(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5268 OF 2009 Smt. Manda d/o. Hiralal Kale, Age : 42 years, Occupation : Refectory Owner, R/o. House No. 515, Aavishkar Colony, N-6, CIDCO, Aurangabad. .. Petitioner. versus Shri Somnath s/o. Digambar Udawant, Age : 38 years, Occupation : Goldsmith, R/o. House No. 516, Aavishkar Colony, N-6, CIDCO, Aurangabad. .. Respondent. .......................... Mr. M.C. Swami, Advocate, for the petitioner. Mr. R.C. Kulkarni, Advocate, for the respondent. .......................... CORAM : B.R. GAVAI, J. DATE : 23RD NOVEMBER 2009. (2) ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioner challenges the order dated 2nd December 2008, passed by the learned 4th Joint Civil Judge (Senior Division), Aurangabad, below Exhibit 25 in Special Civil Suit No. 203/2008, thereby directing the original document i.e. agreement of sale dated 8th November 2007 to be impounded for deficit stamp duty and send to the concerned Collector. 3. The petitioner has filed suit for specific performance. The said suit is filed on the basis of the agreement entered between the petitioner and the defendant on 8th November 2007. It appears that during the pendency of the suit, the said agreement of sale was placed on record. The petitioner thereafter filed an application for permission to pay deficit amount of stamp duty. The petitioner in the said application has stated that if any deficit amount of stamp duty is required to be paid on the agreement of sale, the applicant was ready to pay the same. On the said application, an order which is impugned in the present petition, came to be passed. The petitioner is basically aggrieved with the observation that the stamp duty be recovered from the plaintiff as per Article 25 of the Bombay Stamp Act, 1958. 4. Perusal of the agreement would reveal that there is no recital in the said agreement regarding the possession either being handed over or it being handed over at any point of time. (3) 5. Perusal of Explanation 1 to Article 25 would reveal that in the case of agreement to sell an immovable property, the possession of any immovable property is transferred or agreed to be transferred to the purchaser before the execution, or at the time execution, or after the execution of, such agreement then such agreement to sell shall be deemed to a conveyance and stamp duty thereon shall be leviable accordingly. In that view of the matter, the provisions of Article 25 of the Bombay Stamp Act, 1958, would not be applicable to the facts of the present case. A reliance in this respect can be placed on the learned Single Judge of this court, in the case of Shri Jugalkishore Jiwandas Arora Vs. Shri Sunil s/o. Vinayakrao Kokje & another (2006(6) ALL MR 576). 6. In that view of the matter, the impugned order, in so far as it directs payment of stamp duty as per Article 25 of the Bombay Stamp Act, 1958, is not sustainable in law and the same deserves to be set aside. 7. In the result, the petition is allowed. The impugned order dated 2nd December 2008, passed by the learned 4th Joint Civil Judge (Senior Division), Aurangabad, below Exhibit 25 in Special Civil Suit No. 203/2008, in so far as it directs payment of stamp duty as per Article 25 of the Bombay Stamp Act, 1958, is quashed and set aside. The matter is remitted to the trial court for considering afresh, as to whether there is any deficit in payment of court-fee considering any other Article, other than Article 25 of the (4) Bombay Stamp Act, 1958, applies to the facts of the present case. The said issue shall be decided by the learned Judge of the trial court after giving reasonable opportunity of hearing to the parties. 8. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. ( B.R. GAVAI ) JUDGE ......................... bgp/wp5268