Case law, Tamil Nadu land law
Appeal (SR) No.533 of 2023
The Tamil Nadu Real Estate Appellate Tribunal (Tamil Nadu, Puducherry, Andaman and Nicobar Islands) issued Appeal (SR) No.533 of 2023, dated 21 August 2023, dismissing an appeal by M/s. Eco Bay Developers and Builders Private Limited. The Tribunal found that the appeal could not be entertained because the appellant had not made the mandatory pre-deposit required under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016.
What the decision covers
Appeal (SR) No.533 of 2023, dated 21 August 2023, was decided by the Tamil Nadu Real Estate Appellate Tribunal (Tamil Nadu, Puducherry, Andaman and Nicobar Islands). The appeal was filed by M/s. Eco Bay Developers and Builders Private Limited against R. Santhana Raj.
The developer asked the Tribunal to modify an order dated 3 January 2022 in E.P.No.27/2021 in C.C.P.No.178/2019, passed by the Adjudicating Officer, TNRERA. That earlier order directed the issue of a recovery warrant under Section 40(1) of the Real Estate (Regulation and Development) Act, 2016.
Why the appeal was dismissed
The Registry questioned whether the appeal could be considered because the developer had not deposited the pre-deposit amount required by Section 43(5) of the Real Estate (Regulation and Development) Act, 2016.
The Tamil Nadu Real Estate Appellate Tribunal applied the Supreme Court judgment reported as 2021 SCC OnLine SC 1044, M/s. Newtech Promoters and Developers Private Limited versus State of Uttar Pradesh and others. The Tribunal noted that the Supreme Court had held the Section 43(5) requirement to be mandatory.
Key findings were:
- The developer had not made the required pre-deposit.
- An appeal filed without that pre-deposit could not be entertained.
- The appeal was therefore not maintainable.
- The Tribunal dismissed the appeal without modifying the Adjudicating Officer's order.
Who is affected
Appeal (SR) No.533 of 2023 directly concerns M/s. Eco Bay Developers and Builders Private Limited and R. Santhana Raj. It is also relevant to promoters or developers considering an appeal before the Tamil Nadu Real Estate Appellate Tribunal, because the decision applies the requirement that the pre-deposit under Section 43(5) is mandatory.
The Tribunal did not examine or change the recovery direction on its merits. Its decision was based on the appellant's failure to satisfy the pre-deposit requirement.
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Common questions
Why was Eco Bay Developers' appeal dismissed?
The Tamil Nadu Real Estate Appellate Tribunal dismissed the appeal because the developer had not made the mandatory pre-deposit required under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016.
What order was the developer trying to modify?
The developer sought to modify the Adjudicating Officer's order dated 3 January 2022 in E.P.No.27/2021 in C.C.P.No.178/2019, which directed the issue of a recovery warrant under Section 40(1).
Did the Tribunal decide whether the recovery warrant was correct?
No. The Tribunal dismissed the appeal as not maintainable because the required pre-deposit had not been made, and it did not modify the Adjudicating Officer's order.
What Supreme Court decision did the Tribunal rely on?
The Tribunal relied on M/s. Newtech Promoters and Developers Private Limited versus State of Uttar Pradesh and others, reported as 2021 SCC OnLine SC 1044, which held that Section 43(5) is mandatory.
