Case Note & Summary
The case involves a second appeal filed by M/s Renaissance Infrastructure and others (the promoter) against the dismissal of their appeal under Section 44 of the Real Estate (Regulation and Development) Act, 2016 (RERA). The original complainant, Shri Parth B. Suchak, had purchased six plots of land with a pre-engineered steel portal framed rectangular building (warehousing building) from the promoter under an agreement for sale dated 10 December 2009. Possession was to be handed over by 9 March 2010, but was not delivered. The complainant approached the adjudicating officer under RERA, who awarded compensation. The promoter appealed to the RERA Appellate Tribunal, which directed pre-deposit of 30% of the awarded amount under Section 43(5) of RERA. The promoter failed to comply with the pre-deposit order, leading to dismissal of the appeal. The promoter then filed a second appeal under Section 44 of RERA before the Bombay High Court. The High Court held that the pre-deposit condition under Section 43(5) is mandatory and not a mere procedural formality. Since the appellant did not deposit the required amount, the appeal was not maintainable. The court dismissed the second appeal, finding no substantial question of law. The court also disposed of the interim application.
Headnote
A) Real Estate Law - Pre-deposit Requirement - Section 43(5) of RERA - Mandatory Condition - The pre-deposit of at least 30% of the amount awarded by the adjudicating officer is a mandatory condition for entertaining an appeal under Section 44 of the Real Estate (Regulation and Development) Act, 2016. The Appellate Tribunal's order dismissing the appeal for non-compliance with the pre-deposit order was upheld by the High Court, holding that the condition is not a mere procedural formality but a substantive requirement. (Paras 2-5)
B) Real Estate Law - Second Appeal - Section 44 of RERA - Maintainability - A second appeal under Section 44 of RERA is not maintainable if the appellant fails to comply with the pre-deposit order passed under Section 43(5). The High Court dismissed the second appeal as the appellant did not deposit the required amount, and no substantial question of law arose. (Paras 2-5)
Issue of Consideration
Whether the second appeal under Section 44 of the Real Estate (Regulation and Development) Act, 2016 is maintainable when the appellant failed to comply with the pre-deposit order passed by the RERA Appellate Tribunal under Section 43(5) of the Act.
Final Decision
The High Court dismissed the second appeal, holding that the pre-deposit condition under Section 43(5) of RERA is mandatory and the appeal was not maintainable due to non-compliance. The interim application was also disposed of.
Law Points
- Pre-deposit under Section 43(5) of RERA is mandatory
- Non-compliance with pre-deposit order leads to dismissal of appeal
- Second appeal under Section 44 of RERA is not maintainable if pre-deposit not made
Case Details
2020 LawText (BOM) (09) 27
SECOND APPEAL (ST.) NO.92626 OF 2020 WITH INTERIM APPLICATION NO.92628 OF 2020
Mr. Prasad S. Dani, Senior Advocate i/b Mr. Sachin Pawar for the Appellants/Applicants; Mr. Rubin Vakil a/w Mr. Prashant Ghelani, Mr. Ankul Kalal and Mr. Vinay Shingada i/b Markand Gandhi & Co. for Respondent No.1
M/s Renaissance Infrastructure through its Partners and Others
Shri Parth B. Suchak and Another
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Nature of Litigation
Second appeal under Section 44 of the Real Estate (Regulation and Development) Act, 2016 against dismissal of appeal by RERA Appellate Tribunal for non-compliance with pre-deposit order.
Remedy Sought
The appellant (promoter) sought to challenge the order of the RERA Appellate Tribunal dismissing their appeal for non-compliance with the pre-deposit order.
Filing Reason
The appellant failed to comply with the pre-deposit order under Section 43(5) of RERA, leading to dismissal of their appeal before the Appellate Tribunal.
Previous Decisions
The adjudicating officer under RERA awarded compensation to the complainant. The RERA Appellate Tribunal dismissed the promoter's appeal for non-compliance with the pre-deposit order.
Issues
Whether the second appeal under Section 44 of RERA is maintainable when the appellant failed to comply with the pre-deposit order under Section 43(5).
Submissions/Arguments
The appellant argued that the pre-deposit condition is procedural and not mandatory.
The respondent argued that the pre-deposit is mandatory under Section 43(5) and non-compliance justifies dismissal.
Ratio Decidendi
The pre-deposit of at least 30% of the amount awarded by the adjudicating officer under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 is a mandatory condition for entertaining an appeal under Section 44. Non-compliance with the pre-deposit order results in dismissal of the appeal, and no substantial question of law arises in such a case.
Judgment Excerpts
This second appeal is from dismissal of an appeal preferred under Section 44 of the Real Estate Act for non-compliance with a pre-deposit order passed by RERA Appellate Tribunal.
It was the case of the complainant that he had purchased six plots of land together with pre-engineered steel portal framed rectangular building, termed as 'warehousing building', from the respondent promoter under an agreement for sale dated 10 December 2009.
The pre-deposit condition under Section 43(5) of RERA is mandatory and not a mere procedural formality; failure to deposit results in dismissal of appeal.
Procedural History
The complainant filed a complaint before the adjudicating officer under RERA, who awarded compensation. The promoter appealed to the RERA Appellate Tribunal under Section 44, which directed pre-deposit under Section 43(5). The promoter failed to comply, leading to dismissal of the appeal. The promoter then filed a second appeal under Section 44 before the Bombay High Court, which was dismissed.
Acts & Sections
- Real Estate (Regulation and Development) Act, 2016: Section 43(5), Section 44
