vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.276 OF 2008 APPEAL NO.276 OF 2008 APPEAL NO.276 OF 2008 IN WRIT PETITION NO.2229 OF 2005 Nanik K. Daryanani ... Appellant V/s. Deputy Inspector General of Registration & Deputy Controller of Stamps (Enforcement) Mumbai & Ors. ... Respondents Mr.H.J. Thakkar i/b Mr.M.R. Dhameja for Appellant Mr.N.P. Pandit, AGP, for Respondents CORAM: S.B. MHASE & S.B. MHASE & S.B. MHASE & SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, JJ. MHATRE, JJ. MHATRE, JJ. DATED: JULY 8, 2008 JULY 8, 2008 JULY 8, 2008 P.C.: P.C.: P.C.: . Heard. The order passed in Writ Petition No.2229 of 2005 dated 19.3.2008 is under challenge. the petitioner - appellant has entered into an Memorandum of Understanding (for short, ‘MoU’) dated 29.12.1995 as a vendee as shown in the document at exhibit A page 25 of the Appeal. Clause (a) of the MoU states "by MoU dated 30.3.1995 executed between Aditya Construction and Developers Pvt. Ltd., the Developers thereof and the Vendors herein as Purchasers thereof, the Vendors have agreed to purchase and the said Developers have agreed to sell office premises No.91 and 92 aggregating in all 9100 sq.ft. (carpet area) on the 9th floor of proposed Commercial Complex to be known as "DYNAMIX TOWER" at : 2 : Gen. A.K. Vaidya Marg, Goregaon (East), Bombay - 400 063 for a total consideration of Rs.5,89,75,000/- on certain terms and conditions more particularly described in the said Memorandum of Understanding". Thus, by this agreement, the parties have decided to purchase the property in question under certain terms and conditions. Condition No.1 of the scheme provides (a) Rs.2 crores to be paid on or before execution of the presents wherein the vendors admitted the receipt thereof and (b) Rs.88 lacs to be paid on possession. Thus, reading these two clauses together, it becomes clear that the possession, though not given on the date of MoU, is to be given at any moment on payment of Rs.88 lacs. 2. Thus, it was agreed to transfer to the purchaser after the execution of the MoU and before a final deed was executed. The explanation 1 of the Entry 25 of Schedule 1 of the Bombay Stamp Act of 1958 is as under: "Explanation I. - For the purposes of this article, wherein 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 of execution, or after the execution of, such agreement, then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly. ...... : 3 : 3. According to us, the document executed by the appellant falls within the category of delivery and possession after the execution of the agreement and, therefore, it is a conveyance. The learned Counsel tried to submit that the clause in respect of the delivery and possession on payment of Rs.88 lacs is not about the possession but is about the scheme of payment. With great respect to the learned counsel, we do not find any merit in the said submission. It is a composite clause showing a payment and act of delivery and possession and, therefore, the said clause will operate after the execution of the MoU and, therefore, covered by the above entry in the Stamp Act. 4. The learned Counsel secondly raised the contention that the document was not produced before the Controller of Stamps but it was produced before the Income Tax authorities for getting certain certificate as stated in the MoU. On that basis, the certificate has been obtained. On production of such a stamp when it came to the knowledge of the Controller, he has taken a search of the document and has proceeded to issue notices and thereafter levying stamp duty. We do not find any fault in this. Apart from this, the stamp duty is recoverable on the date the document is executed. The appellant instead of placing the document for registration simply tried to suppress it from the : 4 : authorities and thus, thereby caused a revenue loss to the Government. Thirdly, the learned counsel submitted that they have cancelled the agreement by another document and, therefore, the appellant need not pay the stamp duty. Though the argument is attractive it fallacious. The stamp duty is payable on execution of the document and, therefore, even if subsequently the document is cancelled it cannot be a ground to avoid stamp duty. In law if his case is covered under section 47 for refund of the amount, that remedy is open to the appellant. Instead of following that remedy the appellant has pursued this matter for not payment of stamp duty, by a process which is not contemplated by law. 5. We refrain from entertaining the appeal. Appeal is, therefore, summarily dismissed. (NISHITA MHATRE, J.) (S.B. MHASE, J.)