1 WP No.8096/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8096 of 2010 Ramchandra B. Hebbali ... Petitioner versus Songya Nathu Mhatre and others ... Respondents ... Mr. Rajshekhar Govilkar i/b Mr. Prakash L. Mahadik for the petitioner. Mr. Suresh Rajeshwar for respondent nos.1 to 6. CORAM : D.G. KARNIK, J DATED : 20th July 2011 P.C. 1. This petition is directed against an order dated 8 April 2010 passed by the Civil Judge, Sr. Division, Kalyan directing impounding of an agreement dated 28 February 2002 which was produced at Sr.No.2 of list Exhibit 59 in Special Civil Suit No.151 of 2005. 2. Section 33 of the Bombay Stamp Act (for short "the Act") provides for examination and impounding of instrument. Sub- section (1) thereof reads as under:- (1) Subject to the provisions of section 32-A, every 2 WP No.8096/10 person having by law or consent of parties authority to receive evidence and every person in charge of a public office, except an officer of police or any other officer, empowered by law to investigate offfences nder any law for the time being in force, before whom any instrument chargeable, in his opinion, with duty, is produced or comes in the performance of his functions shall, if it appears to him that such instrument is not duly stamped, impound the same irrespective whether the instrument is or is not valid in law. (underlining supplied) Thus section 33 of the Bombay Stamp Act authorises the Court (the Court being authorised to receive evidence) any document which is produced before it if it appears to it that such instrument chargeable with duty under the Act is not duly stamped. The Court is not required to render a final verdict as to whether the instrument is duly stamped or not but is entitled to impound the document if it appears to it that such instrument is not duly stamped. The short question that arises for my consideration is, whether the opinion confirmed by the trial court that the instrument in question was not duly stamped is erroneous or so perverse that it requires interference. 3. Learned counsel for the petitioner submitted that the document dated 28 February 2002 which is styled as "an agreement" is not an agreement of sale but it is an agreement of development. As such, the trial court erred in coming to the 3 WP No.8096/10 conclusion that it was an agreement for sale chargeable with duty under Article 25 of the Bombay Stamp Act and in particular under Explanation I to Article 25 of the Act which requires an agreement for sale with possession to be charged as a sale deed. 4. The submission of Mr. Govilkar that the agreement is an agreement of development must be accepted. The agreement recites that the land (which was the subject matter of the agreement) was an open land and that the owner was desirous of selling the land after development. [eksdGh tehu fodlhr dj.;kps Bjfoys o fodlhr d#u gh tehu fodkoh vls fuf'pr dsys-] The agreement then recites that after coming to know of the intention of the owner, the plaintiff negotiated with the owner and agreed to develop and purchase the land to the extent of 10 acres for Rs.4 crores 25 lakhs. Clause no.8 of the agreement states that the plaintiff had agreed to take the land for development. The agreement authorises the plaintiff to prepare a lay out of land and says that he would have a liberty to sell the plots or to construct multi-storeyed buildings on the plots and sell the flats to the perspective purchasers. Clause no.12 says that the plaintiff should develop the land in accordance with law and without committing any breach of any Rule. The agreement is thus clearly a development agreement as submitted by Mr. Govilkar. 5. Article 5(g-a) of the Act provides that the stamp duty for an agreement, if relating to or giving authority or power to a promoter or a developer, by whatever name called, for construction on, development of, or sale or transfer (in any manner whatsoever) of, any immovable property shall be the same as is leviable on a 4 WP No.8096/10 conveyance under clause (b) (c) or (d) as the case may be under Article 25 on the market value of the property. Thus, the agreement of development is chargeable with duty as a conveyance under Article 25 of the Act. The agreement in question is admittedly typed on a stamp of Rs.100/- and is not stamped as a conveyance. The agreement, ex-facie, is insufficiently stamped. The trial court therefore committed no error in impounding the document. There is no merit in the writ petition which is hereby rejected summarily. (D.G.KARNIK, J)