1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8560 OF 2009 1. Shardchandra s/o. Kanyahalal Shaha, Age 58 yrs., Occu. Business, 2. Mrs. Chandrakalaben w/o. Ramniklal Shaha, Age 66 yrs., Occu. Household, 3. Mayur s/o. Ramniklal Shaha, Age 38 yrs., Occu. Business, 4. Chetan s/o. Ramniklal Shaha, Age 36 yrs., Occu. Service, All 1 to 4 R/o. House No. 2-14-86, Pandhariba Aurangabad. 5. Mrs. Shefali w/o. Brijpaldas, Age 40 yrs., Occu. Household, R/o. House No. 32/35, Bhairaonath Galli, waranasi (U.P.). 6. Mrs. Gunwanti w/o. Kanakchand Shaha, Age 65 yrs., Occu. Household, R/o. House no. 2-14-86 Pandariba, Aurangabad. (No. 2 to 6 are represented by Petitioner No. 1 being power of Attorney Holder) ....Petitioners. Versus 1. Santosh s/o. Shaligram Jaiswal, Age 42 yrs., Occu. Business, 2. Anjanabai w/o. Shaligram Jaiswal, Age 75 yrs., Occu. Household, Both R/o. Chikalthana, Aurangabad. 2 3. M/s. Chandulal T. Parikah Pvt. Ltd., Through its Director Dineshchandra s/o. Ramanlal Parikh, R/o. Shahaganj Aurangabad. ....Respondents. Shri. D. K. Kulkarni, Advocate for petitioners. Shri. P.S. Mehta, Advocate for respondent No. 1 and 2. CORAM : R.K. DESHPANDE, J. DATE : 16th July, 2010. ORAL JUDGMENT : 1. This writ petition challenges the common order dated 21.11.2009 passed below Exhs. 54 and 59 in Regular Darkhast No. 280/2000. By this order, the Trial Court has allowed Exh. 59, filed by the objectors in Regular Darkhast No. 280/2000, for direction to the decree holder to pay the requisite stamp fee on the Isar Pavti. The decree holder has produced on record the photocopy of the Isar Pavti dated 13.11.2000, which shows the value of the agreement at Rs. Seven lakhs. The Trial Court has passed an order, directing the petitioner/decree holder to pay 10% penalty which comes to Rs. 2,80,000/- for impounding the Isar Pavti in view of provisions of section 34 of the Bombay Stamp Act, 1958. It is upon impounding of this document, the Trial Court has passed an order that the agreement dated 13.11.2000 shall be marked as exhibit. 2. Notice in this matter was issued on 16.12.2009. Shri. P.S.Mehata, 3 the learned counsel appears for respondent Nos. 1 and 2/judgment debtors. It is on the application of the respondent No. 1 and 2/objectors that the Trial Court has passed an order. The respondent No. 3 is the original tenant and judgment debtor, against whom the decree has been passed in Regular Civil Suit No. 870/1986. The respondent No. 3 is not in a possession of the property and it is, therefore, not necessary in this matter to issue fresh notice to him. The learned counsel for the parties agree that the matter can be finally decided at the stage of admission. Hence, Rule, made returnable forthwith. Heard the matter by consent of parties. 3. Shri. Kulkarni, the learned counsel appearing for decree holders/petitioners, in this petition has relied upon the judgment of this Court reported in 2008 (5) Mh.L.J. 117; Krishna Sheena Shetty Vs. Suresh Anant Sawant and another to urge that the penalty which is required to be paid in terms of section 34 (a) (ii) of the Bombay Stamp Act, is at the rate of 2% of the deficient portion of the stamp duty for every month or part thereof from the date of execution of such instrument. According to him, this amendment was brought in to the force on 1.5.2001 and although, the document was executed on 13.11.2000, it will be governed by the amended provision in view of the judgment cited supra. He submits that the Trial Court has relied upon the unamended provisions which provided for imposing penalty at 10 times of the value of deficit stamp duty. 4 4. After going through the judgment cited by the learned counsel, it is apparent that the situation is governed by the amended provisions and hence, it will be the amended provision of section 34 (i) (b) of the Bombay Stamp Act, which would be applicable. The learned Judge of the Trial Court has, therefore, committed an error of law in applying an unamended provision for the purpose of determining penalty for impounding the document. The order dated 21.11.2009 passed below Exh. 59 cannot, therefore, be sustained. The same is, therefore, quashed and set aside. 5. In the result, the instant writ petition is allowed. The common order dated 21.11.2009 passed by the 2nd Joint Civil Judge, Senior Division, Aurangabad below Exh. 54 and 59 in Regular Darkhast No. 280/2000 is hereby quashed and set aside. The Executing Court is directed to take into consideration the amended provisions of Section 34 (i) (b) of the Bombay Stamp Act for the purpose of determining the penalty and stamp duty. Rule is made absolute in these terms. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp8560.09