( 1 ) THIS first appeal is at the instance of the plaintiffs in a suit for specific performance of contract and is directed against the judgment and decree dated 5th June, 2004 passed by the Civil Judge, Senior division, 2nd Court, Hooghly in Title Suit No. 108 of 2002 thereby dismissing the suit as not maintainable in view of the provision contained in section 12 (A) ( 1)of the West Bengal Building (Regulation of Promotion of Construction and transfer by Promoters) Act, 1993 (hereinafter referred to as the Act ).

( 2 ) THE appellants herein filed a suit for specific performance of an agreement of purchase of a flat executed between the plaintiffs and the defendant, a promoter, on the allegation that in spite of making full payment of the consideration money, the promoter was not handing over possession of the flat to the plaintiffs. In the said suit an alternative prayer for recovery of the consideration money paid by the plaintiffs was made in the event the prayer of specific performance was refused.

( 3 ) AFTER entering appearance in the suit but before the filing of the written statement, the defendant took a preliminary point as to the maintainabili