1 WP 3814/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3814 OF 2011 Ankush Vithoba Ghule .. Petitioner V/s Smt. Sushila Anant Sutale .. Respondent Ms. A.R.S. Baxi for the petitioner. CORAM : D.G. KARNIK, J. DATE : 20TH JULY 2011 P.C. : 1. Heard learned counsel for the petitioner. 2. The petitioner is the original plaintiff and claims to be a member of Shri Mahalaxmi Co-operative Housing Society Ltd. (for short “the Society”). According to him, the suit plot was allotted to him by the Society. The respondents, who were the former members, were trying to disturb his possession. He therefore filed a suit bearing Special Civil Suit No. 146 of 2006 in the Court of Civil Judge, Senior Division at Sangli. In the suit, he sought to rely upon an agreement dated 26th March 2002 under which the plot was allotted and/or given on lease to him. That document was executed on a stamp paper of Rs. 100/-. The respondents made an application that the document 2 WP 3814/2011 was improperly stamped and was not admissible in evidence. By the said application, they also prayed that the document be impounded as the same was improperly stamped. By an order dated 24th November 2010, the trial Court allowed the application and impounded the document. That order is impugned in this petition. 3. Section 33 of the Bombay Stamp Act says that every 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 offences under 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 of whether the instrument is or is not valid in law. Section 33 thus cast a duty on a Court which is empowered by law to receive evidence, before whom a document is produced, to impound the document if it appears to it that the instrument is not duly stamped. The opinion formed by the Court that a instrument is not duly stamped is not final. The instrument or its authenticated copy is then required to be sent under section 37 3 WP 3814/2011 of the Bombay Stamp Act to the Collector who is required to deal with it in accordance with the provisions contained in sections 37 to 39 of the Bombay Stamp Act. 4. Learned counsel for the petitioner submitted that the document is not a conveyance or a deed of conveyance chargeable with duty under Article 25 of the Bombay Stamp Act. At the most, it would be an agreement of sale. In the present case, the Court has formed its opinion that the instrument is not duly stamped. The opinion is formed on the basis of explanation to Article 25 of the Bombay Stamp Act which provides that stamp duty for an agreement of sale would be chargeable as a conveyance where the possession of any immovable property is transferred or agreed to be transferred to the purchaser before the execution of a sale deed. In view of the fact that the trial Court has formed an opinion, which it is entitled to, that the instrument is not properly stamped, its action of impounding the document cannot be said to be contrary to law. Writ petition is rejected summarily. (D.G. KARNIK, J.)