JUDGMENT : EASWARAN S., J. This Miscellaneous Second Appeal arises out of the order dated 29.05.2024 in I.A No.239 of 2024 in REFA No.78 of 2023 of the Kerala Real Estate Appellate Tribunal, Ernakulam. 2. The facts required for the disposal of the appeal is as follows:- The appellants claims to be Ex-Directors of the 6 th respondent Company. The 1 st respondent herein is an allottee in respect of a flat which was undertaken to be constructed by the 6 th respondent Company in the land possessed by respondents 4 and 5. Apparently, certain disputes cropped up between the Directors of the Company and the land owners and that the appellants claimed that, the land owners had injuncted the appellants from entering into the project site. It is also contended that the appellants retired from the Company in 2014. However, in 2022, the 1 st respondent preferred a complaint before the Kerala Real Estate Regulatory Authority (KRERA), Thiruvananthapuram claiming for a refund of payment made by him in relation to the flat promised to be constructed for him and he further states that the appellants and respondents 2 to 6 have not registered the project under the Real Estate (Regulation & Development) Act, 2016 (for short, ‘the Act’). Initially, the KRERA without considering the question as regards whether the appellants are the Directors of the Company by way of an interim order dated 24.05.2022, directed the appellants along with respondents 2 to 6 to register the project by the name of ‘AEON BLUE PALM’ with the Authority under Section 3 of the Act. This was taken up before the Kerala Real Estate Appellate Tribunal, Ernakulam (Appellate Tribunal) and the matter was remanded back to the authority by order dated 15.12.2022 in REFA No.50 of 2022. Pursuant to the remand, by order dated 13.02.2023, the KRERA, directed the appellants and respondents 2 to 6 herein to register the project. Later, by order dated 10.03.2023, the KRERA directed the appellants along with the Company, to refund a sum of Rs.41,05,458/- with 13% interest within a period of sixty days from the date of receipt of the order. This order was subjected to challenge before the Appellate Tribunal by the appellants in REFA No.78 of 2023. Along with the appeal, an interlocutory application was preferred seeking for waiver of the pre-deposit as required under proviso to Section 43 (5) of the Act. This order was subjected to challenge before the Appellate Tribunal by the appellants in REFA No.78 of 2023. Along with the appeal, an interlocutory application was preferred seeking for waiver of the pre-deposit as required under proviso to Section 43 (5) of the Act. The said application was taken up by the Appellate Tribunal and by the impugned order, the Appellate Tribunal found that the appeal cannot be entertained without the pre-deposit and accordingly, the application for waiver was rejected. 3. Heard Sri.Issac.T.Paul, the learned counsel appearing for the appellants and Sri.Saji Varghese, the learned counsel appearing for the 1 st respondent. 4. While admitting the appeal, this Court prayed the following question of law for consideration:- “Whether the appellate tribunal has any discretion in ordering deposit as contemplated under Section 43 (5) of the Real Estate (Regulation and Development) Act, 2016?” 5. The learned counsel for the appellants would submit that going by the definition of the promoter under the Act, the appellants will not qualify themselves within the definition. It is the further submission of Sri.Issac.T.Paul, that going by the proviso to Section 43 (5) of the Act, the pre-deposit is required only for an appeal preferred by the promoter. Therefore, when the question as regards whether the appellants are promoters or not is raised before the Appellate Tribunal, it was incumbent upon the Appellate Tribunal to have decided the said issue at the first instance before directing the appellants to remit the pre-deposit as required under proviso to sub-section 4 of Section 43 . 6. Per contra, it is submitted by the learned counsel for the complainant/1 st respondent that the contention of the appellants that they are not promoters cannot be accepted inasmuch as in the civil suit preferred by the land owners against the 6 th respondent Company, the appellants have clearly admitted that they are the promoters and share holders of the Company. Hence, the dichotomous stand taken by them is only for the purpose of evading the pre-deposit as required under proviso to Section 43 (5) of the Act. 7. I have considered the rival submissions raised across the Bar. 8. Hence, the dichotomous stand taken by them is only for the purpose of evading the pre-deposit as required under proviso to Section 43 (5) of the Act. 7. I have considered the rival submissions raised across the Bar. 8. Sub-Section 5 of Section 43 of the Act reads as under:- “(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter: Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal atleast thirty per cent. of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.” A reading of sub-Section (5) shows that it has two parts: (a) An appeal can be preferred by any person aggrieved by the order. (b) If the appeal is preferred by the promoter, then the pre-deposit is mandatory going by the proviso. It is now settled law that a proviso carves out an exception to the main provision. Since proviso to sub-section 5 to Section 43 speaks about an appeal preferred by a promoter, it will be highly inappropriate to insist that for all appeals, pre-deposit is mandatory. Therefore, when an appeal is preferred against the order of the KRERA by persons other than promoters, the Tribunal cannot insist that, for entertaining the appeal the pre-deposit is mandatory. 9. In the present case, the appeal against the KRERA is pending before the Tribunal. What is now decided is the request for waiver of the pre-deposit. It must be noted that, the requirement of waiver was not at all necessary inasmuch as the Tribunal could have decided the question as to whether the appellants are promoters or not. Depending upon such decision, for a further consideration of the appeal, necessarily the appellants would have to be granted an opportunity to deposit amount. 10. The Tribunal in the impugned order held, without pre-deposit, the appeal under sub-Section 5 cannot be entertained. Depending upon such decision, for a further consideration of the appeal, necessarily the appellants would have to be granted an opportunity to deposit amount. 10. The Tribunal in the impugned order held, without pre-deposit, the appeal under sub-Section 5 cannot be entertained. Such finding, is palpably wrong inasmuch as the statute does not provide that in all cases, the pre-deposit has to be insisted and only in an appeal preferred by the promoter, the pre-deposit is required. Therefore, the irresistible conclusion is that the Tribunal is bound to consider the question as to whether the appellants are promoters or not and depending upon the further orders, has to proceed with the appeal. The further consideration in the appeal thereafter will depend only upon the finding as regards the status of pre-deposit made by the appellants. 11. Resultantly, by answering the question of law raised by this Court, it is held that, for an appeal preferred by a person other than by the promoter, the pre-deposit under sub-section 5 of Section 43 is not required. 12. Accordingly, the order dated 29.05.2024 in I.A No.239 of 2024 in REFA No.78 of 2023 is set aside. The Kerala Real Estate Appellate Tribunal, Ernakulam, is directed to take up the appeal for consideration and decide the preliminary issue as to whether the appellants are promoters or not. Depending upon the decision, the Tribunal shall thereafter proceed with the consideration of the case on merits. If it is found that, the appellants are not promoters, then it is made clear that there is no requirement to make any pre-deposit. On the other hand, if the Tribunal finds that the appellants are promoters, then further consideration of the appeal will be done, only after the appellants makes the pre-deposit, if so advised. With the aforesaid observations, the appeal is allowed. The entire exercise as directed above, shall be done by the Tribunal, as expeditiously as possible.