ORDER : Rohit Ranjan Agarwal, J. 1. This appeal under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred as 'Act') has been preferred against the judgment dated 05.03.2020 passed by Real Estate Appellate Tribunal, Lucknow in Misc. Case No. 509 of 2019 and order dated 17.07.2018 passed by Real Estate Regulatory Authority, Moradabad, U.P. in Complaint Case No. 1220174612. 2. Facts in nutshell are that a complaint was filed by respondent No. 5 before U.P. Real Estate Regulatory Authority (for short 'Authority') on 19.12.2017, on the ground that respondent No. 5 had entered into a buyer builder agreement on 14.01.2014 and an allotment letter was issued, and a sum of Rs. 25 lacs was paid by respondent No. 5 to appellant and the possession of the flat was to be handed over by 14.01.2016. As possession of the flat was delayed by the builder for about 23 months, the complaint was lodged. 3. The Authority after putting the appellant to notice and hearing parties on 17.07.2018, directed for refund of entire money along with interest as being applied by the State Bank of India, M.C.L.R. + 1 % from the date of booking till refund of the amount and further imposed a penalty of Rs. 5 per square feet per month, from the date of possession till the date of refund of amount. 4. Aggrieved by this order, appellant filed an appeal before Real Estate Appellate Tribunal, Lucknow (for short "Appellate Tribunal") which was registered as Misc. Case No. 509/2019. The said appeal was presented before the Appellate Tribunal on 24.09.2019, after which number of dates were fixed granting opportunity to appellant to deposit the statutory amount as envisaged under proviso to sub-section (5) of Section 43 of the Act. 5. Despite opportunities given to appellant when no statutory deposit was made, the Appellate Tribunal proceeded to dismiss the appeal for non-compliance of provisions of Section 43(5) of the Act. The appellate tribunal also took note of the fact that on four occasions, cost was imposed upon the appellant, while granting time for complying the provisions of Section 43(5) of the Act, but the same was also not deposited by the appellant. 6. Sri Mohit Kumar, learned counsel appearing for the appellant submitted that as per calculation made by the chartered accountant of appellant-company, an amount of Rs. 6. Sri Mohit Kumar, learned counsel appearing for the appellant submitted that as per calculation made by the chartered accountant of appellant-company, an amount of Rs. 4,10,550/- was deposited with the Tribunal and this fact has come in the order dated 04.02.2020 and thus, sufficient compliance has been made, the Tribunal erred in not deciding the appeal on merit and dismissing the same on ground of non-compliance of statutory provisions contained in Section 43(5) of the Act. 7. He also submitted that Section 21 of the Act envisages that the Authority shall consist of a Chairperson and not less than two whole time members to be appointed by appropriate Government, and in the present case, order passed by the regulatory authority was not in consonance with provisions of Section 21 and thus, the order stood vitiated. 8. Per contra, Sri Wasim Masood, learned counsel appearing for respondent No. 2 submitted that in view of the proviso to sub-section (5) of Section 43, statutory deposit has not been made by appellant-company and he has deposited only 30% amount of the penalty and not the total amount deposited by respondent No. 5 as contemplated under the Act. 9. When learned counsel for the appellant was confronted with this fact, he submitted that appellant is ready to deposit the entire amount with Authority in case complete detail was provided. On 02.11.2020 following order was passed: "........Sri K.M. Asthana, learned counsel has put in appearance on behalf of respondent No. 3. Today, when the matter was taken up, learned counsel appearing for appellant filed the affidavit of service, wherein it has been stated that steps to serve the respondent No. 5 has been taken by registered post on 27.10.2020. He has further contended that the appellant is ready to deposit the entire amount with the authority, in case, the authority provides the complete details of the amount to be paid to respondent No. 5. Sri Waseem Masood, learned counsel appearing for respondent No. 2 fairly states that within two days he will apprise the appellant regarding the amount to be deposited with the authority. In view of the statement so made, put up this case as fresh on 05.11.2020." 10. Thereafter, on 05.11.2020, learned counsel for the Authority placed before the Court instructions received by him, according to which, appellant was to deposit an amount of Rs. 41,28,533.56/- which included Rs. In view of the statement so made, put up this case as fresh on 05.11.2020." 10. Thereafter, on 05.11.2020, learned counsel for the Authority placed before the Court instructions received by him, according to which, appellant was to deposit an amount of Rs. 41,28,533.56/- which included Rs. 25 lacs as cost of the flat, Rs. 13,45,633.56/- as interest and Rs. 2,82,900/- as penalty. 11. Learned counsel for the appellant sought 24 hours time to seek instructions from his client. When the matter was heard on 17.11.2020, learned counsel for the appellant submitted that the amount as calculated by chartered accountant of the Company was deposited and the appellant-company was not in position to deposit the amount as claimed/adjudicated by the Authority. 12. I have heard learned counsel for the parties and perused the material on record. 13. As it is clear that proviso to sub-section (5) of Section 43 clearly provides for the statutory deposit to be made by promoter where he files an appeal with the Appellate Tribunal to make mandatory deposit before the appeal is entertained and heard. 14. This Court had an occasion to consider this aspect of the matter whether the Appellate Tribunal could grant any relaxation in regard to statutory deposit to be made by a promoter before his appeal is entertained. 14. This Court had an occasion to consider this aspect of the matter whether the Appellate Tribunal could grant any relaxation in regard to statutory deposit to be made by a promoter before his appeal is entertained. This Court in Second Appeal No. 364 of 2018, Radicon Infrastructure And Housing Private Limited v. Karan Dhyani, decided on 26.07.2019 held as under:- ""Whether the appellate tribunal while passing an order in terms of the proviso to sub-section 5 of Section 43 has any discretion to allow the deposit of a lesser portion of the total amount to be paid to the allottee including interest and compensation imposed on him or the entire amount, as such has to be deposited without any discretion in this regard with the appellate tribunal to reduce the same and whether in view of the use of the word determined by the appellate tribunal in the first part of the proviso is indicative of requirement of application of mind by the appellate tribunal?" The reason this Court has framed the additional substantial question of law is to give a quietus to the issue with regard to the meaning purport and application of the proviso to sub-section (5) of Section 43 in the facts and circumstances of the case, so that the case does not get unnecessarily lingered before the first appellate tribunal on this issue. The Court is of the view that as per the said proviso the appellate tribunal can require either the penalty or portion thereof or the total amount to be paid to the allottee including interest and compensation imposed on him to be deposited before the appeal is heard for being entertained, i.e., for being admitted for consideration or it can require the promoter appellant to deposit both, meaning thereby, the penalty as well as the total amount referred hereinabove. With regard to the penalty the appellate tribunal has to "determine" whether 30% of the penalty imposed or such a higher percentage as it may determine is to be deposited, but when it comes to the deposit of the total amount to be paid to the allottee including interest and compensation under the orders of the regulatory authority or adjudicating officer, no such discretion based on a "determination" appears to have been vested in the Appellate Tribunal by the legislature. The word 'as the case may be' following the words 'or with both' are a reference to the deposit either of penalty or the total amount or both as the facts of the case may require. These words have no independent application to the second part of the proviso requiring the deposit of the total amount. The object appears to be to protect the interest of the consumer once an adjudication had been made by the Regulatory Authority. In this view of the matter the order of the Tribunal passed in the present case, where no penalty has been imposed upon the appellant under Chapter-VIII of the Act, 2016, to deposit the total amount imposed by the Regulatory Authority, does not suffer from any error. As regards the contention of the appellant that the word penalty mentioned in the proviso should be used in general terms to include any monetary condition imposed by the Regulatory Authority in its judgment, it is not acceptable for the simple reason that a specific provision has been made for the imposition of penalty under the Act, 2016 in Chapter-VIII with the heading 'Offences, Penalty and Adjudication'. Sections 60, 61, 62, 63, 64, 65, 66, 67 and 68 relate to penalties which can be imposed under the Act. These are penalties with reference to specific acts or omissions. The words "at least 30% penalty" in the proviso to Section 43(5) obviously refer to penalties mentioned under Chapter-VIII of the Act, 2016. Learned counsel for the appellant does not dispute the fact that no penalty has been imposed upon the appellant under these provisions, therefore to say that the condition imposed by the Regulatory Authority are penal in nature, as such, the first part of the proviso to sub-section (5) of Section 43 would apply amounts to strained reasoning. It would amount to reading something into the provision which the legislature has not provided nor intended. This plea is rejected. Question No. 4 framed above, is answered accordingly. For these reasons the appeal fails and is dismissed. Consequences shall follow accordingly as per law." 15. Thus, it is clear that the Appellate Tribunal can only entertain an appeal under Section 43(5) of the Act when promoter first makes the statutory deposit with the Authority. This plea is rejected. Question No. 4 framed above, is answered accordingly. For these reasons the appeal fails and is dismissed. Consequences shall follow accordingly as per law." 15. Thus, it is clear that the Appellate Tribunal can only entertain an appeal under Section 43(5) of the Act when promoter first makes the statutory deposit with the Authority. As from the perusal of the judgment of the Appellate Tribunal, it is clear that since 24.09.2019 till 05.03.2020, when the appeal was decided, appellant was afforded ample opportunity to comply with the statutory provisions before his appeal is heard on merits, but he failed to do so. Moreso, order impugned takes note of the fact that in between on four occasions, cost was imposed upon appellant for non-complying with the orders of the Appellate Tribunal and the said cost was also not deposited. 16. This Court find that the appellant has completely failed to comply the statutory requirement before the Appellate Tribunal, as well as he resiled from his willingness to make the deposit as per order dated 02.11.2020 passed by this Court. 17. As it has been held in case of Radicon Infrastructures And Housing Private Limited (supra) that no deviation from the statutory requirement can be made and the promoter is bound to deposit the amount as envisaged in proviso to sub-section (5) of Section 43 of the Act before his appeal is entertained, this Court finds that the appellant has not only failed before the Appellate Tribunal to make the necessary compliance of Section 43(5) of the Act but has also resiled from his statement made, as recorded in order dated 02.11.2020. 18. In view of above, no interference is required. The appeal stands dismissed.