1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 851 OF 2010 Sunderlal M. Vishwakarma Vs. Nilesh M. Patel Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Orders Shri H. I. Kothari Adv for petitioner. CORAM: B. P. DHARMADHIKARI J. Dated: 11 th MARCH, 2010. Heard. On earlier occasion time was given to Shri Kothari to point out agreement for sale in present matter constituted conveyance. He has relied upon the judgment of Hon’ble Apex Court reported in Gopi Krishna Trivedi Vs. Sudama Prasad Ojha 2008(9) Supreme Court Cases 401 to contend that their agreement for sale is held to be an instrument and therefore liability to pay appropriate stamp duty has been found. He also relied upon judgment of this Court reported in Nanik K. Daryanani Vs. Deputy Inspector General of Registration And Deputy Controller of Stamps (Enforcement) Mumbai And Others 2008(6) Maharashtra Law Journal 618 to support the contention. Judgment of this Court shows that there the document made 2 clear provision regarding handing over of possession and possession was to be handed over after receipt of balance amount of Rs. 88 lacs. In view of this clear stipulation the document is found to be a conveyance. In 2008(9) Supreme Court Cases 401 provisions of Section 2(14) and 33 of Stamp Act 1899 and explanation appended to Item V of Schedule 1-A are looked into and the observations of High Court that the terms and conditions of alleged oral agreement were not known but purported letter containing terms and conditions for agreement of sale of immovable property have been accepted. It is also noticed that there was nothing on record to show that rights and interest had been created following execution of oral agreement. Thus document in writing creating the mutual obligation is noticed and it is found that it was not adequately stamped. This ruling therefore again does not help the present petitioner. Here trial Court has found that the possession was not handed over at the time of execution of agreement of sale. The agreement also does not contemplate delivery of possession at any time prior to execution and registration of sale deed. In this situation I am not inclined to interfere in the matter at this stage. Writ Petition is therefore disposed of. However, petitioner is given liberty to challenge the order after final adjudication of civil suit if such contingency arises. svk JUDGE 3 svk 4 5 6