1 wp615.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 615 OF 2011 Rishikesh S/o Rameshchandra Kulkarni ..PETITIONER -VERSUS- Mrs. Jaya W/o Prafulla Saraf ..RESPONDENT ..... Mr.R.B. Deshmukh, Advocate for petitioner. Mr. K.J. Katariya, Advocate for respondent. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 29th March, 2011. PER COURT : 1. Heard Advocates Mr. Deshmukh for petitioner and Mr. R.J. Katariya for respondent. 2. Contention of Advocate Mr. Deshmukh for petitioner is, the document of agreement for sale between the parties dated 5th December, 2010 carries no stipulation about possession and hence is not conveyance as required by clause 25 of Schedule I of Bombay Stamp Act. He has taken Court through the said agreement. 3. Advocate Mr. Katariya for respondent on the other hand invites attention to assertion in plaint to urge that the said 2 wp615.11 document admittedly does not reproduce all agreed terms and conditions. The delivery of possession according to him was to be given after May, 2004 and in the light of the plaint allegations, therefore, the document becomes conveyance. He has relied upon the judgment reported at "2010 (5) Mh.L.J. 990" ( Bhupendrabhai Rambhai Patel V/s Lilabai Mahadeorao Labde) delivered by me and also the judgment of Hon'ble Apex Court reported at "AIR 2008 S.C. 1640" ( Government of Andhra Pradesh and others V/s Smt. P. Laxmi Devi" in support of his contention. 4. Perusal of judgment reported at "2010(5) Mh.L.J. 990" (Bhupendrabhai Rambhai Patel V/s Lilabai Mahadeorao Labde) (supra) shows that such document needs to be viewed and interpreted independently. The pleadings of parties either in plaint or written statement can not be looked into to understand the scope of such agreement. The judgment therefore is not in favour of the present respondent. The respondent can not take recourse to plaint allegations and contend that as plaint allegation states that the possession was to be delivered after May, 2004 and it was not necessarily on the date of registration or execution of sale deed, the document must be construed as conveyance. This Court has found that the test to be applied is of the Officer looking at that 3 wp615.11 document when it was tendered to him for calculating the appropriate stamp duty. The Judgment reported at "AIR 2008 S.C. 1640" ( Government of Andhra Pradesh and others V/s Smt. P. Laxmi Devi" (Supra) considers the challenge to constitutionality of provisions of Section 47A of the Stamp Act as amended by Andhra Pradesh Act 8 of 1998. There, a reference was made under Section 33 of the Stamp Act in relation to insufficiently stamped instrument and Section 47A prohibited its consideration till 50% of deficit stamp duty was paid. This precondition of deposit was questioned before the Hon'ble Apex Court. The liability to pay stamp duty or then correctness or otherwise of reference under Section 33 was not in dispute. Therefore, the Judgment of Hon'ble Apex Court is not relevant in the present matter. 5. It is clear that the trial Court has erred in treating the document of agreement for sale as conveyance and in directing the office to impound it. The said order is therefore quashed and set aside. The application at Exhibit-72 preferred by present respondent is rejected. Rule made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp615.11