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By Adv Fiona Mehta

In the matter of Kashi Homes h/t. Ltd. vs Mahindrapal Singh (2022) (AT006000000021298), this application in the instant Appeal was filed seeking waiver of the condition of pre-deposit of the amount as per impugned order as mandated under Provision to Section 43(5) of RERA.

Facts of the Case: The Respondent (Allottee) purchased a unit in the Appellant’s (Promoter) ‘Sai Siddhi’ project in Khopoti. Respondent filed a complaint with the Authority claiming interest for the delay in possession, alleging that the promoter failed to hand over ownership on or before April 2, 2014, as promised. The Authority issued the contested order on February 20, 2019, requiring the promoter, among other things, to pay interest on the whole sum paid by the Allottee until the date of possession, beginning on April 3, 2014. The appeal is filed in response to the above-mentioned order.

What is the Provision of Section 43(5): Provision to Section 43(5) mandates that for entertaining the Appeal, promoter is obligated to deposit the amount as per impugned order as may be directed by the Tribunal.

Vide Application under consideration promoter has sought to entertain the Appeal to be decided on merits without insisting for the pre-deposit of the said amount.

On one hand, Promoter argued that notice for complaint dated 19th January 2019 was never served on Promoter, and the complaint was taken up for on the same date following the impugned order was passed on 22nd February 2019. On the other hand, learned Counsel for Allottee was adamant in opposing the request for a waiver of the pre-deposit and demanded that the Application be dismissed outright because the pre-deposit clauses are necessary.

After considering the Promoter’s arguments, it was clear that the sole ground for seeking a waiver of the pre-deposit as well as the ground for challenging the Appeal was denial of natural

justice, as no notice of hearing was served on the Appellant prior to the complaint being heard and the impugned order being issued. In this regard, it should be noted that the aforementioned ground relates to the merits of the case, which cannot be reviewed and decided until the appeal is heard.

If this is the case, determination of the grounds of challenge at the stage of the application for waiver or exemption of the pre-deposit would be equivalent to hearing the appeal without the pre-deposit. This is not permitted and would constitute a violation of RERA’s Provision to Section 43(5).

The foregoing viewpoint is backed up by landmark decisions of the Division Bench of the Hon’ble Punjab and Haryana High Court on the specific matter of RERA Section 43(5) compliance. Besides the categorical view as above, we are also guided by the view taken by the Hon’ble Bombay High Court in M/s Renaissance Infrastructure Vs Shri Parth B. Suchak & Anr. (2020)

Final Order: On compliance of mandatory provision to 43(5) of RERA, the submissions made by the Appellant with regard to propriety and legality of the impugned order was considered on merit only at the time of final hearing of the Appeal. At this stage no waiver was granted and Promoter shall have to deposit amount in compliance of provision to Section 43(5) of RERA.

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