JUDGMENT : The 1 st petitioner is a company engaged in the construction of apartments and non-residential buildings. The 2 nd petitioner is the Managing Director of the 1 st petitioner company. The 2 nd respondent is the allottee of an apartment in one of the projects. The 2 nd respondent had filed a complaint before the Kerala Real Estate Regulatory Authority (K-RERA), seeking compensation of Rs.5 lakhs for the loss and mental agony suffered by him due to the failure on the part of the petitioners to provide the promised facilities and amenities. The K-RERA partly allowed the complaint vide Ext.P1 order and directed the petitioners to pay Rs.4,28,368/- to the 2 nd respondent as compensation, with 14.85% interest from the date of complaint till realisation, along with litigation cost of Rs.5000/-. While filing the appeal against the order, petitioners deposited the entire amount of compensation along with interest and produced the Fixed Deposit receipts, as mandated by Section 43 (5) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as 'the Act'). Further, the fee of Rs.1000/- stipulated in Rule 28 of the Kerala Real Estate (Regulation and Development) Rules, 2018 (the Rules for short) was also remitted. The 1 st respondent partly allowed the appeal as per Ext.P4, confirming the direction to pay compensation for inconvenience and mental agony, setting aside the direction to compensation of Rs.1.5 lakhs for the car parking area. Challenging Ext.P4, petitioners preferred M.S.A. No.8 of 2024 before the High Court and the operation of the impugned order is stayed by Ext.P5 interim order. Thereupon, petitioners preferred Ext.P6 application before the 1 st respondent, seeking return of the Fixed Deposit Receipts submitted along with the appeal. By Ext.P7 order, the K-RERA allowed refund of the pre-deposit commensurate with the reduction in compensation ordered in the appeal. Hence, this writ petition. 2. According to the learned Counsel for the petitioners, pre-deposit under Section 43(5) is insisted only to maintain the appeal and once the appeal is decided, appellant is entitled for refund of the deposited amount. The pre-deposit cannot be retained as security for the amount which the allottee may become entitled based on the orders of the K-RERA or the appellate authority. The legislature in its wisdom has included Section 40 providing for recovery of amounts due from the promoters as arrears of land revenue. The pre-deposit cannot be retained as security for the amount which the allottee may become entitled based on the orders of the K-RERA or the appellate authority. The legislature in its wisdom has included Section 40 providing for recovery of amounts due from the promoters as arrears of land revenue. It is contended that the statutory deposit under Section 43(5) cannot also be equated with Order XVI Rule 6 of CPC. 3. I heard the learned Standing counsel for the 1 st respondent and the learned Government Pleader also. 4. The contentions being centered around Section 43(5), the said provision has to be read carefully and for that purpose, is extracted hereunder; “43. Establishment of Real Estate Appellate Tribunal.—(1) The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Appellate Tribunal to be known as the ……………………. (name of the State/Union Territory) Real Estate Appellate Tribunal. xx xxxx xxx (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 at least 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. Explanation.—For the purpose of this sub-section “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force. A reading of the provision shows that, the promoters are considered as a separate class when it comes to pre-deposit while filing appeal. This classification is made since the promoters are in receipt of money, refund of which is being claimed by the allottees. The classification and imposition of condition of pre-deposit was challenged in Newtech Promoters & Developers (P) Ltd. v. State of U.P. , [ (2021) 18 SCC 1 )]. Repelling the challenge, Apex Court held as under at paragraph 136 of the judgment; “136. The classification and imposition of condition of pre-deposit was challenged in Newtech Promoters & Developers (P) Ltd. v. State of U.P. , [ (2021) 18 SCC 1 )]. Repelling the challenge, Apex Court held as under at paragraph 136 of the judgment; “136. In our considered view, the obligation cast upon the promoter of pre-deposit under Section 43(5) of the Act, being a class in itself, and the promoters who are in receipt of money which is being claimed by the homebuyers/allottees for refund and determined in the first place by the competent authority, if legislature in its wisdom intended to ensure that money once determined by the Authority be saved if appeal is to be preferred at the instance of the promoter after due compliance of pre- deposit as envisaged under Section 43(5) of the Act, in no circumstance can be said to be onerous as prayed for or in violation of Article 14 or Article 19(1)(g) of the Constitution of India.” This it is clear that, the objective behind insistence on pre- deposit is to deter the promoters from engaging allottees in experimental and endless litigation. It is true that Section 40 of the Act provides for recovery of compensation and enforcement of orders passed by the authorities under the Act as arrears of land revenue. Section 57 makes every order made by the Appellate Tribunal executable as a decree of civil court. For this purpose, the Appellate Tribunal is conferred with the powers of a civil court. 5. The short question is whether in the light of providing for recovery of amount as arrears of land revenue, Section 40 and Section 57, empowering the appellate authority to execute its orders, amount deposited by the promoter while filing the appeal has to be refunded once the appeal is decided, irrespective of the outcome of the appeal. The following observation in Newtech Promoters (supra) assumes relevance here; “126. The following observation in Newtech Promoters (supra) assumes relevance here; “126. It may further be noticed that under the present real estate sector which is now being regulated under the provisions of the 2016 Act, the complaints for refund of the amount of payment which the allottee/consumer has deposited with the promoter and at a later stage, when the promoter is unable to hand over possession in breach of the conditions of the agreement between the parties, are being instituted at the instance of the consumer/allotee demanding for refund of the amount deposited by them and after the scrutiny of facts being made based on the contemporaneous documentary evidence on record made available by the respective parties, the legislature in its wisdom has intended to ensure that the money which has been computed by the Authority at least must be safeguarded if the promoter intends to prefer an appeal before the Tribunal and in case, the appeal fails at a later stage, it becomes difficult for the consumer/allottee to get the amount recovered which has been determined by the Authority and to avoid the consumer/allottee to go from pillar to post for recovery of the amount that has been determined by the Authority in fact, belongs to the allottee at a later stage could be saved from all the miseries which come forward against him. “ (underline supplied) As categorically laid down by the Supreme Court, pre- deposit is intended to safeguard the compensation so that, in case the appeal filed by the promoter is dismissed, the allottee need not run from pillar to post for recovery of the amount. In this context it is also pertinent to note that Section 58, providing further appeal to the High Court against the order of the Appellate Tribunal, does not mandate pre-deposit. Hence, the pre-deposit made by the promoter at the first appeal stage enables him to file the second appeal without any further deposit. This also indicates that the pre-deposit is to be retained till the proceedings attain finality with the decision in the second appeal filed before the High Court. Of course, in case the promoter's appeal is allowed, the entire amount and if partly allowed, like in the case at hand, the proportionate amount, should be permitted to be withdrawn from the pre- deposit. Of course, in case the promoter's appeal is allowed, the entire amount and if partly allowed, like in the case at hand, the proportionate amount, should be permitted to be withdrawn from the pre- deposit. The writ petition is accordingly disposed of by directing the K-RERA to refund the eligible amount due to the petitioners, proportionate to the reduction in compensation as per Ext.P4 order of the 1 st respondent and leaving it open for the petitioners to claim refund of the balance amount, depending on the outcome of the second appeal pending before the High Court.