IMPORTANT POINT
Mere submission of booking form coupled with payment of booking amount does not constitute an agreement per se.

JUDGMENT

Siddhartha Roy Chowdhury, J.—This application under Article 227 of the constitution of India impeaches the Order No. 1 passed in Miscellaneous Appeal No. 272 of 2023 passed by Ld. District Judge 24 Parganas, Alipore. By the Order impugned Ld. District Judge was pleased to reject the prayer for ad interim injunction made by the petitioners.

2. For the sake of convenience, the parties to this proceeding would be referred to as they have been arrayed in the suit.

3. Briefly stated the plaintiff No. 1 an Advocate by profession and plaintiff No. 2, and Assistant Professor of a College decided to purchase a flat to be constructed by the defendants and after having a detailed discussion with the defendant No. 2 the plaintiffs expressed their desire to purchase the residential unit and the defendants agree to sell the same on 14th of February, 2023.The plaintiffs visited office of the defendants at Bata Nagar and having seen model flat, the plaintiffs decided the purchase a flat measuring about 1307 sqft. at Tower/ Block 14, Flat No. 13 D, 13th Floor of The Royal Ganges Project at premises No. C-4-173/New Ganga Bandh Road, 24 Parganas (South), at the rate of Rs. 4200/- sqft.

4. The plaintiffs executed/signed the booking form and paid a sum of Rs. 210000/- in favour of defendant No. 2 by cheque, which was duly encashed. A provisional allotment letter was issued to the plaintiffs and the plaintiffs paid a further sum of Rs. 489723/- to the defendant No. 1 & 2 through online transfer/RTGS.

5. The plaintiffs thereafter obtained the housing loan from HDFC Ltd., Deshopriya Park Branch and tripartite agreement was executed among the plaintiffs, defendant No. 1 and the Bank.

6. The plaintiffs thereafter made payment to the tune of Rs. 241881/- towards stamp duty required for registration of the agreement. The defendant company thereafter forwarded draft agreement for sale on 25.07.2023. After going through the said draft the plaintiff failed to pursue themselves to agree to various clauses incorporated in the said agreement as the plaintiffs considered those clauses unlawful arbitrary in nature and pointed out the same to the concerned authority of the Srijan Residency, LLP/Srijan Realty Pvt. Ltd. with a request to delete those clauses and copy of the e-mail was forwarded to RERA for their information and necessary action.

7. On 28th July, 2023 the plaintiffs received an e-mail from defendant No.1 & 2 informing the plaintiffs that the management cancelled the booking of the plaintiffs in the Royal Ganges Projects. According to the plaintiffs such decision was malafide and in the breach of principal of natural justice. There was trading of some communications between the parties but the defendants refused to adhere to the requests made by the plaintiffs to delete the unlawful clauses in the agreement.

8. The plaintiffs, therefore, were left with no other option but to approach the court of law and filed the suit before the Ld. 7th Court of Civil Judge (Senior Division), Alipore, registered as Title Suit No.1054 of 2023 and moved an application with prayer for ad interim order injunction directing the defendants not to create any 3rd party interest over the suit property, but such prayer was refused.

9. Aggrieved thereby the plaintiffs preferred an appeal before the Ld. District Judge, 24th Parganas (South) under Order XLIII of the Civil Procedure Code and it was registered as Miscellaneous Appeal No. 272 of 2023 and prayed for an ad interim order of injunction but Ld. District Judge, refused to grant relief and passed the impugned order.

10. Challenging the order of the Ld. District Judge Mr. Pradip Roy, submits that Ld. District Judge failed to appreciate the urgency involved in the matter, warranting an exparte order of injunction. Drawing the attention of the court to some of the clauses incorporated in the agreement Mr. Roy submits that the clauses by which the company reserves the right to mortgage the property to be acquired by