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Issues: (i) Whether the moratorium granted in insolvency proceedings exempted the promoter from the mandatory pre-deposit under Section 43(5) of the Real Estate (Regulation & Development) Act, 2016; (ii) whether an appeal filed through the Interim Resolution Professional could avoid the character of an appeal by a promoter for the purpose of Section 43(5); (iii) whether offering a flat as security could substitute the statutory pre-deposit.
Issue (i): Whether the moratorium granted in insolvency proceedings exempted the promoter from the mandatory pre-deposit under Section 43(5) of the Real Estate (Regulation & Development) Act, 2016.
Analysis: The pre-deposit requirement under Section 43(5) is a statutory condition for entertaining a promoter's appeal. The insolvency order was explained by the appellate insolvency forum as confined to the particular project in question and not to other projects of the same real estate company. Since the appeal before the Real Estate Appellate Tribunal related to a different project, the moratorium could not be used to bypass the statutory pre-deposit requirement.
Conclusion: The moratorium did not exempt the appellant from complying with Section 43(5).
Issue (ii): Whether an appeal filed through the Interim Resolution Professional could avoid the character of an appeal by a promoter for the purpose of Section 43(5).
Analysis: The Interim Resolution Professional represents the corporate debtor itself. For purposes of the appeal under the regulatory statute, the company continued to be the promoter, and the filing through the Interim Resolution Professional did not change that legal character or remove the statutory obligation attached to a promoter's appeal.
Conclusion: The appeal remained subject to the promoter pre-deposit requirement.
Issue (iii): Whether offering a flat as security could substitute the statutory pre-deposit.
Analysis: The statutory scheme, as upheld by the Supreme Court, treats the pre-deposit as a mandatory precondition and does not provide scope for substitution by a security arrangement. The object is to safeguard the amount determined in favour of the allottee, and a security offer does not amount to compliance with the statutory mandate.
Conclusion: Offering security could not replace the mandatory pre-deposit.
Final Conclusion: The appeal failed on all substantive grounds because the statutory pre-deposit requirement was held to be mandatory and unaffected by the cited insolvency moratorium, the filing through the Interim Resolution Professional, or the offer of security.
Ratio Decidendi: The pre-deposit under Section 43(5) of the Real Estate (Regulation & Development) Act, 2016 is a mandatory statutory condition for a promoter's appeal and cannot be waived or substituted by an insolvency moratorium confined to another project or by offering security in lieu of deposit.
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