1 WP 2034/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2034 OF 2010 Ramesh Wamanrao Sonawane .. Petitioner V/s Yogesh Panditrao Sonawane .. Respondent Mr. M.M. Sathaye for the petitioner. Mr. Ashwin Kapadnis for the respondent. CORAM : D.G. KARNIK, J. DATE : 11TH AUGUST 2010 P.C. : 1. Rule, returnable forthwith. 2. By consent, heard forthwith. 3. By this petition, the petitioner challenges the order dated 15 January 2010 passed by the learned Civil Judge, Senior Division, Malegaon, directing that the agreement of sale dated 27 November 1997 be impounded as per the provisions of section 34 of the Bombay Stamp Act. 4. The petitioner filed a suit against the respondent for specific performance of an agreement for sale dated 27 November 1997. The original agreement which is written on a stamp paper of Rs.20/- was sought to be tendered in evidence on 2 WP 2034/10 behalf of the petitioner. The respondent raised an objection to the admissibility of the document on the ground that it was improperly stamped and was required to be impounded under section 34 of the Bombay Stamp Act. The trial court directed impounding of the document. That order is impugned in this writ petition. 5. The order of the impounding the document is rather laconic and reads thus: “ Heard. The amendment in Art. 25 of Bombay Stamps Act squarely covers the facts of this case. The agreement of sale on stamp of Rs.20/- is defective in nature & ne3eds to be impounded as per the provisions of sec. 34 of the said Act. Hence, Plaintiff to impound the documents as per rules & provisions of law.” The order does not give reasons as to why the learned trial Judge came to the conclusion that the document was covered by the amended provision of Article 25 of the Bombay Stamp Act. Attention of the learned Judge does not appear to have been drawn to a decision of this Court rendered in Balwantgir 3 WP 2034/10 Ganpatgir Giri v. Mansi Construction and Developers, 2006 (5) Mah. L.J. 306, wherein a Division Bench of this Court has considered the scope of amended provision of Article 25 of the Bombay Stamp Act. The impugned order, in my view, is clearly contrary to the decision of the Division Bench in Balwantgir’s case and, therefore, needs to be set aside. 5. An agreement for sale is ordinarily chargeable to stamp duty under Article 5 of the Bombay Stamp Act. However, by an amendment, Explanation-I was added to Article 25 of the Bombay Stamp Act which says, where in case of agreement to sale an immovable property, the possession of immovable property is transferred or agreed to be transferred to the purchaser before the execution, or at the time of execution, or after the execution, of such agreement, then such agreement to sell shall be deemed to be a conveyance and the stamp duty thereon shall be leviable accordingly. Interpreting the provisions of Explanation-I to Article 25 of the Bombay Stamp Act, in the case of Balwantgir (supra), this Court has held that where the possession of the property is not handed over prior to or at the time of execution of an agreement of sale and is not agreed to be handed over in future before the sale but is to be handed over only at the time of sale, such agreement would not 4 WP 2034/10 be covered by Explanation-I to Article 25 of the Bombay Stamp Act and as such the agreement would not be chargeable with stamp duty as a conveyance under Article 25 of the Bombay Stamp Act. 6. Perusal of the agreement in question shows that the possession was not handed over to the petitioner (proposed purchaser) prior to or at the time of execution of the agreement for sale. Agreement specifically states that the possession of the property was to be handed over by the respondent to the purchaser at the time of execution of the sale deed. Consequently, the agreement was not chargeable as a conveyance as held by the Division Bench of this Court in the case of Balwantgir (supra). 6. For these reasons, the impugned order is set aside. Rule is made absolute. (D.G. KARNIK, J.)