Mandatory Pre-Deposit Under Section 43(5) RERA Is a Condition Precedent for Maintainability of Promoter’s Appeal: Haryana REAT
Elan Buildcon Pvt. Ltd. v. Switi Gupta & Anr. — Haryana REAT (H-REAT-31-2026)
Date of Decision 14-Aug-2026
The Haryana Real Estate Appellate Tribunal (HREAT), by order dated 14 August 2026, dismissed two appeals filed by Elan Buildcon Pvt. Ltd. for failure to make the mandatory pre-deposit under Section 43(5) of the RERA Act, 2016.
The appeals challenged a HRERA Gurugram order dated 8 July 2025, which directed the promoter to pay delayed possession charges at 11.10% p.a. on the amounts paid by the allottees from the contractual possession date of 30 April 2022 until the offer of possession plus two months. The Authority also directed revision of the account statement, payment of specified utility charges, execution of the conveyance deed, and prohibited the promoter from levying holding charges.
The promoter argued that the allottees themselves owed approximately ₹55.22 lakh, whereas the delayed-possession interest payable by the promoter was ₹5.53 lakh. It therefore contended that the outstanding amount payable by the allottees should be adjusted against the statutory pre-deposit.
HREAT rejected this contention, relying upon the Supreme Court's decision in M/s Newtech Promoters and Developers Pvt. Ltd. v. State of U.P., holding that where a promoter challenges an order involving payment to an allottee, the promoter must make the requisite statutory pre-deposit before the appeal can be entertained. There is no provision for waiver or exemption from the pre-deposit requirement.
The Tribunal further observed that the pre-deposit is intended to secure the interest of the allottee. The amount is kept in a fixed deposit and carries interest, with disbursement being subject to the final outcome of the appeal. Therefore, the promoter's argument for adjustment could not dispense with the statutory requirement.
Held
Since the promoter had failed to make the required ₹5,53,544 pre-deposit, the appeals were held not maintainable and were dismissed without examination on merits. However, the promoter was given liberty to seek revival of the appeals if the requisite pre-deposit was made within one month.
Key takeaway: A promoter cannot avoid or seek adjustment of the mandatory Section 43(5) pre-deposit on the ground that the allottee owes money to the promoter. Compliance with the statutory pre-deposit is a condition precedent for maintainability of the promoter's appeal.
