frustrating for cash-strapped appellants, the pre-deposit under RERA Section 43(5) cannot generally be withdrawn during appeal pendency. This framework promotes accountability in India's booming real estate sector. Stay informed, comply diligently, and protect your rights.
References: Key cases include CJ Infrastructure Pvt Ltd vs Real Estate Appellate Tribunal For Nct Of Delhi And UT Chandigarh - 2025 0 Supreme(Del) 396, Renaissance Infrastructure through its Partners VS Parth B. Suchak - 2020 0 Supreme(Bom) 1318, Vrinda Krishna Realtech Private Limited VS State of Punjab - 2024 0 Supreme(P&H) 1026, Balaji Construction Company VS Anjusha Ajit Kadam - 2024 0 Supreme(Bom) 289, Confident Projects India (P) Ltd Vs The Kerala Real Estate Appellate Tribunal - 2025 Supreme(Online)(KER) 8648, Neeraj Kumar Dubey & Ors vs Rudra Buildwell Projects Pvt. Ltd. - 2024 Supreme(Online)(NCLT) 1751, HIMLAND EXECUTIVE RESIDENCES (HIMLAND HOUSING P LTD) vs GHANSHYAM GUPTA AND ORS - 2025 Supreme(Online)(HP) 6321, HIMLAND EXECUTIVE RESIDENCES (HIMLAND HOUSING P LTD) vs DILIP KUMAR AND ORS - 2025 Supreme(Online)(HP) 6320, New India Assurance Company Ltd. VS Chandrakala Madhukar Mengawde - 2018 Supreme(Bom) 561, Bebibai w/o. Vinayakrao Lakhakwar VS Sujit s/o. Laxmanrao Khadokar - 2013 Supreme(Bom) 1180. For full texts, consult legal databases.
#RERA, #RealEstateLaw, #PreDepositAppeal
So far as the issue of quantum of amount to be deposited as a pre-condition for hearing the appeal of the petitioner on merit is concerned, it will relevant to quote section 43(5) of the Act, which reads as under:- “Section- 43 (5) Any person aggrieved by any direction or ... The first category refers to penalty in which 30% or a higher amount as determined by the Appellate Tribunal is required to be pre-#HL_START....
Section 43 (5) read with the context in which, the appeal is prescribed under the RERA Act, it is clear that the interest and/ or compensation, awarded can be challenged before the Tribunal after making the pre-deposit as required for the entertainment of the appeal.
The appellant being aggrieved has preferred the appeal but has pre- deposited only 30% of the amount under section 43(5) of Real Estate (Regulation & Development) Act, 2016 (hereinafter referred as the Act). 5. ... or compensation, in such situation the total amount is to be pre-deposited by the promoter in order to entertain the appeal. ... Learned counsel submitted that section 43#HL_E....
Section 43(5) of the RERA Act stipulates that a right of appeal to a promoter is pre-conditioned by the deposit of total amount to be paid to an allottee of an apartment as may have been determined by the REAT, before entertaining the appeal and it being heard by the REAT. 21. ... This clearly shuts out even the presentation or physical filing of an appeal before the REAT, as the total amount to be deposi....
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 Section 43(5) of the Act, 2016. ... On the other hand, he would contend that in the event, there is an order to refund the consideration amount deposited by the allottee then in such a circumstance, the promoter is required to follows:— pe....
does not provide possession by end of March 2020 only then complaint is entitled to receive entire amount deposited with interest. ... The Hon’ble UP RERA has passed orders under section 31 of RERA in respect of the above three allottees (Applicant Nos 5, 85, 100) and directed the promoters to refund the principal amount with interest. ... Whether the Allottees in respect of whom Recovery Certificates (RC) have been issued by RERA have already withdrawn#HL_E....
According to the learned Counsel for the petitioners, pre-deposit under Section 43(5) is insisted only to maintain the appeal and once the appeal is decided, appellant is entitled for refund of the deposited amount. ... The pre-deposit cannot be retained as security for the amount which the allottee may become entitled based on the orders of the K-RERA or the appellate authority. ... Of course, in....
According to the learned Counsel for the petitioners, pre-deposit under Section 43(5) is insisted only to maintain the appeal and once the appeal is decided, appellant is entitled for refund of the deposited amount. ... The pre-deposit cannot be retained as security for the amount which the allottee may become entitled based on the orders of the K-RERA or the appellate authority. ... Of course, in....
justifications given by the appellant, learned Tribunal directed the appellant to deposit the entire amount of compensation ordered by RERA, though penalty amount was reduced to 30% as condition of pre-deposit in terms of proviso to Section 43(5) for hearing its appeal on merits. ... In the interest of justice, the appellant was granted time to comply with the proviso to Section 43(5) of the Act by depositing whole of the #HL_START....
justifications given by the appellant, learned Tribunal directed the appellant to deposit the entire amount of compensation ordered by RERA, though penalty amount was reduced to 30% as condition of pre-deposit in terms of proviso to Section 43(5) for hearing its appeal on merits. ... In the interest of justice, the appellant was granted time to comply with the proviso to Section 43(5) of the Act by depositing whole of the #HL_START....
1 to 4 are permitted to withdraw the compensation amount deposited in this Court after accounting for the amount already withdrawn by them during pendency of this appeal. They are permitted to withdraw interest, if any, that may have accrued on the said amount.
The amount, if any, deposited during pendency of the appeal is permitted to be withdrawn by the appellants. Balance amount payable to claimants pursuant to this order be paid within a period of eight weeks. The record and proceedings be sent back to the Tribunal for execution of the award accordingly. Thus, the entire amount inclusive of no fault liability is payable along with interest @ 7 ½ % p.a. from the date of application i.e. 30.4.2003 till its realisation.
This amount and the amount accused during the pendency of the appeal, shall not be withdrawn by other side. On 18.11.2002, this Court passed the following order: “As an interim arrangement during the pendency of this appeal, with a view to protect the interests of either side, we direct the respondent to deposit an amount equivalent to the sale tax payable by it as and when it becomes due in an interest hearing account in a nationalized bank. The appellants are directed to issue the exemption orders and on receipt of such order, the above said amount shall be deposited. The....
As we find no ambiguity or illegality in the 2nd or 3rd proviso to Section 18 (1) of NPA Act, we hold the said provision intra vires and reject the contention as raised by the petitioners. Therefore, we hold that the 2nd proviso to Section 18 (1) stipulates pre-deposit of 50% due as claimed by the secured creditor or determined by the Debts Recovery Tribunal, whichever is less, and in absence of a determination by the Tribunal, the person has to deposit 50% of the amount claimed by the secured creditor, subject to waiver under 3rd proviso to Section 18 (1). If any person, after not....
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